Healthcare advance directives are legal documents by which individuals express their wishes regarding medical treatment and/or appoint a trusted person to speak for them any time they are unable to make treatment decisions for themselves. Not all advance directives are equal. Many have been drafted by people who fail to comprehend the reverence, awe, and deep respect due to creatures made in the image and likeness of God. Therefore, it is wise and morally imperative to choose your advance directive carefully.
Consider the origin of advance directives. In 1967, the Euthanasia Society of America (ESA) –a group founded explicitly to wipe out people they called “defective” (New York Times, 2/14/1939) – introduced the “Living Will.” ESA promoted the Living Will as a means for individuals to refuse “unwanted” life-sustaining treatment should they ever become incapacitated. The introduction of this first advance directive was a giant step toward achievement of the Euthanasia Society’s objective — medical, legal, and social acceptance of euthanasia.
Advance directives have come a long way, but rarely the right way. The three main types of advance directives in use today are the Living Will, the Medical Power of Attorney, and the POLST (Physician’s Orders for Life-Sustaining Treatment). Saving for last the one most loaded with deathtraps, the POLST, let us first examine Living Wills and Medical Power of Attorney documents.
The wisest choice: A Medical Power of Attorney
Every state advance directive law permits euthanasia by omission. In their advance directives, people may refuse any or all “life-sustaining procedures” as well as “artificially administered nutrition and hydration” (AANH) under circumstances that vary from state to state. Furthermore, these laws require healthcare providers to honor patients’ directives even when doing so will directly cause death.
A Living Will (often called a Directive to Physicians) is a document instructing physicians to use or not use certain treatments and/or tube-feeding in the event of an illness or injury. It is impossible to foresee what you may want or need in a future situation when unable to speak for yourself. A Living Will is based on mere guesswork. This is dangerous.
If you refuse treatment, you risk tying the hands of a physician whose skills could restore you to health. Also, it is surprisingly difficult to state treatment wishes understandably. You may think you are clearly stating your preferences, but the terms used in advance directives have legal and medical meanings that can be quite different from what you think they mean. When you are hospitalized, physicians (hospitalists) may be strangers who do a poor job of interpreting your wishes, particularly if they do not share your values.
A much better option is a Medical Power of Attorney (MPA) in which you appoint a trusted person who shares your values to be your “proxy” (called an “agent” in some MPA documents). Your proxy will make medical decisions for you in the moment of need if you are unable, either temporarily or permanently, to do so.
Your proxy will endeavor to honor your values and wishes while basing decisions on current medical information and advice. You cannot know, today, what new treatments may be available tomorrow, let alone five or ten years after signing your advance directive. This is just one reason appointing a proxy may save your life.
It is important that you discuss your wishes and principles with your proxy when you sign your MPA and periodically thereafter. Your perspective may change as your circumstances change. It is not unusual for healthy people to imagine that certain treatments would be intolerable, but then change their minds when faced with life-threatening conditions.
Everyone who is 18 years old or older needs a carefully crafted MPA; not one provided by your state, your doctor’s office, hospital, or nursing home, or by an organization that promotes the “right to die.” The wording is critically important. Your MPA should make clear that you want nutrition and hydration to be provided to you, either orally or by artificial means, unless death is inevitable and imminent from a cause independent of nutrition and hydration, so that the effort to sustain your life is futile, or unless you are unable to assimilate food and fluids. And, to preclude misinterpretation of anything written in your MPA, it should stipulate, “I have discussed the meaning of the words used in this document with my proxy and my proxy’s interpretation of them is controlling.”
POLST: a dangerous document tilted toward non-treatment
Physician’s Orders for Life-Sustaining Treatment (POLST) is a medical document used extensively throughout the United States. POLST has numerous names and acronyms, such as Clinicians Orders for Life-Sustaining Treatment (COLST), Transportable Physician Orders for Patient Preferences (TPOPP), Medical Orders for Scope of Treatment (MOST), etc.
A brightly colored form that is highly visible in a patient’s medical chart, the POLST has boxes to check off to indicate whether a patient does or does not want cardiopulmonary resuscitation (CPR), antibiotics, nutrition and hydration,
mechanical ventilation, etc. Just as the names of these forms vary, the treatment options offered also vary. Trained “facilitators”—sometimes people without medical training—discuss treatment options with patients. After filling out the form with a patient, the facilitator presents it for signature by a designated health care professional.
The POLST form is not simply an expression of a patient’s treatment preferences; once signed, it is a set of medical orders to be followed immediately or sometime in the future. POLST orders can be followed even when the patient is able to make his/her own medical decisions. In some instances, it overrides the authority of the patient’s proxy.
Furthermore, some POLST forms do not require witnesses. All other advance directives must be witnessed or notarized to ensure that the person is of sound mind, to protect him/her from being manipulated or coerced to sign a directive, and to prevent documents being forged.
The POLST process is tilted toward non-treatment and can encourage premature withdrawal of treatment when—but for the denial of treatment—death is not imminent. Facilitators are trained to present various options for treatment or non-treatment as if they are morally neutral, even though certain ones may lead to euthanasia by omission. The way questions are phrased can manipulate patient responses. For example, the facilitator may ask, “Do you want us to focus on keeping you comfortable?” The patient responds, “Yes, of course,” unaware that this answer may be interpreted to mean, “Stop treating my illness and only provide comfort care.” Patients are not told that, even if they could recover, it is likely treatments they refuse will not be provided. If an elderly person is in an accident, will he be given life-saving treatment? Or denied it because of check marks on his POLST?
These orders travel with the patient from one health care setting to the next, including the patient’s home, where they are to be followed by emergency medical technicians responding to a medical emergency. Using medical orders that were written weeks, months or years earlier is not sound medical practice.
John M. Haas, while president of the National Catholic Bioethics Center, sent a letter regarding POLST to the Secretaries of Health and Human Services and the Veterans Administration, dated June 7, 2017. Therein he noted, “Evidence suggests that such approaches have more to do with cost saving than the protection of informed consent. In fact, the very means by which costs will be saved is the premature death of a patient through the denial of care.”
When approached with a POLST form, your best course of action may be to firmly state, “I have a Medical Power of Attorney for Health Care which will go into effect if ever I need my proxy to make decisions for me. Until such time, I want to discuss my condition and treatment options with my attending physician as needed. Please respect my wishes.”
Julie Grimstad is President of HALO (the Healthcare Advocacy and Leadership Organization)
The Health Care Civil Rights Task Force stands ready to advise you about available advance directives that promote respect for the sanctity of life, and to provide you and your proxy with moral guidance in making health care decisions.