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Publications : Bar Bulletin

Editor: W. Patrick Tandy

May, 2004

 

Health Care Decision-Making Starts and Ends with Communication

By Michael W. Davis

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 directive.

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 situation.

Michael W. Davis is a member of the MSBA Elder Law Section Council; he is also a member of the Section’s CLE Committee.

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Publications : Bar Bulletin: May, 2004

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