Deciding how we die
Gerald Coleman and Margaret McLean, in their article “As We Lie Dying” (September 12), make some excellent points about Physician Orders for Life Sustaining Treatment (POLST). Kansas and Missouri health-care providers are introducing a similar program called Transportable Physician Orders for Patient Preferences (TPOPP). As someone who has been involved in providing hospice services for over thirty years, I know only too well how “woefully unprepared many people [are] for life’s final transition,” as Coleman and McLean write.
Like POLST, TPOPP also has its critics. I agree with the authors: the worries of these critics are unwarranted.
What I found troubling was the theoretical case of “Max” that Coleman and McLean present to illustrate the need for such advance-planning programs. In their scenario, Max suffers heart failure on the golf course. Emergency medical services are called and the EMTs attempt resuscitation. Despite the intervention of Max’s wife, who arrives fifteen minutes later to show them an advance directive and plead for them to stop, the EMTs cannot do so without medical orders from a physician. As the authors state: “Max’s directive was useless, since EMTs were legally required to do whatever necessary to stabilize Max—even things he would abhor—in the absence of an order from a physician.”
This assertion runs counter to clearly established legal judgments made over the course of several decades. In Schloendorf v. Society of New York Hospital (1914), Judge Benjamin Cardozo (New York Court of Appeals and Associate Justice of the Supreme Court) wrote: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”
Associate Supreme Court Justice Sandra Day O’Connor agrees. In Cruzan v. Director Missouri Department of Health (1990), she said: “A competent person has a constitutionally protected liberty interest in refusing unwarranted medical treatment.” With regard to surrogate decision-making, O’Connor states: “Delegating the authority to make medical decisions to a family member or friend is becoming a common method for planning for the future.” And finally O’Connor points out that “several states have recognized the practical wisdom of such a procedure [surrogate decision-making] by enacting durable power of attorney statutes that specifically authorize an individual to appoint a surrogate to make medical decisions.” O’Connor asserts that her opinion is grounded in the long-standing common rule that “forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment.”
A follow-up to the Cruzan decision was the Patient Self-Determination Act (1990), which went into effect on December 1, 1991. That law requires health-care providers (physicians were excluded from this requirement) to give information regarding the availability of advance directives.
Advance directives have been legislated in every state. In Kansas, the Natural Death Act (1979) provided for establishing a living will whereby one is able to refuse treatment that would just prolong the dying process. This legislation states that “failure of an attending physician to comply with the decision of a qualified patient pursuant to this act shall constitute unprofessional conduct.”
Kansas passed the Durable Power of Attorney for Health Care Decisions (DPOAHC) law in 1989. It states: “All acts done by an agent pursuant to a durable power of attorney for health-care decisions during any period of disability or incapacity of the principal have the same effect as if the principal were competent and not disabled.”
The law makes it clear that no medical provider, including EMTs, can perform a medical procedure without the patient’s informed consent. If “Max” himself told the EMTs to stop, they would have to do so. It is also clear that this right can be delegated to an agent to engage in proxy decision-making on behalf of the patient. Failure to comply with an agent’s directions on the part of the medical provider can result in both civil and criminal liability.
When I began providing hospice services in south central Kansas in the early 1980s, I regularly encountered EMTs who insisted on providing life-sustaining services for our patients when they were inadvertently called, often by a panicked family member (or a golfing partner!). When given indication by the agent in a duly executed DPOAHC to stop the medical intervention, they insisted they were legally required to continue, even against the patient’s wishes or those of a proxy decision-maker. When asked to provide the state statute authorizing them to do this unwanted medical intervention, they were never able to do so. I do not believe there is any state that could enact such a statute and have it pass constitutional muster. The EMTs were relying on locally established policies or following long-standing practices.
Granted, when EMTs are called, the presumption is that they are to do whatever is necessary to save the patient’s life. The decision to call EMS generally implies that informed consent is being given for medical interventions. However, once the EMTs are given clear indication to stop, not just by a physician or a physician-issued DNR order, but also by a duly appointed agent, they are legally required to do so. The EMTs in our county in south central Kansas are aware of this. No medical provider is above the Constitution.
