Could a Maryland patient refuse a feeding tube, and who could decide when the patient lacked capacity?
Apply this to your situation
This page answers the general question as of 1988. Ezel answers yours: what it means for your facts, under current Maryland law, with citations.
MD AG Opinion 73-162: Who could refuse tube feeding?
Plain-English summary
In 1988, Maryland's Office on Aging asked whether a person could direct that artificially administered nutrition and hydration not be used if the person later became terminally ill or permanently unconscious. It also asked who could decide when a patient lacked capacity and had left no legally effective instruction.
The Attorney General concluded that a competent adult's constitutional and common-law rights of bodily integrity and informed consent included the right to refuse a feeding tube or other artificial means of providing nutrition and hydration. The opinion treated stopping treatment and declining to begin it as legally equivalent.
A person could state the choice directly to an attending physician. A medical durable power of attorney could give specific instructions or appoint another person to decide. A living will could also address the issue, but the opinion drew a distinction under the 1988 Living Will Law: a general direction to withhold "life-sustaining procedures" was not enough by itself to withhold food and water, while an express instruction about artificially administered sustenance could be effective.
When the patient lacked capacity, the opinion favored substituted judgment, meaning the decision the patient would have made. If the patient's wishes could not be determined and the patient was terminally ill, a surrogate could consider the patient's best interest. A guardian could consent to treatment, but the opinion said withholding or withdrawing life-sustaining treatment required court authorization because it involved a substantial risk to life.
For a terminally ill patient without a guardian or advance instruction, the opinion recognized family decisionmaking without a court case when physicians agreed that forgoing treatment was medically proper, a close family member applied the patient's wishes or best interest, no family member objected, and any applicable hospital advisory process did not advise against the decision.
The opinion took a more restrictive view for a nonterminal patient who was permanently unconscious and had left no direct instruction or medical power of attorney. It concluded that ending artificially administered sustenance in that situation required court approval.
The opinion also addressed nursing homes and hospitals. It concluded that a nursing home could not discharge or transfer a patient solely because the patient or surrogate refused artificially administered sustenance. A hospital could not do so when discharge or transfer would impose an undue burden on the patient.
Currency note
This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
What the opinion said for affected groups in 1988
Competent patients
The opinion recognized a right to refuse insertion or continued use of a feeding tube. It said a patient could communicate the decision directly to an attending physician or place it in a specific advance instruction.
People preparing advance instructions
The opinion distinguished a specific direction about artificially administered sustenance from the model living will's general treatment language. It also recognized the medical durable power of attorney as a way to state the principal's choice or authorize an agent to decide.
Family members of terminally ill patients
A close family member could make the decision without court proceedings only under the opinion's listed conditions, including physician agreement, use of the patient's wishes or best interest, and no family disagreement.
Guardians and families of permanently unconscious patients
A guardian needed court authorization to withhold or withdraw life-sustaining treatment. For a permanently unconscious patient who was not terminally ill and had left no controlling instruction, the opinion also required court approval before family-directed withdrawal.
Hospitals and nursing homes
Facilities could not force treatment over a valid refusal. The opinion treated nursing-home discharge as limited by statute and hospital transfer as limited when it would unfairly burden the patient.
Common questions
Did the opinion recognize a right to refuse a feeding tube?
Yes. It concluded that the right to bodily integrity and informed refusal covered artificially administered nutrition and hydration.
Did a patient need a formal document?
No. The opinion said a competent patient could tell the attending physician, who should document the instruction. A written directive made the choice easier to prove after the patient lost capacity.
Was a general living will enough to stop tube feeding?
Not under the opinion's reading of the 1988 statute. A model declaration referring generally to life-sustaining procedures did not itself decide the feeding-tube question. The instruction needed to address artificially administered sustenance specifically.
Could a medical durable power of attorney cover the decision?
Yes. The opinion said the document could give specific treatment instructions or authorize an agent to make medical decisions after incapacity.
Could family members decide without going to court?
For a terminally ill patient, the opinion allowed that process when physicians agreed, a close family member applied the patient's wishes or best interest, no family member disagreed, and the applicable advisory process did not oppose the decision. It did not extend that rule to every patient lacking capacity.
What if the patient was permanently unconscious but not terminally ill?
If the patient had not personally decided and had not given decisionmaking authority through a medical durable power of attorney, the opinion required court approval before ending artificially administered sustenance.
Could a facility transfer a patient for refusing tube feeding?
The opinion said a nursing home could not discharge or transfer the patient for that reason alone. A hospital could not do so if the move would impose an undue burden on the patient.
Background and legal framework
The opinion grounded patient choice in common-law bodily integrity and informed consent. Sard v. Hardy stated that a physician could not substitute the physician's judgment for the patient's choice. The opinion also drew on decisions from other states recognizing privacy and self-determination interests in refusing life-sustaining treatment.
Under the 1988 Living Will Law, HG §5-602(a) authorized a competent adult to direct the withholding or withdrawal of life-sustaining procedures. HG §5-605(1) protected food and water from being withheld solely under a general declaration, while HG §5-610(1) preserved other legal rights concerning life-sustaining treatment. The opinion harmonized those provisions by recognizing a specific instruction about artificial sustenance while declining to infer one from the model form.
ET §13-601 authorized durable powers of attorney, and the opinion read related Health-General provisions as confirming their use for medical decisions. ET §13-708(b)(8) authorized a guardian to consent to medical care but required court involvement for a decision creating a substantial risk to life.
HG §20-107(d) allowed listed family members to give substituted consent for furnishing treatment to a disabled individual. The opinion concluded that the statute authorized consent to treatment but did not itself authorize refusal of life-sustaining treatment. It instead found a common-law family process for terminally ill patients under defined conditions.
The opinion's treatment of institutional policy relied on informed consent, the Nursing Home Patient's Bill of Rights, statutory limits on involuntary nursing-home transfer, and contract principles limiting unfair admission terms.
Citations and references
Statutes:
- HG §5-602(a), living-will declaration
- HG §5-605(1), food, water, comfort care, and pain relief
- HG §5-610(1), preservation of other legal rights concerning life-sustaining procedures
- ET §13-601, durable power of attorney
- HG §20-107(d), substituted consent by listed family members
- ET §13-708(b)(8), guardian authority over medical care and court approval for substantial risk to life
Cases:
- Sard v. Hardy, 281 Md. 432, 440, 379 A.2d 1014 (1977), patient choice and informed consent
- In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), surrogate assertion of an incapacitated patient's treatment right
- Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 426-27 (1977), treatment refusal for a patient lacking capacity
- In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), artificial feeding and surrogate standards
- Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 682 (1987), constitutional privacy and refusal of treatment
- In re Jobes, 108 N.J. 394, 529 A.2d 434, 445 (1987), family knowledge and substituted judgment
Source
- Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
- Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf
Original opinion text
162 [73 Op. Att’y
HEALTH CARE
Medical Treatment — Informed Consent — Life-Sustaining
Procedures — Artificially Administered Sustenance—Living
Will Law — Durable Power of Attorney — Surrogate
Decisionmaking.
October 17, 1988
The Honorable Rosalie S. Abrams
Director, Office on Aging
This opinion addresses the effect of Maryland law on one of the
dilemmas presented by modem medicine: whether to forgo artificially
administered sustenance — that is, the use of devices that supply
nutrients and liquids through a tube inserted into the body — when
a person is terminally ill or permanently unconscious.
These decisions are forged out of personal emotions, medical and
ethical judgments, and religious beliefs. No opinion of the Attorney
General can really go to the heart of the matter. What we can do,
however, is to make clear how the law affects this most private and
deeply felt of decisions.
You ask whether a person with the capacity to decide about medical
treatment has a legal right to instruct that artificially administered
sustenance is not to be used if the person becomes terminally ill or
permanently unconscious. You also ask about decisionmaking on behalf
of a person who lacks the capacity to decide about medical treatment
and has not previously rendered a legally effective instruction about
tube feeding.
As your letter requesting this opinion points out, “the Office on
Aging regularly receives questions related to the withholding of
artificial nutrition. [The Attorney General’s] assessment of the legal
situation would not only benefit the Office on Aging in carrying out
its responsibilities but also would inform the patients, family members,
physicians and other health care professionals who must face deci-
sions about artificial nutrition every day in the hospitals and nursing
homes of this state.”
Addressing these issues has required an opinion of unusual length,
the conclusions of which cannot be summarized in a sentence or two.
In an effort to be as clear as we can, we shall summarize our main
conclusions in a series of specific questions and answers:
Gen. 162] 163
- What is the scope of the opinion? What types of situations does
it deal with?
The opinion addresses decisions to refuse insertion or continued
maintenance of a feeding tube when a patient is terminally ill or per-
manently unconscious. We are not stating any conclusions about
patients who are badly debilitated but not yet terminal, except to say
that if such a patient has not personally decided the question, artifi-
cially administered sustenance may not be withheld without court
approval. See pages 167-69.
As we explain in detail on pages 168-69 below, the permanently
unconscious are those who have irretrievably lost all awareness of self
or environment. This category does not include those who are men-
tally retarded or who have other mental or emotional handicaps, even
severe ones. We caution against unwarranted extension of this opinion
to situations that it does not address.1 - Does a person with the capacity to decide about medical treat-
ment choices have a legal right to instruct that artificially administered
sustenance not be used when the person is terminally ill or per-
manently unconscious?
Yes. Every individual has a constitutional and common law right
to make that choice. See pages 170-75.- Does that decision have to be stated in a formal document?
No. A competent person may simply tell his or her attending physi-
cian of the decision. See page 185. But advance written instructions
assure that the person’s wishes will be known even if the person later
becomes disabled.
- Does that decision have to be stated in a formal document?
- May a person set out a decision about artificially administered
sustenance in a living will?
Yes. A person may set out instructions about artificially
administered sustenance in a living will. If the person writes a living
will that follows the model in the statute and that therefore calls only
generally for the withholding of “life-sustaining procedures,” that
person’s living will is not sufficient to direct the withholding of
artificially administered sustenance. But if the person so chooses, he
or she may incorporate in a living will an express, specific directive
1
This opinion also does not address the special problems of ending life-sustaining treat-
ment for infants. See Child Abuse Amendments of 198U, Pub. L. No. 98-457, Title I,
Part B, 98 Stat. 1752; 45 C.F.R. §1340.15.
164 [73 Op. Att’y
that artificially administered sustenance is not to be used when the
person is terminally ill. See pages 180-83.
- May a person set out a decision about artificially administered
sustenance in a medical durable power of attorney?
Yes. A person may specify the conditions under which artificially
administered sustenance is to be used or not used, or the person may
delegate to some other person the power to make that decision. See
pages 183-85. - If a person lacks the capacity to decide about artificially
administered sustenance and had not previously written a living will
or medical durable power of attorney, does the person have a right
to have someone else make that treatment decision?
Yes. A person’s constitutional and common law right to decide is
not forfeited simply because the person is unable to make the deci-
sion personally. See pages 175-78. - On what basis is the decision about artificially administered
sustenance for that disabled person to be made?
In every case, the decisionmaker should first seek to do what the
disabled person would want done under the circumstances. In the case
of terminally ill patients, if there is no way to know that, the deci-
sionmaker should decide on the basis of the disabled person’s best
interest. See pages 186-90. -
Who makes the decision for that disabled person?
If there is a guardian of the person, the guardian may authorize
artificially administered sustenance or, with court approval, may direct
the withholding or withdrawal of such sustenance. See pages 190-92.
If there is no guardian, a close family member may consent to
artificially administered sustenance under the substituted consent
procedures of §20-107 of the Health-General Article (“HG” Article).
HG §20-107 does not apply to decisions to forgo treatment. See pages
192-95. Nevertheless, a close family member may decide that artifi-
cially administered sustenance is to be withheld or withdrawn,
without court proceedings, if all of the following conditions are met:
(i) the person is both disabled and terminally ill;(ii) the attending physicians agree that forgoing treatment is
medically proper;(iii) the family member determines that forgoing treatment is
what the disabled person would want done or, if that is unknown, is
Gen. 162] 165
in the person’s best interest;
(iv) no other family member disagrees with the decision; and
(v) when applicable, the hospital’s patient care advisory commit-
tee has not advised against forgoing treatment. See pages 196-99.
- May a family member make a comparable decision to end artifi-
cially administered sustenance of a permanently unconscious person
who has not already made a personal decision on the question?
No. Ordinarily, a family’s judgment about what the patient would
want is entitled to the greatest respect. Nevertheless, the need to
protect those who are not terminally ill against premature or wrongly
motivated decisions to end life-sustaining treatment means that a
surrogate’s decision to end artificially administered sustenance of a
permanently unconscious person must be approved by a court. See
pages 199-201. - Does the Nursing Home Patient’s Bill of Rights, HG §19-344,
authorize a surrogate decisionmaker to refuse artificially administered
sustenance on behalf of a disabled resident of a nursing home?
No. The Nursing Home Patient’s Bill of Rights does not authorize
a surrogate to refuse medical treatment for a nursing home resident.
See pages 201-02.- May a nursing home or hospital discharge or transfer a patient
if the patient’s (or surrogate’s) decision to refuse artificially admin-
istered sustenance conflicts with the nursing home’s or hospital’s
policy that it will not withhold such sustenance?
