Health Care Decision-Making
Starts and Ends with Communication
In real estate, successful
investing is based on location, location, location. In health care decision-making,
successful planning is based on communication, communication, communication.
Ever since 1976, when
the parents of Karen Ann Quinlan made history by challenging the right of
society to keep a person alive when there is no reasonable hope or expectation
for that person to recover, public debate about the right to make effective
health care decisions in advance of a disability has broadened. Most of the
cases that have developed in this area of the law have involved patients
in a persistent vegetative state (PVS). Besides Karen Ann Quinlan, cases
involving PVS included Nancy Cruzan (1990), Ron Mack (1993) and Hugh Finn
(1998). Because this relatively rare medical phenomenon can mimic someone
with some degree of mental consciousness, some care givers are loathe to
remove artificial life-sustaining equipment even when continued medical care
is determined to be medically ineffective. The lessons learned from these
PVS cases, however, can be applied in any end-of-life decision-making plan.
What are those lessons?
The most recent nationally-debated case involves Terri Schiavo, a Florida
woman who in 1990 suffered a heart attack at the age of 26. Activists on
both sides of the so-called “right to life” issue are now using
this case to bolster their respective arguments, with one side even basing
its argument, at least in part, on Schiavo’s husband’s motivation
for deciding to remove artificial life-sustaining equipment from his wife.
This whole debate could have been avoided, however, if the one voice that
should have been heard, that of Terri Schiavo, had not been silent before
she suffered her heart attack. Schiavo’s voice was silent because Schiavo,
like the people in the other PVS cases, did not effectively communicate her
wishes before her disability regarding the continuation of her life when
there was no longer any hope or expectation that she could recover.
So, the lesson is that
every person, no matter their age or health, must communicate her or his
own individual wishes regarding future health care decisions. There are three
ways to communicate one’s wishes regarding such decisions.
- The Use of an Advance
Directive. With the passage of the Health Care Decisions Act in 1993, Maryland
adopted one of the more proactive statutes that address these issues. In
the advance directive, one may unequivocally state one’s wishes regarding
the use of artificial life-sustaining equipment in a wide variety of circumstances.
There are numerous resources
available to provide sample provisions that can meet a client’s needs
in designing an advance directive that incorporate religious, cultural, ethnic
and other considerations. Suffice it say, for the purposes of this article
there is no reason why the needs of every client cannot be met in a thoughtfully
prepared advance directive.
- Involving the Health
Care Agent. It would be impossible for a client to articulate in one legal
document all of his or her wishes regarding the entire panoply of possible
health issues. In most cases, a client can only address the broader issues
in such a document. A client can, however, select an agent who shares a
common background, a common heritage, a family history or other factors
that would help insure that appropriate decisions will be made for that
client. Once that selection is made, the client must communicate directly
with the appointed agent about health care issues. Only through these continued
conversations over a period of time can a health care agent obtain the
confidence necessary to fulfill his or her obligations under the advance
As important as being
able to define what a client’s wishes may be, it is just as important
to appoint a health care agent who has the ability to implement the decisions
made by the client, even if those decisions are unpopular. An effective health
care agent may need to be an advocate and an articulate spokesperson for
the patient, capable of working with medical professionals to evaluate the
patient’s diagnosis and prognosis. The agent must also be able to implement
a health care plan that incorporates the client’s wishes – that
is, making the tough decisions, including the termination of the use of artificial
life-sustaining equipment when indicated.
Also, if there is a person
in the client’s support network that should not be included in the
decision-making process, regardless of the reason, that person should be
specifically and unequivocally excluded as a decision-maker. If not so excluded,
that person may be able to have a voice in any health care decision, which
may be the last thing a client wants.
- Involving the Family.
In all of the notable cases, the original objections to the decision to
remove artificial life-sustaining equipment were raised by family members
who disagreed with the decision of the surrogate decision maker. Even with
an advance directive in place, family members can object to decisions made
by the health care agent. Therefore, a client signing an advance directive
is well advised to involve the family in the discussions so that all the
client’s loved ones understand the wishes of the client. This includes,
by the way, the proverbial black sheep on the white horse – that
is, any family member who may have unresolved issues with the client.
If a client implements
a carefully considered advance directive after a full discussion with both
the prospective health care agent and the client’s family members,
the client should be able to have the peace of mind knowing that his or her
wishes will be implemented without costly legal proceedings during any end-of-life
Michael W. Davis is
a member of the MSBA Elder Law Section Council; he is also a member of
the Section’s CLE Committee.