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|Course Project |
|Flaws in Advance Directives, Living Wills, and Power of Attorney |

Introduction

A Living Will is a form of an advance directive that is a “legal document that describes those treatments an individual wishes or does not wish to receive should he or she becomes incapacitated and unable to make medical decisions” (Pazgar, 2007, p. 378). Normally in a Living Will an individual would also indicate another individual as his or her power of attorney in the legal document; however, it is not necessary for a living will to be created with a power of attorney or a power of attorney to be created with a living will though it is highly recommended to do so. This is due to the fact that each has its flaws and each could compensate for one another though in reality it could create more conflicts too. For a physician or any other healthcare provider to go against a patient’s autonomy means that there are many legal problems these physicians may face because they went against the patient’s desires, especially because of such allegations as criminal assault and battery. Advance directives have been created to preserve an individual’s autonomy and protect a physician from having to respond for his or her actions when the individual is no longer able to communicate his or her wishes. It has been presented that physicians and all other healthcare providers are required to respect all individual’s autonomy as long as it does not violate other individuals’ autonomy, however when an individual is no longer able to inform others of his or her wishes because they have had mental deterioration, are in a coma, or any other case that affects the individual capability to communicate for him or herself there is a need for the physician and other health providers to have a form of knowing what the patients autonomy would be. It is important to realized the even though an individual is incapable of informing others of his or her desires his or her autonomy is still intact and needs to be respected. The advanced directive addresses such situations. (Pazgar, 2007, p. 361) There is still some conflict with the application of such things as a living will and a power of attorney because of the flaws they embody. This is especially true because it involves several stakeholders with their own personal opinions than may not reflect what is really wanted for the end-of-life treatments. It is uncertain of which has the greatest power to make the decision and which would have the best knowledge to make the decision.

Analyzes of Problem

Currently it has been noted that an advance directive has the most legal power in end-of-life situations. Many have argued that this is not the best practice because of the flaws this document carries. Some of these problems are that the document is too vague in the descriptions of actions to be taken, the document does not addressing actions that should be taken in a certain situation, the principle’s (individual who wrote the advance directive) situation or ideals change but the living will is not change, the principle may think he or she knows what he or she want but it may not be the case, and so forth. For example “… patients who request cardiopulmonary resuscitation (CPR) on the basis of the widespread misperception of its long-term survival rate as 70% might decline CPR if they knew that the actual survival rates are only 0% to 22% depending on medical circumstances. Similarly, patients who request do-not-resuscitate (DNR) status might not do so if they knew that some surgeons refuse to operate under it” (Perkins, 2007). However, the main reason is that there is the idea that this document is only a personal, private, and one-time event instead of an ongoing, ever-changing process of planning that needs to be shared with loved ones and needs to be continuously discussed. (Faden & Beauchamp, 1986, pp. 3-4). A study conducted in England shows how a vague and incomplete advance directives can be misinterpreted or misunderstood in which over 34 healthcare individuals (i.e. nurses, general practitioners, ethical consultants, and specialist). The individuals were all given the exact same hypothetical scenario with the exact same information. They were given a hypothetical scenario that presented a normal advance directive, information of the patient current description, and a situation in which the patient develops pneumonia. The healthcare individuals were asked what would be “the right thing to do”, what treatment would be conducted, what treatment would be waived, etc. The results showed several courses of action the healthcare providers interpreted would be taken and revealed that “[a]dvance directives are open to widely varying interpretation. Some of this variability is related to the ambiguity of the directive's terminology whereas some is related to the willingness of health professionals to make subjective value judgments concerning quality of life.” (Thompson, Barbour, & Schwartz, 2003). It has been deemed by law that a physician has the power to override a living will without consequence, however, there is little indication that this is legally accepted, and there is a need for ample evidence indicating that there was a need to override the advance directive document left by the patient. The physician’s authority to override the living will is due to the observations that a physician has the most knowledge about the situation and knows the risks of all possible treatment options he or she can offer. But, as previously stated it is very difficult to prove the need to veto an advance directive thus there have been many cases because of this action and it has been shown that the advance directive stand before the physicians in most every case. There is still a large gap between what the patient wants in end of life treatment and what the physician actually provides the patient. In a study conducted in six medical centers with terminally ill patients. It was found that 80% of the doctors within the study did not understand or ignored their patients’ wishes for no cardiopulmonary resuscitation; this is due in part to the 49% of patients which requested a Do-Not-Resuscitate order whom had no such order placed in their charts. After the passing of the Federal Patient Self-Determination Act, which “requires health care organizations to explain to patients their legal right to direct their own medical and nursing care as it corresponds to existing state law” (Pazgar, 2007, p. 369), the study was re-conducted to compare findings, but there was no indication that physician compliance with the advance directive has improved. (Gilbert, 1995). Physicians also tend to be fearful of malpractice lawsuits and thus conduct defensive medicine and or unwilling to do anything that could be risky. With the presence of family in end-of-life situation, many physicians see it as a risk to go against their wishes because he or she is following the supposed wishes of the patient. Even when a patient has a living will indicating the proper course of action to take, the physician may decide to ignore these wishes for the wishes of the family members, this is “because ‘they will be alive to sue [while] the patient will not’…, however, physicians who ‘act in good faith’ regarding an advance directive are protected from lawsuits… . [There are] no case in which a family sued and won because the doctor followed an advance directive” (Broadway, 1997). The absence of such lawsuits has been understated and unaware to physicians, thus they conducted malpractices by listening to family instead of following the advance directive. The fear created a problem where there should not have been one. It could be argued that a surrogate with a power of attorney would have the best ability to decide what should be done for an individual in a terminal condition, an end-stage condition, or a persistent vegetative state. This is due to the idea that because the principle has chosen the surrogate thus he or she should know what the principle would truly want for end-of-life treatment. Because an advance directive may not address all of the possible situation the principle could find him or herself in and because the advance directive may be vague in the description of actions to be taken the surrogate could clarify and put into account all factors of the situation. This would sequentially create the best decision. However, a systematic review, which was published in the Archives of Internal Medicine, of several studies indicated that a surrogate with a power of attorney would not be the best representation of the patient’s end-of-life treatment wishes. In 101 hypothetical scenarios that had been studied, a total of 2,595 patient-surrogate pairs were asked what would be the patient’s wishes in several terminal or end-stage condition situations. The studies indicated that only in 68% of the time surrogates would take similar decisions to those the patient would decide. This is not so encouraging, especially after comparing it to the results of another study which indicates a physician would correctly decide similarly in each of the end-of –life scenarios about 63% of the and the 50% of the times a decision would be correct just by chance. (Shalowitz, Garrett-Mayer, & Wendler, 2006). (Weiss, 2006).

