Shortcomings of Advance Directives - Advance Medical Directive

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Health Care Directive<br>Related Legal Information  

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Shortcomings of Advance Directives

Every state has one or more advance directive laws. Over the past 25 years, many layers of these laws have contributed to a great deal of confusion and complexity. A state may have separate statutory provisions for Health Care Directives (i.e., Living Wills), Durable Powers of Attorney for health care, default surrogate decision making, out-of-hospital do-not-resuscitate orders and even special mental health powers of attorney. States lack uniformity. In the last few years, states have begun to simplify and combine these separate laws, but much more needs to be done.
Generally, advance directive statutes limit the liability of health care providers. These statutes confer protection from liability or professional discipline for those who honor a directive in good faith. Mostly the statutes provide a process for making a directive but do not provide any true penalties for failing to enforce or honor such a directive. Rather, they mandate only a good faith effort to transfer the patient to a doctor or facility that will comply with the patient's directive. Enforcement is left to the courts in (wrongful life suits, which have met with varying results.
Many states provide sample or suggested form directives within the statute. Some statutes make these forms mandatory and discourage the use of writings that are not substantially similar. There are other forms developed by organizations˜such as the Five Wishes document available from Aging with Dignity˜that have been drafted to comply with the majority of state statutes.
Rigid requirements for validity make a national model advance directive virtually impossible. Many states require precise witnessing and execution formalities. Others mandate multiple medical preconditions before the directive becomes effective. These medical preconditions, such as (terminal condition and (permanent unconsciousness, are neither defined consistently among the states nor understood clearly. Moreover, patients may want certain treatments withheld under conditions not authorized by the statute.
Research has shown that advance directives simply do not provide much guidance to medical professionals. One study concluded that the standardized and general language of most advance directives does not address the complicated situations encountered by medical professionals. As a result, the directives fail to inform Medical Decision making beyond the naming of a Health Care Proxy or surrogate. Joan Teno, et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. Am. Geriatric Soc. 508 (1997).
A study of the Maryland statutory advance directive form highlights another problem with statutory forms. Researchers interviewed more than 80 seniors who had completed the Maryland statutory form and then reviewed the completed forms. They found that 41% of the group gave internally inconsistent instructions within the form. When asked their wishes in different scenarios, in face-to-face interviews, up to 45% of the respondents gave answers inconsistent with their written instructions. Gender, education, occupation and race made little difference in the results. Dianne E. Hoffman, et al., The Dangers of Directives or the False Security of Forms, 24 J. Law, Medicine & Ethics 5 (1996). These results raise serious questions about the validity and reliability of standardized statutory forms.
Instead of focusing on an instructional directive, the appointment of an agent deserves priority in advance planning if the client has a trusted advocate on whom to rely. A health care agent can weigh all the facts and circumstances at the time an actual decision must be made and, presumably, make the decision the patient would have made. Naming an agent will succeed only if the agent knows the principal's wishes. Most Lawyers who prepare advance directives for clients recommend that the client discuss the directive with the named agent and the client's physician. In practice, clients rarely follow through. Thus it is not surprising that individuals may prefer to spell out their wishes in writing.
As a practical matter, health care professionals cannot implement advance directives about which they have not been told. For the most part, the burden of notifying the health care professionals of the existence of a directive falls squarely with the client. The Patient Self-Determination Act, passed in 1990, requires certain health care professionals to ask a patient about the existence of an advance directive at the time of admission to a health care facility and to document it in the patient's record. See ## 4206 and 4751, Omnibus Reconciliation Act of 1990, P.L. 101-508.
In most instances, documentation merely re-quires a notation that a directive exists. The patient, agent or family members must provide a copy of the directive and ask that it be included in the patient's medical record. Even at that point, documentation guarantees nothing. If the patient moves to another hospital or nursing home, there is likewise no guarantee that the document will travel with the patient. The process starts again.
Proponents of advance directives suggest a variety of additional strategies, such as carrying a wallet card or filing directives with a private Living Will registry. Although these may help, the honoring of an incapacitated patient's wishes depends on a health care professional's immediate awareness of the directive and the initiative of the appointed agent.
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