The Living Will's Fatal Flaw

Wesley J. Smith, attorney, works with the International Anti-Euthanasia Task Force, and has contributed a number of articles on the subject of assisted suicide and euthanasia to *National Review.* Some of you might not know that the living will was developed in 1967 by the Euthanasia Society of America, now called Choice in Dying. The article below was printed in the *Wall Street Journal* about a year ago. It is sent to you with Mr. Smith's permission. Questions and comments are welcome.

THE LIVING WILL'S FATAL FLAW by Wesley J. Smith

The recent death of Richard Nixon, who in his final illness was not put on a ventilator because he had signed a living will, has once again put the spotlight on the document and the power it allegedly bestows on people to control their own future medical care. For example, an April 24, 1994, New York Times story extolled Mr. Nixon's decision, stating that living wills permit patients to retain control even while incapacitated since the document requires "doctors and families" to "execute" a patient's pre-stated desires regarding his or her own care.

That sounds good. There's only one problem: it isn't true. Living wills do permit doctors to decide issues of life and death for their patients. However, they do not permit families to exercise any power at all.

A LOSS OF POWER

That is an important distinction. In our health care delivery system patients make health care decisions, not doctors. This is known as the law of informed consent. Under the law of informed consent, the doctor is charged with fully advising their patient of the pros and cons of treatment or nontreatment, testing and the like and giving opinions. The patient is then free to accept or refuse a doctor's recommendation, get a second opinion or even a different doctor if that is what the patient desires. That provides a valuable fail-safe system since doctors sometimes make mistakes.

The living will changes this balance of power. Once a living will is signed, the patient gives up the protections of informed consent, leaving all health care decisions in the hands of the medical profession. The power to decide whether a patient shall be given the chance to live belongs to the doctor. The decision whether the time has come for the living will to go into effect belongs to the doctor. The type and extent of medical intervention that is to be withheld belongs to the doctor. And this power isn't restricted to "extraordinary care" such as ventilators to assist with breathing, but to any medical intervention - from not treating a curable bacterial infection to withdrawing food and fluids so that the patient starves and dehydrates to death.

A BUM'S RUSH TO DEATH

There is an increasing body of evidence that living wills are being misapplied so as to deny care to people with treatable medical conditions. For example, there is the tragic case of the seventy-three year old woman who was given a living will to sign along with the other admission forms upon entering a hospital for hip replacement surgery. She tolerated the surgery well and was on the road to recovery. Then, she suffered a cardiac arrest. Rather than attempt to save her (remember, the woman was not otherwise terminally ill), it was assumed that because she had signed a living will, she wanted to die if faced with a grave medical condition. Thus, the woman was given no medical assistance whatsoever and died - a process that took some twenty minutes. The woman's daughter was not even notified of the problem or asked for permission to "do nothing." The first the daughter found out about her mother's crisis was when she was informed of her mother's passing.

Then there is the case of the nursing home resident from Washington state who was accidentally given the wrong medication by a staff nurse. The mistake was quickly discovered. However, the patient was not advised of the mishap even though mentally competent. Why? She had signed a living will which instructed that she not be resuscitated if she suffered a cardiac arrest. It was thus assumed she would not want to be treated for a condition that could (and did) lead to her death, even though she was capable of making that decision herself.

A BETTER ADVANCED DIRECTIVE

Happily, there is an advanced medical directive that receives far less publicity than the living will, that allows patients to decide ahead of time on the level of care they want while retaining the important protection of informed consent. It is the Durable Power of Attorney for Health Care.

In a Durable Power of Attorney for Health Care, the patient appoints a designated agent as his or her health care decision maker. The agent will generally be a family member or close friend - someone who knows the patient intimately and who will have a true understanding of the patient's attitudes having discussed the matter at length with the person granting the power. The Durable Power also permits people to opt in favor of life prolonging care, an option often unavailable to the signer's of living wills.

In such circumstances, the doctor will have to justify his or her recommendation to either provide or withhold care. Second opinions can be sought. The chance of a tragic misapplication of the advanced directive that can occur with a living will is greatly reduced. For example, in the case of the woman allowed to die when she suffered a cardiac arrest, a call to her agent (presumably her daughter) might have brought instructions to intervene and the woman could well be with us today, enjoying the mobility accorded by her new hip. At least it would have been worth the try.

Living wills are analogous to the used car advertised as a creampuff that is really a lemon. In a world of assembly line medicine where, unlike that the former president, many patients have little interaction with their doctors, would it not be better to eschew doctor-empowering living wills in favor of the "real people" empowering Durable Power of Attorney? It's not as catchy a name but it is a much better document that may make the difference between a premature death and receiving the personal level of health care decision making that every one deserves. ---

IDENTIFICATION: Oakland author and consumer advocate, Wesley J. Smith, is writing a book about euthanasia for Random House/Times Books. ------------------------------------------------------------------- The electronic form of this document is copyrighted. Copyright (c) American Life League BBS -- 703-659-7111 -------------------------------------------------------------------