This is a review of issues considered in a recent Kentucky Supreme Court opinion(1) in which a majority of the court authorized the discontinuance of gastrostomy tubes used to provide nourishment and water to an incompetent person. Joined by Justice Reynolds, the author dissented in the case. In this article I will explain why I respectfully differ with my colleague, Justice Charles M. Leibson, who wrote the majority opinion.
The issue presented by this type of case is how a civilized society reacts when an individual is incompetent to express her own wishes and when the entire family, medical caregivers, and hospital endorse the belief that she should be allowed to die. The individual circumstances are very tragic and have undoubtedly caused the members of the family serious anguish.
One of the major problems unique to any serious discussion of the so-called right-to-die issues is the frequent merger of the concepts regarding passive withdrawal of nutrition and hydration, or food and water, and active, outright mercy killing, or euthanasia, by a positive, allegedly humane means. Inherent in any such dispute over terms and their definition is the further question of the voluntary or involuntary nature of either course of conduct and the capacity of the human being who is the subject of the action in question.
For the purpose of this article only, I shall accept the idea of merger for the simple reasons that it is so common and the terms of the debate have already been defined by those who support or tolerate the proposition favoring withdrawal under most circumstances.
Death is always a very private and personal matter, essentially between the individual and the Creator. However, in certain circumstances, there can be a great effect upon other people, both directly and indirectly. Human beings are endowed by their Creator with an independent free will. Such free will can be absolutely exercised, subject only to moral accountability. The role of courts and governments in such an equation should be passive and is highly questionable.
It is refreshing to realize that our civilization has reached a degree of civility that almost requires resort to the legal system to determine many questions of social policy. As important as such a concept is, it can still be overdone. Unfortunately, the legal system can become the tool of those who would seek a kind of judicial approval for their particular ethical or moral behavior. We frequently hear cries that any particular course of conduct is constitutional or unconstitutional or that it is against the law. The law is important in any orderly society, but it is not the only force that provides for the development of civilization. As recognition of religious values diminishes, there is an increased effort to invoke the law or a system of laws as a kind of secular morality.
The role of peer pressure or the approval of others in society generally should not be discounted in our modern or contemporary culture. Against this kind of background, we must analyze the request of a person who is charged with the responsibility of giving care to an incompetent person.
As expressed in my dissent in DeGrella,(2) the intervention into private decisionmaking is expensive and intrusive. The right to terminate medical treatment is not a power belonging to the judiciary to grant or withhold. This particular case was presented to our court only because the attending physicians and the nursing home did not believe they could recognize the wishes of the family as surrogate decisionmakers to refuse nutrition on the patient's behalf.
It must be recognized, first, that there is a considerable difference between the withdrawal of food and water, also called nutrition and hydration, and the withholding of medical treatment. in the DeGrella case, the majority opinion mixes these concepts by stating that artificial feeding of a patient by a tube amounts to extraordinary medical treatment. …