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Honoring broader directives.

Most states now have statutes on treatment directives, commonly called "living wills." Often, however, these statutes only cover patients who are terminally ill at the time the treatment choice is to be effectuated. They may also prescribe a certain form to be followed in drafting a treatment directive. Further, they may contain substantive limitations, such as a seeming prohibition on the use of treatment directives to refuse artificial nutrition and hydration.

All of these restrictions have led many health care professionals, administrators, and even lawyers wrongly to maintain that a directive broader than the statute is without legal effect. They make the common mistake of believing that once the legislature has recognized one means of protecting individual rights, there are no other means. They misconstrue every other effort to express treatment preferences as if it were a ball hit out of bounds.

In fact, any expression of treatment preferences has legal effect. A directive broader than the state statute is not out of bounds. Health care professionals are obligated to pay careful attention to such directives. But to see why, you have to understand something about the relationship of the statutory rights provided by state legislatures, the additional common-law rights recognized by judges, and die rights provided by the state and federal constitutions. Patients have all three.

Statutes on advance directives vary from state to state, but they generally provide a combination of carrots and sticks to induce health care professionals to honor a patient's written treatment preferences. The most important carrot they hold out is civil and criminal immunity to professionals who act in good-faith reliance on a patient's directive in forgoing life-sustaining treatment. With that kind of guarantee, there is no excuse for overriding the patient's preferences.

Thus, state statutes create a protective umbrella, a zone in which patient preferences are protected by a system of incentives directed at health care professionals and institutions. However, that is by no means the entire domain of protected rights. It is a piece of the playing field, not the whole ballpark.

A number of state statutes actually acknowledge this. They state that the rights provided by the statute in no way reduce other rights the patient may have. In other words, the statute adds to the patient's rights deriving from common law and constitutional law; it does not reduce those rights.

So what are these other nonstatutory rights? judges have long since recognized that patients have a common-law right to be free of unwanted bodily invasion. This is the basis of die legal obligation to obtain a patient's informed consent before performing invasive procedures. In case after case, judges have declared that patients have a common-law right to refuse unwanted life-sustaining treatment. That right is not confined to the terminally ill, and applies to the refusal of all life-sustaining treatment modalities including artificial nutrition and hydration. Nor does a patient even need to express the refusal in writing. Oral expressions of preference may be effective as well.

There are similar constitutional rights. A majority of the Supreme Court acknowledged in the 1990 Cruzan case that the federal Constitution protects the right of competent patients to refuse any life-sustaining treatment including nutrition and hydration. A number of state courts have said so as well. In addition, state courts have found relevant protections in their state constitutions.

When a patient loses competence, she does not lose these constitutional and common-law rights. Rather, treatment choices must still be governed by the patient's own treatment preferences, if those can be ascertained. Any oral or written declarations from the patient are relevant evidence, including treatment directives broader than or different from the state statute. Indeed, in those states that still lack a statute on treatment directives, a patient's written or oral preferences should govern treatment choices nonetheless.

In addition, a patient who has appointed a proxy to make treatment decisions for her in the event she loses competence enjoys legal protections. These are often enumerated in state statutes on proxy appointments, such as durable power of attorney statutes. However, Cruzan suggests that the decisions of an appointed proxy may enjoy constitutional protection as well.

The toughest cases, of course, are those in which the patient has appointed no surrogate and has failed to leave sufficient evidence of her treatment preferences to dictate the treatment choice. In most states that have considered the issue, a surrogate is then obligated to extrapolate from what is known of the patient's values and preferences in order to figure out what the patient would choose if she could. Commonly, this decisional approach is labeled "substituted judgment." Here again, any relevant written or oral statements from the patient would be highly important; they would constitute the basis for extrapolating the patient's preferences. Written or oral statements are not, however, essential. Surrogates can also be guided by knowledge of the patient's general beliefs and values.

Thus any memorialization of the patient's treatment preferences has legal force. At the very least, it constitutes relevant evidence of the patient's wishes. It cannot be dismissed or ignored.

This means that state statutes on treatment directives cover only a subset of those clinical cases in which health care professionals are legally bound to respect patients' previously expressed treatment preferences. Patient preferences govern treatment decisions whether or not the patient is "terminal." Those preferences also govern no matter what treatment the patient rejects.

Health care professionals, administrators, and lawyers must recognize that state statutes on treatment directives govern only a part of the playing field. They should not be confused by literature assuring them that they are on solid ground in honoring directives that fall within the bounds of the statute, but shaky ground outside that zone. Failure to honor a patient's directive that falls outside the special protective regime of state statutes will almost certainly violate the patient's other rights. Susan M. Wolf is associate for law, The Hastings Center. * in the case of a home health agency, in advance of the individual coming under the care of the agency ... * in the case of a hospice program, at the time of initial receipt of hospice care by the individual from the program, and * in the case of an eligible organization at the time if enrollment of the individual in the organization.

...the term 'advance directive' means a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State) and relating to the provision of such care when the individual is incapacitated.
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Title Annotation:Practicing the PSDA; Patient Self-Determination Act
Author:Wolf, Susan M.
Publication:The Hastings Center Report
Date:Sep 1, 1991
Previous Article:PSDA in the clinic.
Next Article:On behalf of the patient.

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