Can a North Carolina hospital or nursing home refuse to follow a patient's advance directive on conscience grounds, and if it does, does state law require it to transfer the patient to a facility that will honor the directive?
Plain-English summary
R. Marcus Lodge asked the AG three connected questions about advance directives:
- Can a health-care institution refuse, on conscience grounds, to follow a patient's properly executed advance directive (DNR, withholding of life-sustaining treatment, refusal of artificial nutrition/hydration)?
- If so, does the rule apply differently to public hospitals, private hospitals taking public payment, and entirely private hospitals?
- Does state law require the refusing institution to transfer the patient to one that will follow the directive?
Senior Deputy AG Ann Reed and Special Deputy AG James Wellons answered: yes, the rule applies equally across institution types, and no, state law does not impose a transfer duty. But forcing unwanted extraordinary measures, artificial nutrition, or hydration on a patient against the patient's documented wishes may constitute assault and battery, so transfer is often the prudent option.
The cause of action backstop. North Carolina recognizes the common-law principle that an unauthorized medical operation constitutes assault and battery. The opinion's case-law string cite (truncated in the available text) includes Butler v. Berkley, 25 N.C. App. 325 (1975), Nelson v. Patrick, 58 N.C. App. 546 (1982), and Lackey v. Bressler, 86 N.C. App. 486 (1987). An institution that treats a patient over a clearly expressed contrary directive is in the same legal position as a surgeon who operates without consent.
The advance-directive statute. G.S. § 90-321 governs natural death declarations and the implementation of advance directives. First Healthcare Corp. v. Rettinger, 118 N.C. App. 600 (1995), discussed the statute but did not directly address whether an institution may refuse to implement an advance directive as a matter of policy; the First Healthcare defendant's policy was to honor advance directives, and the litigation turned on whether the statutory requirements had been met. The AG noted that no other reported case addressed the legal issue of institutional refusal.
Uniform rule across institution types. Public institutions, private institutions receiving public payment, and fully private institutions are all bound by the same rule. The opinion does not draw distinctions based on state action, government funding, or charitable status. The conscience objection is structural and available to all types of healthcare provider institutions.
The state psychiatric exception. The Department of Human Resources, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services has a rule (10 NCAC 14T .0103) requiring its four psychiatric hospitals, the N.C. Special Care Center, the three Alcohol and Drug Abuse Treatment Centers, and the five Mental Retardation Centers to honor advance directives made by admitted clients. The rule overrides any conscience-based refusal at those specific state facilities.
No transfer mandate. State law does not require an institution that declines to implement a patient's advance directive to transfer the patient to one that will. But the assault-and-battery exposure for forcing unwanted treatment creates a practical pressure to transfer. The opinion's framing: transfer "may be the better option for an institution that, as a matter of conscience, does not wish to honor a patient's advance directive."
Currency note
This opinion was issued in 1996. 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 federal Patient Self-Determination Act, the federal Conditions of Participation for Medicare and Medicaid facilities, the NC Health Care Decisions Act amendments, and POLST (Provider Orders for Life-Sustaining Treatment) frameworks have substantially evolved the practical and legal landscape for advance-directive implementation. Anyone facing a current advance-directive question should review the current text of Chapter 90, Article 23 (Right to Natural Death; Brain Death), the federal regulations applicable to the facility, and any institutional policies, not just this 1996 advisory letter.
Background and statutory framework
North Carolina enacted its modern advance-directive statute in the late 1970s and amended it substantially in the 1980s and 1990s. The framework includes declarations of desire for a natural death, health-care powers of attorney, and DNR orders. The statutes set out procedural requirements for valid execution (witnesses, notarization, capacity at execution), substantive scope (when the directive becomes operative, what treatment categories it can reach), and revocation rules.
What the statutes did not address explicitly in 1996 was institutional refusal. A hospital or nursing home that had moral, religious, or institutional-policy objections to certain end-of-life decisions had no clear statutory path. The AG's opinion fills that gap with two complementary conclusions: institutions may refuse on conscience grounds, but they cannot use forced treatment to overcome a patient's directive without exposure to common-law tort liability.
The transfer question is the practical fulcrum. A refusing institution can hold a patient and refuse to follow the directive, but it cannot lawfully provide the treatment the patient has refused. The patient is left without the desired care unless transferred. Most institutions facing this position elect transfer rather than the legal and ethical exposure of providing unwanted treatment or providing nothing.
The state-psychiatric carve-out reflects the special vulnerability of psychiatric patients to forced treatment. The DHR rule pre-emptively resolves the conscience question for the state's own mental health facilities by requiring them to honor directives.
Common questions
Can an institution have a written policy refusing all DNR or directive implementations?
Yes, under the opinion's reading. The institution must communicate the policy and (as a practical matter) be prepared to transfer patients whose directives the institution will not honor. The opinion does not address what disclosures or admission-time notices the institution should provide, but federal Patient Self-Determination Act regulations and state licensure rules typically require such disclosure.
