The Alaska Health Care Decisions Act, Analyzed

• Publication year: 2005

§ 22 Alaska L. Rev. 213. THE ALASKA HEALTH CARE DECISIONS ACT, ANALYZED

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 213

THE ALASKA HEALTH CARE DECISIONS ACT, ANALYZED

KENNETH C. KIRK ^[*]

I. INTRODUCTION

II. FUNCTIONAL ANALYSIS

III. HISTORICAL ANALYSIS

IV. PHILOSOPHICAL ANALYSIS

A. Self-Determination

B. Sanctity of Life

C. Quality of Life

D. Distrust of Lawyers

V. APPLICATION TO CASES

A. Karen Ann Quinlan

B. Nancy Beth Cruzan

C. Teresa Marie Schindler-Schiavo

D. Sun Hudson

E. Ora Mae Magouirk

VI. CONCLUSION

FOOTNOTES

This Article reviews and examines the Alaska Health Care Decisions Act ("AHCDA"), found at section 13.52 of the Alaska Statutes and effective January 1, 2005. The AHCDA is examined functionally, historically, philosophically, and by hypothetical application to well-known cases. The Article identifies a number of errors and ambiguities in the AHCDA and concludes that while the AHCDA expresses itself as an attempt to balance the societal concerns of sanctity of life and the right to self-determination, in practice it is likely to promote termination of life support in circumstances supported by neither of those two philosophical imperatives.

I. INTRODUCTION

After four years of debate, the 2004 Alaska Legislature finally passed the Alaska Health Care Decisions Act ("AHCDA"). ^[1] The AHCDA is an ambitious attempt to pull together a number of statutory schemes related to the end of life, including laws on advance directives (also known as "living wills"), termination of life support for those who are terminally ill or permanently unconscious, laws related to decision making for the mentally ill, and laws related to organ donation. The AHCDA also adds a section on surrogate decision making for those who have not filled out an advance medical directive and have no court-appointed guardian. The AHCDA includes an optional form called an advance healthcare directive, which can be used to appoint a decision maker for healthcare decisions in the event a person is incapacitated. ^[2] The advance healthcare directive also provides instructions for healthcare, including decisions to withdraw life [*pg 214] support (which includes feeding tubes); changes the system for making anatomical gifts at death; allows appointment of a surrogate decision maker for mental health treatment; and indicates the physician who will have the right, under certain circumstances, to make decisions on a patient's behalf. ^[3]

This Article will examine the AHCDA from several different perspectives. Part II reviews the AHCDA functionally, with an emphasis on what its various parts achieve and how well these parts fit together. Part III culls the legislative history to show how the bill evolved from a "Five Wishes" statement to its current form. Part IV examines the AHCDA from a philosophical perspective, showing how the various emphases on sanctity of life, right to self-determination, and quality of life have been factored, albeit somewhat unevenly, into the Act. Part V applies the AHCDA to the well-known cases involving Karen Ann Quinlan, Nancy Cruzan, Terri Schiavo, Sun Hudson, and Ora Mae Magouirk to see how those cases would likely have come out under the AHCDA. Finally, Part VI considers the likely practical effects of the AHCDA, analyzing whether the probable results are in fact consistent with the aims on which the AHCDA purports to be based.

II. FUNCTIONAL ANALYSIS

The Health Care Decisions Act is a hybrid enactment, covering a number of different areas relating to decision making on medical issues.

