Living Wills and Advanced Directives
The goal of the euthanasia movement is, in effect, legal and social acceptance of death on demand. For at least some of those who can’t demand death for themselves, the movement would ensure that others are allowed to do it for them.
Obviously, the achievement of this goal requires radical cultural change—the legal and social acceptance of suicide, assisted suicide and, to some extent, criminal homicide. Given the deeply embedded legal, social and moral constraints on killing, euthanasia advocates recognized early that their goal would have to be achieved gradually. Primary tools in this effort have been the “living will,” other so-called “advance directives,” and the laws implementing them.
Typically, a living will instructs medical personnel to stop “medical treatment” when the patient is in a “terminal” condition. Other advance directives appoint a third party to give this type of instruction for the patient. These documents are intended to take effect when a patient can no longer make his or her own medical treatment decisions. At first glance, there seems to be nothing wrong with living wills and the like. Traditionally, competent adults have had the legal right to refuse unwanted medical treatment, and they could make their wishes known to their families and doctors. Moreover, no law or ethical standard requires that ineffective or gravely burdensome measures be used to keep a dying person alive.
The problem is that advance directive laws go well beyond what were, before their enactment, legal, ethical and moral norms.  Promoted as a way to stop the use of “extraordinary” medical technology to keep dying people alive, advance directives are now being used to deny people not just basic medical treatment, but also food and water. A gradual redefinition of key terms in advance directives has brought this about. For example, many state laws and court decisions now consider “medical treatment” to include the provision of basic care such as food and water, and “terminal” to include many people who are far from imminent death and, indeed, not even dying. It is doubtful that every person who signs an advance directive fully understands what he or she is instructing a doctor to do under penalty of law. Yet, to authorize a doctor to stop basic care, such as the provision of food and water, when a person is not near death, amounts to authorizing euthanasia by starvation and dehydration.
Advance Directives for Health Care are legal documents by which individuals express their wishes about medical treatment in case they are ever unable to make health care decisions for themselves. Advance directives can be used to license euthanasia.
The Patient Self-Determination Act (PSDA) is a federal law that went into effect in 1991.
Requires health care facilities and programs to inform every patient, upon admission, of their right to sign an advance directive.
If you are 18 or older, you will be asked “Do you have an advance directive?” If you do not, you will be offered a directive to sign on the spot.
Coercion: Facilities and programs that fail to comply will be penalized by having government funds (e.g., Medicare and Medicaid reimbursements) taken away.
Laws that govern advance directives vary in their particulars from state to state. For simplicity’s sake, we will use the state of Virginia’s law as an example. That law uses the term ADVANCE MEDICAL DIRECTIVE and includes two options (as do most states):
- The Living Will—Virginia law refers to such a document as NOTICE TO PHYSICIAN.
- The Durable Power of Attorney for Health Care (DPAHC)— Virginia law refers to this as APPOINTMENT OF AGENT.
NOTE: The generic terms Living Will and DPAHC will be used hereafter.
Both of these types of advance directives permit the withholding or withdrawal of “life-prolonging procedures” including “artificially administered hydration and nutrition” from a “qualified patient.”
Keep in mind that the Living Will was designed by the Euthanasia Society of America/Euthanasia Educational Council in 1967.
Q. What is the ultimate purpose for enacting laws that permit the deliberate dehydration and starvation of patients?
A. To gain social and legal acceptance of all forms of euthanasia and assisted suicide.
“If we can get people to accept the removal of all treatment and care, especially the removal of food and fluids, they will see what a painful way this is to die, and then, in the patient’s best interest, they will accept the lethal injection.”
—Helga Kuhse, Ph.D., 1984 World Federation of Right to Die Societies Conference
Legal Definitions — Let’s examine just two definitions (of the 12 in the Virginia law):
“Life-prolonging procedure” means any medical procedure, treatment or intervention which (i) utilizes mechanical or other artificial means to sustain, restore or supplant a spontaneous vital function, or is otherwise of such a nature as to afford a patient no reasonable expectation of recovery from a terminal condition and (ii) when applied to a patient in a terminal condition, would serve only to prolong the dying process. The term includes artificially administered hydration and nutrition….the term shall also include cardiopulmonary resuscitation.
Do YOU understand what that means? The average person does not. People are not given a copy of the law/legal definitions to read when offered an advance directive to sign. Instead, they are often given a very simplified and misleading explanation something like this:
“This directive simply says that if you are near death you don’t want artificial means like tubes and machines that will only prolong your dying.”
