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 North Carolina Department of Human Resources asked whether G.S. § 90-322 provided the only lawful procedure for a physician to withhold or discontinue extraordinary means, artificial nutrition, or hydration when a patient had not executed a declaration for a natural death. The AG answered that the procedure was nonexclusive.

The opinion explains that the Right to Natural Death Act recognized a right to a peaceful and natural death and gave health-care practitioners an absolute defense when they followed the Act's procedure. Later amendments made the procedure explicitly cumulative, optional, and nonexclusive. The 1979 amendment preserved other lawful rights and responsibilities for withholding or withdrawing life-sustaining procedures; the 1983 amendment called the Act's procedure "optional and nonexclusive."

A physician's deviation from that procedure is not unlawful by itself, according to the AG. The physician loses the Act's absolute defense, and the general statutory and common-law standard of care governs the physician's acts or omissions. The opinion does not determine liability for any particular treatment decision or address whether a particular act could carry criminal consequences under another law.

Currency note

This opinion was issued in 1995. Check the current Right to Natural Death Act and applicable medical-care law before using its analysis for a present treatment decision.

Background and statutory framework

The opinion says the Act was adopted in 1977 after public debate surrounding In re Quinlan. It quotes the Act's preamble recognizing the patient's right to control decisions about medical care in a terminal condition. The AG reads the 1979 and 1983 amendments as confirmation that the statutory procedure supplements other lawful means rather than replacing them.

The opinion cites G.S. § 90-21.12 and Wall v. Stout for the general standard of care applicable when a physician acts outside the Act's procedure. It does not apply that standard to a specific patient or physician.

Common questions

Q: Is G.S. § 90-322 the only legal route when there is no natural-death declaration?
A: No. The AG says its procedure is optional and nonexclusive. Acting outside it does not, by itself, make a physician's conduct unlawful.

Q: What protection does following the statutory procedure provide?
A: The opinion says health-care practitioners who follow it receive an absolute defense under the Act. It does not specify the outcome of a particular claim.

Q: What standard applies if a physician does not follow the procedure?
A: The physician loses that absolute defense and is judged under the general statutory and common-law standard of care for physicians, including G.S. § 90-21.12.

Q: Did the opinion rule out criminal liability for an act outside the statute?
A: No. It says deviation from the Act's procedure is not unlawful by itself. It does not evaluate criminal liability for any particular act under other law.

Citations

• 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. den. 429 U.S. 922 (1976).
• Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984).

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