Legislators should examine law on life-support removal

THE ISSUE A prominent bioethics professor says Hawaii's law concerning the removal of feeding tubes from incapacitated patients is unconstitutional.

HAWAII'S law regarding the removal of life-support systems from incapacitated or brain-dead patients might have become out of step with legal requirements 16 years ago but has not been changed. Next year's Legislature should examine the statute and perhaps clarify it to avoid the possibility of a heart-wrenching family battle sometime in the future.

Arthur Caplan, chairman of the Department of Medical Ethics and director of the Center for Bioethics at the University of Pennsylvania, says he believes Hawaii's law is unconstitutional. The U.S. Supreme Court ruled in 1990 that a competent person has a "constitutionally protected liberty interest in refusing unwanted medical treatment."

The court's decision came in the case of Nancy Cruzan, in a vegetative state from injuries she received in an automobile accident in 1983. It ruled that "a state may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state." Later that year, the Missouri Supreme Court determined that the family had met that standard, and life support was removed.

The Supreme Court refused last year to intervene in the case of Terri Schiavo in Florida, which has a similar law. Lower courts had determined that the evidence of her desire to have tubes removed had been clear and convincing, and Schiavo died after a feeding tube was removed.

According to Hawaii law, a surrogate chosen by a consensus of "interested persons" can make health-care decisions "based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient's best interest."

That includes removal of life support only when the primary physician and an independent physician decide that "continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future."

James Pietsch, director of the University of Hawaii Elder Law Program, says he has been hoping that the Legislature would clarify whether that means the patient is in a persistent vegetative state or an irreversible coma. He agrees with Caplan that the law might be unconstitutional "in limited circumstances."

Regardless of the law's possible unconstitutionality, Caplan and Pietsch emphasize that people should prepare living wills that include their wishes about whether extraordinary life-support measures should be used in case they are incapacitated.