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Can Complex Legislation Solve Our End-of-Life Problems?

Published online by Cambridge University Press:  29 July 2009

Brendan Minogue  and
James E. Reagan
Brendan Minogue
Affiliation:
A professor in the Department of Philosophy and Religious Studies, Youngstown State University, Youngstown, Ohio, President of the Bioethics Network of Ohio, and Bioethics Consultant for the Western Reserve Care System
James E. Reagan
Affiliation:
Director of the Center for Ethics at St. Elizabeth Hospital Medical Center, Youngstown, Ohio
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Extract

Over a 20-year period, the United States has developed a consensus of legal opinion concerning living wills and other advance directives. At the heart of this consensus are two interconnected principles. First, the state should minimally interfere with the wishes of patients and surrogates and the decisions of physicians about foregoing life-sustaining treatments. Second, state interference is permissible for the sake of protecting a compelling state interest. The overwhelming majority of states with advance directive laws have attained this balance of minimal interference and compelling state interest in developing their laws.

Type
Articles
Information
Cambridge Quarterly of Healthcare Ethics , Volume 3 , Issue 1 , Winter 1994 , pp. 115 - 124
Copyright
Copyright © Cambridge University Press 1994

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References

Notes

1. For a thorough discussion of this consensus, see Meisel, A. The legal consensus about foregoing life sustaining treatment: its status and progress. Kennedy Institute of Ethics Journal 1993;2:309–45.CrossRefGoogle Scholar

2. Ohio Revised Code, 1337.11–1337.17, 2101.24 amended; 2133.01–2133.15 enacted.

3. End-of-life legislation has been fiercely contested in Ohio. Six previous bills were proposed and defeated between 1976 and 1991. The Ohio Right to Life society has been the most effective lobbyist, whereas other organizations, such as the state hospital, medical, legal, and nursing associations, have had only marginal impact.

4. Recently, several of Ohio's bioethicists have formed the Bioethics Network of Ohio (BENO). BENO is currently preparing an analysis of Ohio's advance directive laws.

5. Ohio Revised Code, 1337.12 ff, 2133.02 ff.

6. Ohio Revised Code, 2133.08 ff.

7. Ohio Revised Code, 1337.13 (B) (2) (3), (C), (D), (E) (1) (2) (a) (b) (3); 2133.02(A) (3) (a) (i) (ii).

8. Ohio Revised Code, 2133.09 (A) (B) (C).

9. Ohio Revised Code, 1337.15, 2133.10, 2133.11.

10. How important are these incentives? We are not sure. Statutory immunity is an arguably weak incentive for at least two reasons. First, the accrued burdens to all agents of complying with the complex details of this Ohio law are heavy. Second, Ohio's medical and healthcare providers have foregone life-sustaining interventions for years without statutory immunity. There is a host of law, both federal and state, that justifies foregoing treatment, even if it is inconsistent with Ohio's living will stipulations. However, statutory immunity is an arguably strong incentive for at least two reasons. First, it is perceived as a value by legally embattled physicians and hospitals. Second, the entire law affects what might be construed as the standard of care for end-of-life treatment in Ohio, and it may be professionally risky to habitually deviate from this standard of care.

11. Ohio Revised Code, 2133.08, 2133.09.

12. New York Times 1992 05 12:A13.Google Scholar

13. Ohio Revised Code, 1337.13(E) (2) (a, b).

14. Ohio Revised Code, 1337.11(Y), 2133.01(AA):

“Terminal condition” is defined as an irreversible, incurable and untreatable condition caused by disease, illness or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a principal's attending physician and one other physician who has examined the principal, both of the following apply: 1) There can be no recovery. 2) Death is likely to occur within a relatively short period of time if life-sustaining treatment is not administered.

15. Ohio Revised Code, 1337.11(1), 2133.01(U):

“Permanently unconscious state” means a state of permanent unconsciousness in a principal that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a principal's attending physician and one other physician who has examined the principal, is characterized by both of the following: (1) The principal is irreversibly unaware of himself and his environment. (2) There is a total loss of cerebral cortical functioning, resulting in the principal having no capacity to experience pain and suffering.

16. Ohio Revised Code, 1337.16, 2133.05, 2133.08.

17. Ohio Revised Code, 1337.16 (A) (4) (c) (i–viii); 2133.04 (B) (2) (c) (i–vi).

18. For the specific “waiting period language,” see Ohio Revised Code 1337.16 (D) (3) (a) (b); 2133.05 (A) (3), (B) (1) (a) (b).