By signing an advance directive, a person may unwittingly be giving permission to hasten/cause his/her death. He or she may be refusing very ordinary things upon which his/her life depends—insulin, blood pressure medications, antibiotics, food and water, …
What does “life-prolonging” mean? Prolonging our lives is what we all do by eating and drinking and taking our prescribed medications, etc.
“Terminal condition” means a condition caused by injury, disease or illness from which, to a reasonable degree of medical probability a patient cannot recover and (i) the patient’s death is imminent or (ii) the patient is in a persistent vegetative state.
Whoa! Persistent vegetative state (PVS) is not itself a “terminal condition” and to define it as such is to lie!
What does the term “death is imminent” mean? Stanford Law Journal, 1987: “For death to be imminent, the patient’s life-expectancy must be one year or less,…”
What is “a reasonable degree of medical probability a patient cannot recover?” There are numerous cases of recoveries after doctors told families there was “no hope”
What is “recovery?”
CONSIDER THIS: The U.S. Veteran’s Administration [Policy M-2, Part I, Chapter 31, 1991] defines terminal illness as a “debilitating condition which is medically incurable…and which can be expected to cause death…[and] includes but is not limited to conditions where death is imminent, as well as chronic and debilitating conditions from which there is no reasonable hope of recovery.”
Comment: This could permit the withdrawal/withholding of ordinary treatment from veterans with heart disease, asthma, arthritis, mental illness, alcoholism, diabetes, etc.
Living Will and DPAHC: Important Distinctions
A Living Will gives authority to “my attending physician“—someone who may be a stranger and may interpret your directive in ways you did not intend—to withhold or withdraw “life-prolonging procedures” from you.
Informed consent is not possible—you cannot make informed medical decisions based on guesswork about the future.
May tie the hands of a physician whose skills might restore you to health and/or save your life.
You name an “agent“—someone you know and trust—to make medical decisions for you if you are determined to be “incapable of making an informed decision about providing, withholding or withdrawing medical treatment.”
Your agent can make informed decisions based on your current condition, treatment options, etc.
It is less flawed than the Living Will, but still dangerous.
WARNING: Watch what you say!
Whether in a Living Will, Durable Power of Attorney for Health Care, or an oral statement, be careful about what you say. One of the greatest dangers is over-interpretation.
Scenario: 82-year-old Joe signed a Living Will in which he refused the use of machines to keep him alive. He was thinking that this would only apply if he was near death. Joe was in a car accident and his lungs were injured. The attending physician interpreted Joe’s Living Will to mean that he did not want a ventilator used under any circumstances. Even though a ventilator may have given Joe’s lungs a chance to heal, it was not used and Joe died.
True story: Marjorie Nighbert, a successful Ohio businesswoman, was visiting family in Alabama when she suffered a stroke that left her disabled. She was moved to a nursing home in Florida for rehabilitation. She was provided with a feeding tube because she could not swallow. Marjorie had once told her brother Maynard that she didn’t want a feeding tube if she were terminally ill. Despite the fact that she was not terminally ill, Maynard believed she would want to die rather than live using a tube for nourishment. When she did not improve, he ordered the tube removed. As Marjorie was slowly dehydrating to death, she begged the staff for food and water. In response, nurses started sneaking her small amounts of food. A distraught staffer eventually blew the whistle, leading to a state investigation. To make a long story short, after a rushed investigation to determine if she was competent, Circuit Court Judge Jere Tolton ruled that the dehydration should be completed, apparently on the theory that Marjorie was not competent to request food and water. Marjorie died on April 6, 1995.
Terri Schiavo and her husband Michael watched a TV show about Karen Ann Quinlan one evening. Recall that Karen’s case was about removal of a ventilator, not a feeding tube. Michael claimed in court that Terri stated she would not want to live hooked up to a “machine” (she only had a feeding tube) or be a “burden.” Michael’s brother backed his claim. His sister-in-law told the court that Terri had approved of pulling the life support from a dying baby of a friend and said that if she ever wrote a “will” she would say that she didn’t want “tubes.” Could Terri have imagined a future in which these alleged casual statements would be ruled “clear and convincing evidence” by a judge and be used to justify dehydrating her to death? If Terri did say she didn’t want tubes, did she know that would include tube-feeding?
NOTE: From a legal standpoint, euthanasia means intentionally and directly killing someone by, for example, a lethal injection or smothering with a pillow. Some advance directive laws, therefore, contain a disclaimer that the law does not authorize or condone euthanasia. Nonetheless, they do authorize euthanasia as understood from a moral point of view. Deliberately causing a person’s death by dehydration is euthanasia by omission.