What if the patient is already incapacitated when the conflict arises?
The advance directive itself does the work of speaking for the incapacitated patient. The institution's refusal does not change the directive's force; it changes the institution's willingness to act on it. The patient's surrogate or family can seek transfer or, in some cases, court intervention.
Does the institution face liability for refusing alone, without treating against the directive?
Refusal alone, without forced treatment, is less likely to expose the institution to tort liability. The institution may be liable for breach of fiduciary duty, contract claims, or specific federal violations (Medicare conditions, EMTALA in emergency cases) but not for the common-law assault-and-battery tort the opinion identifies. The tort attaches to forced treatment, not to non-treatment.
How does this interact with the federal Patient Self-Determination Act?
The PSDA (42 U.S.C. § 1395cc(a)) requires Medicare/Medicaid-participating providers to give patients information about their rights to make advance directives and to maintain written policies about implementing them. The PSDA does not require providers to follow directives that conflict with conscience-based institutional policy, but it does require disclosure of the policy. The AG opinion is consistent with the federal framework.
What about emergency situations?
In an emergency, EMTALA and other federal/state rules require stabilization. If a patient with a known DNR arrives in cardiac arrest, the emergency-care obligation may complicate the institutional refusal scenario. The opinion does not address emergency-care timing, which has been the subject of separate litigation and policy guidance.
Could a patient sue to force the institution to comply?
The opinion does not address patient remedies. In practice, patients or families have sometimes sought injunctive relief to compel institutional compliance or to compel transfer. The legal theory typically draws on the advance-directive statute, contract claims, and constitutional autonomy doctrine. Results have been mixed.
Source
Citations
- N.C. Gen. Stat. § 90-320
- N.C. Gen. Stat. § 90-321
- 10 N.C.A.C. 14T .0103
- First Healthcare Corp. v. Rettinger, 118 N.C. App. 600, 456 S.E.2d 347 (1995)
- Butler v. Berkley, 25 N.C. App. 325, 213 S.E.2d 571 (1975)
- Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829 (1982)
- Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560 (1987)
Original opinion text
[The available source body begins partway through Issue I; the legal-issue discussion of N.C. Gen. Stat. § 90-321 and the First Healthcare citation appear truncated. The portions reproduced below are as the source presents them.]
N.C. 517, 524, 88 S.E.2d 762, ___ (1955) (concurring opinion) (unauthorized operation constitutes an assault and battery); cited in Butler v. Berkley, 25 N.C. App. 325, 213 S.E.2d 571 (1975); Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829 (1982); and Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560 (1987).
N.C. Gen. Stat. § 90-321 is cited and discussed in First Healthcare Corp. v. Rettinger, 118 N.C. App. 600, 456 S.E.2d 347 (1995). However, in that case, it was the institution's policy to implement advance directives if the requirements of the statute were met. 118 N.C. App. at 604, 456 S.E.2d at ___. Therefore, the issue presented by the case was the factual issue of whether the requirements of the statute had been met and not the legal issue of whether it would have been permissible for the institution to have had a policy under which it would not implement advance directives. We have found no other reported cases which address this issue.
II. WHETHER STATE LAW REGARDING INSTITUTIONAL OBJECTIONS TO ADVANCE DIRECTIVES ON THE BASIS OF CONSCIENCE APPLIES IN THE SAME WAY TO PUBLIC INSTITUTIONS, PRIVATE INSTITUTIONS RECEIVING PUBLIC PAYMENT FOR PROVIDING CARE, AND PRIVATE INSTITUTIONS RECEIVING NO PUBLIC PAYMENTS.
Our response to the first issue applies equally to public institutions, private institutions receiving public payment for care, and private institutions receiving no public payment. Note, however, that the Department of Human Resources, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services is required by rule to honor advance care directives made by clients admitted to the Division's four psychiatric hospitals, the N.C. Special Care Center, the Division's three Alcohol and Drug Abuse Treatment Centers, and the Division's five Mental Retardation Centers. See 10 N.C.A.C. 14T .0103.
III. WHETHER STATE LAW REGARDING INSTITUTIONAL OBJECTIONS TO ADVANCE DIRECTIVES ON THE BASIS OF CONSCIENCE REQUIRES TRANSFER OF THE PATIENT TO AN INSTITUTION THAT WILL IMPLEMENT THE PATIENT'S WISHES.
State law does not require an institution that declines to implement a patient's advance directive to transfer the patient to an institution that will implement the patient's advance directive. Yet, as noted above, an institution that forces extraordinary means or artificial nutrition or hydration upon a patient against the patient's wishes may be liable for assault and battery. Thus, transfer may be the better option for an institution that, as a matter of conscience, does not wish to honor a patient's advance directive.
Ann Reed
Senior Deputy Attorney General
James A. Wellons
Special Deputy Attorney General