A nursing home may not discharge or transfer a patient for this
reason alone. A hospital may discharge or transfer a patient for this
reason alone only if doing so would not impose an undue burden on
the patient. See pages 202-06.
After discussing the medical background, the scope of the opinion,
and the reasons why we are writing it (Part I), we turn to an analysis
of the common law and constitutional rights of individuals to make
their own medical treatment decisions (Part II), including the right
to decide about artificially administered sustenance (Part III). Then
we consider the ways in which a competent person may express a deci-
sion about artificially administered sustenance: in a living will (Part
IV), in a durable power of attorney (Part V), and by direct instruc-
tions to a physician (Part VI). Next we treat the special problem of
decisionmaking on behalf of persons who have not decided themselves
and who, at the time the decision needs to be made, lack decision-
making capacity (Parts VII, VIII, and IX). Then we assess medical
- May a nursing home or hospital discharge or transfer a patient
166 [73 Op. Att’y
decisionmaking under the Nursing Home Patient’s Bill of Rights
(Part X) and limitations on the power of nursing homes and hospitals
to enforce policies requiring the use of artificially administered
sustenance (Part XI). Finally, we look briefly at pertinent regulatory
requirements (Part XII).
I
Background
A. Artificially Administered Sustenance
Physiological problems prevent many patients from adequately
fulfilling their need for nutrition and hydration. Strokes, neuro-
muscular disorders, or cancers of the mouth or throat might result
in an inability to swallow; tumors, scarring, or other obstructions
might block the gastrointestinal tract; toxic substances or neurologic
malfunctions might cause the gastrointestinal tract to fail; and en-
zymes and other factors necessary to absorb nutrients in the intestines
might be inadequate. In addition, a patient might choose not to eat
for psychological reasons. Major, The Medical Procedures for Pro-
viding Food and Water: Indications and Effects, (“Medical
Procedures”) in By No Extraordinary Means, The Choice To Forgo
Life-Sustaining Food And Water 21 (J. Lynn ed., 1986).
Various medical techniques, generally divided into “enteral” and
“parenteral” procedures, are used to provide food and water. Enteral
procedures are those in which nutritional formulas and water are
introduced into the patient’s stomach or intestine by means of a tube,
such as a nasogastric (“NG”) tube or a gastrostomy tube. The
Hastings Center, Guidelines On The Termination Of Life-Sustaining
Treatment And The Care Of The Dying 140 (1987) (“Hastings Center
Guidelines”).2 A nasogastric feeding tube is inserted into the nose,
through the posterior pharynx and esophagus and into the stomach.
A gastrostomy feeding tube is inserted through the abdominal wall
2
The Hastings Center devotes itself to the research of ethical problems in medicine,
biology, and the life sciences.
Gen. 162] 167
directly into the stomach by a simple surgical procedure. Medical
Procedures at 25-26.3
An NG tube can be irritating to the nose. It can cause vomiting
and aspiration, possibly resulting in a serious aspiration pneumonia.
Because an NG tube can be irritating, many patients must be restrain-
ed to prevent them from removing the tubes. In some nursing homes,
patients on NG tubes have their hands encased in boxing gloves or
their arms strapped to the bed. A gastrostomy tube will not cause
the nasal, pharyngeal, and esophageal irritation common to the NG
tube, although complications from the surgery necessary for inser-
tion can occur. Id.
Parenteral nutritional procedures are those in which nutritional
formulas and water are introduced into the patient’s body by means
other than the gastrointestinal tract. Those procedures include total
parenteral nutritional support, in which a formula capable of main-
taining the patient for prolonged periods of time is infused in a vein,
usually a large central vein in the patient’s chest; and intravenous
procedures, in which water and a nutritional formula are introduced
into a peripheral vein. See Hastings Center Guidelines at 140-41.
Medical complications can arise from the surgical technique by which
intravenous feeding catheters are introduced and from the use of the
feeding solutions.
B. Scope of Opinion
Your questions and this opinion address the use of artificially
administered sustenance for persons in two medical conditions: the
terminally ill and the permanently unconscious. In a few respects, the
different medical conditions require different legal responses.
By “terminally ill,” we refer to a condition defined as follows in
HG §5-601(g), part of the Living Will Law:
“Ibrminal condition” means an incurable condition of a
patient caused by injury, disease or illness which, to a
reasonable degree of medical certainty, makes death immi-
nent and from which, despite the application of life-sustaining
procedures, there can be no recovery.
3
In addition to the often used NG and gastrostomy tubes, another enteral procedure
becoming more common is the jejunostomy tube, which is inserted through the ab-
domen into the small intestine. See U.S. Congress, Office of Tfechnology Assessment,
Life-Sustaining Technologies and the Elderly, 282 (1987).
168 [73 Op. Att’y
In this definition, the General Assembly recognized that the time
at which a person’s death is both inevitable and “imminent” ought
to be identified by the doctors treating a particular patient, not by
some arbitrary time limit in the statute. As one court observed, when
construing the phrase “imminent danger of death”: “Imminent means
close in point of time, but closeness is likewise a term of many degrees,
according to the circumstances.” State Dep’t of Human Serv. v.
Northern, 563 S.W.2d 197 (Tfenn. App. 1978). The Tennessee appellate
court found that if death would likely occur sometime during a
patient’s hospitalization, albeit not necessarily immediately, death was
“imminent” for purposes of an emergency treatment statute. 563
S.W.2d at 205 and 209. Similarly, a trial court in Virginia, rejecting
the contention that “imminent” could only describe a death likely to
occur within hours, suggested that a person “within a few months
of death” faced “imminent” death. Hazelton v. Powhatan Nursing
Home, Inc., 6 Va. Cir. 414, 417 (Cir. Ct. Fairfax County 1986). See
Black’s Law Dictionary 676 (5th ed. 1979) (“imminent” means “near
at hand, mediate rather than immediate, close rather than touching,
impending, on the point of happening, threatening, menacing,
perilous”).
This opinion does not address the forgoing of life-sustaining treat-
ment for severely debilitated patients, including those with advanced
Alzheimer’s Disease, who are not terminally ill. For some of these
patients, we recognize, the point at which death becomes imminent
is not a sharply defined event. But the difficulty of linedrawing does
not absolve us from doing so.
At present, we are unable to offer guidance about forgoing artifi-
cially administered sustenance for patients who are severely
debilitated, not capable of making their own medical choices, but not
yet terminally ill.4 We can only counsel that those seeking to refuse
this form of treatment on behalf of such patients may do so only with
court approval.
Our opinion does address, however, one category of patients who
are not terminally ill, about whom much case law has developed — the
4
Tb be sure, our analysis of a person’s right while competent to decide whether to ac-
cept treatment or not is pertinent for these patients as well. See In re Westchester
County Medical Center, 532 N.Y.S.2d 133 (App. Div. 1988) (artificially administered
sustenance may be withheld from severely debilitated patient if there is clear and con-
vincing evidence of patient’s decision to refuse, made when competent). Moreover, one
case holds that, under some circumstances, stopping artificially administered sustenance
might be in the best interest of such a patient. In re Conroy, 98 N.J. 321, 486 A.2d
1209 (1985).
Gen. 162] 169
permanently unconscious. For these patients, who are sometimes
described as being in an irreversible coma or a persistent vegetative
state, “all possible components of mental life are absent — all thought,
feeling, sensation, desire, emotion, and awareness of self or environ-
ment Only vegetative functions and reflexes persist.” President’s
Commission for the Study of Ethical Problems in Medicine and
Biomedical Behavioral Research, Deciding To Forego Life-Sustaining
Treatment 174-75 (1983) (“President’s Commission Report”).5 Accord-
ing to the American Academy of Neurology, they “do not have the
capacity to experience pain or suffering.” American Academy of
Neurology, Position of the American Academy of Neurology on Cer-
tain Aspects of the Care and Management of the Persistent Vegetative
State Patient at 1 (1988). These patients are permanently unconscious
and yet may stay alive for an indefinite period of time because their
basic metabolic functions continue.6
C. Current Legal Uncertainty
Your request for this opinion arises out of your concern that
families, physicians, and institutional administrators are making deci-
sions against a background of legal confusion. Some believe that the
Living Will Law prohibits the withholding or cessation of artificially
administered sustenance under any circumstances. Others question
whether a medical durable power of attorney is a proper means to
state a person’s decision to forgo artificially administered sustenance.
On the question of surrogate decisionmaking, the uncertainty is even
worse. There is sharp disagreement over whether HG §20-107, the
substituted consent procedure, authorizes a decision to withhold ar-
tificially administered sustenance. Moreover, some nursing home ad-
ministrators view HG §19-344(q), which authorizes certain individuals
and entities to exercise the rights of disabled nursing home patients,
as a basis for substituted decisionmaking about medical treatment,
5
This commission was created by Congress in 1978 to study the ethical and legal im-
plications of questions concerning medical and biomedical or behavioral research. See
42 U.S.C. §300V. The President’s Commission believes that the term “permanent loss
of consciousness” is more accurate and comprehensive than “coma” or “persistent
vegetative state,” terms often used in the cases and medical literature. See President’s
Commission Report at 174-75.
6
Permanent unconsciousness is different from the “[ijrreversible cessation of all func-
tions of the entire brain, including the brain stem,” which is a basis for a determina-
tion that the person is dead. HG §5-202(aX2).
170 [73 Op. Att’y
including artificially administered sustenance. In this opinion, we will
try to clarify what current law allows and what it does not.
II
The Right Tb Make Medical Treatment Choices
A. Competent Persons
We begin with a basic societal concept, long recognized in the com-
mon law — the right of an individual to safeguard the integrity of
his or her own body.7 The Supreme Court endorsed this concept of
self-determination in Union Pacific Railroad Co. v. Botsford, 141 U.S.
250, 251 (1891):
No right is held more sacred or is more carefully guarded
by the common law than the right of every individual to the
possession and control of his own person, free from all
restraints or interference by others, unless by clear and un-
questionable authority of law.
Applying this common law doctrine to medical decisionmaking, then-
Judge Cardozo wrote what has since become a maxim: “Every human
being of adult years and sound mind has the right to determine what
shall be done with his own body; and a surgeon who performs an
operation without his patient’s consent commits an assault for which
he is liable in damages.” Schloendorff v. Society of New York Hospital,
211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).8
7 See Mercy Hospital, Inc. v. Jackson, 62 Md. App. 409,418,489 A.2d 1130,1134 (1986),
vacated as moot, 306 Md. 556, 510 A.2d 562 (1986). Although the decision of the Court
of Special Appeals is not true precedent, because it was vacated, we cite it in this opinion
for the value of its reasoning. See also, e.g., Time v. Walter Reed Army Medical Hospital,
602 F.Supp. 1452, 1455 (D.D.C. 1985); Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d
674, 683 (1987); Barber v. Superior Court of California, 147 Cal. App. 3d 1006, 195
Cal. Rptr. 484, 489 (1983); Foody v. Manchester Memorial Hospital, 40 Conn. Supp.
127, 482 A.2d 713, 718 (1984).
8
In Maryland, a physician’s failure to obtain the informed consent of his or her patient
prior to performing an operation or treatment gives rise to a tort action for negligence.
See Sard v. Hardy, 281 Md. 432, 440 n.4, 379 A.2d 1014 (1977); Zeller v. Baltimore
Medical Center, 67 Md. App. 75, 81-82, 506 A.2d 646 (1986); Accord, Leach v. Shapiro,
73 Ohio App. 3d 393, 469 N.E. 2d 1047,1055 (1984) (claim for relief exists where treat-
ment is administered without consent and causes pain and suffering).
Gen. 162] 171
In recognition of the common law right of self-determination and
its modern offspring, the doctrine of informed consent, the Maryland
Court of Appeals has held that “[t]he law does not allow a physician
to substitute his judgment for that of the patient in the matter of
consent to treatment.” Sard v. Hardy, 281 Md. 432,440,379 A.2d 1014
(1977). The patient’s right to bodily integrity would mean little unless
the right to informed consent included the right to informed refusal
as well:
[T]he value of patient autonomy or self-determination ...
establishes the right of the patient to determine the nature
of his or her own medical care. This value reflects our society’s
long-standing tradition of recognizing the unique worth of the
individual. We respect human dignity by granting individuals
the freedom to make choices in accordance with their own
values. The principle of autonomy is the moral basis for the
legal doctrine of informed consent, which includes the right
of informed refusal.
Hastings Center Guidelines at 7. The right of informed consent en-
compasses both the right of a competent adult person to consent to,
or to decline, the initiation or continuation of treatment.9
We perceive no legal or public policy justification for distinguishing
between the initiation and the continuation of treatment. As the New
Jersey Supreme Court explained:
This distinction [between initiating and withdrawing life-
sustaining treatment] is more psychologically compelling than
logically sound The line between active and passive con-
duct in the context of medical decisions is far too nebulous
to constitute a principled basis for decisionmaking. Whether
necessary treatment is withheld at the outset or withdrawn
later on, the consequence — the patient’s death — is the same.
