End-of-Life Directives: Powers of Attorney, Living Wills, and Other Matters

Although advance directives are a relatively new development in medical practice, their origins can be traced back to the beginning of this century in the form of informed consent law. Courts throughout the United States have consistently upheld the rights of patients to be informed participants in their own treatment plans and to refuse unwanted treatment. In 1982, the President's Commission for the Study of Ethical Problems in Medicine declared that "adults are entitled to accept or reject health care interventions on the basis of their own personal values and in furtherance of their own personal goals. " In the Cruzan decision in 1990, the right to refuse any treatment, even lifesustaining medical treatment, was declared a Constitutional principle by the United States Supreme Court. Physicians themselves began to express concern that patients were not being fully informed or consulted about important medical decisions, such as whether or not to attempt cardiopulmonary resuscitation (CPR). And although these physicians criticized their colleagues, they acknowledged that patients whose illnesses rendered them susceptible to cardiac arrest were not always capable of participating actively in such deliberations. Not surprisingly, the medical profession and society at large began to express interest in the possibility of developing an instrument that would allow patients to express their wishes in advance about treatment decisions that might have to be made after they lost the mental capacity to participate in such decisions. It was reasoned that if persons can retain the right through estate wills to decide what is done with their property after they die, surely they should not lose the right under informed consent law to decide what is done with their own bodies before they die. This line of reasoning gave rise to the concept of advance medical treatment directives and documents were proposed to fulfill this purpose. Advance directives generally consist of one or both of two components: a proxy directive (durable power of attorney for health care [DPA]), which allows the patient to designate a surrogate decisionmaker in the event the patient loses decision making capacity, and an instruction directive (sometimes called a living will), which provides space for the patient to specify treatments, such as CPR, mechanical ventilation, or tube feeding, that the patient would or would not want in certain clinical circumstances. Nearly every state has legalized some form of advance directive and the documents have gained widespread professional and public endorsement. Actual implementation of these advance directives was still undergoing exploration, however, when the concept was turned into mandatory federal legislation in the 1990 Patient Self-Determination Act. This Act requires that all healthcare institutions certified by Medicare or Medicaid inform their patients about the availability of advance directives and the patient's legal right to accept or refuse medical treatment. At the time of its enactment, no empirical studies had been carried out regarding the effect of these documents on medical practice and outcomes. Nor did Congress provide any guidelines for carrying out the Act's intent, nor include any funding provisions to assist with implementation, nor include any evaluation component. The result is that many hospitals have chosen the easiest, least costly way to comply with the letter of the law by leaving it to admitting clerks to provide brief references to the state's position on advance directives during hospital admission—hardly the best way, it would seem, to introduce patients to such complex and emotionally difficult topics.