North Dakota Attorney General Reports and Opinions V. 1999

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1999 North Dakota Attorney General Reports and Opinions 1 (1999)

handle is hein.sag/sagnd0035 and id is 1 raw text is: STATE OF NORTH DAKOTA

ATTORNEY GENERAL'S OPINION 99-01
Date issued: January 6, 1999
Requested by: Senator Tim Mathern
- QUESTION PRESENTED -
Whether North Dakota law prohibits the withholding or withdrawal of
artificial nutrition or hydration except as provided in N.D.C.C.
9 23-06.4-06.1.
- ATTORNEY GENERAL'S OPINION -
It is my opinion that under North Dakota law a competent adult may
refuse medical treatment, including artificial nutrition or
hydration; that the person authorized by law to provide informed
consent for health care for minor or incapacitated patients may
refuse on behalf of the patient artificial nutrition or hydration;
that nutrition and hydration must be withheld or withdrawn if a
terminally ill patient has previously declared in writing the
patient's desire that nutrition or hydration be withdrawn or
withheld; that artificial nutrition or hydration may be withdrawn or
withheld from a terminally ill patient if the requirements of
N.D.C.C. § 23-06.4-06.1(3) are satisfied; and, if permitted by the
durable power of attorney for health care, the agent of an
incapacitated person may authorize the withholding or withdrawal of
nutrition or hydration.
- ANALYSIS -
N.D.C.C. § 23-06.4-06.1, discussed in more detail later, identifies
conditions for withdrawing, withholding, and administering nutrition
and hydration from or to an incapacitated person in a terminal
condition. A number of other North Dakota statutes also address how
health care decisions are to be made for minors or incapacitated
adults. Furthermore, the common law and United States Constitution
protect a competent person's right to make medical decisions,
including the right to refuse unwanted medical treatment. The
constitutional right to refuse unwanted medical treatment and the
different statutory rights provided in North Dakota law must be read
together and harmonized.
The Right to Refuse Medical Treatment.
The United States Supreme Court has held that the right to refuse
medical treatment is an aspect of liberty that exists without