Moreover, from a policy standpoint, it might well be unwise
to forbid persons from discontinuing a treatment under cir-
cumstances in which the treatment could permissibly be
9
See, e.g., Rasmussen v. Fleming, 741 P.2d at 683; Barber v. Superior Court of Califor-
nia, 196 Cal. Rptr. at 489; Foody v. Manchester Memorial Hospital, 482 A.2d at 718;
Satz v. Perlmutter, 362 So. 2d 160, 162 (Fla. Dist. Ct. App. 1978), approved, 379 So.
2d 369 (Fla. 1980); Mercy Hospital, Inc. v. Jackson, 62 Md. App. at 418; In re Farrell,
108 N.J. 335,529 A.2d 404, 410 (1987). One Maryland statute codifies this common law
right as part of the Nursing Home Patient’s Bill of Rights. See HG §19-344(fXlXii),
discussed further at page 203 below.
172 [73 Op. Att’y
withheld. Such a rule could discourage families and doctors
from even attempting certain types of care and could thereby
force them into hasty and premature decisions to allow a
patient to die.
In re Conroy, 98 N.J. 321, 486 A.2d. at 1234 (1985). See also Presi-
dent’s Commission Report at 75.
In addition to the common law underpinnings that support the right
of a competent person to refuse medical treatment, the constitutional
right to privacy affords a strong basis for asserting dominion over
one’s bodily integrity. Although the Supreme Court has not held that
the United States Constitution encompasses the right to refuse
medical treatment, numerous state courts have concluded that the
constitutional right to privacy is broad enough to encompass the com-
petent person’s right to make his or her own medical decisions,
including the decision to forego life-sustaining treatment.10 State
courts recognizing this right have relied on prior pronouncements by
the Supreme Court concerning the right to privacy.11 Citing as author-
ity eleven appellate court decisions from around the country, the
Arizona Supreme Court recently held as follows: “The right to refuse
medical treatment is a personal right sufficiently ‘fundamental’ or
‘implicit in the concept of ordered liberty’ to fall within the constitu-
tionally protected zone of privacy contemplated by the Supreme
Court.” Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 682 (1987).
The right to refuse treatment, whether emanating from the con-
stitutional right to privacy or premised on the common law doctrine
of self-determination, is not absolute, however.12 Courts have
10
See, e.g., Rasmussen v. Fleming, 741 P.2d at 681; In re Sevems, 425 A.2d 156, 158
(Del. 1980); John F. Kennedy Memorial Hospital v. Bludworth, 452 So. 2d 921, 924
(Fla. 1984); In re Farrell, 529 A.2d at 410; In re Quinlan, 70 N.J. 10, 355 A.2d 647,
662-63 (1976). Some courts have also held that the right to refuse treatment is pro-
tected by state constitutional law. See, e.g., Rasmussen v. Fleming, 741 P.2d at 682;
In re Quinlan, 355 A.2d at 663.
11
See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (abortion); Eisenstadt v. Baird, 405 U.S.
438 (1972) (contraception); Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception).
Although the constitutional right of privacy is not limitless, see Bowers v. Hardmck,
478 U.S. 186, 190-91 (1986) (excludes homosexual sodomy), the right to refuse medical
treatment entails matters of autonomy and physical integrity similar to the decisions
protected by prior Supreme Court decisions. See Merritt, Equality for the Elderly
Incompetent: A Proposal for Dignified Death, 39 Stan. L. Rev. 689, 700 n.71 (1987).
12
Our general discussion of the right to refuse treatment is not intended to encom-
pass refusals of medication by a person committed to an inpatient psychiatric
continued
Gen. 162] 173
recognized four state interests that might outweigh an individual’s
right to refuse treatment.13 These interests are: the preservation of
life; the prevention of suicide; the protection of the interests of inno-
cent third parties; and the maintenance of the ethical integrity of the
medical profession. But as far as we know, no court has found these
interests sufficient in an actual case to override the right of a compe-
tent, terminally ill patient to refuse life-sustaining treatment.
One federal district court aptly explained why the state’s general
interest in the preservation of life must yield to the choice of a per-
son who is about to die:
[W]hile preservation of life in the abstract is no doubt a
transcendant goal for any society which values human life,
the State’s interest in maintaining life must defer to the right
to refuse treatment of a competent, emotionally stable, but
terminally ill adult whose death is imminent and who is,
therefore, the best, indeed, the only, true judge of how such
life as remains to him may best be spent.
Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452,
1455-56 (D.D.C. 1985). See also, e.g., Satz v. Perlmutter, 379 So. 2d 359,
360 (Fla. 1980).
Courts have also unanimously rejected the notion that the state
interest in the prevention of suicide—which is really just a specific
application of the state’s more general interest in the preservation
of life—would warrant placing a limitation on the right of a compe-
tent, terminally ill patient to refuse medical treatment. As a legal mat-
ter, “suicide is not involved when permission is not being sought to
terminate a healthy life by artificial, self-induced means, but merely
to allow nature to take its course.” Tune, 602 F. Supp. at 1455 n.8!4
Note 12 continued
facility. This specific problem is addressed by HG §10-708. See generally Johnson v.
Silver, 742 F.2d 823 (4th Cir. 1984).
13
See, e.g., Tune v. Walter Reed Army Medical Hospital, 602 F.Supp. at 1455;
Rasmussen v. Fleming, 741 P.2d at 683; John F. Kennedy Hospital v. Bludworth, 452
So. 2d at 924; Mercy Hospital, Inc. v. Jackson, 62 Md. App. at 415; In re Farrell, 529
A.2d at 410-11.
14
Accord, Bartling v. Superior Court of the State of California, 163 Cal. App. 3d 186,
209 Cal. Rptr. 220, 225-26 (1984); Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 426 n.ll (1977)
174 [73 Op. Att’y
The third interest, the rights of innocent third parties, has been
limited to situations in which the interests of the patient’s dependents
may be adversely affected. “The State’s interest may well be superior
to an adult’s right of self-determination when the exercise of that right
deprives dependents of a source of support and care.” Delia v.
Westchester County Med. Center, 129 A.D.2d 1,516 N.Y.S.2d 677,693
(App. Div. 1987) (citations omitted). See Application of the President
and Directors of Georgetoum College, Inc., 331 F.2d 1000, 1008 (D.C.
Cir. 1964) (court authorized unconsented blood transfusion partly on
basis of state’s interest in not allowing patient to abandon her seven-
month old child).15 This state interest does not arise, however, if the
patient has no dependents. Rasmussen v. Fleming, 741 P.2d at 685;
Delio v. Westchester County Med. Center, 516 N.Y.S.2d at 693. For
a terminally ill patient, moreover, the state’s interest is diminished
even if the patient does have a dependent. That is, a patient who is
not terminally ill will be in a position to care for a dependent after
receiving treatment. By contrast, no such outcome is possible for the
terminally ill patient. Under typical circumstances, the state’s interest
in protecting the rights of dependent third parties would not be achiev-
ed by prohibiting the competent, terminally ill patient from refusing
life-sustaining treatment.
Although courts recognize the importance of the fourth state
interest, maintaining the ethical integrity of the medical profession,
no court has held that this interest outweighs the right of a compe-
tent, terminally ill patient to refuse life-sustaining treatment. Ib the
contrary:
The force and impact of this interest is lessened by the
prevailing medical ethical standards Prevailing medical
ethical practice does not, without exception, demand that all
efforts toward life prolongation be made in all circumstances.
Rather ... the prevailing ethical practice seems to be to
recognize that the dying are more often in need of comfort
than treatment. Recognition of the right to refuse necessary
treatment in appropriate circumstances is consistent with
existing medical mores; such a doctrine does not threaten
either the integrity of the medical profession, the proper role
15
In Mercy Hospital, Inc. v. Jackson, 62 Md. App. at 418, the Court of Special Ap-
peals held “that a competent, pregnant adult has the paramount right to refuse a blood
transfusion in accordance with her religious beliefs, where such decision is made know-
ingly and voluntarily and mil not endanger the delivery, survival or support of the
fetus’.’ (Emphasis added.)
Gen. 162] 175
of hospitals in caring for such patients or the State’s interest
in protecting the same. It is not necessary to deny a right
of self-determination to a patient in order to recognize the
interests of doctors, hospitals, and medical personnel in at-
tendance on the patient. Also, if the doctrines of informed
consent and right of privacy have as their foundations the
right to bodily integrity ... and control of one’s own fate, then
those rights are superior to the institutional considerations.
Satz v. Perlmutter, 362 So. 2d 160,163-64 (Fla. Ct. App. 4th Dist. 1978);
Superintendent of Belchertown State School v. Saikewicz, 373 Mass.
728, 370 N.E.2d 417, 426-27 (1977).
In sum, although courts routinely invoke these state interests, the
case law teaches that the balance has already been struck for this
category of patient: The right of a competent, terminally ill patient
to refuse life-sustaining treatment outweighs these state interests,
individually and cumulatively.16 The only state interest that con-
ceivably might be given controlling weight in a particular case is the
protection of dependents.
B. Rights of Disabled Individuals
Disabled individuals, who lack the capacity to make their own treat-
ment decisions, present a more difficult problem. A patient is a “dis-
abled individual,” as defined in the law authorizing certain family
members to consent on the patient’s behalf to medical treatment and
as meant in this opinion, when the patient’s physical or mental condi-
tion is such that the patient “lacks sufficient understanding or capacity
16
In a few cases, courts have addressed the rights of competent patients to refuse life-
sustaining treatment where the patient, although not terminally ill, is suffering from
a debilitating disease. In Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal.
Rptr. 297, 302 (1986), the court held that a 28 year old quadriplegic, suffering from
severe cerebral palsy and severely crippling arthritis, had the right to refuse life-
sustaining treatment, including artificial nutrition and hydration. The Bouvia court
held that “there is no practical or logical reason to limit the exercise of this right to
‘terminal’ patients.” 225 Cal. Rptr. at 302. The court rejected arguments urged by the
hospital, physicians, and administrators that the interests of the state should prevail
over the rights of the patient. Accord, Bartling v. Superior Court, 209 Cal. Rptr. at
220 (competent, non-terminal patient has right to authorize discontinuation of respirator).
176 [73 Op. Att’y
to make or communicate a responsible decision on health care ...”
HG §20-107(a)(2)!7
A person does not come within this description merely because
the person disagrees with a physician’s suggested treatment plan. As
the Court of Appeals held in Sard v. Hardy, “[t]he law does not allow
a physician to substitute his judgment for that of the patient in the
matter of consent to treatment.” 281 Md. at 440. As another court
explained: “[I]t is the patient, not the physician, who ultimately
decides if treatment — any treatment — is to be given at all The
rule has never been qualified in its application by either the nature
or purpose of the treatment, or the gravity of the consequences of
acceding to or foregoing it.” Tune v. Walter Reed Army Medical Hasp.,
602 F. Supp. at 1455.18
17 The complete definition is as follows:
“ ‘Disabled individual’ means an individual who lacks sufficient understanding
or capacity to make or communicate a responsible decision on health care
for the individual because of:
(i) A physical disability;
(ii) Chronic alcoholism;
(iii) Drug addiction;
(iv) A disease; or
(v) A mental disability, including senility.”
A fuller discussion of this law appears at pages 192-95 below. This definition is consis-
tent with that set forth in §13-705(b) of the Estates and Trusts Article, which provides
the grounds for the appointment of a guardian of the person: “A guardian of the per-
son shall be appointed if the court determines from clear and convincing evidence that
a person lacks sufficient understanding or capacity to make or communicate respon-
sible decisions concerning his person, including provisions for health care....”
18
The principle was applied not long ago by the Circuit Court for Baltimore City:
“[The patient] is alert and oriented and demonstrates a basic understanding
of the proposed treatments and the risks and benefits. She has repeatedly
been told the details of the suggested course of treatment and the almost
certain consequences [i.e., death] of failure to proceed with treatment. Her
negative response is a rational one, although contrary to the recommenda-
tion of the medical staff’
In re Cooper, No. 87329035/CE74214 (December 21, 1987) (emphasis added). The case
arose when the Baltimore City Department of Social Services sought appointment of
a guardian after the patient refused to consent to the proposed treatment. According
to expert testimony, without the treatment the probability of death was 90%; with
the treatment, 40%.
Gen. 162] 177
A necessary starting point for ascertaining the rights of the dis-
abled patient is the New Jersey Supreme Court’s analysis in In re
Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Karen Ann Quinlan was “in
a chronic, and persistent vegetative state.” Quinlan, 355 A.2d at 655.
Quinlan’s father, as guardian, sought court authorization to remove
the respirator that was prolonging his daughter’s life. Removing the
respirator, it was thought, would quickly result in her death. The court
approved the father’s request on the condition that Quinlan’s entire
family and attending physician concurred with the decision and that
the hospital ethics committee agreed that there was no “reasonable
possibility of Karen’s ever emerging from her present comatose con-
dition to a cognitive, [sentient] state.” Quinlan, 355 A.2d at 671. The
court reasoned that Quinlan, were she competent and desired to have
the respirator removed, would have a constitutional right to refuse
that treatment, even though it was sustaining her life. 355 A.2d at
- Since she could not express her interest herself, the court per-
mitted Quinlan’s father to assert his daughter’s right to privacy on
her behalf. As the court explained:
If a putative decision by Karen to permit this non-cognitive,
vegetative existence to terminate by natural forces is re-
garded as a valuable incident of her right of privacy as we
believe it to be, then it should not be discarded solely on the
basis that her condition prevents her conscious exercise of
the choice. The only practical way to prevent destruction of
the right is to permit the guardian and family of Karen to
render their best judgment, subject to the qualifications
hereinafter stated, as to whether she would exercise it in
these circumstances.
