Why Are You at Risk If You Don't Sign a Will to Live?

The Dangers in Current Legal Standards and Medical Practice

By Burke J. Balch, J.D.
Director, NRLC Department of Medical Ethics

Today, any of us who might become unable to speak for ourselves because of an illness or the development of a disability is in very grave danger of being denied lifesaving medical treatment and even food and fluids if we have not left precise instructions to the contrary.

Why? Because the last 25 years have seen the rapid acceptance of "surrogacy" - - a legal term that covers the ability of another person to order the denial of treatment to someone who is incompetent but has left no clear description of wishes, theoretically on "behalf" of the incompetent patient. Let us take Arizona as an example - - a state whose climate beckons many older people to retire there.

In Arizona, when someone who is incompetent has no relative or friend to serve as guardian, a county official, the Public Fiduciary, assumes this authority. In Pima County - - the county where Tucson is located - - a physician who works with the Public Fiduciary has testified in court that in his opinion, anyone unable to participate "at quite a high level" in health care decisionmaking would prefer to be dead, and therefore it is his policy to direct that the "artificial" feeding of any such nursing home resident be stopped.

The "vast majority" of nursing home deaths in Pima County, he testified, result from deliberate starvation and dehydration.

The Public Fiduciary can and does authorize these deaths when there is no evidence of the patient's wishes. A 1987 Arizona Supreme Court ruling, Rasmussen v. Fleming, gives a guardian the authority to terminate lifesaving treatment and artificially administered nutrition and hydration, without court review or indeed any form of public record or oversight, to anyone who is "incompetent or incapacitated."

Understand the broadness of this authorization - - and of its documented application in Pima County. It certainly is not limited to those who are terminally ill and about to die in any case. Nor is its reach limited to the extremes of impaired consciousness like coma or "persistent vegetative state." Instead, it covers people with Alzheimer's disease, mental retardation and mental illness, and even "senile dementia." Any patients whose judgment and ability to communicate are sufficiently impaired so that they cannot competently speak for themselves may lawfully be denied treatment and starved - - and, if the testimony is to be credited, that is exactly what routinely happens to the wards of Pima County.

Arizona is not alone. Many states have statutes that set out lists of people who are given the authority to reject lifesaving medical treatment, food, and water for people who cannot speak for themselves and have left no clear instructions. Court cases in almost all other states have created binding rules of law that have a similar result.

The once-dominant view that the presumption is for life unless it is clear that the patient would have rejected treatment is now the law only in some circumstances in a very few states. The bottom line is that nonvoluntary euthanasia, in the form of denial of lifesaving medical treatment, food, and fluids to patients who cannot speak for themselves and have never expressed their wishes, is now the legal norm in most of this country.

The other side of the legal coin is that, to date, most of the court cases dealing with this area indicate that if the patient has expressed clear wishes, those wishes take precedence over what a surrogate might otherwise do. In short, from a legal perspective, if you do not make your own preferences clear, the odds are high that if you become incompetent someone else, whom you may not even know, will be able to cut off treatment, food, and fluids.

On the other hand, setting down your desire to receive them in a legally binding advance directive like the Will to Live will go far to protect your right to do so.

So much for what the law says. What do doctors do? Generalizations cannot describe every individual. Unquestionably, there are physicians who today adhere as strongly to the principles in the Hippocratic Oath as did most doctors of the 1950s and 1960s. But the available evidence suggests you can by no means count on the average doctor still holding that philosophy.

The Hippocratic Oath has not been taken at medical school graduations for well over two decades now. The American Medical Association, regarded by most as the voice of organized medicine, has been in the forefront of those insisting that withholding of lifesaving medical treatment, as well as "artificially" provided food and fluids, is appropriate medical practice. The medical journals are full of articles emphasizing that the "quality of life," and not its biological existence, is the true end of medicine - - and that therefore those with an inadequate quality of life should be allowed to die.

One survey of physicians in the Pacific Northwest reported in the Archives of Internal Medicine found that the doctors' preferences for whether their older patients should be resuscitated was "significantly correlated" with the doctors' assessments of the patients' "quality of life." Significantly, the study also found that, compared with the patients' own assessments, the doctors substantially underestimated their quality of life. A study in the Journal of the American Medical Association found that older patients who had undergone intensive care were much more willing to undergo it again, even to achieve one additional month of survival, than many physicians would suppose. Both articles cite a number of other studies demonstrating, in the words of the Archives article, that "Existing evidence ... suggests that physicians' decisions for life-sustaining treatment are often inconsistent with patients' preferences."

These facts underline the need for you to prepare a Will to Live. You simply cannot assume that the typical physician in America today will automatically make or recommend the treatment decisions concerning your life that you would make, just as you cannot assume that the law, in its current state, will protect your life without clear evidence of your wishes.