FORMAL OPINION
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relating to the rendering of his own medical care, including the decision to have extraordinary means withheld or withdrawn in instances of a terminal condition."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