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Originally published Friday, June 3, 2005 at 12:00 AM

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Judge rules state was obligated to force-feed inmate

Charles R. McNabb was five months into a hunger strike — his 5-foot-9 frame withered to less than 100 pounds — when he was wheeled...

Seattle Times staff reporter

Charles R. McNabb was five months into a hunger strike — his 5-foot-9 frame withered to less than 100 pounds — when he was wheeled into the Airway Heights prison infirmary last year.

The prison medical staff wanted to insert a feeding tube. McNabb, convicted of arson, wanted to continue starving. He was remorseful, he had told jailers, for badly burning his stepdaughter.

Was it a case of a patient's right to deny medical care, or of the state's obligation to avert a prison suicide?

The Washington State Court of Appeals yesterday ruled that the Department of Corrections (DOC) was justified in force-feeding McNabb, setting a precedent for other state inmates who attempt hunger strikes.

The five-page ruling dismissed McNabb's claim that the feeding tube violated his state Constitutional right to privacy, including the right to decline medical treatment. "The right to decline force-feeding is not absolute because the state has an interest in protecting the sanctity of the lives of its citizens," wrote appellate judge Ken Kato for a unanimous three-judge appellate panel in Spokane.

There is a difference between the case of McNabb — who was otherwise healthy — and those in which a terminally ill patient declines treatment, according to the ruling.

"Rather, his situation is one where it can be inferred that the road to death is set in motion for purposes of committing suicide," Kato wrote.

McNabb, 51, claimed he last ate on Feb. 5, 2004, while being evaluated at Eastern State Hospital.

He had been charged with arson and assault for setting fire to his estranged wife's Spokane house. His 16-year-old stepdaughter was seriously burned in the fire. He slowly wasted away in the county jail while awaiting his July 2004 trial, dropping at least half of his 190 pounds.

A Spokane County judge granted a local hospital the authority to insert a feeding tube if his condition became life-threatening, but doctors disagreed over his health, and McNabb's strike continued.

He pleaded guilty in July and was sentenced to 14 years. DOC inserted a tube two days after his admission.

"I am declining to eat for personal reasons," he wrote in a sworn declaration in August 2004, as he filed a lawsuit. "I am competent to make this choice. ... I am deeply committed to that decision and for that reason I have consistently declined to eat, except under threat of force-feeding, for almost six months."

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Not long after the feeding tube was inserted, McNabb began eating voluntarily to avoid being force-fed. He now is serving his sentence at the Monroe Correctional Complex.

Dr. Marc Stern, chief physician for the prison system, applauded the decision.

"One of the things we struggle with is: Where does the patient autonomy end and where does the state autonomy begin?" he said. "We do have cancer patients who can't eat and choose to not eat. In that case, the patient has autonomy. You have the right to die in a dignified way. But being perfectly healthy and saying, 'I'm not going eat,' that's where your autonomy ends and our autonomy begins."

Stern said he suspects that McNabb was at least drinking juice during his strike; otherwise, he said, McNabb probably would have died.

Terri Sloyer, McNabb's attorney, said the ruling, taken to an extreme, could allow the forced drugging of inmates should the DOC claim it is in the best interests of the prison.

"You don't lose your right to consent or not consent to medical treatment as a prisoner," Sloyer said. "And force-feeding is one of the most invasive medical procedures there is."

At least five other state-court rulings nationwide allow force-feeding of prisoners. The most notable case was that of John Lennon's assassin, Mark Chapman, who claimed his 23-day hunger strike was intended to draw attention to starving children.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com

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