If a North Carolina patient never signed a living will, is the procedure in the Right to Natural Death Act the only legal way a doctor can withhold life-sustaining treatment?

Plain-English summary

The Secretary of the North Carolina Department of Human Resources asked the AG whether the Right to Natural Death Act, N.C.G.S. § 90-321 et seq., creates the only lawful way a physician may withhold or discontinue extraordinary means or artificial nutrition and hydration when a patient never signed a declaration for a natural death.

The AG's answer: the procedure is nonexclusive. A physician who follows § 90-322 is entitled to an absolute statutory defense. A physician who does not follow § 90-322 is not acting unlawfully; the physician is just judged by the general standard of care for physicians (statutory and common law) under § 90-21.12 and cases like Wall v. Stout.

The Right to Natural Death Act was enacted in 1977, after the tragic Karen Ann Quinlan case (In re Quinlan, N.J. 1976). The preamble to the Act says the General Assembly "recognizes" the right to a peaceful and natural death as a matter of public policy, treating it as a preexisting right that the legislature did not create but acknowledged. Before 1977, a significant number of doctors (probably a majority) practiced passive euthanasia from time to time, but the law was uncertain and exposed physicians to litigation. The Act provided a procedure for exercising the right and an absolute defense for physicians who follow the procedure.

The legislature twice clarified that the Act is not exclusive. The 1979 amendment added: "[n]othing in the Article shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful manner. In such respect the provisions of this Article are cumulative." (1979 N.C. Sess. Laws ch. 715, § 1.) The 1983 amendment added: "This article is to establish an optional and nonexclusive procedure by which a patient or his representative may exercise [the right to a peaceful and natural death]." (1983 N.C. Sess. Laws ch. 815, § 1.)

The practical consequence: a physician who acts outside the Act loses the absolute statutory defense but is not per se acting unlawfully. The physician's conduct is judged by the general medical standard of care, which means tort and malpractice liability, not criminal liability for an act outside the statute.

Currency note

This opinion was issued in 1995. 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. The Right to Natural Death Act has been amended several times since 1995, North Carolina has adopted health-care power-of-attorney legislation that interacts with the Act, and the case law on end-of-life decision-making has continued to develop. The general principle (the Act is optional and nonexclusive; physicians acting outside it lose the safe harbor but are not per se unlawful) appears stable, but counsel should verify current text and case law.

Historical context: what the AG concluded

The AG opinion is brief but does important interpretive work:

The Act is not a criminal statute. Section 90-322 does not say or imply that physicians who deviate from the procedure are acting unlawfully. The statute creates a safe-harbor procedure with an absolute defense, not a code of acceptable conduct.

Two amendments confirm nonexclusivity. The 1979 amendment (ch. 715, § 1) added cumulative-rights language. The 1983 amendment (ch. 815, § 1) added the "optional and nonexclusive procedure" framing. Both confirm legislative intent: the Act adds to existing common-law and statutory authority, it does not displace it.

The 1977 enactment was driven by Quinlan. The In re Quinlan case (N.J. 1976) had raised public consciousness about end-of-life decisions. The AG noted, citing law-review commentary, that a "significant number of doctors, probably a majority" had been practicing passive euthanasia even before the Act. The Act gave physicians a clearer path and an absolute defense, not a new substantive right.

Outside the Act, the standard is ordinary medical malpractice. A physician who withholds or discontinues life-sustaining procedures outside § 90-322 is judged by § 90-21.12 (the general medical standard-of-care statute) and case law like Wall v. Stout. That is the same standard that governs any other medical judgment.

The opinion is written as a brief Q&A response. The question is formulated as: "Does G.S. § 90-322 establish an exclusive or a nonexclusive procedure...?" The conclusion is one sentence: "The procedure is nonexclusive." The remainder is statutory and historical context.

Common questions

If my elderly relative is dying in a North Carolina hospital and never signed a living will, can the doctors stop life support?

This opinion says yes, doctors can withhold or discontinue extraordinary measures even without a declaration under the Right to Natural Death Act. The doctors lose the absolute statutory defense, but the conduct is not per se unlawful. The doctors would be judged by the general medical standard of care, just like any other medical decision. North Carolina has since adopted health-care-power-of-attorney legislation that creates additional formal mechanisms, so counsel should verify the current procedural landscape.

What does "extraordinary means" mean in this context?

The Right to Natural Death Act and its case-law context use "extraordinary means" for life-sustaining treatments that go beyond ordinary care, including ventilators, dialysis in irreversible coma cases, and artificial nutrition and hydration where the patient cannot benefit. The terminology evolved after this opinion; modern practice often uses "life-sustaining treatment" or "extraordinary measures."

What is the absolute defense if doctors follow § 90-322?

The Act provides a complete defense to civil and criminal liability for physicians who follow the procedure. Outside the procedure, the physician is exposed to ordinary medical-malpractice analysis: did the physician's decision meet the standard of care?

Why did the 1995 AG opinion think the question needed addressing?

