Honoring Broader Directives

Abstract

Most states now have statutes on treatment directives, commonly called living wills. Often, however, these statutes only cover patients who are terminally ill at the time the treatment choice is to be effectuated. They may also prescribe a certain form to be followed in drafting a treatment directive. Further, they may contain substantive limitations, such as a seeming prohibition on the use of treatment directives to refuse artificial nutrition and hydration. All of these restrictions have led many health care professionals, administrators, and even lawyers wrongly to maintain that a directive broader than the statute is without legal effect. They make the common mistake of believing that once the legislature has recognized one means of protecting individual rights, there are no other means. They misconstrue every other effort to express treatment preferences as if it were a ball hit out of bounds. In fact, any expression of treatment preferences has legal effect. A directive broader than the state statute is not out of bounds. Health care professionals are obligated to pay careful attention to such directives. But to see why, you have to understand something about the relationship of the statutory rights provided by state legislatures, the additional common-law rights recognized by judges, and die rights provided by the state and federal constitutions. Patients have all three. Statutes on advance directives vary from state to state, but they generally provide a combination of carrots and sticks to induce health care professionals to honor a patient's written treatment preferences. The most important carrot they hold out is civil and criminal immunity to professionals who act in good-faith reliance on a patient's directive in forgoing life-sustaining treatment. With that kind of guarantee, there is no excuse for overriding the patient's preferences. Thus, state statutes create a protective umbrella, a zone in which patient preferences are protected by a system of incentives directed at health care professionals and institutions. However, that is by no means the entire domain of protected rights. It is a piece of the playing field, not the whole ballpark. A number of state statutes actually acknowledge this. They state that the rights provided by the statute in no way reduce other rights the patient may have. In other words, the statute adds to the patient's rights deriving from common law and constitutional law; it does not reduce those rights. So what are these other nonstatutory rights? judges have long since recognized that patients have a common-law right to be free of unwanted bodily invasion. This is the basis of die legal obligation to obtain a patient's informed consent before performing invasive procedures. In case after case, judges have declared that patients have a common-law right to refuse unwanted life-sustaining treatment. That right is not confined to the terminally ill, and applies to the refusal of all life-sustaining treatment modalities including artificial nutrition and hydration. Nor does a patient even need to express the refusal in writing. Oral expressions of preference may be effective as well. There are similar constitutional rights. A majority of the Supreme Court acknowledged in the 1990 Cruzan case that the federal Constitution protects the right of competent patients to refuse any life-sustaining treatment including nutrition and hydration. A number of state courts have said so as well. In addition, state courts have found relevant protections in their state constitutions. …