What if someone fraudulently presents himself as a duly appointed legal agent? Kansas law (as is likely with other states) makes it clear that the medical provider is not liable for any adverse outcomes for following the directives of such a person: “Any person who falsifies or forges the declaration of another, or willfully conceals or withholds personal knowledge of the revocation of a declaration, with intent to cause a withholding or withdrawal of life-sustaining procedures contrary to the wishes of the declarant, and thereby, because of such an act, directly causes life-sustaining procedures to be withheld or withdrawn and death to be hastened, shall be guilty of a class E felony.”
In the theoretical case of Max and his heart failure on the golf course, as Max’s golf partner, I could present myself fraudulently to the EMTs as a physician and tell them to stop medical interventions resulting in Max’s death, thereby saving me from having to pay off a hefty bet, since Max was beating me so overwhelmingly in our golf match! In such a case, liability for Max’s death would rest with me, not the EMTs.
More seriously, Max’s advance directives do not work only in the hospital setting. They are especially needed outside of hospital settings: the home, workplace, and yes, even the golf course. This is not to say programs such as POLST and TPOPP and DNRs are not beneficial. My conviction is the more we can do to prepare ourselves for life’s final transition, the better.
Thomas A. Welk, C.P.P.S*
*The writer is director of professional education and pastoral care at Harry Hynes Memorial Hospice.
The authors reply
We understand the POLST form as a necessary complement to the legally tested advance directive, which is best suited to acute or chronic care settings rather than the golf course. In the hospital, Max’s desire not to be resuscitated—as indicated in his directive and voiced by his agent—would have been known by those who cared for him.
Advance directives are, as their name suggests, documents made in advance, asking people to anticipate their future medical circumstances and decisions; everyone over the age of eighteen should have one. POLST is designed for the seriously ill, those with chronic progressive illness, and the medically frail in the here-and-now, not the future if-and-when.
The recent report from the Institute of Medicine, Dying in America, notes that POLST forms are in force wherever a person may be, from the hospital to the golf course. A valid POLST must be followed by all health-care professionals, including emergency medical services technicians, “who in an emergency, cannot interpret a living will or take orders from a health care agent.” The variety of advance directive formats and the inability to determine quickly their validity makes them cumbersome and generally unusable in a nonhospital setting, illustrated by Welk’s “hefty bet” scenario.
Max’s situation is an emergency, allowing for medical intervention without explicit informed consent. No established relationship exists between Max and the responders. They do not know Max’s wishes with regard to resuscitation, a treatment always provided unless a patient opts out through a do-not-resuscitate (DNR) order. Here in California, local emergency medical service (EMS) agencies must recognize and accommodate a person’s desire to limit prehospital intervention with an authorized prehospital DNR form, an approved DNR medallion, or a valid POLST indicating DNR. Although advance directives may be honored by a single EMS agency, they may not be honored by the agency a few miles away. The only way Max could assure that his wishes would be honored on a golf course in California (and likely elsewhere) is to have a prehospital DNR, a DNR medallion, or a valid POLST specifying his desire to forgo resuscitation.
Welk’s reminder that “the more we can do to prepare for life’s final transition, the better” elicits a hearty “amen” from us. Max would have been better prepared if he had had a completed, available POLST form in addition to the advance directive tucked into his wife’s purse.
Gerald Coleman & Margaret R. Mclean
In your ninetieth-anniversary issue (October 24), my brother, Richard Hayes, is misidentified in a group picture of staff members in the article by William Pfaff (“Trying My Hand,” page 11). He is named as Carlton Hayes rather than Richard Hayes.
Richard was theatre critic of Commonweal from 1952 to 1961. He also taught at New York University and other New York universities in the field of theatre and dance criticism. He died suddenly in 1990 at the age of sixty-one. He was always proud of his connection with your fine and much-needed publication.
Carlton Hayes was a well-known Catholic professor of Spanish history at Columbia for many years (much older than Richard). Carlton also served as Ambassador to Spain during, I believe, World War II. I can understand the error made; it was a number of years ago.
New Rochelle, N.Y.
The Editors Reply
Nostra culpa, and thank you.