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STATEMENT OF DOROTHY
TIMBS, J.D. In the wake of the Terri Schiavo case, many authorities are urging Americans to complete advance directives. Every state authorizes these legal documents, which allow a person to specify whether and under what circumstances she or he wants life-preserving medical treatment, food or fluids when no longer able to make health care decisions. We ourselves urge people to make use of our pro-life living will, which we call the “Will to Live.” It can be downloaded in the proper form for each state from the website www.nrlc.org. However, the laws of all but ten states may allow doctors and hospitals to disregard advance directives when they call for treatment, food, or fluids. Increasingly, health care providers who consider a patient’s “quality of life” too low are denying life-preserving measures against the will of patients and families – and the laws of most states provide no effective protection against this involuntary denial. The result is that in most states, if you want life-saving treatment – or even food and fluids – there is no guarantee your wishes will be honored, even if you make them clear in a valid advance directive. Today we are announcing the results of a poll just conducted for the Powell Center by the Polling Company. It shows that, by the more than 5 to 1 margin of 76% to 14%, Americans believe that a patient who chooses food and fluids should have the right to receive them, even if the doctor considers the patient’s quality of life too low. The same is true of life support. By 77% to 15%, Americans say that a patient who wants life support should be able to get it, despite the doctor’s view that the patient’s quality of life is too poor to merit life support. It’s important to understand that many patients do want life-preserving treatment. A study of seriously ill patients in VA Hospitals published in the Journal of the American Medical Association found that 48% wanted to “use all available treatment no matter what the chance of recovery” compared to 31% who did not. Unfortunately, many doctors do not share the values of their patients. In fact, that same study found that of the patients’ doctors, only 7% agreed with providing such treatment, while fully 81% disagreed. Increasingly, doctors and hospitals are flat-out refusing to provide life-preserving treatment, and even food and fluids, to patients whose “quality of life” they think is not worth living – despite the fact that the patients and their families disagree and want to preserve life. Indeed, a study published last year found that in 65% of cases, physicians would make treatment decisions inconsistent with patients’ advance directives, largely on the basis of the doctors’ views about the patients “quality of life.” What few Americans realize is that the laws of most states allow this — authorize doctors and health care facilities to refuse to follow patients’ advance directives and the wishes of their family members, and deny treatment, food, and fluids against their will. Truly, this is involuntary euthanasia. The report the Powell Center is releasing today analyzes the laws of all 50 states, the District of Columbia, and the territories of Guam and the Virgin Islands. We found that only 10 states (those in green on the chart) have laws that essentially protect the choice of a patient whose advance directive says that life-preserving measures should be provided, should the health care provider disagree. Virtually all state laws have two features that are the same. They say that a health care provider can refuse to follow an advance directive, and they say that in that case the patient can transfer to a health care provider willing to comply with the patient’s wishes. However, the laws differ in what happens while awaiting transfer, and what happens if the patient cannot readily find another health care provider. Imagine that you’ve chosen to have food, fluids, or life-saving treatment, but your health care provider doesn’t think your life is worth living and so is unwilling to give them to you. Your theoretical right to transfer to another provider won’t mean much if you die before you can find a provider willing to respect your wishes, because you’ve been denied life-preserving measures in the meantime. So the critical question is whether a state’s law requires that the life-saving measures be provided pending transfer. 25 states and territories – those in red on the chart – do not require food, fluids or life-preserving medical treatment pending transfer. We classify 16 state laws as “questionable” – those in blue on the chart. These state laws have some language that might be cited to support a right to life-preserving measures pending transfer, but either that language is ambiguous or other language could be held to trump it. The report explains in detail the problems with each state law. 2 states — those in yellow on the chart – do require life-saving measures pending transfer, but set a time limit. If a transfer cannot be arranged within a set number of days, the health care provider can stop the life-saving measures so the patient will die. We believe most Americans will be deeply disturbed that four-fifths of the states do not clearly protect their right to choose food, fluids, or life-preserving medical treatment. It is important to fill out an advance directive like the Will to Live available on our website, www.nrlc.org, to make your wish not to be denied food or treatment clear. However, it is equally important to work for legal reform so that your choice for life will be honored. |