Termination Of Food And Water

This past May, P&A fought an intense legal battle to save the life of a 52-year-
old man who had cognitive impairments. At the beginning of that month, his feeding tube was removed at his family's direction. Within two days, P&A obtained a court order restoring the food and fluids. Ten days later, after five hearings, before two courts, that court order was lifted. The man's name was Henry "Lynn" Bryant.

A week after the courts refused to intervene, Lynn Bryant's condition improved, and his food and fluids were restored. However, on June 21, 1999, following corrective surgery, Lynn passed away.

Lynn Bryant's case has generated a considerable amount of media attention. Indeed, the Albuquerque Journal published two editorials, as well as Op-Ed pieces by P&A Executive Director Jim Jackson and Lynn's family, about the issues raised. The purpose of this article is to provide more information about the case, and why P&A got involved.

Lynn Bryant was blind as well as moderately retarded. He had lived at the former Los Lunas Hospital and Training School for at least 30 years, but since 1997 in a small group house in Jarales. Lynn was ambulatory, and chatty, and was well-liked. Some P&A staff had actually known him .

On April 8, 1999, Lynn suffered what was later diagnosed as a serious stroke, and was hospitalized at Presbyterian Hospital in Albuquerque. After about two weeks there he was transferred to the skilled nursing (SNF) unit at Presbyterian's Kaseman Hospital in Albuquerque. He was to never return home.


From the start of his stay at Presbyterian's facilities, because his swallowing capabilities were impaired, Lynn received "artificial nutrition and hydration"-food and fluids-through a nasogastric tube.

On Monday, May 3, P&A first received complaints about the fact that Lynn's food and fluids had been terminated the previous day. According to the persons complaining, the termination had been sudden and unexpected, and never discussed at a care planning meeting three days earlier. It was also reported that the decision was made because Lynn had become "unresponsive," yet people who knew him well insisted that he was in fact responsive to their communications. At this time, P&A did not yet have access to any of Lynn's actual medical records; however, it seemed to be conceded that Lynn was not suffering from any life-threatening medical condition. It was the removal of the tube feeding that would kill him-he would truly be starved to death.

Since Lynn's food and fluids had already been terminated, if P&A was to act at all we had to act at once. After very careful consideration, we concluded that, in light of the facts as we then knew them, we had to act as soon as possible.

On Tuesday, May 4, P&A initiated two interrelated legal proceedings in the New Mexico District Court in Las Lunas. The primary reason for initiating the actions in Valencia County was that there already was a guardianship case there. In 1978, Lynn's mother had been appointed as his Limited Guardian. We asked the court to rescind her action terminating the food and fluids. Since it appeared that other relatives could claim the power to make such a decision, we filed a separate suit, against those relatives and Presbyterian Kaseman's parent company ("Presbyterian Healthcare Services"), requesting a general injunction against the termination of Lynn's food and fluids. That case was filed in Valencia County as well, largely so that the issues would be heard by the same judge.

Judge John W. Pope, who heard the cases in Los Lunas, eventually ruled that Lynn Bryant's mother could act under New Mexico's "Uniform Health-Care Decisions Act," which was adopted by our legislature in 1995. When our legal actions were filed, however, it was actually not clear who, and under what authority, had made the decision to terminate Lynn's food and fluids. The mother had only recently executed two documents by which she "authorized" the other relatives to make health care decisions for Lynn. Presbyterian had these documents on file.

At an evening hearing on May 4, Judge Pope ordered that Lynn's food and fluids be restored pending further hearing. He scheduled that hearing for only two days hence, and also ordered the appointment of a guardian ad litem to review the May 2 decision to terminate the food and fluids. On the following afternoon, over the family's objection he ruled that P&A could have another physician promptly examine Lynn.

P&A's opponents have complained that once we had the ability to see actual medical records, we should have agreed that "the family's" decision had been right and abandoned our legal action. On the contrary, the records we were allowed to see-which were largely records selected by the family-did little to change our position. In a letter to the Albuquerque Journal, two of Lynn's relatives claimed that, prior to the decision to terminate the food and fluids, "several doctors had stated Lynn had a zero-percent chance of recovery and the family must make a decision." We may never know for sure about all the things medical personnel may have been saying to the family, but the actual medical records documenting the propriety of the drastic action of food and fluids termination were in fact remarkably thin.

