With the number of senior citizens in the United States rapidly increasing over the last 50 years, preparing for and making end-of-life decisions has become increasingly more important for those of advanced age. Highlighting the importance of this issue has been the continuing religious, ethical and medical debates in the areas of organ donation, “brain death” and life support withdrawal. Today, a consensus has more or less emerged in American law and ethics that patients have an unlimited right to refuse any unwanted medical treatment, even if necessary for life itself. Regarding patients who are unable to make decisions for themselves, a view that respects the role of a surrogate for the patient in decision-making prevails in the United States. However, it is also recognized that the authority of the surrogate in this regard needs to be limited.
The Supreme Court of the United States in Cruzan v. Missouri Dept. of Health, categorically stated that a state may permit termination of life support systems, including nutrition and hydration, if the incapacitated individual’s intentions are shown by clear and convincing evidence. In the course of the judgment, the court also pointed out that under the U. S. Constitution, a person has the right to refuse medical treatment. This right to refuse treatment is a protected liberty interest. It was also observed that incompetent patients retain a right to refuse treatment, which right can be exercised by a surrogate decision maker.
A study conducted on 135 patients for the purpose of understanding the decision-making process near the end of life revealed that a majority of the patients (76%) had thought about end-of-life issues whereas only 36% had discussed the decision with their doctor in the hospital.[i] In the scenario of a competent patient, 10% preferred to leave all decisions to the doctor, 9% preferred that the doctor make the final decision after considering their opinion, 32% preferred that the doctor share responsibility with them to make the decision, 24% of the patients preferred to make the final decision after considering the doctor’s opinion, 16% preferred to make the treatment decision alone, whereas 10% did not answer. The study also found that the physicians were not able to accurately predict the patient’s preferred role. The study, therefore, concluded that seriously ill hospitalized patients desire to discuss end-of-life issues with their physicians but their preferred role in decision making is variable and difficult to predict.
One way to ensure that a person’s desires regarding end-of-life medical care decision is carried out is for the person to put the decisions in writing. This can be accomplished in several ways. A person may choose to write a “Health Care Power of Attorney” (HCPOA) or a “Living Will” or may even choose to create a “DNR” (Do Not Resuscitate) order. A HCPOA is a document that authorizes a person appointed by you to make health care decisions for you, in case you lose capacity to make those decisions for yourself or cannot communicate. Through a HCPOA, you can also give your doctor and loved ones specific directions regarding your health care, end of life decisions, and funeral arrangements.
A “Living Will” or a “Declaration to Physicians” on the other hand is a document by which you can direct your doctor to withhold or withdraw life-sustaining procedures in case your condition is terminal and death is imminent. A living will is however much narrower than a health care power of attorney (HCPOA) because it only applies to decisions relating to the end of your life whereas the HCPOA covers end of life decisions as well as other medical treatment decisions.
A “DNR” on the other hand is a document that spells out the conditions under which you prefer not to be resuscitated by CPR (cardio pulmonary resuscitation), so that if your heart stops, you will not be revived.
Unlike a HCPOA, you don’t need to appoint someone to be your agent in a living will. Your doctor will carry out your wishes directly. You must however be at least 18 years of age and competent to create a valid HCPOA. Moreover, when you sign a HCPOA, it must be witnessed by two people who are not your family members or health care providers. To make a living will also, you must be at least 18 years of age and mentally competent.
As part of the end of life decision, a person may also choose to donate his body parts or organs after death. Each state has different laws about how a person’s wish to donate may be recorded.
Each state in the US has different guidelines regarding end of life decisions and also regarding what kind of documents are legally recognized and binding. For example, New York State does not recognize living wills as legal documents, although in some circumstances they will be recognized as indications of the patient’s wishes. There are some states that require advance directives be notarized, whereas others do not. Therefore a person living in more than one state, like those who live north in the summer and south in the winter, will need to be sure that appropriate documents are written and signed for each location. It is also important to date the documents developed so that if changes are made later, the most current wishes will be enforced.