Gold’s Legal Minute*
NOT WANTING SPECIAL/EXTRAORDINARY MEASURES (RESUSCITATION)/ LIFE SUPPORT
Forget Dr. Kildare, Dr. Ben Casey, Dr. Marcus Welby or even the flying doctor. Instead, choose an Advance Medical Directive.
By Allan Gold, B.A., B.C.L.
Death is a part of life’s journey. However, a person’s decline and passing is not a pre-programmed event of fixed-time duration, the same having a preordained start and finish and scheduled highs and lows in the middle. While some may go painlessly, others die more slowly. People dread being unaware and unconscious without any quality of life. And they desperately want to retain their self-respect and dignity. They also fear great pain and suffering.
Physicians render medical care. They treat patients. But what about the end-of-life? With a dying patient, doctors must grapple with the issue as to whether one should take special/extraordinary measures (resuscitate) in order to save the patient. In addition, they must deal with the instance as to the propriety of discontinuing life support. This piece is to capsulate elements of the perspective of the attending physician. With this insight, patients and their family members may better address these challenges. This is my purpose.
NOT MERCY KILLING
I must be clear, crystal clear. When health professionals do not take special/extraordinary measures and resuscitate a dying patient, this is NOT murder or the so-called ‘mercy killing’; they are not causing death. Instead, they are not doing everything possible to revive the person, who is dying from natural causes. Furthermore, when health professionals discontinue life support, this is also NOT murder or the so-called ‘mercy killing’. Instead, they are not providing life support or disconnecting life support for a person, who is dying from natural causes. In other words, in either of these instances, health professionals are not killing a human being. Death is being caused otherwise.
TAKING SPECIAL/EXTRAORDINARY MEASURES (RESUSCITATION)
A good point of departure in this regard, is the quote taken from the April 1995 edition of the magazine,Le Collège, published by the Quebec’s College of Physicians. It urged the province’s residential and long-term care facilities to indicate DNR orders in patient files. It spoke of the appropriateness of not attempting resuscitation, “if current scientific information so dictates… It is generally admitted that patients who present a poor quality of life and an almost null prognosis for recovery, such as in cases of dementia or debilitating neurological disease, should not be resuscitated.”
For physicians, this is not a choice. They are under a legal obligation to respect the wishes of their patient. To illustrate this point, reference is made to the case of Noonkester v, Kline (Reuters, “Paralyzed Man Sues Doctor for Keeping him Alive (When Lou Gherig’s Disease was Diagnosed, Virgil Ray Noonkester Spelled out in a Living Will that he Did Not Want Extraordinary Measures Taken to Save his Life),” The Gazette, Montreal, June 17, 1996, pg. A1). Virgil Ray Noonkester sued his doctor for keeping him alive. (When Lou Gherig’s Disease was Diagnosed, Virgil Ray Noonkester Spelled out in a Living Will (Advance Medical Directive) that he Did Not Want Extraordinary Measures Taken to Save his Life).” The story further explained that this man “is asking Dr. Lawrence Kline, who saved his life, to pay the medical costs and round-the-clock attendants now needed to keep him alive for allegedly disregarding his wish not to take special measures to save him.
“Do Not Resuscitate” (DNR) Order
If and when it is written in an Advance Medical Directive, also known as a living will, that a person does not wish that medical staff attempt a resuscitation in certain eventualities, such as the stoppage of heart pumping or breathing, it is usually noted in the patient’s file. This is a “Do Not Resuscitate” (DNR) order.
In the interest of balance, mention is made of the concerns of Advocacy groups. They worry:
- That the practice of making DNR notations in the files of the elderly or chronically ill is dangerous as same may sometimes flag medical staff not to offer other kinds of treatment.
- That family members acting as substitute decision-makers are sometimes too easily pressured into accepting a DNR.
- That in the instance of a cardio-respiratory failure, family members may still disagree as to what is really in the person’s best interest or doctors and family members may not agree. Critics argue that even without a DNR order, physicians may simply act slowly and not rush to resuscitate.
DISCONTINUATION OF LIFE SUPPORT
Health professionals comprehend that it is still up to a person to choose whether he or she is to be kept alive through artificial means. In essence, this is when a person indicates in a living will, if and when, he or she refuses all forms of life-sustaining treatment (including artificial nutrition, etc.), an/or the discontinuation or withdrawal thereof). In this regard, reference is made is to Attorney Wesley J. Smith who adamantly wrote, “While most of us fear death, it almost pales in comparison to the loathing most of us feel about being kept alive by extraordinary means after the brain has ceased to function…” (Smith, Wesley J., The Senior Citizens’ Handbook: A nuts and bolts approach to more comfortable living, Price Stern Sloan, Los Angeles, 1989, pg. 119).