Lynn had been recorded to be quite communicative and "responsive" in the early part of his Presbyterian stay. Upon his transfer to the Kaseman SNF, one specialist, reporting an inability to get Lynn to respond to him, expressed the view that the prognosis for Lynn's functional recovery seemed poor. It should be noted that none of "Lynn's" physicians or consultants at Presbyterian had prior knowledge of him, and none had any special training in working with individuals with developmental disabilities. They made no apparent effort to contact his pre-existing service providers. The doctor who P&A arranged to visit Lynn on May 5, Dr. Javier Acevas, had extensive credentials as a renowned specialist dealing with persons with developmental disabilities. Dr. Acevas found Lynn to be clearly responsive to commands (a fact personally confirmed by another P&A staffer).

At an evening hearing on May 6, Judge Pope ruled that he would not overturn the family's decision. He recognized the agonizing difficulty of disputes such as this, and the lack of guidance from New Mexico's higher courts. In the end he decided to defer to the actions of the family, which he felt had been made in a non-biased way and with input from proper hospital authorities. Judge Pope was also clearly influenced by the guardian ad litem, who concluded that the family had acted responsibly and that Lynn Bryant had not been treated any differently due to his disabilities.

We disagreed with the views of both the judge and the guardian ad litem; the latter because he seemed to focus on the reasonableness of the "process" rather than Lynn's rights and interests, and because he had been surprisingly dismissive of the individuals-including Dr. Acevas-who had reported observing Lynn's "responsiveness." We will not detail here the other legal objections we had regarding the May 6 hearing.

In a hearing on May 7, Judge Pope agreed to P&A's request for a stay of his ruling allowing termination of Lynn's food and fluids. However, he granted only a limited stay, until May 14 at 5:00 P.M., only enough time to allow us to file an appeal of his ruling and seek a stay from the New Mexico Court of Appeals. On the morning of Monday, May 10, P&A filed the appeal, and the following day filed an emergency application to the Court of Appeals for a further stay.

Such emergency applications are rare. Normally it takes a few months before parties even address their legal briefs to the Court of Appeals. Our emergency application had to both explain why a stay was proper, and suggest grounds on why we would eventually win an appeal. And that application had to be prepared over a weekend.

Our emergency application asserted that there were several important questions about the rights of patients in life-or-death situations which needed to be clarified, and that Lynn Bryant's interest in being allowed to live while such questions were decided was paramount to the family's interest in having their decision effected speedily. P&A raised several issues, most notably: whether a patient should have to be found terminally ill or in an irreversible coma, or other "end-of-life" condition before the drastic step of cessation of food and fluid could be allowed; and the degree to which the patient's wishes (or what they would likely be) should first be clarified.

The Court of Appeals agreed to an emergency hearing on our stay application, and on May 13 three judges of the Court convened in special session in Albuquerque. In a hearing which lasted more than two hours, the judges heard from not only the attorneys for P&A and the family, but from the guardian ad litem and UNM Law School Professor Robert Schwartz, who the judges invited to make a presentation as an "amicus."


After hearing extensive argument, and asking numerous questions of the attorneys, the judges met privately for about 20 minutes. Upon their return to the hearing room, Judge Joseph A. Alarid announced that the Judges had decided unanimously not to grant a stay. No reasons were given. It is important to understand that the Judges did not make any ruling on the merits of the case or appeal; their ruling was "only" to deny a stay. As a result, effective 5:00 P.M. on Friday, May 14, 1999, Henry Lynn Bryant's family was no longer legally barred from terminating his food and fluids.His feeding tube was removed that night, but restored a week later. Henry Lynn Bryant died a month later.

After the Court of Appeals' refusal to grant a stay, P&A ultimately dropped the appeal. A final ruling on the appeal many months hence would do nothing to affect the medical care decisions of May 1999. We concluded that it would be better to seek legislative amendments to the Uniform Health-Care Decisions Act, the provisions of which all the judges involved in the case concluded should be looked to for guidance.

In closing, we mention two ancillary developments in this case which will long trouble us. First, in those early days of May, some staff of Presbyterian criticized us for, through our attempts to visits with Lynn, "disrupting" care. We continue to maintain that active visitation to and advocacy for nursing facility residents should be encouraged by the facilities, and that the allegations of "disruption" were bizarre. Second, we remain disturbed by the fact that access to Lynn by individuals with whom he had regularly interacted for years were largely denied during his last weeks of life. We cannot help but believe that the resultant isolation and loneliness was harmful.