The AHCDA's most distinctive attribute is the new advance healthcare directive form, with the activating portion at the beginning of the statute, ^[4] and the optional form itself at the conclusion (except for the definitions). ^[5] Under the old living will statute, ^[6] a terminally ill individual could direct that his attending physician withhold or withdraw procedures that merely prolonged the dying process and were not necessary to keep him comfortable and to relieve pain. ^[7] The individual could also make an organ donation on the same document ^[8] or separately. Under the new form, in a single document, the individual can designate an agent to make healthcare decisions if he or she becomes incapacitated; can [*pg 215] limit that agent's authority; can indicate, when the person has a "qualifying condition," ^[9] whether life should be prolonged by artificial means, artificial nutrition or hydration, or whether pain relief should be provided; can direct an anatomical gift at death, and even what types of use to which the gift can be made; can delegate authority for mental health treatment; and can designate a primary physician for decision-making purposes. ^[10] The AHCDA provides details regarding how the form must be witnessed, when it is effective, ^[11] what the agent must consider in making decisions on the person's behalf, and how it may be revoked, among other limitations.

Noticeably, the statutes related to guardianship were not incorporated into the AHCDA, but were instead left in Title 13. ^[12] However, several portions of the AHCDA do relate to guardians. Under the guardianship statutes, a person nominated by the respondent has priority to be selected as guardian, ^[13] and under the AHCDA the form may include the individual's nomination of a guardian; ^[14] thus, the AHCDA provides a method for nominating the person who will be given priority under the guardianship statutes. The sample form, if left unaltered, simply nominates the person who is designated to make healthcare decisions as the guardian. ^[15] Note, however, that under the guardianship statutes, a general guardian has a great deal of authority with regard to finances (assuming a separate conservator has not been appointed), and a different person might be better able to handle those duties. As a result, patients are advised to consider carefully the decision to designate a healthcare agent that will also act as the preferred guardian. Separating the functions of healthcare agent and guardian would require writing a separate instruction on the form, as the appointment of a guardian is otherwise automatic in the last paragraph of Part One of the statutory form.

Interestingly, absent a court order to the contrary, a healthcare decision made by an agent ^[16] takes precedence over that of a [*pg 216] guardian, ^[17] and the guardian is required to comply with the ward's healthcare directive unless a court expressly authorizes the revocation. Attorneys who represent petitioners in guardianship cases have already noticed the potential malpractice trap; consequently, they now draft proposed orders for the court so that their guardians will be able to act according to their own perceptions of the ward's best interest and will not be overruled by an appointed agent. To understand the problem, imagine that you are the attorney for the petitioner in a guardianship case, and your client has asked you to secure guardianship over a relative with dementia, in part so that reasonable healthcare decisions can be made. In your proposed orders, which are ultimately adopted by the court, you neglect to state clearly that the guardian's decisions will overrule any decisions by an agent (probably because you are using the same forms you used in the past, when this was not an issue). On the eve of an important medical procedure, you discover that the ward has a pre-existing, valid healthcare directive, naming another individual as the agent. The agent will not consent to the medical procedure, so it cannot be performed. The malpractice risk in that scenario should be apparent.

In recognition of the fact that a significant portion of the population does not, and will not, have advance directives, the AHCDA includes a detailed provision allowing for the appointment of surrogates for individuals who do not have advance healthcare directives or guardians. ^[18] A patient can designate such a surrogate by personally informing the supervising healthcare providers of the identity of the desired surrogate. ^[19] If the patient fails to do so, a surrogate is appointed according to a priority list, beginning with the patient's spouse, then adult children, then parents, then adult siblings, and finally "an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available." ^[20] The surrogate is to act in accordance with the patient's individual instructions and wishes; otherwise, the surrogate may make the decision in accordance with his or her determination of the patient's best interest, considering the patient's personal values. ^[21] The patient's primary healthcare provider may overrule the [*pg 217] surrogate's decision if it appears that he or she is not abiding by the wishes, values, and best interests of the patient. ^[22]

The AHCDA has specific restrictions on when life support (including the withholding of artificial nutrition and hydration) may be withheld or withdrawn. The patient must have a "qualifying condition," which means either a terminal condition or a state of permanent unconsciousness. ^[23] However, the standards for do-not-resuscitate orders (commonly called "DNR" or "Comfort One" orders) are different under the AHCDA. Specifically, the order must be entered by a physician and does not require the consent of the...