Tom Rants Default Living Wills a "solution"?

Living Wills a "solution"?

I spent some time tonight working on a “health care choices directive” for myself. The impetus was obvious, I assume and here are a few thoughts on that.

So, I downloaded a booklet (pdf file) from the Missouri Attorney General’s website that’s supposed to explain “end of life choices” and includes the forms to prepare a durable power of attorney for health care, a health care choices directive and a living will. Now I’ve heard for weeks that these are the solution to avoiding disputes and protecting a person’s right to control their own health care if they become incapacitated. Guess again (and by all means download the booklet if you doubt what I tell you).

Now first of all, a Living Will has only one option – refusing medical care. There is no way to write a valid Living Will that says, “I want all (or some) lifesaving measures to be used.” It’s in the statute. A living will specifically MUST read as follows:

I have the primary right to make my own decisions concerning treatment that might unduly prolong the dying process. By this declaration I express to my physician, family and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administration of death-prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative or deliberate acts or omissions to shorten my life rather only to permit the natural process of dying.

Isn’t that a bit slanted? The statutory language only allows for a right to die; it makes no provision for a right to live? (And it still leaves open a big judgment call – the question of what procedures “prolong dying” and what procedures “alleviate pain.”)

Okay. So I’m out of luck there since that’s basically the opposite of what I want to say. Maybe there’s another solution?

So, I look at the “Health Care Choices Directive.” Now this isn’t statutory language, but it was put together by the Attorney General for Missouri, the state bar and various other organizations to assist Missourians with their end of life “choices”.
It has this:

“I direct the following treatments to be withheld or withdrawn:”

followed by a list of treatments ranging from antibiotics to “tube feeding” with CHECK BOXES beside them! Okay. So, for the sake of argument, let’s say that I fill this out and I leave every box blank (which is what I’m actually about to do). Now somebody decides that maybe I wasn’t thinking clearly or my life insurance policy looks attractive or whatever and they go ahead and put a check mark beside the tube feeding line and tell the doctors to take it out. I, of course, smart guy that I am have left a second copy with someone else and they come head to Judge Bozo’s courtroom and say, “Judge Bozo, this wasn’t really his wish,” make them continue treatment as he wanted. But Judge Bozo is true to his name and decides as the “finder of fact” that the copy with the check mark is the real one and I actually want tube feeding withheld. Some kind soul in my family appeals it, maybe several times, but every time what does the appeals court do – exactly what appeals courts do in almost all cases, they decide strictly on the points of law and leave all points of evidence to the trial judge – the same judge, Judge Bozo. So, with such a clear case of corruption they could always appeal to the media, the Congress, the Governor, the court of public opinion? Right? Yeah, maybe not. So, my advance directive, calmly thought out, notarized and witnessed protects me…how?

Side note: To be clear, this is a hypothetical for me. I don’t have any doubts about the people who will make decisions before me and, frankly, putting it in writing is more to alleviate any doubts they might have if something happens than anything else. I don’t want someone to have to decide to stop a treatment and not know if I wanted it or not. Even worse that someone should have to make the decision to stop a treatment when the family doesn’t all agree. But not everyone is in a situation where they really can trust the people around them. There are Donald Jones’s in the world who will kill their grandmother’s for drug money.)

I do think that written documentation could be a part of the solution to the issue, but the solution also requires steps be taken to assure that the decision makers act in the patients interest, not their own. That includes trial judges whose own interest may simply be anger at being reversed on appeal and having to rehear the facts. It also requires that the law actually allow for choices other than death. A single possibility isn’t a “choice”. People own their own lives and part of ownership includes the right to dispose of something. The law should recognize that, but the purpose of law is to protect the whole bundle of rights of ownership and I’d even say that the primary purpose of government is to protect those rights against those who would take them from us. Allowing a homeowner the right to burn down his house is less important than preventing him from burning down his neighbor’s house in the process.

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