How to Reconcile Advance Care Directives With Attempted Suicide
| Publication year | 2013 |
| Pages | 97 |
Health Law
How to Reconcile Advance Care Directives With Attempted Suicide
By Casey Frank
Health Law articles are sponsored by the CBA Health Law Section. These articles address issues of interest to practitioners in the field of health law. The Section welcomes article submissions.
Coordinating Editors
Jennifer Forsyth of Gordon & Rees, Denver-(303) 534-5156, jforsyth@gordonrees.com; Casey Frank, a solo practitioner in Denver-(303) 202-1001, letters@caseyfrank.com
About the Author
Casey Frank has a law practice in Denver. He received a Masters degree from the Colorado School of Public Health. He also is an adjunct Senior Instructor in the Department of Forensic Psychiatry and a Faculty Associate at the Center for Bioethics & Humanities at the University of Colorado-Denver. Heartfelt thanks to Dan Johnson, MD; Marianne F. Novell!, MD; Greg Smith; and Hisae Tsurumi. The author was a consultant to the hospital regarding the case discussed in the article.
Advance care directives allow persons to request or refuse medical treatment when they become incapacitated. If incapacity arises from a suicide attempt, a countervailing value to protect the vulnerable may challenge implementation of the directives. Using facts from an actual case, this article suggests a way to reconcile these imperatives.
"It is not a thing to do while one is not in one's best mind. Never kill yourself while you are suicidal."
-Edwin Shneidman[1]
'There is only one prospect worse than being chained to an intolerable existence:
The nightmare of a botched attempt to end it."
-Arthur Koestler[2]
Ken was a physically healthy 35-year-old man who for a long time suffered from depression and drug abuse. His life was tormented in part because at age 7 he witnessed the death of his father. Ken blamed himself for not saving him.
In the autumn of 2011, Ken was at home with his family. He told them that he was going to his second-floor bedroom to change his clothes. What his family did not know was that he had received a call from the police telling him that his arrest was imminent. Ken had been in jail before and had vowed never to return. A few minutes later, the family discovered that he had jumped from a second-floor window with a chain around his neck. They cut him down and called an ambulance.
EMTs found Ken without a heartbeat. He was diagnosed at the hospital as suffering from an anoxic brain injury (from lack of oxygen); he was in a coma and unresponsive, but was not brain dead. He w as being kept alive on a ventilator.
This presented the hospital an ethical and legal dilemma, because Ken directed in advance that he did not want to be kept alive on a ventilator. The reason he was on one is that he attempted to commit suicide. Respecting Ken's directive would allow the attempt to succeed, but ignoring the directive would repudiate the patient's wishes.
An ethical or legal dilemma occurs when there are competing values or laws-both of which are ordinarily respected-that become irreconcilable. Every choice is not an ethical or legal dilemma. For example, it is not an ethical dilemma when someone finds a wallet with money and contact information and wonders whether to return it. Returning it is commanded by ethics and law; keeping it is both unethical and illegal.[3]
In medical treatment decision making, the preference of the patient is accorded great deference, for both ethical and legal reasons.[4] The decision to decline medical treatment is as respected as the choice to accept one. However, another ethical and legal principle applies-that of parens patriae, the responsibility of the state to protect people from harming themselves (or others).[5] This is the basis for mental health certification, which allows a person believed to be mentally ill and "in danger of serious physical harm" to be confined. This includes someone who has attempted suicide, which is why the attempt is not respected as just another patient preference.[6] The fact that people can be deprived of their liberty without due process even though they are not accused of personal wrongdoing is extraordinary: it shows how strongly society believes an intervention is warranted to prevent self-harm.[7]
The Principles That Apply
The ascendant ethic in modern patient-physician relationships is patient autonomy, the opportunity for a patient to give informed consent for medical treatment or to refuse it, in contrast with decisions made directly by a physician. This is so even though the physician is acting in the patient's best interests, called beneficence.[8] Beneficence posits an affirmative duty to benefit the patient, above and beyond the famous dictum "first do no harm."[9] This is the heart of medicine.
