A Look At End Of Life Medical Decisions
© 2005 Justin Dituri
This article is about your right to refuse medical treatment. A medical practitioner cannot “practice” on you without your consent, this is known as “informed consent”. It comes from the common law tradition that no one can touch another person without their consent.
You get to decide whether or not you want medical treatment, and what sort of treatment you want. What if it is clear that you are dying, that you have the opinion of many trained doctors that it is only a matter of time (weeks, days, or hours) before you die, and that any treatment will only prolong the inevitable. At what point would you want to say, “stop, enough, no more treatment, let me go”?
The follow up question is, what if you can’t say what you want? What if you are unconscious, or even “brain dead”, what happens then? At that point, will the doctors follow the instructions of your family, or will they be in control? I have spoken with many people about this over the years, and I find people are troubled by the thought that a doctor may not follow their family’s wishes.
Now that medical techniques allow doctors to keep people alive to an extent that was unknown fifty or one hundred years ago, we are all aware of these questions and issues. And, in response to these developments, and to some high-profile cases (Karen Anne Quinlan, Nancy Cruzan, Terry Schiavo), the courts and legislatures of the States have attempted to set guidelines to answer these questions.
Generally, each of the States has passed a law that allows you to make known ahead of time your wishes about discontinuing medical treatment. You do this by means of a living will (also called advanced medical directive), which is a statement of your desire regarding the termination of medical treatment if you ever are in a position where you cannot communicate.
Many people feel strongly that they want to minimize the financial and emotional burden of watching doctors expend heroic efforts, when death is inevitable. If you have those feelings, here are some things to consider.
I notice that there is some confusion around the term “pull the plug”, and many people believe that a living will is a statement of “if my condition gets like so, then go ahead and kill me”. This is not a living will, a living will is not a euthanasia declaration. What living wills attempt to do is make clear the conditions when you would want to say, “stop the medical treatment and let me go”.
No matter what State you are in, if discontinuing heroic medical treatment in a terminal illness is important to you, then you should find out what constitutes a living will in your State, prepare one in writing, and sign it. In the Quinlan, Cruzan, and Schaivo cases there was nothing in writing. The Terry Schiavo case was about whether to believe the family member who said Terry would want the treatment stopped and the family members who said she would want it continued.
Each State has its own unique laws regarding living wills. Our local Colorado law requires that the signing of the living will be witnessed by two witnesses.
As well as a living will, you should sign a health care power of attorney. In a health care power of attorney you name someone to make health care decisions for you (your health care agent). A health care power of attorney covers more situations than just discontinuing medical treatment. You should read the health care power of attorney to be sure that it allows your agent to discontinue medical treatment. You could also write a letter to your health care agent giving them specific directions as to how you want to be treated in different situations.
Neither Nancy Cruzan nor Terry Schiavo needed medical treatment to stay alive. Both of them lived for many years in what was declared to be a “persistent vegetative state” or “brain death”. They stayed alive through artificially provided nutrition and hydration. Part of the debate in this area is over whether withdrawing nutrition and hydration from someone who is “brain dead” amounts to killing them?
If you feel strongly about either side of this debate, it is a good idea to make clear your desire to have nutrition and hydration continued or discontinued if you should end up brain dead.
Our local Colorado living will law addresses this issue. First it allows for the termination of medical treatment when someone “is in a terminal condition and either unconscious or otherwise incompetent to decide whether any medical procedure or intervention should be accepted or rejected.” It also allows someone to state that if “the only procedure being provided is artificial nourishment,” then either: 1) discontinue artificial nourishment, 2) continue artificial nourishment for a declared number of days, or 3) continue artificial nourishment indefinitely.
It would also be wise to have a statement in your health care power of attorney giving your health care agent the power to either continue, or discontinue, hydration and nourishment if you are brain dead.
If you prepare and sign a living will or health care power of attorney, and no one can find it when the time comes, it will do no good. It is a good idea to give copies to your health care provider. There are also services that will keep copies of your living will and health care power of attorney on file, and provide them to medical providers when they are needed. One company that does this is DocuBank (www.docubank.com or 1-866-362-8226).
My intention was to give you a broad, quick tour around this area of law. My article is meant to help you better understand the issues, but it is not meant to be specific legal advice for any individual situation. If you have questions about your own specific situation, or you want to have a living will or health care power of attorney, you should seek the advice and counsel of an attorney who has some background in this area.
Mr. Dituri is a Colorado attorney who has limited his practice to estate planning issues for the last ten years. Mr. Dituri has no financial interest in the Docubank company. You may contact Mr. Dituri at 303-774-1976.