October 1990 XII/2
LIVING WILL AND DURABLE POWER OF ATTORNEY
Recent prominent court cases have been concerned with the removal of life support from people no longer able to make medical decisions for themselves. As people discuss the Quninlan, Brophy, O'Connor, and Cruzan cases, they affirm the desire to avoid such disputes if they would ever be in the same condition as the aforementioned people. In order to facilitate the desire to avoid unwanted therapy, many states have approved the use of living wills (LW) and durable powers of attorney for health affairs (DPA). Both documents allow persons while still competent to express the way in which they would like medical care to be rendered when they are incapacitated; that is, no longer capable of medical decision making. Usually, the decision that a person is incapacitated is made by one or two physicians. These documents exonerate the persons who implement them from any civil or criminal liability. In general, the LW is implemented by an attending physician, and the DPA is implemented by a proxy, known as the agent or attorney in fact. The LW is to be implemented when death threatens and the person is incapable of medical decision making. The DPA is implemented as soon as the person becomes incapable of medical decision making; it is operative if death does not threaten or if it does threaten. While both documents are inherently ethical, they are often ineffective in accomplishing the goals that people have in mind when they sign them. In this essay, we shall seek to explain the difficulties involved in the use of both documents and, offer sane suggestions which may alleviate the difficulties.
Some believe that life support may not be withheld or removed if a patient has not signed a LW or DPA. But even if the LW or DPA were not signed by the patient, the ethical right to withhold or remove life support which is no longer beneficial must be recognized. In other words, though a clearly written LW or DPA may facilitate the removal of life support, the moral right of a family, in collaboration with the attending physicians to determine when life support is a grave burden or is useless is still an ethical means of decision making for an incapacitated person. We receive the ethical responsibility to make decisions concerning our own health care and the health care of our incapacitated loved ones from our nature as human beings. The Constitution and state laws may recognize and structure our decision making rights, but they do not create these rights. Hence, the LW and DPA may facilitate good decision making, but they do not create the moral power to make such decisions.
Though most state laws concerning LW and DPA allow persons to write their own documents, these state laws usually contain model forms for people to sign while still competent. The wording of these model forms often gives rise to ambiguity and ethical questions. For example: Most LW legislation states that the document is to be implemented when the patient is in "a terminal condition," and allows the removal of life support when it "only prolongs the process of dying." But what is the meaning of "terminal condition?" Many state laws define terminal condition as an illness from which death will result in a relatively short time, even if life support has been utilized. According to this interpretation, life support can be removed only if death is deemed imminent. Death is not deemed imminent if life support will sustain even a minimal degree of function. A more realistic definition of terminal illness has recently been offered by the Illinois Supreme Court (Greenspan Case). To date however, it is not widely accepted. Moreover, the phrase "only prolongs the process of dying" is medically meaningless. When applying life support, reputable physicians seek to restore human function; not to "prolong the process of dying."
As a result of the ambiguous language cited above, the LW was ineffective and has been supplanted in many states by the DPA for health affairs. By reason of the DPA, the agent usually is given the power to make all health care decisions for the now incapacitated person, even if the patient is not in a terminal condition. In some states confinement to a mental institution or a electroconvulsive therapy requires a court order in addition to a decision by the agent.
The greatest potential difficulty of the DPA is found in the section which indicates that the agent will make health care decisions in accord with the values and principles that the patient would follow were he or she capable of decision making, This presupposes that the person making the DPA has thought through his or her desires and communicated them to the agent, But just as a marriage license does not assure the existence of marital love, so a DPA document does not assure that the proper communication has taken place.
Clearly, the agent is given extensive powers of decision making through the DPA.
But what about the responsibilities of the physician? Physicians are also patient advocates, not blind servants of surrogate decision makers. Ethical health care for incapacitated patients with a DPA will still require cooperation between physicians and surrogates. While some physicians have welcomed the DPA because it frees them from legal liability and enables them to work with a definite person as surrogate, it does not free them from ethical responsibilities. Physicians must still offer and implement plans for medical treatment in accord with the overall well-being of the patient.
There are no easy solutions to the above mentioned difficulties, but the following suggestions may be of some help.
I. Keep in mind that medical decisions may be made for incapacitated patients, even if they have not filled out a LW or DPA. These decisions, made in collaboration with the attending physician, should be made by loved ones, using the ethical norms followed for centuries. "If able to make a decision, what would mom or dad want in these circumstances?"
II. Because the interpretation of the LW is sometimes ambiguous, utilize the DPA, making it fulfill the goals of the LW. Hence, state explicitly that the DPA will be effective at all times, even as death approaches.
III. Be sure to discuss your desires and values with the person you designate as agent. In this discussion, focus on the mental and physical functions you consider necessary for a meaningful life; that is, point out the impairments and disabilities which would justify withholding or removing life support; e.g., if you have advanced Alzheimer's disease do you wish to be treated for pneumonia? If you have not thought through your values and desires, perhaps you would ask your proxy to act in accord with the teaching of your Church in regard to the use and removal of life support.
IV. Realize that you can state reservations in your DPA; e.g. will you allow your agent to commit you to a mental institution without a court order?
V. Avoid mentioning specific medical treatments that you wish excluded in the event you are incapacitated. The very therapy you exclude, (e.g. artificial hydration and nutrition) may be the therapy that will restore you to decision making capacity. Instead, encourage life support, but include the desire to have it removed if it does not restore function which for you would be essential to pursue the purpose of life.
The ethical norms for medical care and life prolonging therapy are clear; life should be prolonged unless the therapy to prolong life imposes a grave burden or is ineffective insofar as the overall well-being of the patient is concerned. Used wisely, the DPA follows these norms. Moreover, it can keep decision making out of the legal forum and in the family forum, where it belongs.
Kevin O'Rourke, OP
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