With continued advances in medicine overtime, as U.S. Supreme Court Justice William J. Brennan once noted: 'The timing of death-once a matter of fate-is now a matter of human choice."[10] Many of the choices are problematic, with no obvious answers. This has strengthened the need for patient autonomy, which has become a kind of universal salve for resolving intractable medical dilemmas.
Autonomy is inextricably intertwined with issues of decisional capacity, the ability to give informed consent. One must have capacity to exercise autonomy. Many commentators try to make distinctions between "competence" and "capacity."[11] This is a futile exercise, at least in Colorado, because different Colorado statutes use the terms interchangeably, and also intermix the term "disability."[12]
Incapacity is the status of a patient who "lacks the ability to satisfy essential requirements for physical health."[13] Advances in medical treatment have allowed patients to remain alive longer, in sicker and possibly incapacitated states. The need to protect autonomy has been addressed by the implementation of advance care directives, which in ordinary circumstances must be respected as the voice of the patient.
When legitimate instructions in a medical directive call for the withdrawal of curative treatment, they normally are followed, even if the foreseeable consequence is the patient's death. In 1990, the U.S. Supreme Court held in Cruzan that persons with capacity have a "constitutionally protected liberty interest in refusing unwanted medical treatment."[14] In other words, patients are entitled to say no. Every state and the District of Columbia has codified this right through some form of these directives, enabling patient choices to be heard and wishes to be followed.[15] The Federal Patient Self-Determination Act of 1990 mandated that hospitals receiving Medicaid or Medicare funds provide information on directives.[16]
Honoring Advance Care Directives
There are many forms of advance care directives, which allow patients to project their preferences for a time when they are unable to make or communicate treatment decisions.[17] The law demands compliance with such choices. Treating a patient against the wishes expressed in an advance directive would be unprofessional conduct "contrary to recognized standards." Those standards prohibit the "refusal of an attending physician to comply with the terms of a declaration [an advance medical directive] or to refer and transfer care to another physician."[18]
The possible consequences to a physician for treating contrary to a directive include a letter of a dmonition, suspension or revocation of a license to practice, and a fine of up to $10,000. Other consequences that may be imposed include therapy or courses, and review or supervision of the medical practice.[19] Treating contrary to a directive also could be considered patient battery. This is a civil claim for money damages, and is not a crime.[20]
There are similar sanctions for other medical professionals. Physician assistants are subject to the same rules as physicians.[21] Nurses are regulated under the Nurse Practice Act.[22]
However, questions arise when a patient attempts suicide: What happens if a patient relies on advance directives to finish a suicide attempt? What if the patient is being kept alive on a ventilator, though there had been unambiguous prior discussions refusing such treatment? Physicians are inclined to treat, but an attempted suicide can complicate the situation.
Suicide
It is not a crime to attempt to commit suicide in any state.[23] This tolerant view stands in contrast to past condemnation. William Blackstone, the eminent legal authority, asserted that suicide was a crime against both God and King.[24] There was one case in Russia where a man was hanged for unsuccessfully attempting to commit suicide and depriving the Tsar of his property, namely the man's own life.[25]
Lest one think this is ancient history, the principle survives that control of one's body belongs to a higher, governmental authority. In May 2013, it was reported that most of the prisoners at the U.S. Guantanamo Bay prison were on a hunger strike, and that twenty-one of them were being force fed. President Barack Obama defended this intervention, saying: "I don't want these individuals to die."[26] The president of the American Medical Association, Dr. Jeremy A. Lazarus, wrote to Secretary of Defense Chuck Hagel and reminded him that any physician who participated in forcing prisoners to eat against their will was violating "core ethical values of the medical profession."[27]
Government control over one's body is still found in Colorado, as well, at least indirectly. It is manslaughter under state law to assist someone to try to end his or her life.[28] However, compliance with an advance directive is explicitly excluded from the statute criminalizing intentional assistance in ending a life. The law reads:
This section shall not apply to a person, including...
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