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How should ethics committees treat advance directives?

How Should Ethics Committees Treat Advance Directives?

The increasing popularity of advance directives among patients and strong support for their use from legislatures, courts, and ethicists means that ethics committees will encounter them with increasing frequency when they review cases. As they can vary dramatically in theiru usefulness as a clinical problem-solving tool, advance directives do not provide a panacea that will resolve all questions aobut appropriate care that these committees consider. At times an advance directive may be clearly applicble to a clinical situation and should be followed out of respect for the autonomy of the patient. At other times, however, it may be vague, of doubtful relevance to the current situation, or of questionable legal validity. Even in these circumstances, ethics committees should take directives seriously and should apply them with respect for the wishes of the patient and with faithful regard for his or her best interests.

It is worth explaining the nature and functions of advance directives briefly for those who are unfamiliar with them. Many potential patients worry that medical treatment they receive in the future will prolong their lives, but will be of questionable benefit to them. They want to avoid the pain, suffering, and expense of a long illness when there is little hope for their recovery, and they also wish to spare their loved ones the agony of watching their dying prolonged. Consequently, they issue oral or written directives in which they declare their wishes about future medical care should they become unable to speak for themselves.

There are two basic types of advance directives. A treatment directive identifies conditions, such as terminal illness or permanent unconsciousness, in which the individual does or does not want to receive medical treatment. A surrogate directive appoints another to make health care decisions on behalf of the individual when he or she no longer can.

There are categories of treatment directives: "natural death" act directives, "living wills," and verbal statements made by patients when they had decisionmaking capacity.

"Natural death" acts have been passed by thirty-nine states. These vary a great deal in scope and effect. If a patient who currently lacks decisionmaking capacity signed a directive that conforms to the requirements of a "natural death" act, it should be honored in accordance with local law. However, ethics committees should realize that such directives are not the exclusive means for determining that treatment can be forgone. "Natural death" acts do not preempt other persons, such as close family members, from legitimately acting as the patient's surrogate.

Advance directives that are not specifically authorized by state statute are called "living wills." Although they do not have the same legal effect as "natural death" act directives, they can have important legal significance as expressions of the patient's wishes about treatment. A "living will" may provide sufficient legal and ethical grounds for an ethics committee to conclude that a patient clearly would have refused treatment and to recommend that the physician honor the advance refusal.

When patient has verbally expressed his or her wishes about medical treatment to others, even if they are not very specific, the spirit and inent of those statements should be taken seriously.

Two kinds of surrogate directives are typically used by individuals to appoint an agent to make health care decisions for thems hould they become incapacitated: a durable power of attorney and a "natural death" act directive.

Through a durable power of attorney, an individual can legally appoint another person to make certain kinds of decisions when the appointer is incapacitated. While all fifty states have durable powers of attorney statutes, only six explicitly recognize a durable power of attorney for health care. There is legal disagreement about whether a general durable power of attorney can be used to appoint another to make health care decisions in states that have no specific statue authorizing health care decisions to be made by attorneys-in-fact. A number of authorities consider durable powers of attorney binding in states that do not expressly provide for their use for health care if the appointer has explicitly authorized health care decisionmaking by his or her agent and the document satisfies the statutory requirements for a valid document. This is a sensible and practical interpretation of these statutes.

Seven states have "natural death" acts that expressly authorize the appointment of another to direct the forgoing of life-sustaining treatment. The scope of the agent's authority in refusing further treatment, however, is typically very narrow. Florida law, for example, permits an agent to refuse treatment only when the patient is terminally ill, comatose, and death is imminent.

It is impossible for ethics committees to assign advance directives some standard, univocal value, as they can take a variety of forms, have greater or lesser applicaiblity to the particular clinical situation and have different legal status from state to state. Nonetheless, when consulting on individual cases involving advance directives, ethics committees should consider the following in assessing their significance:

1) The clinical applicability of the directive to the present circumstances. Does it say something pertinent to the situation the patient is in today?

2) The content of the directive. What does it reliably indicate about the patient's desires?

3) Confirmation of the directive's applicability and content from informed sources, such as close family.

4) Consistency with the patient's wishes as otherwise known to the attending clinicians.

5) Legal status of the directive. Does it comply with the state's "natural death" act? Does the appointment of an agent comply with legal requirements?

6) Assessments of the patient's best interests by involved persons. What will truly advance this patient's interests in these circumstances?

Lawrence J. Nelson is a principal with the Bioethics Consultation Group of Berkeley, CA and lecturer in medical ethics at the University of California in San Francisco.
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Author:Nelson, Lawrence J.
Publication:The Hastings Center Report
Date:Aug 1, 1988
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