355 A.2d at 664.
Relying on this analysis, the Supreme Court of Massachusetts held
the next year that there is “a general right in all persons to refuse
medical treatment.... The recognition of that right must extend to
the case of an incompetent, as well as a competent, patient because
the value of human dignity extends to both.” Superintendent of
Belchertoum State School v. Saikewicz, 370 N.E.2d at 427.19
Thus, the courts have recognized that the right to refuse treatment
is as basic a right for the individual lacking decisionmaking capacity
as it is for the competent patient. As the Delaware Supreme Court
19
Accord, Rasmussen v. Fleming, 741 P.2d at 685; John F. Kennedy Memorial Hospital
v. Bludworth, 452 So. 2d at 924.
178 [73 Op. Att’y
wrote of a permanently unconscious patient, “to deny the exercise
of [the right] because the patient is unconscious would be to deny the
right [itself].” Sevems v. Wilmington Medical Center, Inc., 421 A.2d
1334, 1347 (Del. Ch. 1980).20 Moreover, courts have consistently
recognized that a disabled patient, whether terminally ill or per-
manently unconscious, has a right to refuse life-sustaining treatment
that outweighs the state interests discussed at pages 172-75 above.21
Ill
The Right lb Refuse Artificially Administered Sustenance
As discussed at pages 166-67 above, various medical techniques are
used to provide nutrition and hydration artificially. Foregoing these
procedures is controversial. Some regard these techniques as no dif-
ferent in ethical principle than the non-medical means of sustaining
life that must always be provided, for to do otherwise would deprive
patients of the ordinary care all persons are entitled to receive. See,
e.g., Horan & Grant, The Legal Aspects of Withdrawing Nourishment,
5 J. Legal Med. 595, 600-01 (1984); Smith, Hospital Liability §13.03[1]
at 13-32 (1986); Comment, Artificial Nutrition and the Terminally
III; How Should Washington Decide? 61 Wash. L. Rev. 419, 421
(1986).22 Others consider these techniques artificial means that im-
pose benefits in some circumstances but burdens in others and that,
like other medical interventions, ethically may be forgone in some cir-
cumstances. See, e.g., Hastings Center Guidelines at 61 (all enteral
20
See also, Rasmussen v. Fleming, 741 P.2d at 685-86; Barber v. Superior Court of
California, 195 Cal. Rptr. at 484; Foody v. Manchester Memorial Hospital, 482 A.2d
at 718.
21
Explaining why the state’s interest in the preservation of life does not outweigh the
previously expressed wishes of a man who had become permanently unconscious, a
New York court observed that “there is no benefit to the State in prolonging [the
patient’s] existence under circumstances he would have found demeaning and degrading
to his humanity and which would serve merely to lessen the value of his life by deny-
ing him the right to choose the course of his medical treatment.” Delia v. Westchester
Med. Center, 516 N.Y.S.2d at 692 (citations omitted). See also Rasmussen v. Fleming,
741 P.2d at 683; Barber v. Superior Court of California, 195 Cal. Rptr. at 484; Foody
v. Manchester Memorial Hospital, 482 A.2d at 718; John F. Kennedy Hospital v. Blud-
worth, 452 So. 2d at 924.
22
In addition, some participants in the ethical and medical debate have raised con-
cerns that the withdrawal or withholding of artificially administered sustenance causes
continued
Gen. 162] 179
and parenteral techniques should be considered procedures that the
patient or surrogate may choose to forgo); Current Opinions of the
Council on Ethical and Judicial Affairs of the American Medical
Association 12-13 (1986) (in some circumstances it is not unethical to
discontinue all means of life prolongation, including artificially sup-
plied nutrition or hydration); President’s Commission Report at 3 and
190 (life-sustaining treatment encompasses all health care interven-
tions, including special feeding procedures.)
We do not join this debate; it is not our role to offer ethical
judgments or comment on matters of religious doctrine. The legal
analysis is clear, however: Every appellate court that has addressed
the issue has held that there is no difference as a matter of law
between artificially administered sustenance and other forms of life-
sustaining treatment.23 As the New Jersey Supreme Court summariz-
ed the point, “[a]nalytically, artificial feeding by means of a nasogastric
tube or intravenous infusions can be seen as equivalent to artificial
breathing by means of a respirator. Both prolong life through
mechanical means when the body is no longer able to perform a vital
bodily function on its own.” Conroy, 496 A.26 at 1236.24
Note 22 continued
pain and suffering. However, one court that canvassed the literature found to the con-
trary: “Patients who are near death and not receiving nourishment may, in fact, be
more comfortable than comparable patients who receive conventional amounts of nutri-
tion and hydration.” In re Grant, 109 Wash. 2d 545, 747 P.2d 445, 453 (1987). Recent
empirical evidence suggests that dehydration does not cause pain for a terminally ill
patient; to the contrary, artificially administered sustenance can cause the terminally
ill patient pain and discomfort. See Cox, Is Dehydration Painful?, 9 Ethics & Medics
1-2 (1987). Moreover, since a permanently unconscious patient is by definition unaware
of sensation, he or she will not experience pain from dehydration. Id. at 1.
23
See, e.g., Barber v. Superior Court, 195 Cal. Rptr. at 490 (1983); Corbett v. DAlessandro,
487 So. 2d 368, 371 (Fla. Dist. Ct. App. 1986); In re Gardner, 534 A.2d 947, 954 (Me.
1987); In re Jobes, 108 N.J. 394, 529 A.2d 434, 444 n.9 (1987); In re Peter, 108 N.J. 365,
529 A.2d 419, 427 (1987); In re Conroy, 486 A.2d at 1236; Delia v. Westchester County
Medical Center, 129 A.D. 2d 1, 516 N.Y.S.2d 677, 689 (1987); In re Grant, 747 P.2d at
454; Accord, In re Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 (1988); Bouvia
v. Superior Court, 255 Cal. Rptr. at 306; Brophy v. New England Sinai Hospital, Inc.,
398 Mass. 417, 497 N.E.2d 626, 637 (1986).
24
In another case, the New Jersey Supreme Court rejected the argument that “the
withdrawal of artificial feeding directly causes death while the withdrawal of other
forms of life-support only indirectly causes death.” As the court observed:
“Just as a patient does not die because of the withdrawal of a kidney dialysis
machine, but because his underlying disease has destroyed the proper func-
tioning of his kidney, so [the patient] will not die from the withdrawal of the
continued
180 [73 Op. Att’y
Thus, we conclude that the constitutional and common law right
to refuse treatment includes the right to refuse artificially
administered sustenance. In Parts IV, V and VI below, we consider
the ways in which a competent person may make this choice. In Parts
VII, VIII, and IX, we discuss the ways in which a surrogate may
make this choice on behalf of a person without decisionmaking
capacity.
IV
The Living Will Law
The Living Will Law is an express statutory procedure through
which a competent person may exercise choice about treatment deci-
sions that might have to be made when the person is terminally ill
and no longer able to decide.25 As this office summarized: “In auth-
orizing living wills, the General Assembly recognized the importance
of individual self-determination and dignity in death.” 70 Opinions
of the Attorney General 138, 139 (1985).
Under HG §5-602(a), a competent person over 18 “may execute a
declaration ... directing the withholding or withdrawal of life-
sustaining procedures under this subtitle.”26 If a declaration has been
properly executed, the individual has a statutory right to have his
or her decisions about life-sustaining procedures carried out. HG
§5-604(a)(2). Correspondingly, those who carry out the provisions of
a living will are afforded certain statutory protections when they do
so. HG §§5-607(b) and (c) and 5-613.
Note 24 continued
nasogastric tube, but because of her underlying medical problem, i.e., an in-
ability to swallow. Withdrawal of the nasogastric tube, like discontinuance
of other kinds of artificial treatment, merely acquiesces in the natural cessa-
tion of a critical bodily function. The cessation is the cause of death, not the
acquiescense.”
In re Peter, 529 A.2d at 428.
25
The statute is formally termed the Life-Sustaining Procedures Act. For simplicity’s
sake, and to reflect common usage, we refer to it as the Living Will Law.
26
“Life-sustaining procedures” are defined as follows: “Any medical procedure, treat-
ment, or intervention which uses mechanical or other artificial means to sustain, restore,
or supplant a spontaneous vital function or is otherwise of such a nature as to afford
a patient no reasonable expectation of recovery from a terminal condition and which,
when applied to a patient in a terminal condition, would serve to secure only a precarious
and burdensome prolongation of life.”
Gen. 162] 181
Artificially administered sustenance falls within the term “life-
sustaining procedures.” Had the General Assembly not specially
addressed the question of sustenance, a declaration generally “direct-
ing the withholding or withdrawal of life-sustaining procedures” would
be applied to forgo artificially administered sustenance.
In fact, however, the General Assembly sought to prevent a
generally worded living will from being applied in that way. The Living
Will Law contains two provisions that expressly address the provi-
sion of food and water to a terminally ill patient who has executed
a declaration. HG §5-605(1) provides that a declaration “may not be
implemented ... [b]y the denial of food, water, or of such medication
and medical procedures as are necessary to provide comfort care and
to alleviate pain.” Similarly, the model declaration in HG §5-602(cXl)
sets out the qualified person’s instruction that he or she “be permitted
to die naturally with only the administration of medication, the ad-
ministration of food and water, and the performance of any medical
procedure that is necessary to provide comfort care or alleviate pain.”
The legislative history confirms the General Assembly’s recogni-
tion that, for some patients, food and water can only be provided
through artificial means. The House Environmental Matters Commit-
tee report states that a “common method of giving comatose patients
food and water is through tubes. Therefore, this [bill] requires if food
and water are provided through tubes, that food and water could not
be withheld.” Report on House Bill 453, at 6-7 (February 19, 1985).
As the preamble to the Living Will Law states, the law “is intended
to ensure that such basic measures as nursing care, nutrition, and
hydration will be maintained out of respect for the human dignity of
every patient.” See generally Kronmiller, A Necessary Compromise:
The Right to Forego Artificial Nutrition and Hydration Under
Maryland’s Life-Sustaining Procedures Act, 47 Md. L. Rev. 1188
(1988).
In light of this legislative history, we understand HG §5-605(1) to
mean that a declaration calling generally for the withholding of life-
sustaining procedures may not itself serve as the basis for withholding
artificially administered sustenance.27
27 Two commentators have suggested that the Living Will Law’s provisions on food
and water can be construed to mean that “medically administered ... food and water
... are to be discontinued except as they are appropriate for comfort and pain con-
trol.” Landsman and Mertes, Slow Death in a Nursing Home, Md. Bar J. March-April
1988, at 45, 47. This construction seems to us somewhat strained, given the language
of HG §5-605(1) and the legislative history.
182 [73 Op. Att’y
Yet, as the preamble also recognizes, “it is the fundamental right
of competent adults, based on the autonomy and sanctity of the in-
dividual, to control decisions relating to the rendering of their medical
care and treatment.” This right finds statutory recognition in EG
§5-610(1), which states that the provisions of the Living Will Law “are
cumulative and may not be construed to impair or supersede any legal
right or responsibility that any person may have to effect the initia-
tion, continuation, withholding, or withdrawal of life-sustaining
procedures.”
As discussed at pages 171-72 above, a person has a constitutional
right to refuse consent to the insertion or the continued presence of
a feeding tube. EG §5-610(1) should be construed to recognize that
right. Put differently, EG §5-610(1) leads us to conclude that the
General Assembly did not intend to require that a feeding tube be
inserted into or be maintained in the body of a person who has
expressly rejected that form of treatment.28
Taking account of all pertinent provisions, we conclude that the
Living Will Law applies as follows to artificially administered
sustenance:
- If a declaration specifically refers to artificially administered
sustenance and states that the declarant wishes the continuation of
sustenance in this form, those providing care may not terminate this
form of treatment. See EG §5-611. - If a declaration specifically refers to artificially administered
sustenance and states the declarant’s instruction that this form of
treatment not be initiated or be discontinued if already initiated, those
providing care should carry out this instruction. Because such a pro-
vision effectuates a right recognized by EG §5-610(1), the provision
is “not inconsistent with” the Living Will Law and therefore may be
included in a declaration. EG §5-602(c)(2). - If a declaration does not specifically address artificially ad-
ministered sustenance but instead simply follows the model declara-
tion set out in EG §5-602(cXl), the declaration cannot rightly be
28
The Living Will Law’s provisions on food and water apply only to persons who have
executed a declaration. They do not address the artificial administration of sustenance
to those without living wills. If the Living Will Law were construed to require artificially
administered sustenance for all declarants, the law would create a striking anomaly:
Those who have taken advantage of a law designed to give expression to individual
choice would have less right to choose than those who have not prepared a living will.
We cannot suppose that the General Assembly intended so absurd a result. See, e.g.,
Coerper v. Comptroller, 265 Md. 3, 6, 288 A.2d 187, 188 (1972).
