Doing Away With Dogmatic Medical Directives
| Publication year | 2022 |
| Pages | 06 |
DEPARTMENT AS I SEE IT
BY CASEY FRANK, J.
"Plans are worthless, but planning is everything." —President (and General) Dwight D. Eisenhower[1]
When I started practicing, I had a 40-page program for advance medical planning, addressing every conceivable contingency, each provision crafted in consultation with a physician board-certified in both geriatrics and family medicine. This pleased my clients and was remunerative. However, the estates I've planned recently have had a one-page description of the health care agents and their contact information, including social media. Clients were then counseled to have ongoing conversations with trusted decision-makers regarding future medical care. This could include writing down values and preferences, but never in a statutorily defined document requiring that everyone "shall comply."
This is a call for lawyers to stop doing something we do regularly (and do very well): create documents. In planning for future medical decisions, documentary mandates make an illusory promise. This is because it is unrealistic to memorialize treatment decisions to be made at an unknown time in the future, in unpredictable medical circumstances, to be implemented by clinicians who are now strangers.
This is also a call for lawyers to do something we don't do regularly enough: look outside the legal office to the end users of medical plans. If we listen to the clinical professionals who are making treatment decisions in the moment, we will reach a different conclusion about the value of finely crafted medical directives.
Why Medical Directives Are Different
Decades ago, advance directives arose from a fear of medical technology. People did not want to exist "hooked up to machines," which led to end-of-life decisions then called "pulling the plug."[2] The floodgates of proliferation opened in 1991 with passage of the US Patient Self-Determination Act.[3] This legislation incentivized the medical industry to promote written directives and to measure success by the number of directives produced. But "not everything that can be counted, counts."[4]
The problem with this approach is that medical directives are not like other legal planning documents. For example, a will may be introduced in subsequent legal proceedings, such as probate. But we fall into a trap if we attempt to craft medical directives designed as trial briefs. That impetus is understandable, as Professor George Gopenput it: "A lawyer writes worrying about 'an opposing counsel who, fully cognizant of what the author intended, will spare no pains to demonstrate that it might not, indeed cannot, mean that very thing.'"[5] This adversarial thinking is not a good way to plan for the intimate issue of caring for the sick.
Instead of compiling compulsory documents, lawyers should counsel their clients to use a person-centric approach, to create an ongoing conversation between clients and their decision-makers: health care agents, proxies, and guardians (and other protective fiduciaries). They are legally established, authorized to make every treatment decision, and best positioned to provide in-the-moment guidance, reflecting evolving personal preferences and the inexorable increase in medical options.
Medical directives are carried out in clinical settings, and it is to those end users we must pay attention. We should direct our clients to communicate with clinicians informally in natural language unaffected by lawyerly word smithing—in any form that is readily readable by the intended audience. The personal approach gets frustrated and often derailed by the compilation of documents.
Dr. Sean Morrison, a national leader in palliative medicine, recently summarized the futility of the mandatory approach, concluding that it "does not improve end-of-life care, nor does its documentation serve as a reliable and valid quality indicator of an end-of-life discussion."[6]
The Lawyer's Dual Role in Medical Planning
It is estimated that between 49% to 76% of persons do medical planning with lawyers (compared with only 6% to 7% with physicians).[7] In assuming the role of medical planning gatekeepers, we must be both advocate and counselor.
Lawyer as Advocate
The Colorado Rules of Professional Conduct (Rules) teach us that "[t]he advocate has a duty to use legal procedure for the fullest benefit of the client's cause."[8] We first seek the intent of the law.[9] Medical planning laws are appropriately intended to protect personal treatment preferences, to provide informed consent in the future when we cannot competently make or communicate our choices.
We then ask how to make laws work better. For example, the medical durable power of attorney statute (MDPOA) provides for appointment of a health care agent.[10] Added value based on our professional judgment and experience leads us to add a back-up agent, even if not legally required.
Naturally, we also care how a law is incorporated into our practice. A regular option is to combine medical and estate planning, as recommended by the American Bar Association (ABA).[11] This seems logical, since both involve planning for future contingencies. The problem is that lawyers lack rudimentary medical skills, and as a result they cannot know if treatment choices in documents they help write are rooted in reality.
This contrasts with estate planning, where we are alert for discord. If a client wants to bequeath land owned on Mars, we know better and will intervene. But if a client wants to enshrine in documents an unworkable belief about medical treatment, we are ill-suited to respond intelligently, as we have no competence to do so.
It is far better if we counsel our clients to rely primarily on informed agents, proxies, and guardians, avoiding legalized documentary mandates. This duty emerges from the other great branch of professional responsibility.
Lawyer as Counselor
The Rules also acknowledge our role as counselor, stating that advice "couched in narrow legal terms may be of little value to a client." [12] With regard to medical planning, the Rules recognize that it "often involves unpleasant facts and alternatives that a client may be disinclined to confront."[
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]A client who wants to only create written medical mandates while avoiding the appointment of a health care agent who is kept informed is disserved by our acquiescence to such a plan.STATUTORY "SHALL COMPLY" LANGUAGE
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Living wills
If a living will complies with its stated formalities “the attending physician shall then withdraw or withhold all life-sustaining procedures or artificial nutrition and hydration pursuant to the terms of the declaration.” CRS § 15-18-107 (emphasis added).
CPR directives
“Emergency medical service personnel, health care providers, and health care facilities shall comply with a person’s CPR directive that is apparent and immediately available.” CRS § 15-18.6-104(1) (emphasis added).
MDPOA
“Each health care provider and health care facility shall, in good faith, comply, in respective order, with the wishes of the principal, the terms of an advance medical directive, or the decision of an agent acting pursuant to an advance medical directive.” CRS § 15-14-508(2) (emphasis added).
MOST
Everyone involved “shall comply with an adult’s executed medical orders for scope of treatment form.” CRS § 15-18.7-104(1)(a) (emphasis added).
BHOST
Everyone involved “shall comply with an adult’s executed behavioral health orders form.” CRS § 15-18.7-205(1)(a) (emphasis added).
With documentary mandates, die governing statutes, regulations, and forms are written in language the average person does not use. The forms are not user friendly and demand strict compliance with a treatment decision without human review. Each form directive uses some version of the same statutory language, that all concerned "shall comply." (See accompanying table.) This approach is so drastic that it provokes countermeasures like witnesses, clinical pre-approval, added electronic affidavits, and notarization. Such countermeasures increase costs, discourage revision, and reduce the directive's practical value.
In addition, written directives aren't a bilateral contract; they lack the benefit of negotiation and fulfillment by those who create and perform diem. Directives are a breed apart: surrogates decide how to interpret them, not the parties writing them; unknown medical professionals implement them, though unaware of the concerns driving their creation. They are conclusory, not explanatory, and can't be quizzed. They can lie dormant for years or be needed in a second, and their rigid approach is not well suited to addressing these different contingencies.
It is virtually impossible to determine a medical directive's validity from die four corners of the document, because the creator can fire a health care agent, a proxy, or a designated beneficiary; veto any specific decision; or revoke a directive completely—at any time, orally, in writing, for any reason or no reason, and without notice.[
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] Consequently, a medical directive can never be considered settled once and for all.It is hard to imagine any treatment mandate that complies with its enabling statute and addresses all the medical treatment options that might be available when applied. Such a form would yield little in reliable prospective guidance. It would be like attempting to create a parenting plan at die beginning of a marriage, for children not born. What competent family law practitioner would ever consider doing so?
What the Data Show
That is why die data consistently fail to reveal a substantial benefit to society by advance care planning through the production of documentary...
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