This is not to say that some people don’t know about the potential for euthanasia in advance directives. The euthanasia movement always viewed the living will as the “foot in the door” to legal and social acceptance of euthanasia. Moreover, a growing number of medical personnel, “ethicists” and even members of the public believe that making some people die by starvation and dehydration is preferable to letting them live in a debilitated condition. The popularity of this so-called “quality of life” mentality cannot be blamed entirely on the euthanasia movement—it’s the product of an increasingly secular culture that no longer recognizes God, objective Truth, and the image of the sacred in each and every human life no matter what its “quality.”
In a culture that more and more values “choice,” the paramount “rights” of the individual, and the pursuit of pleasure without responsibility, the appeal of euthanasia—control over the method and timing of one’s death—was bound to catch on. And, catch on it has. Having been conditioned to accept bringing about death by stopping basic care, our society is now giving serious consideration to a quicker form of euthanasia—lethal injection by our doctors.
For our society to condone its members’ bringing about their own deaths is, of course, a terrible tragedy. It speaks volumes about our failure to adequately comfort and care for the troubled, the sick and the dying. A number of factors indicate, though, that a tragedy on an even greater scale awaits us if the door to euthanasia is not firmly shut and barred.
One such factor is the euthanasia movement’s own contention that “self-determination” is a “right.” Current proposals to legalize doctor-assisted suicide in the United States are limited to the terminally ill who ask for it. But if, as is argued, individuals possess a “right” to have themselves killed, why must they be suffering, terminally ill or even sick to assert it?
And if, as is also contended, people have a claim on the mercy of others to relieve their suffering, why do such people have to ask for a lethal injection? If it is better to be dead than suffering from a perceived “low quality of life,” can it be “fair,” for instance, to deny the demented person or the mentally retarded such “relief”?
Already, court decisions have allowed the tube feeding of certain mentally disabled patients to be stopped, even though these patients never expressed such a desire and were not terminally ill or apparently even suffering. 
Economic and demographic factors, such as the increasing cost of health care, an aging population, and a shrinking base of wage earners, also contribute to the concern that the “beneficiaries” of euthanasia could easily expand to the elderly, to the poor—indeed, to any “burdensome” member of society.
Another factor is the present-day experience of the Netherlands. A growing body of evidence suggests that the practice of euthanasia in that country has gone well beyond the circumstances in which it was supposedly allowed. For example, a recent Dutch government survey indicates that doctors failed to obtain their patients’ consent in 61 percent of the cases in which lethal overdoses of morphine were given with an intent to terminate life, even though official guidelines apparently required such consent. 
Finally, despite differences between our culture and that of Germany in the twenties and thirties, it would be foolish to ignore the parallels. If nothing else, that tragic chapter in history—which included the widespread medical killing of the mentally and physically impaired—shows that accepting the attitude, basic to the euthanasia movement, that there is such a thing as a “life not worthy to be lived” has disastrous consequences.
Actions or omissions intended to cause death should not be permitted by law. But they are. Now, we must resist.
The wrong kind of advance directive in the wrong hands is a deadly combination.
Q. Is there a right kind of advance directive?
A. Yes — the Loving Will
 For documentation and analysis of the goal of the euthanasia movement, see Marker, The Ethical Values That Civil Law Must Respect in the Field of Euthanasia, 56 Linacre Quarterly, Aug. 1989, at 22; Shewmon, Active Voluntary Euthanasia: A Needless Pandora’s Box, 3 Issues in Law & Medicine 219 (1987); Kamisar, Some Non-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 Minnesota Law Review 969 (1958), with additional Introduction, Foreword, Preface and commentary reprinted in The Slide Toward “Mercy Killing” ii-xii, 1-64 (H. Ratner ed. 1987) (Child and Family Reprint Booklet Series).
 Advance directives also have other problems. For example, because it is difficult to anticipate all possible future medical conditions and treatment options, living wills jeopardize the usual requirement that a patient give informed consent to medical treatment; other advance directives can give third parties virtually unrestrained authority to make medical decisions.
 See Guardianship of Jane Doe, 411 Mass. 512, 583 N.E.2d 1263 (1992); In re Lawrance, 579 N.E.2d 32 (Ind. 1991).
 See Fenigsen, The Report of the Dutch Governmental Committee on Euthanasia, 7 Issues in Law & Medicine 339 (1991).