The Growing Importance of Advance Medical Directives

• Author: Captain Thaddeus A. Hoffmeister, Usar
• Pages: 04

110 MILITARY LAW REVIEW [Vol. 177

THE GROWING IMPORTANCE OF ADVANCE MEDICAL DIRECTIVES

CAPTAIN THADDEUS A. HOFFMEISTER, USAR1

All of this turmoil-political, judicial and emotional-could have been avoided or at least minimized if Terry Schiavo had left a living will or advanced directive stating her wishes about being kept alive, or not, on life support.2

I. Introduction

While the litigation in the Terri Schiavo case is an extreme example of what can go wrong in the health care decision-making process, it hig

lights the importance of advance medical directives (AMD) in helping to ensure patient autonomy during end-of-life medical treatment. Unfortunately, large segments of society, to include the military, are still unclear about the role of AMDs in patient care.3 Thus, this article provides a broad overview of AMDs and their legal applications with a particular emphasis on expanding their use in the military community.4

II. Overview

This article begins with a discussion of living wills and durable powers of attorney (DPOAs), demonstrating how each one individually and or combined with the other form the component parts of an AMD. The second section of this article briefly explores the legal bases supporting AMDs. The third section provides a history of AMDs in the military followed by recommendations on how to better implement and craft AMDs; including proposed changes to the two Department of Defense (DOD)

Directives that address AMDs.5 The article concludes with a model AMD.6

III. Component Parts

Generally speaking, an AMD is a written statement recognized under state law7 intended to govern the health care8 decisions of the patient, should he or she9 lose decision-making capacity in the future. Although AMDs offer patients a measure of autonomy, they are by no means a panacea for those contemplating medical treatment decisions.10 Advance medical directives can take the following three forms: a living will, DPOA, or combination thereof.11

Any adult12 who has decision-making capacity13 can make an AMD. All states and the District of Columbia have some type of documentary mechanism known collectively as an AMD.14 Historically, most viewed AMDs as a way to refuse treatment in cases of terminal illness.15 Now,

however, many view an AMD as a tool to allow incapacitated patients the possibility of dignity and control at the end of life.16

1. Living Will

   The first component of an AMD is the living will or instructive directive.17 The living will is a written document informing health care providers about particular types of medical care the patient wants provided or withheld. First introduced in 1969 by attorney Luis Kutner, the living will was an early attempt to grant the patient increased treatment autonomy.18

   Mr. Kutner argued that, although the common law prohibited euthanasia, patients could withhold their consent to necessary future medical treatment.19 Mr. Kutner proposed that the law permits competent patients to

   execute documents explaining their future health care wishes.20 Over the past thirty years, Kutner's idea has evolved into a document widely

   accepted and recognized in all fifty states to include the District of Columbia-the living will.21 This is not to say, however, that living wills are as well known by the average individual, as they should be.22 Even today, many people are still unfamiliar with living wills and even mistakenly refer to them as testamentary wills.23

   Procedurally speaking, living wills become effective when (1) the declarant (patient)24 is no longer capable of making medical care decisions; (2) the declarant is in a condition covered by the living will; and (3) a decision covered by the living will is called for.25 The principal advantage of the living will is the unparalleled capacity to memorialize the subjective intent of the declarant.26 Also, the living will avoids potential conflicts27 of interest that may arise in the case of substitute decision-makers and removes a huge burden from those same decision-makers who are normally a relative or close family friend.28 The obvious inherent weakness of the living will is its inability to cover every potential contingency. Yet, even if one could draft a living will in such a way as to cover every unforeseen event, such broad coverage would render it impotent, as the

   numerous contingencies would drown out the specific intent of the declarant.29

2. Durable Power of Attorney30

   The second component part of the AMD is the DPOA31 or "health care power of attorney." Durable powers of attorney trace their roots back to agency law, which allows "a person [principal] to do through an agent whatever he is empowered to do for his own person."32 Unlike regular powers of attorney, however, incapacity of the principal does not extinguish a DPOA.33 To the contrary, the principal creates a DPOA with the intent that he will soon become incapacitated and unable to make decisions.34 Because DPOAs survive incapacity, revocation becomes of prime importance. Fortunately, the common-law rule of agency-that a principal may revoke the authority of the agent at will35-applies to the DPOA.36