Gen. 162] 183
construed to state an intention regarding tube feeding. On the one
hand, HG §5-605(1) prevents such a declaration from serving as the
basis for withholding artificially administered sustenance. On the
other hand, we think it likely that the average person executing a
declaration calling for “the administration of food and water” does
not understand these words to be a consent to medical treatment —
that is, consent for a feeding tube to be inserted or kept in the per-
son’s body. If a living will follows the model form, it should be viewed
as not stating any decision about artificially administered sustenance.
Hence, the question of artificially administered sustenance would then
be resolved through application of the other forms of medical deci-
sionmaking discussed in this opinion.
This approach to the Living Will Law seeks to harmonize HG
§5-605(1) and HG §5-610(1). Properly construed, HG §5-605(1) assures
that a declaration calling only generally for the cessation of life-
sustaining procedures will not itself result in the cessation of
sustenance in any form. At the same time, HG §§5-602(cX2) and 5-610(1)
together mean that a person is not barred from embodying in a living
will the specific expression of the person’s constitutional and common
law right to refuse artificially administered sustenance.
Moreover, our construction is also necessary to avoid serious con-
stitutional difficulties. Like a court, we “will, whenever reasonably
possible, construe and apply a statute to avoid casting serious doubt
upon its constitutionality.” Yangming Transport v. Revon Products,
311 Md. 496, 509, 536 A.2d 633 (1988). See also, e.g., Davis v. State,
312 Md. 172, 179, 539 A.2d 218 (1988). If the provisions on food and
water in the Living Will Law were construed to prohibit a person’s
exercise of the right to refuse artificially administered sustenance,
those provisions would likely be found unconstitutional. See In re
Drabick, 200 Cal. App. 3d 185,245 Cal. Rptr. 840,859-60 (1988); Corbett
v. DAlessandro, 487 So. 2d 368, 370 (Fla. Dist. Ct. App. 1986); In re
Gardner, 534 A.2d 947, 952 n.3 (Me. 1987).
V
Durable Power of Attorney
Section 13-601 of the Estates and Trusts Article (“ET” Article)
authorizes the creation of a “durable power of attorney,” a legal in-
strument authorizing another to act on a person’s behalf when the
person is incapacitated. Although durable power of attorney statutes
“were enacted primarily to avoid the expense of full guardianship or
conservatorship proceedings when dealing with small property
184 [73 Op. Att’y
interests, ... the language of these statutes can accommodate the
appointment of a surrogate for [health care decisionmaking] and
nothing in the statutes explicitly precludes such a use.” President’s
Commission Report at 147. Indeed, although ET §13-601 does not ex-
pressly authorize the delegation of health care decisionmaking,
nothing in the statute or other law prevents it.
Moreover, specific references to a durable power of attorney for
health care decisionmaking appear in three places in the Health-
General Article. HG §20-107(d) provides:
In the absence of a durable power of attorney that relates
to medical care and is executed under §13-601 of the Estates
and Trusts Article, or in the absence of a judicially appointed
guardian, conservator, committee, or trustee who has the
authority to consent to medical care, any of the following
individuals may give a substituted consent for furnish-
ing medical or dental care and treatment to a disabled
individual
(Emphasis added.) HG §19-370(d)(7) includes within the definition of
“petitioner” (that is, one who may request advice from a hospital’s
patient care advisory committee) “[a]n individual with a power of at-
torney to make a decision with a medical consequence for a patient.”
Finally, newly enacted HG §19-344(b)(3)(i) authorizes a nursing home
to ask (but not require) prospective residents “to execute valid durable
powers of attorney designating an attorney in fact to make ... medical
... decisions in the event of the applicant’s disability.” Chapter 452,
Laws of Maryland 1988. These statutory references confirm the
General Assembly’s recognition that a medical durable power of
attorney is a legally effective instrument.
A person (the principal) may use a durable power of attorney to
direct an agent (the attorney in fact) to carry out the principal’s specific
directive concerning medical treatment, including the withholding or
withdrawing of artificially administered sustenance under specified
circumstances. Alternatively, a principal may choose to empower the
attorney in fact to make all medical decisions on his or her behalf,
rather than directing a specific treatment decision. See In re Peter,
108 N.J. 365, 529 A.2d 419, 426 (1987) (recognizing the right of a prin-
cipal to authorize an agent to make health care decisions on the agent’s
behalf if the principal lacked the capacity to make treatment decisions).
Although a medical durable power of attorney is legally effective,
no law spells out important safeguards like formalities for its execu-
tion. We recommend that the General Assembly consider legislation
Gen. 162] 185
specifically addressing these matters.29
VI
Prior Instructions to Physician
A person need not execute a formal document to make a choice
about artificially administered sustenance. Instead, a person who is
competent to make medical decisions at the time of decision about
insertion of a feeding tube can decide whether to allow that procedure
or not by simply telling the attending physician, who should docu-
ment the decision in the patient’s record.30
The right of self-determination about medical treatment means that
a competent person may engage in direct decisionmaking when the
person and the physician are discussing a future course of treatment.
That discussion might well deal with questions of the person’s con-
sent to treatment if various contingencies were to arise.
Tb take a common example, a person about to undergo a biopsy
procedure might well discuss with the doctor the question of further
surgery if the tumor were found to be malignant. That is, the patient
might be asked whether he or she consented to further surgery im-
mediately after the biopsy results are known, or whether the patient
would rather make a separate decision later about follow-up surgery.
The same principle — that a person has a right to decide about future
treatment alternatives — would permit the patient to make a choice
about life-sustaining procedures, including artificially administered
sustenance, should that situation arise. Just as the person’s other con-
tingent decisions about treatment must be given effect, so must this
one. See, e.g., In re Farrell, 108 N.J. 335, 529 A.2d 404, 410 (1987).31
29 See Cal. Civil Code §§2430-2444 and 2500 (West 1988).
30
Similarly, the patient may decide in the same way to have a feeding tube withdrawn
that previously had been inserted with his or her consent, or without such consent
under the emergency provisions of HG §20-107(c). See note 48 below.
31
A patient’s exercise of the right to refuse a particular form of treatment in the course
of discussion with the patient’s doctor, properly recorded in the patient’s medical records,
is an extraordinarily reliable form of decisionmaking. Thus we characterize it as “direct
decisionmaking,” to be carried out even if the patient later becomes disabled. A few
cases treat a patient’s discussions with family or friends as potentially a comparable
form of direct decisionmaking, if there is “clear and convincing” evidence of the patient’s
continued
186 [73 Op. Att’y
VII
Standards For Surrogate Decisionmaking
A. Introduction
In this part we discuss the substance of surrogate decisionmaking
— decisions about life-sustaining treatment made on behalf of a patient
who is unable to decide personally. Two underlying values govern sur-
rogate decisionmaking: respecting patient self-determination and
promoting patient welfare. See In re Jobes, 108 N.J. 532, 529 A.2d
434, 436; In re Conroy, 486 A.2d at 1227; In re Grant, 109 Wash 2d
545, 747 P.2d 445,457 (1987). See also President’s Commission Report
at 132. If a surrogate decisionmaker knows enough to judge what the
disabled person would decide if he or she were able to, the surrogate
should make that choice. This preferred form of decisionmaking is
called “substituted judgment.” If this subjective standard cannot be
used, the surrogate decisionmaker must base a decision on the
objective costs and benefits of treatment for the terminally ill patient,
to determine what is in the patient’s “best interest.” These two
standards should guide every surrogate decision, whether made by
a guardian, a family member, or the court.32
B. Substituted Judgment
The substituted judgment standard requires that a surrogate deci-
sionmaker attempt to reach the decision that the patient would have
made if he or she were able to choose.33 This standard respects the
patient’s own definition of well-being as well as his or her interest
in self-determination. President’s Commission Report at 132-33. The
Note 31 continued
decision to refuse treatment. See In re Gardner, 534 A.2d at 953; In re Jobes, 108 N J. 394,
529 A.2d 434, 443 (1987); In re Storar, 52 N.Y.2d 363, 420 N.E. 2d 64, 72 (1981). In our
view, the sounder and more cautious practice is to view a now-disabled person’s prior
conversations with persons other than the attending physician as evidence to be weighed
under the “substituted judgment” form of surrogate decisionmaking, rather than as
a form of direct decisionmaking by the patient. See pages 186-87 below.
32
These standards should also guide an attorney in fact if a medical durable power
of attorney delegates decisionmaking authority to the attorney. See pages 183-85 above
33
See, e.g., In re Sevems, 425 A.2d at 159; Brophy v. New England Sinai Hospital,
Inc., 497 N.E. 2d at 634-35; Superintendent of Belchertown State School v. Saikewicz,
370 N.E. 2d at 431; In re Jobes, 529 A.2d at 444; In re Conroy, 486 A.2d at 1229.
Gen. 162] 187
best proof of a patient’s wishes are the patient’s own previous ex-
pressions. President’s Commission Report at 133. This standard,
however, can only be used if a patient was once capable of developing
views relevant to the decision at issue. See, e.g., In re Storar, 52 N.Y.2d
363, 420 N.E.2d 64, 72 (1981).
Two cases illustrate the kind of evidence that can lead to a deci-
sion based on substituted judgment.34 In Brophy v. New England
Sinai Hasp., Inc., 298 Mass. 417, 497 N.E.2d 626 (1986), the court iden-
tified the following factors in determining whether a patient in a “per-
sistent vegetative state” would refuse a feeding tube:
(1) the patient’s expressed preferences;
(2) the patient’s religious convictions and their relation to the
refusal of treatment;
(3) the impact on the patient’s family;
(4) the probability of adverse side effects;
(5) the prognosis with and without treatment; and
(6) the impact on the patient of his present and future
incompetency.
The court affirmed the trial judge’s determination that if Brophy, the
patient, were presently competent, he would choose to forgo the
administration of nutrition and hydration through artificial means. 497
N.E.2d at 635.35 The trial court based its conclusion on Brophy’s prior
vehement objections to the use of life-sustaining treatment and the
fact that his religious convictions would not bar the refusal of such
treatment. In another case, the New Jersey Supreme Court, relying
on the substituted judgment standard, found that a patient would,
if competent, choose to withdraw artificially administered sustenance.
The court was convinced of this result, based on testimony confirm-
ing the patient’s repeated prior statements that “under no cir-
cumstances would I want to be kept alive on a life-support system.”
In re Peter, 529 A.2d at 426.
34
The caselaw does not permit us to generalize about an evidentiary standard. As the
two cases discussed in the text illustrate, courts simply evaluate the evidence in a par-
ticular case for its reliability and application to the treatment decision in question.
35
Brophy suffered serious and irreversible brain damage. He lacked cognitive func-
tioning. The court found it highly unlikely that he would ever regain cognitive behavior
and thus would forever lack the ability to communicate and the capability to interact
with his environment. Since he was not terminally ill and his other organs functioned
relatively well, he could live in a “persistent vegetative state” for several years. 497
N.E.2d at 630.
188 [73 Op. Att’y
C. Best Interest
Although a surrogate decisionmaker should always be guided by
evidence of the patient’s own wishes if possible, in many cases the
surrogate will have no basis for substituted judgment. Furthermore,
some patients have never had decisionmaking capacity: their sub-
jective wishes would be impossible to discern with any certainty. Presi-
dent’s Commission Report at 134.36 In these circumstances, a
surrogate decisionmaker must make a decision that seeks to imple-
ment what the surrogate believes would be in the patient’s best
interest.37 The value underlying a best interest analysis is the pro-
tection of a patient’s welfare, rather than the value of self determina-
tion.38 The President’s Commission observed that, when “assessing
whether a procedure or course of treatment would be in a patient’s
best interests, the surrogate must take into account such factors as
the relief of suffering, the preservation or restoration of functioning
and the quality as well as the extent of life sustained.” President’s
Commission Report at 135. But “quality ... of life” does not mean
“the value that others find in the continuation of the patient’s life,
perhaps in terms of their estimates of the patient’s actual or poten-
tial productivity or social contribution.” Rather, the best interest stan-
dard looks only to “the value of the patient’s life/or the patient .”
President’s Commission Report at 135 n.43 (emphasis added). For a
terminally ill patient, the surrogate decisionmaker should consider
“whether forgoing treatment will allow the patient to avoid the burden
of prolonging dying with pain or suffering, and whether the patient
has the potential benefit of achieving some satisfaction if he or she
survives longer.” Hastings Center Guidelines at 28.
36
See, e.g., In re Storar, 420 N.E.2d at 72; In re Grant, 747 P.2d at 445-46; In re Hamlin,
102 Wash. 2d 810, 689 P.2d 1372, 1378 (1984). But see Superintendent of Belchertoum
State School v. Saikeivicz, 370 N.E.2d at 431 (court applied substituted judgment stan-
dard in making decision on behalf of patient who had never been competent to make
treatment decisions.)
37
See, e.g., Rasmussen v. Fleming, 741 P.2d at 689; In re Drabick, 245 Cal. Rptr. at
846; Barber v. Superior Court of California, 195 Cal. Rptr. at 493; In re Grant, 747
P.2d at 457. But see In re Storar, 420 N.E.2d at 71 (best interest test inapplicable to
terminally ill patient who was never competent).
