Schiavo Case: Would an Advance Directive Helped?

In these past few days with all the discussion about the Schiavo case, I have noticed a huge avalanche of advice from various sources to the public. The gist of the advice is: Better write an advance directive or you might end up in a mess like Terri Schiavo. The advice seems to be taking off, at least based on what I hear on radio and TV interviews with your average Joe and Jane on the street. But is the public getting fully informing information about advance directives? Not that I can tell.

There are two components of many advance directives: there is a living will portion which states, usually not in the patients own words, what the patient wants done under conditions where there is no hope for recovery from a life threatening illness. If it simply a check off box---that is bad! Better write it out what you want in your own words in your handwriting or dictate it to your lawyer who might help you with some of the wording. Best of all, talk out your wishes with you own physician. You will learn a lot more about the possibilities but unfortunately not all. More later about that. The second portion is the assignment of a person designated as a Durable Power of Attorney for Healthcare. Unfortunately, many folks are satisfied with the living will portion and fail to select that important person.

Now I will tell you why a designated Durable Power of Attorney for Healthcare should be identified. Think this out. Someone writes “I don’t want any life-support if I have a terminal illness and am unable to communicate.”. This is written years earlier when the patient is healthy and has no idea of what the terminal illness will be and what is the life-support that would be used. Further, does this mean that if the patient had HIV (a potentially terminal illness but the patient is now stable except for a mild infection for which an antibiotic was prescribed) would he want intubation and attachment to a ventilator if he had an acute anaphylactic reaction to the antibiotic? The ventilator treatment would be often just temporary and prevent death from the lack of oxygen because of the allergic reaction. Could this be interpreted by the patient’s physicians and the courts as to exactly what the patient would really want when the patient becomes ill? What I am trying to explain is that the words in an advance directive can be confusing as to what really were the desires of the patient if the patient was full aware and informed about the patient’s current condition. There also may be missing from the advance directive important details about the patient wishes: the patient’s value, goals and the degree of quality of life the patient would want to live with after the acute phase of the illness is resolved and some residual abnormalities persist.

All of this ambiguity can be more readily resolved if the patient has selected a legal surrogate, has spent time talking with the surrogate about values, goals and quality of life desired and any other personal factors the surrogate should consider. Now, when the patient is ill and unconscious and can’t make medical decisions at the time, the legal surrogate (the person named as surrogate as the Durable Power of Attorney of Healthcare) can now act in the patient’s place. The legal surrogate is informed by the physician about the clinical situation and the treatments and then can make an informed consent or dissent based on the surrogate’s knowledge of the patient’s wishes. The legal surrogate can also interpret, in light of the current known medical information, the wording of the living will portion of the advance directive. In addition, the legal surrogate can make the many medical decisions about accepting tests or treatments not specifically related to life support.

Remember, unless our Congress and our President change the laws now in existence or there is clear evidence that the surrogate is not considering the patient’s interest but considering only the surrogate’s own self- interest or is mentally incompetent at the time, a person who is the Durable Power of Attorney for Healthcare “speaks” with virtually as much clout as the patient. Note that a person at the top of a nominal potential surrogate list including a spouse may not be given the same legal power in directly speaking as the patient compared with a court-appointed conservator or the patient selected Attorney for Healthcare.

I hope this explanation of the need for at the least a designation of a legal surrogate by the patient is helpful. With regard to the answer to the question in the title of this posting, an advance directive for Terri probably and sadly would not have helped once the case moved from a personal family issue to a political issue. ..Maurice.