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Advance Directives: The Basics
Jan L. Warner & Jan Collins

Question (by email): After a series of strokes, my father was hospitalized and his condition became worse. He did not have a living will, but told my sister and me many times that he did not want to be kept alive if he was hooked up to machines that kept him breathing. The doctors say that my sister and I should make these decisions, but we believe that Dad should make the calls as long as he is able. Although he is in bad shape, he can still understand us and the doctors, and can respond by slightly nodding his head or squeezing our hands or blinking his eyes when we ask him something. Please answer this question as quickly as possible due to our circumstances.

Answer: No issue has received more attention over the last 20 years than the right of patients to refuse medical treatment. This is a basic right that was recognized as early as 1914, and each person over age 18 who is in sound mind has the right to decide what will be done with his or her body. Since the now famous court decision about Karen Ann Quinlan in 1976, the courts have said that a patient has a fundamental right to refuse medical treatment -- even when death would result. The fundamental right to refuse treatment is not lost when the patient becomes incompetent so long as he or she has signed an advance directive (living will or health care power of attorney).

But it is important to remember that advance directive laws do not create the right to refuse treatment, but provide a mechanism by which individuals can exercise these rights which have been recognized as "liberty interests" under the Fourteenth Amendment to the United States Constitution.

Because adults with sufficient mental capacity have the right to determine their own care, there is a legal presumption that a patient has "decisional capacity" -- that is the ability to understand the situation and the consequences of his or her decision. To be a valid exercise of the right to self-determination, a patient must give his or her "informed consent" which is based upon a number of elements, that include:

1. The patient must be able to understand his or her condition, the prognosis, the treatment and tests proposed; the alternatives to treatment and non-treatment; the risks and benefits of each; and the uncertainties of each;

2. The patient must be able to communicate his or her decision and

3. The patient must make a voluntary decision without undue influence.

Physicians are required to inform their patients about the alternatives, risks, and benefits of treatment in order to comply with their obligation of informed consent, and are ethically mandated to encourage the treatment they consider to be in the patient's best interests unless 1) an emergency requires immediate decisions; 2) the patient affirmatively waives these rights; or 3) the patient is physically or mentally unable to communicate a willful and knowing health care decision.

While we certainly cannot second guess a physician who is on the case, it appears that your father might have the capacity to understand his options and the ability to communicate his decisions. So try to convince the physician to take some additional time with your father about this most important decision process.

Need more advice or help with this topic? Click here to get information about taking the "Next Step".

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