Advance Directives

July 28, 2011

Since the mid-1970s, a great deal of attention has been focused on advance or prospective health care planning as a way for individuals to maintain some control over their future medical treatment even if they eventually become physically and/or mentally unable to make and express important decisions about their own care. Proponents of advance care planning also claim that it may help individuals and their families avoid court involvement in medical treatment decisions, conserve limited health care resources in a way that is consistent with patient autonomy or self-determination, and reduce the emotional or psychological stress on family or friends in difficult crisis situations.

There are two main legal mechanisms available for use in prospective (i.e., before-the-fact) health care planning. one is the proxy directive, ordinarily in the form of a durable power of attorney (DPOA), while the second is the instruction directive, usually referred to as a living will, health care declaration, or natural death declaration. In the United States, these legal mechanisms have their basis in various statutes enacted by state legislatures. In some countries (e.g., Great Britain), advance directives have been recognized by the courts even though they have not been codified in the form of statutes.

In their advance directive statutes, many state legislatures have attempted to draw distinctions between artificial means of feeding and hydration, on one hand, and other forms of life-sustaining medical treatment (such as ventilators and antibiotics), on the other. Specifically, many statutes try to make it more difficult procedurally for families or other decision-makers for incompetent patients to refuse or withdraw artificial feeding or hydration than to refuse or withdraw other forms of life-sustaining medical treatment. Some persons argue that these legal provisions are necessary to protect very vulnerable patients from unfair undertreatment and medical neglect; however, advance directive statutes that discriminate on the basis of the type of medical treatment being refused by the patient or surrogate probably are unconstitutional.

The courts and legislatures consistently have made it clear that state advance directive statutes are not intended to be the only means by which patients may exercise the right to make future decisions about medical treatment. For instance, a patient might convey wishes regarding future medical treatment orally to the physician during an office visit, with the physician documenting the patient’s words in the medical chart. When that patient later becomes unable to make medical decisions, the patient’s oral instructions are just as valid legally as would be a written document executed in compliance with all the statutory formalities found in the state’s advance directive statute.

There is a substantial body of evidence indicating that very often patients’ stated wishes regarding life-sustaining medical treatment are not respected and implemented. In actuality, critically ill patients frequently receive more aggressive medical treatment than they earlier had said they would want.

State advance directive statutes all excuse a health care provider who chooses, for reasons of personal conscience, not to implement the expressly stated treatment preferences of a patient or surrogate, as long as that provider does not impede that patient being transferred to the care of a different provider if that is what the patient or surrogate wishes. Similarly, courts have declined to hold health care providers legally liable for failing to follow a patient’s or surrogate’s instructions to withdraw or withhold particular forms of treatment, on the grounds that providing life-prolonging intervention cannot cause the sort of injury or harm for which the legal system is designed to supply financial compensation.

SEE ALSO: Durable power of attorney for health care, Living wills

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