   Procedurally speaking, the DPOA comes in two different forms, "springing" and "current."37 A "springing" DPOA is effective only when a specific event occurs, such as incapacity of the principal.38 A "current" DPOA is effective upon execution of the document. Of the two, the "springing" DPOA is more burdensome to use when creating an AMD, as the third party, the health care provider, may not be convinced that the

   "springing" condition triggering the DPOA has actually occurred.39 Also, as with regular powers of attorney, a third party generally is not obligated to honor the DPOA.40

   For most, the advantages of the DPOA over the living will are obvious.41 Living wills always need interpretation and, regardless of skillful craftsmanship, cannot cover all healthcare contingencies. The agent or proxy in a DPOA, however, knows the patient's values intimately and can respond to unexpected events.42 In addition, the agent can ask questions, assess risks and costs, speak to relatives and friends of the patient, consider a variety of therapeutic options, seek the opinions of other physicians, and evaluate the patient's condition and prospects of recovery; in short, engage in the same complex decision-making process that the patient would undertake if able to do so.43 The DPOA, however, is not without its faults. For example, many patients do not want to burden their relatives or close friends with the job of proxy thereby requiring them to make the "tough choices."44 In addition, there is no guarantee that the proxy will be able to carry out the patient's desired intent or that the proxy will be in a rational state when forced to make a decision.45

3. The Hybrid

   The hybrid, which has become the standard format46 for most AMDs to include those used in the military, employs a living will and a DPOA. Several reasons exist as to why one should have both a living will and a DPOA.47 First, proxy decision makers do not want the full responsibility of making life-altering decisions without some form of guidance.48 A living will provides a framework within which the proxy can make his or her

   decisions.49 Second, a health care provider is more likely to follow a hybrid as it increases the chances that the patient and his proxy have discussed in-depth the patient's healthcare wishes.50 The hybrid, however, like any legal instrument, is not without its complications. For example, if a patient has both a living will51 and a DPOA,52 some states have created a pecking order53 between the two, while other states have mandated that the last instrument executed is controlling.54

4. AMDs and Liability55

   All state living will and DPOA statutes confer some type of immunity from civil and or criminal liability on health care providers who in good faith comply with a properly executed AMD in accordance with the patient's wishes or in the patient's best interest.56 Conversely, only a small number of states provide enforcement provisions against health care providers who fail to follow an AMD.57 Those states recognizing enforcement provisions place them in three broad categories: professional sanctions, civil liability, and criminal charges.58 While the potential exists for a patient or his estate to pursue one or all of these actions, they rarely

   do.59 This potential is even more remote in the military as many patients are prevented from bringing legal action against the federal government pursuant to the Feres60 doctrine, and those who are not must follow the restrictive requirements of the Federal Tort Claims Act.61 Both military and non-military patients, however, should be aware that, while states have attempted to limit the liability of both hospitals and health care providers, the potential for provider liability still exists.62

   IV. Legal Bases for Recognizing AMDs

   While AMDs are relatively new, the legal framework supporting them has been around for over a hundred years.63 The legal basis for recognizing AMDs rests with the patient's right of autonomy and self-determination regarding medical treatment.64 This right can be found in both the common law65 and the U.S. Constitution.66 At common law,67 the touching of one person by another-regardless of whether committed by a health care provider-without consent or legal justification constitutes an assault.68 The natural corollary of the common law consent doctrine is the right not to consent; that is, the right to refuse medical treatment.69

   In Cruzan v. Director, Missouri Department of Health, the Supreme Court, in a 5-4 decision,70 found the right to refuse medical treatment constitutionally protected.71 The Court, while acknowledging that some states

   reviewed this right pursuant to the Fourteenth Amendment's "right to privacy,"72 held that "this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest."73...