If a person provides directives through a living will, the attending physicians are supposed to take due note thereof and follow the same. A failure to comply could be costly. In this regard, a good case in point is Young v. Genesys St. Joseph (Lewin, Tamar, “Ignoring ‘right to die’ directives, medical community is being sued,” The New York Times, Sunday, June 2, 1996, pg. 1). This is the case of Brenda Young of Flint in Michigan. Since a seizure in 1992, Young, then 38, “has needed total care. She must be fed, bathed, diapered and at night tied… Warned that the seizures she was having were likely to worsen, Ms. Young gave her mother, Ramona Osgood, power of attorney to stop treatment if she became incapacitated. But this was to no avail. After her next seizure, Ms. Young was put on a ventilator, tube-fed and maintained through a two-month coma, despite her mother’s insistence that she did not want life support.” The Court in first instance found for the plaintiff and condemned the hospital, Genesys St. Joseph, to pay Ms. Young et als a sum of $16.5 million. “It is precisely the kind of existence that Ms. Young sought to avoid by signing an advance directive, on her doctor’s advice, one month before the seizure that left her so disabled.” Hence, it is not legally possible to ignore “Right To Die” directives.
A physician must render the proper medical care. Of course, he or she must seek out the patient’s wishes. It is especially important if death is on the horizon and there is no effective treatment or reasonable hope of recovery. We are therefore speaking of matters of life and death. There may be a refusal of extraordinary measures. A dying person might not want that everything possible be done, but rather, to be allowed to go in peace.
He or she may not want life support. If such is the case, a health professional must listen and then let nature take its course. Indeed, good doctoring is done not only with competence and information, but also respect and restraint
ADVANCE MEDICAL DIRECTIVE/LIVING WILL
Why an advance medical directive/living will?
All of us will die one day! Unfortunately, in the instance of some, very serious illnesses may engulf the body, carrying the sufferer to the very edge of life, otherwise said, the end-of-life. Or lacking sufficient cognitive function, a patient may no longer be legally capable to give directions respecting his or her own medical care. I contend:
- That such a person does not want more pain just for the sake of living, without any quality of life now or any possibility of quality of life at any time in the future;
- That such a person does not want medical treatment, although the treating physician concludes that the case is medically futile, the object treatment therefore not being medically required, but the doctor persists in giving such care, due to a mistaken belief that not treating constitutes doing harm and a fear of being sued for not fulfilling the Hippocratic oath;
- That such a person does not want to exist, without any consciousness now or at any time in future, without any chance of engaging the world, seeing the day and knowing family;
- That such person does not want this existence prolonged through artificial means;
- That such person does not want to be resuscitated and revived back from the brink; suffering unnecessary duress, this without gaining any hope of recovery;
- That such person does not want to linger at the doorstep of life;
In contrast, I also contend:
- That in anticipation of becoming mentally incapable and sustaining a health calamity, such a person wants to make a living will to provide health instructions and to name a substitute decision-maker. It is important to note that this is a means to have one’s wishes respected. In addition, such is to reduce stress for loved ones. The desire is also to reduce government involvement. These are all valid considerations.
- That such a person desperately wants to be allowed to go in peace to the eternal hereafter, this with minimum pain and the utmost dignity.
A doctor knows that it is important for a patient to be made to understand that he or she must express health care wishes before it is too late.
A living will is a suitable mechanism for a patient to delineate his or her desires and directives. Such a living will might then lessen the chance of a heated emotional debate between parents, spouse and children on the one hand and the professional health team on the other.
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes and is not meant as legal advice. You are strongly advised to seek out legal counsel for your particular needs.
How-to make an Advance Medical Directive/Living Will (Editor’s Note)
When it comes to how-to make an Advance Medical Directive/Living Will, reference is made to chapter three of the Estate Document Professor* by Allan Gold BA BCL, informing Canadians everywhere about greater estate preparedness, covering:
- Last will and testament (will)
- Power of attorney (POA)
- Advance medical directive (living will)
- Organ donation consent
- Estate Inventory and Distribution Survey
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