19. Ohio Revised Code, see 2133.09(A) for the 12-month waiting period; see (A) (6) and (C) (1) for petitioning the probate court; see (C) (2) for the clear and convincing evidentiary standard of the patient's known or inferred wishes to withdraw AHN. We can concretely illustrate these objections by briefly considering how Nancy Cruzan, her family, and her physicians would fare if the case occurred in Ohio exactly as it did in Missouri. In the actual Cruzan sequence, the patient was accurately diagnosed permanently unconscious, and her legitimate surrogates wanted to withdraw AHN. Nancy Cruzan had not written an advance directive. Her parents (the surrogates) attested that she previously expressed wishes not to be maintained in this kind of condition and that AHN was not in her best interests. The Missouri State Supreme Court rejected appeals to best interests, and the court allowed that only “clear and convincing” evidence of the patient's previously expressed wishes could authorize withdrawing the AHN. The U.S. Supreme Court's majority in Cruzan was silent on “best interests” and found for Missouri's requirement of the ”clear and convincing” standard of evidence for surrogates acting on a patient's previously expressed wishes. Ohio's law is obviously more burdensome than both Cruzan decisions because in Ohio, physicians and surrogates must provide AHN to similarly situated patients for at least 12 months before even registering knowledge of previously expressed wishes. This kind of case in Ohio continues to be more intrusive than the Cruzan decisions, because even after the 12 months of treatment, Ohio's physicians and surrogates must petition the probate court as well as meet the clear and convincing evidentiary standard to withdraw AHN.

20. For example, see Ohio Revised Code, 2133.08(D) (3). This language is repeated exactly in every description of surrogate (including judicial) decision making throughout this law: 2133.02(A) (3) (a)(i)(ii).

21. The Ohio Advance Directive Law might not be as foreclosing of “best interests” or “futility” judgments as is popularly thought. See Ohio Revised Code 1337.16 (D) (4) (iii), wherein one of the stipulated reasons for another surrogate's objecting to an attorney's-in-fact interpretation of a DPAHC is “that, in exercising his authority, the attorney in fact is not acting consistently with the desires of the principal or, if the desires of the principal are unknown, in the best interests of the principal” (emphasis added). See also Ohio Revised Code 1337.16(C), wherein the stipulations governing the DPA

do not affect or limit, and shall not be construed as affecting or limiting, the authority of a physician or of a health care facility to provide or not to provide health care to a person in accordance with reasonable medical standards in an emergency situation.

See also Ohio Revised Code 2133.12(C) (3) (4):

This chapter, and if applicable, a declaration do not affect or limit, and shall not be construed as affecting or limiting, the authority of a physician or health care facility to provide or not to provide life-sustaining treatment to a person in accordance with reasonable medical standards applicable in an emergency situation.

22. Accreditation Manual for Hospitals, 1992 Supplement, Patients' Rights. 1992: Rl 1.1.6; 1.1.6.1. Joint Commission on Accreditation of Health Care Organizations, One Renaissance Boulevard, Oakbrook Terrace, IL 60101.Google Scholar

23. The literature available to ethics committees on end-of-life matters is immense. Most committees nominate a member to routinely circulate pertinent clinical ethics articles. For example, Council on Ethical and Judicial Affairs, American Medical Association. Decision near the end of life. Journal of the American Medical Association 1992;267:2229–33.23.CrossRefGoogle Scholar

24. Weaver, WD. Resuscitation outside the hospital: what's lacking? New England Journal of Medicine 1991;325:1437–9.CrossRefGoogle ScholarPubMed

25. See note 22. Joint Commission. 1992:R1 1.2.

26. There is an emergent literature of ethics case review and consultation. For a recent overview, see Fletcher, JC, Quist, N, Johnsen, AR, eds. Ethics Consultation in Health Care. Ann Arbor, Michigan: Health Administration Press, 1989.Google Scholar

27. Ethics committees read and discuss pertinent articles from the professional literatures. They review key publications: McCarrick, PM. Scope Note 2, Living Wills and Durable Powers of Attorney: Advance Directive Legislation and Issues. Washington, D.C.: National Reference Center for Bioethics Literature, Kennedy Institute of Ethics, Georgetown University, 1990.Google Scholar

28. Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying: A Report by the Hastings Center. Bloomington: Indiana University Press, 1987.Google Scholar

29. Refusal of Treatment Legislation: A State by State Compilation of Enacted and Model Statutes. New York: Society for the Right to Die, 1991.Google Scholar

30. McCarrick, PM, Adams, J. Scope Note 3, Ethics Committees in Hospitals. Washington, D.C.: National Reference Center for Bioethics Literature, Kennedy Institute of Ethics, Georgetown University, 1989.Google Scholar