In 1994, the Department of Human Resources had been considering policy guidance for hospitals and physicians on how to handle terminally ill patients without declarations. The Secretary needed to know whether departmental guidance encouraging compliance with § 90-322 would imply that any other path was unlawful. The AG's answer let DHR draft guidance that recommended § 90-322 procedures while preserving the legal validity of acts outside the Act.

Has the legislature amended the Act since this opinion?

Yes, multiple times. North Carolina has updated the Act's procedural requirements, added health-care-power-of-attorney mechanisms in N.C.G.S. § 32A-15 et seq., and reorganized parts of the relevant chapter. Counsel should not rely on the 1995 statutory text without checking current law.

Background and statutory framework

N.C.G.S. § 90-321 et seq. (Right to Natural Death Act). Enacted in 1977 (1977 N.C. Sess. Laws ch. 815). The preamble recognizes the right to a peaceful and natural death and the patient's fundamental right to control decisions about medical care. The Act creates a procedure for declarations and a defense for physicians who follow it.

1979 amendment (1979 N.C. Sess. Laws ch. 715, § 1). Added: "Nothing in the Article shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful manner. In such respect the provisions of this Article are cumulative."

1983 amendment (1983 N.C. Sess. Laws ch. 815, § 1). Added: "This article is to establish an optional and nonexclusive procedure by which a patient or his representative may exercise [the right to a peaceful and natural death]."

N.C.G.S. § 90-21.12 (Medical standard of care). The general North Carolina statute on the standard of care for physicians. Used to evaluate any medical decision, including end-of-life decisions made outside the Right to Natural Death Act.

Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984). North Carolina Supreme Court case applying the medical standard of care framework.

In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). The New Jersey Supreme Court decision that catalyzed legislative attention to right-to-die law in the late 1970s. New Jersey held that Karen Ann Quinlan's father, as guardian, could direct removal of his daughter's ventilator. The decision drove states including North Carolina to enact natural-death statutes.

The opinion is signed by Gayl M. Manthei (Special Deputy Attorney General) under the authority of AG Michael F. Easley.

Citations

• N.C.G.S. §§ 90-21.12, 90-321, 90-322.
• 1979 N.C. Sess. Laws ch. 715, § 1.
• 1983 N.C. Sess. Laws ch. 815, § 1.
• In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976).
• Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984).
• Comment, North Carolina's Natural Death Act: Confronting Death with Dignity, 14 Wake Forest L. Rev. 771 (1978).

Source

• Landing page: https://ncdoj.gov/opinions/right-to-a-natural-death-procedures-for-natural-death-in-the-absence-of-a-declaration/

Original opinion text

DATE: 5 January 1995

Subject: Right to a Natural Death; Procedures for Natural Death in the Absence of a Declaration

Requested by: C. Robin Britt, Sr., Secretary, Department of Human Resources

Question: Does G.S. § 90-322 establish an exclusive or a nonexclusive procedure by which a physician may withhold or discontinue extraordinary means or artificial nutrition or hydration in the absence of a declaration for a natural death executed pursuant to G.S. § 90-321.

Conclusion: The procedure is nonexclusive.

The Right to Natural Death Act, G.S. § 90-321 et. seq. [the "Act"], was adopted in 1977 in the wake of the public debate engendered by the tragic case of Karen Ann Quinlan. In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. den. 429 U.S. 922 (1976). The preamble to the Act states, in part, "[t]he General Assembly recognizes as a matter of public policy that an individual's rights include the right to a peaceful and natural death and that a patient or his representative has the fundamental right to control the decisions relating to the rendering of his own medical care, including the decision to have extraordinary means withheld or withdrawn in instances of a terminal condition."

Significantly, the North Carolina legislature did not "create" the right to a natural death, but, instead, "recognized" that right. Prior to the enactment of the Act, "[a] significant number of doctors, probably a majority, [were] generally conceded to practice passive euthanasia from time to time." Comment, North Carolina's Natural Death Act: Confronting Death with Dignity, 14 Wake Forest L. Rev. 771, 774 (1978). The law was, however, uncertain, and the uncertainties created a "regrettable situation which forces the physician to weigh every decision against the threat of litigation". Id. As a result, the legislature established a procedure for exercising the right to a natural death and enacted an absolute defense for health care practitioners who act in accordance with those procedures.

The Act was not, however, intended to create an exclusive procedure for accomplishing a natural death, thereby rendering all other procedures unlawful. The Act was twice amended in order to clarify that fact. In 1979, the Act was amended to add the language "[n]othing in the Article shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful manner. In such respect the provisions of this Article are cumulative." 1979 N.C. Sess. Laws. ch 715, § 1. In 1983, the following language was added to the Act: "This article is to establish an optional and nonexclusive procedure by which a patient or his representative may exercise [the right to a peaceful and natural death]." 1983 N.C. Sess. Laws. ch. 815, § 1.

Therefore, it is not unlawful for a physician to deviate from the procedures set out in the Act. The physician who does so will, however, lose the benefit of the absolute defense provided in the Act. As a result, the standard of care by which the physician's acts or omissions will be judged will be the general standard of care for physicians which is set out in statutory and common law. See, G.S. 90-21.12; Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984).

MICHAEL F. EASLEY
Attorney General

Gayl M. Manthei
Special Deputy Attorney General