Is Your Family's Life at Risk?
MOST STATES DON'T REQUIRE DOCTORS TO HONOR ADVANCE DIRECTIVES THAT DIRECT FOOD, FLUIDS, TREATMENT
By Dave Andrusko

The laws of all but 10 states may allow doctors and hospitals to disregard advance directives when they call for treatment, food, or fluids, according to an important report issued by NRLC's Robert Powell Center for Medical Ethics April 15. The shocking conclusion of "Will Your Advance Directive Be Followed?" is that in 40 of the 50 states, there is NO guarantee your wishes will be honored, even if you make them abundantly clear in a valid advance directive!

The Report's results take on added urgency in the wake of the death of Terri Schindler Schiavo. Authorities have urged Americans to complete advance directives, like living wills, to state in which circumstances they would want medical treatment, food, and fluids if they become incapable of making these decisions.

However, the Powell Center report charges that, increasingly, health care providers who consider a patient's "quality of life" too low are defying these directives to deny treatment against patient and family wishes.

Dorothy Timbs, J.D., legislative counsel for the Powell Center for Medical Ethics, told reporters at a press conference at the National Press Club, "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." She added. "It is important to fill out an advance directive like the Will to Live available on our web site to make clear your wish not to be denied food or treatment, but it is equally important to work for legal reform so that your choice for life in such a document will be honored."

What few people know is that virtually all states allow health care providers to refuse to follow an advance directive. The key is (1) what treatment you receive while your family is trying to find a facility that will treat you, and (2) what happens if the patient cannot readily find another health care provider. The report from the Powell Center paints a very bleak picture for the medically vulnerable.

Released in mid-April, "Will Your Advance Directive Be Followed?" documents that there are only 10 states that essentially protect a patient's directive for life-preserving measures in situations where the doctor, hospital, or other health care provider disagrees.

The state statutes of 23 states, Guam, and the U.S. Virgin Islands offer no protection. When a patient or his/her family wants life-preserving measures, health care providers can simply refuse to comply. The rationale varies, but it frequently is based on judgments by health care providers that the patient's "quality of life" falls below their view of what makes life worth living.

While there tends to be some language in these state laws that talks about providing an opportunity to transfer the patient to a facility that will care for the patient, there is nothing that approaches a duty to provide life-sustaining treatment while the patient is awaiting transfer. As the report so aptly puts it, "It does the patient little good to be transferred if already dead."

Another 15 states and the District of Columbia have "questionable laws." Here the statutes have language that could be cited as grounds on which to support the patient's right to receive life-preserving measures while awaiting transfer. But the language is ambiguous "or could be trumped by other provision in state laws," according to the report.

(Two of those 15 states have laws that specify a duty to provide treatment, food, and fluids pending transfer, but even here there is an "out" for unwilling medical personnel. They are immunized from prosecution for any violation of the law that is in accordance with "reasonable medical standards" or "generally accepted health-care standards." Unfortunately, balky medical facilities can pick and choose from a proliferation of articles in prestigious journals that support involuntary denial of life-preserving measures on "quality of life" grounds to justify their non-compliance.)

And there are two states with laws which require treatment pending transfer for a limited number of days and "which authorize denial of treatment, food, or fluids if the time runs out."

This leaves only 10 states with laws that protect the choice of a patient whose advance directive says that life-preserving measures should be provided, should the health care provider disagree.

In the story on page 11 are results of a national poll that solidly support the idea that when patients have specified in advance that they want food and fluids, the doctor should NOT be allowed to withhold it because he or she thinks the patient's "quality of life" is too low. Similarly in the case of unconscious patients who had not given prior instructions, the public overwhelmingly believes families ought to be able to get life support for their relative, even if the physician feels otherwise.

"It is critically important to find out whether your state will protect your right to choose life," said Burke J. Balch, J.D., director of the NRLC Powell Center for Medical Ethics. "If not, you had better work to ensure your state's law is amended, or a member of your own family may well be the next to be starved to death against his or her will."

Copies of the full report "Will Your Advance Directive Be Followed" are available at http:// www.nrlc.org/euthanasia/willtolive/statestatutereport.pdf

(For the results of the polls discussed in this story, see page 11.)