By BRIAN CLOWES
(Editor’s Note: Brian Clowes has been director of research and training at Human Life International since 1995. For an electronic copy of chapter 23 of The Facts of Life, “Euthanasia,” e-mail him at bclowes@hli.org.)
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“Evil committed for a good cause remains evil.”
“Even when it succeeds?”
“Above all when it succeeds” — Victor Hugo, History of a Crime (1877).
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An advance medical directive (AMD) is a legal document that allows a person to specify the medical treatment he wants and does not want in case he becomes incapable of making his desires known. AMDs generally have four parts: Naming another person to act as your health-care agent in the event you are incapacitated; detailed instructions on what types of health care you do and do not want; preferences regarding organ and tissue donation; and your witnessed signature.
There are three general classes of advance medical directives: The Living Will; the standard Durable Power of Attorney for Health Care (DPAHC or DPA); and hybrid documents that combine elements of both the Living Will and the DPA.
The Living Will. The oldest and most extensively used type of advance medical directive is the Living Will. It instructs attending medical personnel to withdraw or withhold certain medical procedures and treatments if the signer becomes incapable of making his own medical decisions.
The primary difference between a Living Will and a DPA is that the attending physician has the power to interpret the signer’s instructions in a way he did not intend, and those close to the signer — including family members — have no legal standing to interfere.
The Living Will is an inadequate mechanism for safeguarding the rights of patients who have lost the ability to make decisions regarding their own medical care, primarily because of the lack of input by family members or friends who know them and their values.
Many versions of the Living Will were originally written and promoted by pro-euthanasia organizations, including Americans Against Human Suffering (AAHS), the American Civil Liberties Union (ACLU), Concern [Compassion] for Dying (formerly the Euthanasia Educational Council), the Hemlock Society (which has renamed itself “End of Life Choices”), and the Society for the Right to Die, which shed its non-progressive title “Euthanasia Society of America” in 1975.
Notice that none of these organizations currently use the term “euthanasia” in their titles (they prefer the euphemisms “right to die,” “death with dignity,” and “mercy killing”). These groups operate primarily in California, Arizona, and Florida, all states with large elderly and retired populations.
Spokesmen for these groups have said that the Living Will is a publicly acceptable way to introduce legalized active euthanasia, suicide, and assisted suicide to the public.
For example, Derek Humphry, founder of the Hemlock Society, acknowledged that “we have to go stage by stage, with the Living Will, with the power of attorney, with the withdrawal of this; we have to go stage by stage. Your side would call that the ‘slippery slope’.”
The primary strategic objectives of the original promoters of the Living Will were cost containment and the conditioning of the public to accept the withdrawal of lifesaving medical treatment.
Living Will legislation goes by many names, including “Death With Dignity,” “Directive to Physicians,” “Rights of the Terminally Ill,” or “Patient’s Rights” legislation. Since California became the first state to give legal force to Living Wills in 1977, all 50 states, the District of Columbia, and Puerto Rico have passed such laws.
Pro-euthanasia groups define the Living Will as a document by which a person can assert in writing a desire not to be kept alive by life-sustaining medical equipment and procedures when his or her condition has been diagnosed as terminal, or under certain other conditions.
Most Living Wills signed in the United States today are form type wills, but, as with any legal document, they can be custom tailored to meet any actual or perceived need or wish, including requesting or refusing feeding tubes, antibiotics, dialysis, respirators, cardiopulmonary resuscitation (CPR), and other specified treatments; requesting pain medication; stating the desired place of death, including at home; and requesting designation as an organ donor.
Many people believe the Living Will is necessary in order to clarify a patient’s legitimate right to refuse extraordinary medical treatment. However, the Living Will is completely unnecessary because this is a right that all patients already possess. Public support for pro-Living Will legislation is partly due to the scare tactics of pro-euthanasia groups that highlighted the activities of a very small minority of doctors who resisted even morally appropriate requests for the withdrawal of treatment.
Living Wills are generally unnecessary for this purpose under present law because there is nothing to prevent doctors from withholding or withdrawing life-sustaining medical treatment when all reasonable hope for recovery is gone. Patients already have the right to give their doctors and family instructions on how they want to be treated in the event of a terminal illness or grave injury, particularly when they are in no condition to decide for themselves.
The primary danger of the Living Will is that a person usually signs it long before he knows if or when he will be incapacitated — or what the circumstances of that incapacitation will be. This means that a person cannot specify the desired details of his treatment for future medical conditions. Therefore, anyone who values the sanctity of human life should not sign a Living Will, which could unintentionally become an order for assisted suicide in the future. There are much better alternatives to the Living Will, as we will see in the next article.
Presumably, one can change or revoke a Living Will at any time by making a verbal or written statement to a physician, nurse, or other health-care worker. However, this can be difficult or impossible for at least four reasons:
1) Changes to or revocations of a Living Will depend upon an individual’s condition. If he should experience a change of heart after he is incapable of communicating, he has no recourse.
2) If the presiding health-care professional believes the patient’s wishes are the result of trauma or some other cause, he might disregard them.
3) If a person would like to change or revoke his Living Will, he may find that it impossible to locate all original and duplicated copies of the document.
4) The wording of the original Living Will may remain the same, but the law governing its application may change. For example, Florida Living Wills now presume that patients refuse food and water unless otherwise specified — a fundamental change from the law’s original meaning.
If a person signs a Living Will, it is legally binding under prevailing conditions in the American judicial system. It would therefore be difficult or impossible for a family doctor to make the decisions that would be in the patient’s best interests.
This set of conditions makes it virtually impossible for the signer of a Living Will to define precisely the treatment that he wants — or does not want. In other words, a Living Will does not increase freedom to choose the specifics of one’s health care — it restricts this freedom.
No Living Will can be made medically and legally secure in every way even at the time of its signing. Additionally, there is no way of knowing how definitions and laws will change as the pro-euthanasia groups continuously lobby for more expansive meanings of such crucial terms as “terminally ill” and “extraordinary treatment.”
For example, the wording of the most common “form” Living Will, which has been signed by millions, says that: “If I am permanently unconscious or there is no reasonable expectation of my recovery from a seriously incapacitating or lethal illness or condition, I do not wish to be kept alive by artificial means.”
In 1985, “artificial means” meant truly extraordinary or heroic medical or surgical procedures. However, some states currently define respirators, codes, medication, kidney dialysis, and even food and water as “artificial”! In other words, a person might sign a Living Will in a state where food and water are a part of standard medical treatment, then travel to a state where they are considered “extraordinary treatment,” and then become incapacitated. Or the courts or legislature in his home state may quietly redefine food and water as “extraordinary treatment” (which has already happened in Florida), and he will not be aware of the fact.
What happens to him then?
Terms with definitions that are constantly shifting or are difficult to define are at the heart of the Living Will’s problems. Anyone who signs a Living Will has placed decisions regarding his medical care not in the hands of medical professionals, but in the hands of people whose overriding concern is the cutting of medical expenses.
Fortunately, there are alternatives to the Living Will that allow a person to transfer his medical decision-making to another person who shares his values regarding human life, thus giving him a much larger degree of protection.
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