38
Although a patient may lack the capacity to make a decision about forgoing artificially
administered sustenance, a patient’s conduct—for instance, forcible resistance to the
insertion of a feeding tube or continued efforts to remove a tube — nonetheless should
be considered in determining whether continuation of artificially administered
sustenance is in the patient’s best interest.
Gen. 162] 189
A recent Washington case illustrates application of the best interest
standard. In In re Grant, the Washington Supreme Court recognized
that it was in the best interest of a 22 year old patient suffering from
an incurable neurological disorder to withhold life-sustaining pro-
cedures, including artificially administered sustenance. 747 P.2d at 457.
Barbara Grant’s intellectual and cognitive functions had virtually
disappeared; she was in the end stages of a terminal disease with no
hope of improvement. She could not move her body and had to be
tied down in bed to avoid harmful movement caused by seizures.
Although she had never expressed her desires concerning the use of
life-sustaining measures, her mother believed she would not have
wanted such treatment based on her prior dislike for medication and
medical procedures as well as her dislike for the medical staff. 747
P.2d at 448.39 The court set forth the following factors that a surrogate
decisionmaker should use in determining whether the withdrawal of
life-sustaining measures is in the best interest of the patient:
[Ejvidence about the patient’s present level of physical, sen-
sory, emotional, and cognitive functioning; the degree of
physical pain resulting from the medical condition, treatment,
and termination of treatment, respectively; the degree of
humiliation, dependence, and loss of dignity probably
resulting from the condition and treatment; the life-
expectancy and prognosis for recovery with and without treat-
ment; the various treatment options; and the risks, side ef-
fects, and benefits of each of those options.
747 P.2d at 457. In recognizing that it was in Grant’s best interest
to withhold all life-sustaining treatment, the court held that “the
individual’s right to die with dignity must not be ignored A
terminally ill patient may wish to avoid not only prolonged suffering,
but also ‘[t]he ultimate horror ... of being maintained in limbo, in
a sterile room, by machines controlled by strangers.’ ” 747 P.2d at 451
(quoting In re Torres, 357 NW.2d 332, 340 (Minn. 1984)).
Patients who are permanently unconscious pose a difficult problem
for application of the best interest standard. According to medical ex-
perts, someone who is permanently unconscious does not experience
suffering, either physically or emotionally. See page 169 above. Nor
is the person capable of experiencing any of life’s satisfactions. The
39
This kind of evidence is relevant to both substituted judgment and best interest.
The boundary between these two categories is not an exact one. See President’s Com-
mission Report at 132.
190 [73 Op. Att’y
balancing of costs and benefits to the patient that a surrogate must
undertake for a terminally ill patient cannot be done in the same way
for a patient who is permanently unconscious. See In re Peter, 529
A.2d at 425.
lb be sure, the traditional benefits of treatment cannot be obtained.
President’s Commission Report at 181. The American Academy of
Neurology, in a recent position paper, declared that: “Medical treat-
ment, including the medical provision of artificial nutrition and hydra-
tion, provides no benefit to patients in a persistent vegetative
state ...” Position of the American Academy of Neurology at 3. The
only value to the patient in continuing treatment resides in the ex-
ceedingly small possibility that the prognosis of permanent un-
consciousness is incorrect. President’s Commission Report at 182 and
459.40 Ib continue treatment to maintain a patient in a state of per-
manent unconsciousness when treatment provides no medical benefit
imposes severe emotional burdens on a patient’s family — people for
whom the patient, if conscious, presumably would be most concerned.
President’s Commission Report at 183.
Still, we are very reluctant to conclude that the best interest stan-
dard, properly applied, takes into account anything other than the
patient’s actual interest alone. Until the issue is addressed more fully
by Maryland courts or the General Assembly, we reach no conclu-
sion about the application of the best interest standard to the
permanently unconscious.
VIII
Guardianship
ET §13-704 authorizes the appointment of a guardian of the per-
son for a disabled person: “The court may superintend and direct the
care of a disabled person, appoint a guardian of the person, and pass
orders and decrees respecting the person as seems proper, including
40
But see W. May etal., Feeding And Hydrating The Permanently Unconscious And
Other Vulnerable Persons, Issues in Law & Medicine No. 3, at 203, 209 (1987) (pro-
viding fluids by tube is not useless because it benefits the permanently unconscious
by preserving their lives and preventing their death).
Gen. 162] 191
an order directing the disabled person to be sent to a hospital.”41
ET §13-101(d) defines a disabled person as:
[A] person other than a minor who:
(1) (i) Has been judged by a court to be unable to manage
his property for reasons listed in §13-201(cXl) of this subtitle;
and
(ii) As a result of this inability requires a guardian of
his property; or
(2) (i) Has been judged by a court to be unable to provide
for his daily needs sufficiently to protect his health or safety
for reasons listed in §13-705(b) of this subtitle; and
(ii) As a result of this inability requires a guardian of
the person.
In Kichererv. Kicherer, 285 Md. 114,118-19,400 A.2d 1097,1100-1101
(1979), the Court of Appeals provided the following framework for
guardianship proceedings: “[A] court of equity assumes jurisdiction
in guardianship matters to protect those who, because of illness or
other disability, are unable to care for themselves. In reality the court
is the guardian; an individual who is given that title is merely an agent
or arm of that tribunal in carrying out its sacred responsibility ....
[Appointment to that position rests solely in the discretion of the
equity court and the administering of that office as it pertains to both
the person and property of the ward is subject to judicial control.”
ET §13-708(b)(8) authorizes a guardian of the person “to give
necessary consent or approval for medical or other professional care,
counsel, treatment, or service.” By necessary implication, this author-
ity includes the power to withhold or withdraw consent to medical
treatment. ET §13-708(bX8) cannot logically be read as authorizing
only the power to consent, since “often times a patient’s interests are
best served when medical treatment is withheld or withdrawn. Tb
hold otherwise would ... reduce the guardian’s control over medical
treatment to little more than a mechanical rubberstamp for the wishes
of the medical treatment team.” Rasmussen v. Fleming, 741 P.2d at
688.42 Thus, what is contemplated is not only the power to accept
41
A disabled person might also have a guardian of the property. See ET §13-201.
42
See also In re Colyer, 99 Wash. 2d 114, 660 P.2d 738, 746 (1983); In re Hamlin, 689
P.2d at 1375.
192 [73 Op. Att’y
medical treatment but also the power to refuse medical treatment,
terminate already existing medical treatment, or choose among
alternative medical treatments. See generally Horan, Euthanasia, The
Right To Life And Termination Of Medical Treatment: Legal Issues,
in Moral Responsibility in Prolonging Life Decisions 170 (D.
McCarthy, A. Moraezewski, eds. 1981.)
The guardian’s power is limited, however, since “the court must
authorize any medical procedure that involves a substantial risk to
life.” Although ET §13-708(b)(8) generally authorizes a guardian to
refuse medical treatment, the guardian may not direct the withholding
or withdrawing of artificially administered sustenance or any other
life-sustaining treatment, since to do so would involve “a substantial
risk to life.” Instead, the guardian must petition the court for
authorization to withhold or withdraw artificially administered
sustenance.43 In deciding whether to approve this treatment decision,
the court, like the guardian, should apply the substantive standards
discussed in Part VII above.44
IX
Surrogate Decisionmaking By Family Members
A. Scope of HG §20-107
In general, HG §20-107 addresses the problem of medical decision-
making on behalf of “an individual who lacks sufficient understanding
or capacity to make or communicate a responsible decision on health
care for the individual” because of several specified physical and
43
Read literally, ET §13-708(bX8) would not require court approval of a guardian’s deci-
sion to decline life-sustaining treatment, for it speaks only of the court’s “authorizfing]”
an affirmative “medical procedure.” So literal a construction does not comport with
the apparent legislative purpose, however. Suppose doctors recommend surgery for
a patient who would die without the surgery, even though the surgery itself poses a
high risk of death. ET §13-708(bX8) requires court approval of the guardian’s decision
to consent to the surgery; it would make no sense to say that the guardian may decline
the surgery without court approval. The purpose of ET §13-708(bX8) is to assure that
the court itself will make the decision when the consequences are so grave.
44
In a recent decision in the Circuit Court for Prince George’s County, the court ap-
plied the substituted judgment standard in approving a guardian’s request to remove
a feeding tube from a permanently unconscious patient. The court has sealed the case
to protect the privacy of the family involved, so we omit the specific citation.
Gen. 162] 193
mental ailments.45 HG §20-107(d) grants decisionmaking authority to
family members, as follows:
In the absence of a durable power of attorney that relates
to medical care and is executed under §13-601 of the Estates
and Trusts Article, or in the absence of a judicially appointed
guardian, conservator, committee, or trustee who has the
authority to consent to medical care, any of the following
individuals may give a substituted consent for furnishing
medical or dental care and treatment to a disabled individual
in accordance with the following priorities provided the pro-
visions of subsection (e) of the section have been met:
(1) A spouse, or, if not reasonably available;
(2) An adult child, or, if not reasonably available;
(3) A parent, or, if not reasonably available;
(4) An adult sibling, or, if not reasonably available;
(5) A grandparent, or, if not reasonably available;
(6) An adult grandchild.46
A “health care provider” who carries out treatment based on
substituted consent gains immunity from liability based on his or her
reliance on the consent. HG §20-107(gX2).47
45 These are:
“(i) A physical disability;
(ii) Chronic alcoholism;
(iii) Drug addiction;
(iv) A disease; or
(v) A mental disability, including senility.”
HG §20-107(aX2). Another subsection, HG §20-107(e), specifies careful protections to
assure that the patient really is medically disabled.
We note that the term “senility” is no longer recognized as a valid medical des-
cription. The General Assembly should consider revising this language.
46
HG §20-107(e) requires written certification by two physicians that the person “is
incapable of making a responsible decision regarding the proposed health care .... ”
HG §20-107(0 sets out circumstance under which substituted consent may not be given,
including when “the health care provider is aware that the person for whom the health
care is proposed has expressed disagreement with the decision to provide health care.”
47
The term “health care provider” includes a “hospital administrator or his designee”
but does not include a “nursing home administrator” or the “administrator’s designee.”
This omission suggests to some that HG §20-107 does not apply to decisions made within
nursing homes. Although the legislative history of §20-107 does not explain the omis-
sion, the underlying rationale for allowing surrogate decisionmakers to provide con-
sent for proposed treatment is applicable to residents of nursing homes as well as
patients in other facilities. Moreover, “treatment” of a nursing home resident would
typically be administered by a physician, a registered nurse, or a licensed practical
nurse — all of whom are within the definition of “health care provider.” HG
§20-107(aX3Xiii), (vii), and (ix).
194 [73 Op. Att’y
The insertion or continued use of a feeding tube is the “furnishing
[of) medical ... care and treatment”; hence, it is within the scope of
HG §20-107, and a family member may surely consent under HG
§20-107(d) for its insertion or maintenance, as recommended by a physi-
cian.48 The harder question is whether the family and physicians may
likewise invoke HG §20-107 as a basis for a decision to decline the
use of a feeding tube.
The argument in favor of an expansive reading of HG §20-107 is
a respectable one. Medical decisions often involve a choice among
treatments: consent to one form of treatment impliedly rejects alter-
nate treatments. If the demonstrable purpose of HG §20-107 were
to provide a means by which a family member may broadly make “a
responsible decision regarding the proposed health care” when the
patient cannot [HG §20-107(e)], we would be inclined to a reading of
the statute that would encompass decisions not to treat.
In our view, however, neither the statutory language nor the
legislative history sustains so expansive a construction of HG §20-107.
HG §20-107(d) speaks of “a substituted consent for furnishing ...
treatment.” The ordinary meaning of “furnish” is to “supply, provide,
or equip, for accomplishment of a particular purpose.” Black’s Law
Dictionary 608 (5th ed. 1979). For medical treatment, the term is
synonymous with “administer.” State v. Wilson, 71 Kan. 263,80 P.565
(1905). The term “treatment” likewise ordinarily refers to actions
48
In an emergency, a physician may insert a feeding tube without consent, under HG
§20-107(c):
“A health care provider may treat a disabled individual without consent if:
(1) A person who is authorized to give the consent is not available immediately;
(2) The attending physician determines:
(i) There is a substantial risk of death or immediate and serious harm to
the disabled individual; and
(ii) With a reasonable degree of medical certainty, the life or health of the
disabled individual would be affected adversely by delaying treatment to obtain
consent; and
(3) Treatment is of an emergency medical nature.”
A health care provider who provides treatment under HG §20-107(c) is afforded limited
immunity under HG §20-107(gXl).
This provision authorizes emergency treatment only if a decisionmaker “is not
available immediately.” It does not countenance a physician’s evasion of the need to
obtain consent if possible.
Gen. 162] 195
rather than inaction. See Pfahlerv. Eclipse Pioneer Div., 21 N.J. 486,
122 A.2d 644, 646 (1956).49
The legislative history of the bill that enacted the substituted con-
sent mechanism underscores the General Assembly’s exclusive focus
on the issue of how consent is to be given, when a family member
wants to give it for a treatment that a physician recommends. A com-
mittee report states: “This bill provides that a health care provider
may treat a disabled individual, even if that individual is not able to
give consent, if certain relatives of the individual have given consent
Senate and Finance Committee Report on Senate Bill 433 (1984).
