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My Annotated Living Will

Published online by Cambridge University Press:  29 April 2021

Norman L. Cantor
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Extract

Both courts and legislatures have gone a long way toward recognizing individual autonomy to shape the extent of medical intervention in the face of a naturally occurring dying process. This autonomy extends beyond the patient's period of capacity to make decisions on his or her own behalf. That is, a person, while still competent, can express treatment preferences, and those preferences will generally be honored after competence to make medical determinations has been lost. This is the message flowing from judicial emphasis on “substituted judgment” as an important guide in the medical handling of incompetent patients, and from the multitude of “natural death” or “living will” statutes adopted over the last 12 years.

These statutes prescribe a format for a person to issue instructions about medical treatment or non-treatment to be followed if the person becomes incompetent. Such prior instructions designed to guide future medical decisions can be somewhat problematical. If the instructions are not issued proximately to the moment of their utilization, there may be concern that the issuer's preferences have changed over time.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 1-2 , Summer 1990 , pp. 114 - 122
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

Various courts have indicated that the principal object of decision-makers on behalf of incompetent dying patients should be to reach the same decision which the patient would have reached if competent. This is the thrust of the “substituted judgment” standard. This effectively means that the patient's previously expressed wishes should be implemented to the extent they are discernible. See, e.g., In re Estate of Longeway, No. 67318 (Ill.S.Ct. Nov. 13, 1989) (Lexis, States Library, Ill. file); Brophy v. New England Sinai Hospital, 497 N.E.2d 626, 635–37 (Mass. 1986); In re Conroy, 486 A.2d 1209 (N.J. 1985); Annot., Judicial Power to Order Discontinuance of Life-Sustaining Treatment, 48 ALR 4th 67 (1986). But see Dresser, , “Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law,” 28 Ariz. L. Rev. 373,374–79 (1986) (criticising reliance on this formula).Google Scholar
See, e.g., Uniform Rights of the Terminally Ill Act, 9B U.L.A. 609 (1987 & Supp. 1989); Gelfand, , “Living Will Statutes: The First Decade”, 1987 Wis. L. Rev. 737; Francis, , “The Evanescence of Living Wills,” 14 J. Contemp. L. 27 (1988).Google Scholar
There are indications that living wills are not being widely used, and when used are not having a major impact on the treatment administered to dying, incompetent patients. Zinberg, , “Decisions for the Dying: An Empirical Study of Physicians' Responses to Advance Directives,” 13 Vermont L. Rev. 445, 452 (1989). Yet at the very least such directives are useful in convincing surrounding family members to acquiesce in withdrawal of life-preserving treatment in accordance with the patient's previously expressed wishes. Id. at 453, 477–79, 488.Google Scholar
See In re Jobes 529 A.2d 434 (N.J. 1987); In re Gardner, 534 A.2d 947 (Me. 1987); Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1987); Comment, “Discontinuing Treatment of Comatose Patients Who Have Not Executed Living Wills,” 19 Loyola L.A. L. Rev. 61 (1985); Quinn, “The Best Interests of Incompetent Patients: The Capacity for Interpersonal Relationship as a Standard for Decisionmaking,” 76 Calif. L.Rev. 897 (1988). See also Opinion 2.18, Current Opinions, Council on Ethical and Judicial Affairs of the AMA (1986); Council on Scientific Affairs & Council on Ethical and Judicial Affairs, American Med. Ass'n, Persistent Vegetative State and the Decision to withdraw or withhold Life Support 263 J.A.M.A. 426 (1990); Cantor, , “The Permanently Unconscious Patient, Non-Feeding and Euthanasia” 15:4 Am.J.L. & Med. 381 (1990).Google Scholar
See In re Conroy, 486 A.2d 1209 (N.J. 1985); Superintendent of Belchertown State School v. Saikewicz, 470 N.E. 2d 417 (Mass. 1977), Merritt, , “Equality for the Elderly Incompetent: A Proposal for Dignified Death,” 39 Stan. L. Rev. 689 (1987); Meisel, , The Right to Die (1989) Section 9.28, p. 291. But see In re Westchester County Medical Center, 531 N.E. 2d 607 (N.Y. 1988); In re Browning, 543 So. 2d 258, 273 (Fla.Dist.Ct.App. 1989) insisting that a best interests rationale cannot be used to withdraw life-preserving medical care from an incompetent patient who has not left instructions dictating such a course.Google Scholar
In this document, the terms degrading, demeaning, and undignified are used interchangeably.Google Scholar
For another effort to assist in drafting medical directives, see Emmanuel, L. & Emmanuel, E., “The Medical Directive,” 261 J.A.M.A. 3288 (1989).Google Scholar
See Gelfand, , supra note 2, at 784. For examples in which courts have upheld instructions which go beyond the substantive terms of living will statutes, see Corbett v. D'Alessandro, 487 So.2d 368 (Fla. Dist. Ct. App. 1986) rev. denied 492 So. 2d 1331 (1986); In re Gardner, 534 A.2d 947 (Me. 1987); Rasmussen v. Fleming, 741 P.2d 674 (Ariz 1987); In re Browning, 543 So. 2d 258, 265 (Fla.Dist.Ct.App. 1989). To the extent that living will statutes interfere with patient self-determination found to be constitutionally grounded in the fundamental right of privacy, such statutes might be deemed unconstitutional. See Francis, supra note 2, at 49; McConnell v. Beverly Enterprises, 209 Conn. 692 (1989) (concurring opinion). But See Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988) cert. granted, 109 S.Ct. 3240 (1989). Petitioners in Cruzan are arguing that a permanently unconscious patient has a federal constitutional right to have a representative reject life-preserving nutrition even in the absence of clear-cut prior expressions by the patient. A serious question arises about a constitutional claim purportedly grounded on a patient's autonomy interest when the incompetent patient has not previously expressed himself or herself. See Kamisar, , “Right to Die, or License to Kill?,” 124 N.J.L.J. 1359 (1989); Tribe, L., American Constitutional Law 1367–68 (2d ed. 1988). The constitutional aspects of decisionmaking on behalf of incompetent patients will presumably be illuminated when Cruzan is decided.Google Scholar
See Gelfand, , supra note 2, at 793–95; Note, “Appointing an Agent to Make Medical Treatment Choices,” 84 Colum. L. Rev. 985 (1984); Swidly, , “The Health Care Agent: Protecting the Interests and Choices of Patients who Lack Capacity,” 6 N.Y. L. Sch. J. Hum. Rts. 1 (1988).Google Scholar
See Dworkin, , “Autonomy and the Demented Self,” 64:2 Millbank Quarterly (1986), pp. 4–16.Google Scholar
See In re Conroy, 486 A2d 1209 (N.J. 1985); In re Grant, 747 P.2d 445, 451–53 (Wash. 1987), modified, 757 P.2d 534 (Wash.Ct.App. 1988); Merritt, supra note 3, at 735.Google Scholar