May 23, 1996
R. Marcus Lodge, General Counsel NC Department of Human Resources PO Box 29526 Raleigh NC 27626-0526
Re: Advisory opinion: Institutional Objections to Advance Directives; N.C. Gen. Stat. § 90-321
Dear Mr. Lodge:
Your predecessor, Jack W. Jenkins, sought this office’s opinion on three issues related to advance directives. The questions posed by Mr. Jenkins and our response to each question are set out below. For the purposes of this opinion, we understand the term "advance directive" to mean a declaration of a desire for a natural death executed pursuant to N.C. Gen. Stat. § 90-321. Furthermore, we understand the term "institution" to mean any inpatient health care facility.
I. WHETHER STATE LAW ALLOWS AN ENTIRE INSTITUTION TO DECLINE TO IMPLEMENT AN ADVANCE DIRECTIVE TO WHICH IT OBJECTS ON THE BASIS OF CONSCIENCE.
Yes, State law allows an institution to decline to implement an advance directive to which it objects on the basis of conscience. When it adopted Article 23 of Chapter 90 of the North Carolina General Statutes, the General Assembly formally recognized:
that an individual’s rights include the right to a peaceful and natural death and that a patient . . . 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relating to the rendering of his own medical care, including the decision to have extraordinary means withheld or withdrawn in instances of a terminal condition. N.C. Gen. Stat. § 90-320(a). However, the law specifies only that extraordinary means or artificial nutrition or hydration may be withheld or discontinued when the statutory criteria have been met. N.C. Gen. Stat. § 90-321(b). Because the General Assembly used the word "may" rather than the word "shall" when it wrote this provision, we conclude that an institution may decline to withhold or discontinue extraordinary means or artificial nutrition or hydration even when a patient has a properly executed advance directive and the other statutory criteria are met. See In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, ___ (1978) (the word "may" ordinarily construed as permissive and not mandatory). On the other hand, 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. See Hunt v. Bradshaw, 242
- 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