Similarly, a floor statement observes that: “Currently there is no pro-
vision in the law which would enable a family member to consent to
medical or dental treatment for a disabled individual who is unable
to give consent, if certain relatives of the individual have given con-
sent ....” Senate and Finance Committee Report on Senate Bill 433
(1984). Similarly, a floor statement observes that: “Currently there
is no provision in the law which would enable a family member to
consent to medical or dental treatment for a disabled individual who
is unable to give consent — short of going through guardianship pro-
ceedings which can be expensive and which can be too time-consuming
and public for handling non-controversial medical treatment in which
there is no expressed disagreement between the patient, the
substitute decisionmaker and the health care provider.” Floor State-
ment on Senate Bill 433 (1984). There is no discussion anywhere within
the legislative history that HG §20-107 would be a mechanism for
allowing surrogate decisionmakers to direct the withholding or
withdrawing of life-sustaining treatment.
Thus, in our view, the better reading of HG §20-107 is that it does
not apply to decisions to refuse a form of treatment. It neither
authorizes nor prohibits family decisions to refuse treatment on behalf
of a disabled family member; instead, it simply does not address this
form of surrogate decisionmaking and leaves it to other legally
recognized procedures.
49
Other portions of HG §20-107 likewise reflect an exclusive focus on affirmative treat-
ment steps. HG §20-107(b) precludes reliance on the section for “treatment ... against
the religious belief of the disabled individual.” HG §20-107(e) speaks of “proposed health
care.” Finally, HG §20-107(fX4) refers to “the performance of the treatment.”
196 [73 Op. Att’y
B. Family Decisionmaking Under Common Law
If HG §20-107(d) does not authorize decisions to forgo life-sustaining
treatment, what does? That is, if a disabled person has no living will
or durable power of attorney and did not previously instruct the
attending physician about treatment choices, must a spouse or other
family member initiate a guardianship proceeding in order to forgo
life-sustaining treatment when the disabled person has become
terminally ill? In practice, every day in this State doctors are recom-
mending and families are confirming decisions not to use various
means of treatment for terminally ill patients who cannot decide for
themselves. Many of these decisions — not to resuscitate, not to use
a respirator, not to treat an infection with antibiotics, not to insert
or maintain a feeding tube — mean that a terminally ill patient will
die a little sooner, but without unduly prolonged suffering.
The General Assembly not long ago recognized this reality, in-
directly but distinctly. In Chapter 749 of the Laws of Maryland 1986,
the General Assembly required each hospital to establish a patient
care advisory committee HG §19-371(1). Among other duties, the com-
mittee on request “shall give advice concerning the options for medical
care and treatment of an individual with a life threatening condition.”
HG §19-374(a). The statute recognizes family members as potential
participants in the decision about which “option” to choose. See HG
§§19-370(dX5), 19-372(aX3Xiii), 19-373(bXD, and 19-374(bXD. The bill’s
preamble spoke of “[djoctors, patients, relatives, and the courts ...
being forced to make difficult choices with respect to medical treat-
ment and care” and of the “need for ... policies to help families and
care providers who face these difficult choices....” (Emphasis
added.)50
Because decisions about treatment of a terminally ill patient usually
must be made quickly, an informal parallel to HG §20-107 procedures
has developed, albeit without a direct basis in that statute. If the
attending physicians have concluded that forgoing life-sustaining treat-
ment is consistent with proper standards of patient care, the physi-
cians make that recommendation. If close family members agree with
that recommendation, the decision to forgo treatment is carried out
without court involvement.
50
At the same time, Chapter 749 reaffirmed the primacy of an individual’s own deci-
sion: “Any information or document that indicates the wishes of the patient shall take
precedence in the deliberations of the advisory committee.” HG §19-374(bX2).
Gen. 162] 197
In our view, this kind of surrogate decisionmaking is a legally
proper means of effectuating the constitutional and common law rights
of a terminally ill patient. We start with the premise, set out in
Part IIB above at pages 175-78, that a disabled person has a right
to refuse life-sustaining treatment, including artificially administered
sustenance.
If a terminally ill patient is forced to endure the burdens of
unwanted treatment and a prolonged dying process while awaiting
a court decision, the person’s rights will have been defeated in prac-
tice even if upheld eventually. Some of the leading decisions
establishing the right to refuse treatment were announced, with
unintended irony, after the person’s dying had been prolonged by that
very treatment.51
For that reason, some courts have articulated a common law pro-
cedure “to allow the surrogate decision maker, the family, to make
the decision free of the cumbersomeness and costs of legal guardian-
ship proceedings.” In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372,
1377 (1984). As the New Jersey Supreme Court put it:
Family members are best qualified to make substituted
judgments for incompetent patients not only because of their
peculiar grasp of the patient’s approach to life, but also
because of their special bonds to him or her. Our common
human experience informs us that family members are
generally most concerned with the welfare of a patient. It
is they who provide for the patient’s comfort, care, and best
interests, ... and they who treat the patient as a person,
rather than a symbol of a cause.
In re Jobes, 108 N.J. 394, 529 A.2d 434, 445 (1987) (citations omitted).
See also, e.g., John F. Kennedy Hosp. v. Bludworth, 452 So. 2d 921,
926 (Fla. 1984).
The California Court of Appeals has expressly rejected the argu-
ment “that only duly appointed legal guardians have the right to act
on behalf of another. While guardianship proceedings might be used
in this context, we are not aware of any authority requiring such pro-
cedure.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal.
51
See Corbett v. D’Alessandro, 487 So. 2d at 369; In re Farrell, 529 A.2d at 409-10;
In re Storar, 420 N.E.2d at 66 n.l (1981).
198 [73 Op. Att’y
Rptr. 484, 492 (1983) (emphasis in original).52 In the case before it,
the court continued, the attending physicians had “consulted with and
relied on the decision of the immediate family, which included the
patient’s wife and several of his children In the absence of legisla-
tion requiring [guardianship] proceedings, we cannot say that failure
to institute such proceedings made [the doctors’] conduct [in discon-
tinuing life-sustaining treatment] unlawful.’’ 7d.53
These cases emphasize the importance of collaborative decision-
making among physicians and family members (and sometimes an ad-
visory group like a hospital’s ethics committee). If any participant in
the decision to withhold life-sustaining treatment objects, treatment
must be continued until a court decides the matter. Rasmussen v.
Fleming, 741 P.2d at 691; In re Grant, 747 P.2d at 456. “Where,
however, all affected parties concur in the proposed plan of medical
treatment, court approval of the proposed plan of medical treatment
is neither necessary nor required.” Rasmussen, 741 P.2d at 691.54
52 Decisions recognizing a guardian’s right to refuse life-sustaining treatment on behalf
of a disabled person cannot be read to require guardianship proceedings. Since a
previously appointed guardian petitioned the court to have the life-sustaining procedures
withdrawn, the courts focused primarily on the authority of the guardian and not on
a situation in which a guardian had not been appointed. See, e.g., Rasmussen, 741 P.2d
674; Brophy, 497 N.E. 2d 626. But see In re Conroy, 486 A.2d at 1240 (guardian must
be appointed to act on behalf of patient who was neither terminal nor experiencing
a permanent loss of consciousness before withholding or withdrawing life-sustaining
treatment).
If a close family member is the guardian of the person, one might argue that the
family member may invoke either decisionmaking process, that available to guardians
or that available to close family members. Nevertheless, the legislative policy reflected
in the introductory language to HG §20-107(d), which we believe a court would apply
in this analogous situation, gives primacy to decisionmaking under a guardianship, with
no distinction made between family member guardians and stranger guardians. Until
the General Assembly addresses the matter further, a family member who is a guardian
of the person should follow the decisionmaking procedures applicable to guardians.
See pages 190-92 above.
53
For a discussion of one aspect of Barber that we are unable to endorse, see page
200 below.
54
See also Barber, 196 Cal. Rptr. at 493; Corbett, 487 So. 2d at 370; In re Gardner,
534 A.2d at 949-50; Brophy, 497 N.E. 2d at 635; In re Jobes, 529 A.2d at 451; In re
Peter, 529 A.2d at 430; In re Quinlan, 355 A.2d at 669; In re Grant, 747 P.2d at 456;
Compare, (1981); Leach v. Shapiro, 469 N.E.2d 1047 (1984). Cf. Superintendent of
Belchertown State School v. Saikewicz, 370 N.E. 2d at 434 (court approval required
where treatment would extend a patient’s normal cognitive functioning).
Gen. 162] 199
Relying on this body of case law, and mindful of the fact that pro-
tection of the terminal patient’s right requires swift decisionmaking,
we conclude that a decision to forgo life-sustaining treatment,
including artificially administered sustenance, may lawfully be made
on behalf of a disabled person if:
(i) the disabled person is terminally ill;
(ii) the attending physicians advise that forgoing treatment is
medically proper;55
(iii) a close family member determines that forgoing treatment is
what the disabled person would want done or, if that is unknown, is
in the person’s best interest;56
(iv) no other family member disagrees with the decision; and
(v) where applicable, the hospital’s patient care advisory commit-
tee has not advised against forgoing treatment57
We are unable to reach the same conclusion about nonterminal,
permanently unconscious patients. In our view, any decision to end
artificially administered sustenance for these patients must be made
by a court, unless the patient, while competent, decided the matter
directly or executed a medical durable power of attorney.
55
The Council on Ethical and Judicial Affairs of the American Medical Association
has stated its view that, “[f]or humane reasons, with informed consent, a physician
may ... cease or omit treatment to permit a terminally ill patient whose death is im-
minent to die.” A physician has no duty to initiate or continue useless treatment. See
Barber v. Superior Court of California, 195 Cal. Rptr. at 491. Accord, In re Dinner-
stein, 38 N.E.2d at 139 n.10; President’s Commission Report at 191 n.50. See generally
Horan, Euthanasia and Brain Death: Ethical and Legal Consideration, 315 Annals
N.Y. Acad. Sci. 363, 367 (1978).
We note that a health care provider’s decision not to treat is outside the scope of
the limited immunity in HG §20-107(gX2), which applies only to treatment in “reliance
on the substituted consent.” However, if the decision not to treat were in accordance
with accepted standards of practice, the decision would not be a basis of liability in
any event.
56
In our view, although HG §20-107(d) is inapplicable, its priority ranking of family
members reflects a legislative judgment that can be applied in this context. Those listed
in HG §20-107(d) are “close family members,” as we use the term. We recognize that,
in some situations, no such family member is available to discuss the situation. If the
attending physician has concluded that artificially administered sustenance is medically
improper, the physician should take steps to obtain court approval, through a guar-
dianship proceeding, before terminating treatment. See In re Hamlin, 689 P.2d at 1378
(where patient is incompetent and where there is no family available, a guardian must
be appointed to represent the patient’s best interests).
57
Nursing homes are not required to establish patient care advisory committees. The
General Assembly may wish to consider extending the requirement of HG §19-371 to
nursing homes.
200 [73 Op. Att’y
We readily acknowledge that the case law approving family deci-
sionmaking deals with the permanently unconscious as well as the
terminal. In fact, more cases involve the permanently unconscious.
In Barber v. Superior Court of California, for example, the court
approved a spouse’s authorization of the withholding of all life-
sustaining treatment from a patient who was “in a deeply comatose
state from which he was not likely to recover.” 195 Cal. Rptr. at 486.
The court held that the patient’s family was best able to know what
was in the patient’s best interest since they knew his feelings and
desires and were most concerned for his comfort and welfare. 195 Cal.
Rptr. at 493 n.2.58
But we cannot be content merely to report these cases. We must
analyze them as well, for if their reasoning is questionable, then our
confidence that Maryland courts would take the same position is
lessened.
We have serious reservations about the reasoning of decisions that
allow families to decide, without court approval, to end artificially
administered sustenance for a patient whose death might otherwise
be averted indefinitely.59 Undoubtedly, in most cases involving the
permanently unconscious, family members are sincerely trying to do
what the patient would want. Yet we must also recognize the possibil-
ity that a family’s decision to refuse substituted consent for artificially
administered sustenance might be the product of selfish or other
wrong motives.
If the family has unsupervised decisionmaking power, there is little
safeguard against aberrant decisions. Ib be sure, the same risk of
wrong motives attends decisionmaking about the terminally ill. In
that situation, though, the right of the patient to avoid needless suf-
fering is compromised as judicial proceedings take their course or,
58
See also, e.g., In re Jobes, 529 A.2d at 446-47; In re Grant, 747 P.2d at 456; In re
Hamlin, 689 P.2d at 1379. So far as medical ethics are concerned, the Council on Ethical
and Judicial Affairs of the American Medical Association has advised that “it is not
unethical to discontinue all means of life prolonging medical treatment” when “a patient’s
coma is beyond doubt irreversible ....” AMA, “Withholding or Withdrawing Life Pro-
longing Medical Treatment” (1986). According to a recent survey, when a cross-section
of physicians was asked, “Would you favor or oppose withdrawing life support systems,
including food and water, from hopelessly ill or irreversibly comatose patients if they
or their families request it?,” 78% favored withdrawing; 15% opposed it. AMA Survey
of Physician and Public Opinion on Health Care Issues 24 (1988).
