In June of 2002 I told you about a man in
Surprise, Arizona, whose lack of a living
will almost resulted in the criminal prosecution
of his wife and son for disconnecting his
life support apparatus, even though they did
it at his request. Now of course we have the
situation in Florida involving Terry Schiavo,
who must be fed through a tube and whose husband
and parents have been fighting for years over
whether or not to remove the feeding tube
from her. In the case of Ms. Schiavo, unlike
the Arizona case, Ms. Schiavo has not asked
to have her feeding tube removed. The whole
situation has arisen because she can’t
express her desires and her parents and husband
disagree about what she would say if she could
express her desires.
Inadequately highlighted in all the talk
about this situation, which obviously raises
very serious legal and medical issues, is
this simple fact: if Ms. Schiavo had signed
a living will, the entire situation, with
the years of anguish for all concerned, would
have been avoided. This situation is, in fact,
a near-perfect illustration of when a living
will is most effective: a person is unable
to express her wishes as to life-sustaining
medical treatment and her family members disagree
on whether or not to withhold such treatment.
As I understand it, the Florida courts have
ruled that since Ms. Schiavo’s husband
is her legal guardian, she is in what is medically
termed a “persistent vegetative state,”
and she previously expressed a preference
that treatment be withheld under such conditions,
her husband has the legal authority to direct
that her feeding tube be removed.
Despite the impression given by the discussions
of these issues that appear in the news whenever
a difficult situation like that of Ms. Schiavo
arises, there need not be a “bureaucratic
mess,” nor is the law confusing, when
it comes to making and implementing a living
will and a health care power of attorney.
The Arizona statutes that specify how these
documents are to be prepared and executed
make it very clear what they can include,
how they are to be signed, and how to have
them correctly witnessed and notarized.
The statutes are also quite clear that health
care providers and others who make good faith
decisions as directed or authorized under
a valid living will or health care power of
attorney are immune from being held financially
or criminally responsible for the consequences
of those decisions. To put it simply, it is
not a crime or grounds for a lawsuit to carry
out a living will that says to withhold or
withdraw life sustaining treatment. The one
situation that is not clearly covered by the
current statutes is when a person acting under
a health care power of attorney who is not
a health care provider actually disconnects
the life support system of the person who
has directed or authorized such action. That
area of uncertainty is probably what caused
the situation that the man in Surprise, Arizona
found himself in.
To me it seems painfully clear that if Ms.
Schiavo had signed a living will and a health
care power of attorney as specified by law,
her situation would have been resolved without
any of the present uproar. The situation would
almost certainly have been resolved years
ago with little or not publicity. If she had
signed a living will that said that she did
“not want artificially administered food
and fluids” (which is one of the choices
on the form of living will provided for by
Arizona law), and if she had signed a medical
power of attorney (giving someone the legal
authority to direct that her desires be carried
out as expressed in the living will), there
should have been no dispute over getting her
instructions carried out. Even if a doctor
is unwilling for reasons of conscience to
carry out the patient’s instructions,
the law provides for the doctor to so inform
the patient and refer the patient to a doctor
who is willing to carry out the patient’s
instructions.
The law in matters of “right to die”
is still not absolutely clear in all circumstances.
Much progress has been made, however, in clarifying
the methods by which a patient’s desire
to refuse medical treatment can be made legally
enforceable. A living will and a health care
power of attorney that are drafted, signed
and witnessed according to the specific guidelines
of Arizona law are effective in virtually
all circumstances. Anyone who doesn’t
want to be on life support or to be fed artificially,
or who wants to have the ability to refuse
life-saving medical treatment, can and should
make those desires known, and make them enforceable
with a living will and a health care power
of attorney.
