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The Patient Self-Determination Act: not now.

The Patient Self-Determination Act: Not Now

The Patient Self-Determination Act is an idea whose time has not yet come. It aims for a laudable objective. Indeed, as poll after poll has shown, the American people overwhelmingly support that objective: ensuring that people's wishes about life-sustaining treatment are respected. But not only is the Act unlikely to achieve its objective; worse yet it will probably delay the existing movement toward that objective.

Might federal intervention -- the use of a financial stick against institutions that receive Medicare and Medicaid funds--ever be justified? Were hospitals and other institutions intentionally thwarting patients' rights, Uncle Sam might have to threaten to cut off funds to get them to comply with existing policies. But this is a heavy-handed response that is often ineffectual, as illustrated by the three sets of federal "Baby Doe" regulations. Even the federal officials in charge of the original "Baby Doe Squads" were hard pressed to demonstrate any beneficial effects of their interventions; the only sure consequence was a great deal of resentment on the part of physicians and hospital personnel, along with more trips to the courthouse induced by fear of liability.

In light of this experience, federal threats seem appropriate only as a last resort. No such provocation exists regarding living wills and durable powers of attorney. Over the past quarter century "advance directives" have evolved from merely hortatory statements to legally binding documents. The barriers to their use that remain--in personal reluctance to employ them and in ingrained professional attitudes--are rapidly being overcome. The Act will do little or nothing to reduce those barriers and is likely to erect new ones.

Supporters of the Act say that it is just one more means of spreading the word about living wills and durable powers. But in actual implementation, the requirement that hospitals must inform patients of their rights to accept or refuse care and to appoint a surrogate to decide on their behalf will be less innocuous for several reasons.

First, the moment when one enters the hospital and is confronted by an admissions clerk with various forms to be signed is not the right time to bring up living wills and the like. Nor is the person who plays this role likely to be able to explain the possible documents well and to enter into a discussion that would be truly educational rather than merely formalistic. The main concern of hospitals will be to get patients' signatures on a "Notice of Disclosure of Rights" or the like. Indeed, the "waiver" that patients would probably be asked to sign might well lead--in recognition of the leadership on this issue provided by the senior Senator from Missouri--to the query "Was the patient Danforthed?," in the way that police officers "Mirandize" suspects when they read them their rights.

Professor Fletcher's scenarios offer telling examples of why the act isn't needed and won't work. The patient in Case 2, like many about whom treatment-termination decisions are made, was incompetent when she entered the hospital; plainly, she was beyond receiving any information about her rights or making any choices. Fortunately, she had executed a document declaring her treatment preferences, and her husband produced it, thereby easing decisionmaking. In such cases, the Act is irrelevant.

In Case 1, the patient was also incompetent when hospitalized, but there was an earlier "window of opportunity" that was missed, in Professor Fletcher's view, because the patient had not been told about living wills and durable powers when hospitalized for an earlier stroke. Yet this illustrates a second major mischief the statute would generate: giving physicians the wrong message about when and by whom advance directives should be discussed. The net effect of the Act will be to let physicians off the hook, since the federal government will have announced that it is the job of hospitals to sound patients out about living wills and durable powers of attorney.

Instead, physicians should be encouraged to make a discussion about advance directives a part of routine care with all patients. Life-support issues may not yet be relevant for many patients when the topic is first broached--although patients like Karen Quinlan and Nancy Cruzan remind us that these aren't just matters for the elderly. Therefore, the point to get across is simply that the physician (and the patient's next-of-kin) will only be able to do the right thing if the patient has expressed his or her views, preferably in some fashion that the law will recognize. Since these views may well change, the physician can make clear that the topic is always open, and he or she should raise it with the patient periodically for reassessment.

The Act would have equally problematic effects regarding ethics committees. Although I've long been a proponent of the use of such committees, I'd be the last person to argue that every hospital has to have one, especially one with a federally prescribed list of duties. Some institutions may find ethics consultants more suited to their circumstances.

Alexander Morgan Capron is University Professor of Law and Medicine at the University of Southern California in Los Angeles.
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Title Annotation:Ethics Committees
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Sep 1, 1990
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