59
We are not referring to a family member who is empowered to act under the patient’s
medical durable power of attorney.
Gen. 162] 201
faced with this burden, the decisionmaker abandons the effort to
refuse treatment. The permanently unconscious, who are neither on
the verge of death nor suffering, are not themselves comparably
harmed by a more deliberate course of decisionmaking.60
It may well be that, like courts in other states, the Court of Appeals
ultimately will conclude that families, not courts, ought to decide for
themselves whether to end life-sustaining treatment for the per-
manently unconscious.61 Until that happens, however, it is our opinion
that a family member who wishes to end life-sustaining treatment
of a permanently unconscious patient must seek court approval
through a guardianship proceeding (unless the family member has
power to decide under the patient’s medical durable power of
attorney).
X
Nursing Home Patient’s Bill of Rights
As part of the Nursing Home Patient’s Bill of Rights, HG §19-344(f)
provides that “a resident of a facility ... [m]ay refuse medication or
treatment.”62 In addition, HG §19-344(r) provides:
[I]f a resident is adjudicated a disabled person, is found to
be medically incompetent by the attending physician of the
resident or is unable to communicate with others, the rights
of the resident may be exercised by:
(1) The next of kin of the resident;
(2) The guardian of the person of the resident;
(3) The sponsoring agency of the resident; or
60
The family, it is true, must bear a considerable financial and emotional burden if
court approval is required.
61
As the President’s Commission pointed out, judicial review of a family’s decision
is frequently “merely a formality. Judges may feel that they are unable to add much
to the decisions already worked out among those most intimately involved, particularly
in cases that are brought simply to obtain judicial sanction for a course of conduct on
which all are agreed.” President’s Commission Report at 160.
62
A “facility” is a “comprehensive care facility or an extended care facility.” HG
§19-343(a). For ease of reference, we will simply speak of “nursing homes.”
202 [73 Op. Att’y
(4) Unless the facility is the representative payee, the
representative payee that the Social Security Administration
designates for the resident.63
See also 42 C.F.R. §§405.1121(k) and 442.312.
Some contend that HG §19-344(r) authorizes a surrogate decision-
maker to refuse medication or treatment on behalf of a patient. We
do not agree with this construction. As we read it, HG §19-344(r)
authorizes a surrogate to ensure that the general rights granted to
a resident by HG §19-344 are protected but does not provide a
mechanism for surrogate decisionmaking for medical treatment.
This interpretation is supported by a comparison of HG §19-344(r)
and HG §20-107. Unlike HG §20-107, HG §19-344(r) fails to set
priorities among the persons who may exercise the rights of the
patient. We do not think it possible that the General Assembly
intended to give equal authority over medical decisions to the nursing
home resident’s next of kin and the resident’s Social Security Admin-
istration representative payee. Nor do we think that the General
Assembly meant to give persons power to refuse treatment on behalf
of the patient even though those persons are without authority to
consent to treatment. Hence, we conclude that HG §19-344(r) does
not authorize a surrogate to refuse treatment on behalf of the patient.
Surrogate decisionmaking on behalf of a nursing home patient is to
be accomplished in the same way as it is on behalf of a hospital patient.
XI
Institutional Policies And Procedures
What happens when a patient (or a surrogate, acting for a disabled
patient) decides to refuse artificially administered sustenance but the
hospital or nursing home has a policy that disallows this choice?
First of all, the institution may not enforce its policy by simply
inserting or maintaining a feeding tube without the consent of a com-
petent patient or properly authorized surrogate. Such an action would
make a nullity of the doctrine of informed consent. See Sard v. Hardy,
281 Md. 432, 379 A.2d 1014 (1977). See generally pages 170-75 above.
In a nursing home, forced insertion of a feeding tube over objection
63
This subsection formerly was designated as HG §19-344(q). It was redesignated by
Chapter 452, Laws of Maryland 1988.
Gen. 162] 203
would also violate the patient’s statutory right to “refuse medication
or treatment.” HG §19-344(f)(l)(ii). Nor would it matter that the
patient, explicitly or implicitly, had agreed at admission to abide by
the policy on artificially administered sustenance. The right to reject
medical treatment means that after consenting to treatment, one may
change one’s mind.64
The practical question, as we see it, is whether the institution may
discharge or transfer a patient whose choice is ruled out by the policy.65
When an institution seeks to discharge or transfer a patient because
the patient will not follow its rules, it is enforcing a contract — the
agreement by which the patient entered the facility.66 But when a per-
son needs hospital or nursing home care, he or she is hardly in a posi-
tion to bargain over the terms of admission. “The admission room
of a hospital contains no bargaining table where, as in a private
business transaction, the parties can debate the terms of their con-
tract.” Tunkl v. Regents of Univ. of Calif, 60 Cal.2d 92,32 Cal. Rptr.
33, 39 (1963). Rather, the admissions agreement “possesses all the
characteristics of a contract of adhesion.” Wheeler v. St. Joseph Hasp.,
63 Cal. App. 3d 345,133 Cal. Rptr. 775 (1977).67 Contracts of this kind
are not necessarily invalid, but “courts ... review adhesion contracts
for fairness, and refuse to enforce those adhesion terms which are
demonstrably unfair to the stuck party.” Corbin on Contracts §559A
at 566 (Kaufman supp. 1984). So, for example, a hospital may not
extract from a patient a release of liability as a condition for
64
See cases cited in note 9 above and accompanying text.
65
The few out-of-state cases bearing on this question are mixed. Compare Jobes, 529
A.2d at 450, and Requena, 517 A.2d at 870 (institutions not permitted to discharge
patients) mth Brophy, 497 N.E.2d at 639 (hospital permitted to transfer patient).
66
Compliance with an institution’s policy on artificially administered sustenance can-
not be said to be part of the patient’s contractual undertaking if the policy is articulated
only after the patient is admitted. Jobes, 529 A.2d at 450; Requena, 517 A.2d at 870.
67
A contract of adhesion has the following characteristics:
“a standardized contract prepared entirely by one party to the transaction
for the acceptance of the other; such a contract, due to the disparity in bargain-
ing power between the draftsman and the second party, must be accepted
or rejected by the second party on a ‘take it or leave it’ basis, without
opportunity for bargaining and under such conditions that the ‘adherer’ can-
not obtain the desired product or service save by acquiescing in the form
agreement.”
Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862,27 Cal. Rptr. 172,185 (1962) (emphasis
added).
204 [73 Op. Att’y
admission. Tunkl, 32 Cal. Rptr. at 39. This approach to adhesion con-
tracts is but a special application of the general principle that a “con-
tractual provision that violates public policy is invalid,” to the extent
of the conflict. State Farm Mut. v. Nationwide Mut, 307 Md. 631,
643, 516 A.2d 586, 592 (1986).68
This State’s public policy objective of protecting an especially
vulnerable group is declared in a statute that imposes limits on a
nursing home’s power to transfer or discharge a patient:
A resident of a facility may not be transferred or discharged
from the facility involuntarily except for the following reasons:
(1) A medical reason;
(2) The welfare of the resident or other patients;
(3) Knowingly transferring personal assets in violation of a
contract provision and only to become eligible for Medicaid
benefits;1691 or
(4) A nonpayment for a stay.
HG §19-345(a). See also 42 C.F.R. §§405.1121(h)(4) and 442.311(c). A
provision in a nursing home’s admission agreement (or in any policies
incorporated by reference) that purported to authorize transfer or
discharge for any other reason would be void as a violation of this
statute.
A patient’s refusal of artificially administered sustenance could
justify involuntary discharge only if that refusal were a “medical
reason.” But the patient’s exercise of the right to refuse a particular
treatment cannot be, in and of itself, a “medical reason” justifying
transfer. While the medical facts about a patient’s condition are crucial
to a decision about life-sustaining treatment, they are not the only
factors. The decision may turn on religious, moral, or family concerns.
See Brophy, 497 N.E. 2d at 635. Perhaps, as a collateral consequence
of the decision, the patient will prove to need — and will consent to —
68
Contractual waiver of a statutory right is ineffective if the statute declares the State’s
public policy. Spruell v. Blythe, 215 Md. 117,137 A.2d 183 (1957). See generally Brooklyn
Savings Bank v. O'Neil, 324 U.S. 697,704-05 (1945). Any purported waiver of the Nursing
Home Patient’s Bill of Rights is ineffective. Summit Nursing Home v. Medical Care
Programs, DHMH, Medicare and Medicaid Guide (CCH) 133, 977 (DHMH Hearing
Referee) (May 8, 1984).
69
This office has advised that this provision conflicts with federal law and therefore
is unenforceable. Letter from Attorney General Stephen H. Sachs and Assistant At-
torney General David F. Chavkin to Lawrence R. Payne, Director of the Medical
Assistance Compliance Administration (July 7, 1982).
Gen. 162] 205
care beyond the capacity of the nursing home to provide. In this
unusual circumstance, there might be a legitimate “medical reason”
for a transfer to an institution that could meet those needs. But the
patient’s (or surrogate’s) decision itself, though contrary to the nursing
home’s policy, is not. Therefore, the decision may not serve as a basis
for involuntary discharge or transfer.
For hospitals, there is no comparable statutory restriction on
discharge or transfer.70 However, the General Assembly has enacted
a provision, HG §19-308.2, designed to assure the well-being of a
patient transferred from one hospital to another.71 This provision
reflects an obvious public policy concern for the protection of patients.
The same concern animates judicial decisions that balance the institu-
tion’s right to enforce its policy against the harm to the patient caused
by discharge or transfer. “[AJpplication [of a hospital’s policy pro-
hibiting withholding of artificially administered sustenance] should
be limited to the circumstances where it is reasonable and equitable
to apply it without undue burden to the patient.” In re Requena, 213
N.J. Super. 443, 517 A.2d 869, 870 (1986). See also Jobes, 529 A.2d
at 450. Cf. Brophy, 497 N.E.2d at 639 (transfer to enforce policy per-
missible if hospital assists in securing placement in another facility);
Delio, 516 N.Y. 2d at 694 (hospital may either assist in discontinuance
of treatment or assist in transferring patient to a suitable facility or
to his home). Put differently, a hospital cannot enforce a term in its
adhesion contract in a way that unfairly burdens a patient.
In sum, we conclude that:
(i) A nursing home may not discharge or transfer a patient solely
because the patient (or a surrogate) has refused artificially admin-
istered sustenance; and
(ii) A hospital may not discharge or transfer a patient solely
because the patient (or a surrogate) has refused artificially admin-
istered sustenance, if the discharge or transfer would impose an undue
burden on the patient.
70
Accredited hospitals must meet the standards of the Joint Commission on Accredita-
tion of Hospitals. See HG §§19-301(b), 19-308(c), and 19-319(cX2Xi)- We are aware of no
standard, however, expressly delineating permissible bases for discharge or transfer.
71
HG §19-308.2 provides as follows, in pertinent part: “The Department shall adopt
guidelines ... governing the transfer of patients between hospitals to ensure that
transfers of patients between hospitals are accomplished in a medically appropriate
manner and in accordance with the health care policies of the State....”
206 [73 Op. Att’y
Our conclusion refers to institutional policies formulated by a
nursing home or hospital on the basis of its view of proper patient
care. We do not address the question of whether a religiously affiliated
institution, whose policy disallowing the refusal of artificially admin-
istered sustenance is founded on religious doctrine, has a right under
the Free Exercise Clause of the First Amendment to discharge or
transfer patients who will not comply with that policy.
XII
Regulatory Requirements
Both federal and State regulations require hospitals and nursing
homes to meet the nutritional needs of their patients. See 42 C.F.R.
§405.1125; 42 C.F.R. §482.28; COMAR 10.07.02.13E and
10.07.03.11A(2). Nothing in these regulations, however, mandates the
administration of artificial sustenance. Rather, the regulations
recognize that the nutritional needs of patients are to be met in
accordance with the orders of the attending physician and the con-
sent of the patient. If a physician has documented that a patient or
the patient’s authorized surrogate has refused artificially administered
sustenance, the institution’s honoring of that treatment decision would
not violate either State or federal nutritional regulations.
Apart from these nutritional regulations, we are not aware of any
other regulations bearing on the issues treated in this opinion.
However, the Department of Health & Mental Hygiene has proposed
new regulations applicable to nursing homes. 14:26 Md. Reg. 2758
(Dec. 18, 1987). The proposal, generally intended to ensure patients’
rights, has a section dealing with medical decisionmaking. Proposed
COMAR 10.07.09.04. The Department, we understand, is now
evaluating comments about the proposal and considering what
changes, if any, to make.
XIII
Conclusion
We hope that this opinion provides useful guidance about current
law to families and doctors, who must struggle with decisions about
their loved ones and patients. We also hope that the General Assembly
will address itself to these questions, so that those best able to fashion
Gen. 162] 207
public policy will strike the right balance between affirming individual
choice and protecting the vulnerable among us.
J. Joseph Curran, Jr., Attorney General
Jack Schwartz, Chief Counsel
Opinions & Advice
Sharon Krevor-Weisbaum, Staff Attorney
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