Possible Solutions

There are several perceived problems with the living will and power of attorney, thus there are several solutions that could be implemented to solve the problems. Each solution I would address could solve the problem that each of the main stakeholders face. The stakeholders are the physician, the surrogate, and the patient him or herself. To address the problem faced by the physician there is a need for him or her to understand what the law would cover. There is no possibility of a physician being sued due to following an advance directive because family members may disagree with the advance directive, however, there have been several cases which show that the advance directive has a lot more power than any other document or person for deciding end-of-life treatment options. Such cases as Noonkester v, Kline, Young v. Genesys St. Joseph, and many others show a requirement to follow the living will of an individual. It is important to inform physicians of the true risks that they are facing if they abandon the advance directive orders. It is understandable that the act of withdrawing or withholding treatment goes against a physician’s “… duty to fight disease in most circumstances, but physicians always have the still greater duty to see patients and survivors through their suffering and thereby to bear witness to it” (Perkins, 2007). An easy way to do this and follow the advance directives of an individual a physician should take the time to speak with the individuals with advance directives prior to any incident to clarify and understand exactly what needs to be done. To address the problems faced by the errors in advance directives because of the unclarity, vagueness, non-addressing or any other uncertainty created by a badly produced advance directive. It is important to make sure that most if not all possible situation would be addressed, there should be specifics to the language used in the advance directive, for example “no heroic treatment” may be too vague and could encompasses so many items that there is no clarity as to what a physician is to do. Because a lot of things could change quickly personal or not there is a need to continuously change the advance directive, for example technology and medical advancements could offer new end-of-life treatments that are not addressing in the advance directive. There is a need to improve the standard advance directive that most individuals currently use and a recommended period of systematic revisions. It would also be beneficial if there where step by step instruction to create a living will and there is only one standard living will document that could be filled in all areas. To address the problems faced by the surrogate there is need to have an individual that truly knows the individuals that appointed the surrogate. This could only be accomplished by continues communication between the patient and the surrogate about what the patient truly wants in the event of any situation. It is not good to assume another individual, no matter how close he or she could be to the patient, knows what is in the best interest of the patient in all end-of-life situations. Communication is the key to make sure that one’s wishes are met at the end-of-life. It makes things a whole lot easier for everyone involved and makes a lot more people happier because the stresses of making this decision are lifted off of their shoulders. Communication would also allow many other individual understand where you are coming from and be more accepting of the decisions you have made.

Solution and Plan for Implementation

Of the solutions described the one that would best answer most of the problems with the advance directives indicated would be the implication of open and continues communication about end-of-life treatment decisions, however, unlike the implication above (indicating it would only solve the surrogates problem) this solution would addressed all of the problems and assist the stakeholders in an advance directive decision. There needs to be communication between all parties and it would be highly recommended that this be done with all main stakeholders and even immediate family together at the same time though it is not completely necessary as long as the information communicated between all groups are the same and indicate the use of the same end-of-line treatment. All individual need to be willing to communicate honestly and in depth about all possible situation, the alternative of each situation, risks of each alternative, decision to the situations, etc. If the communication is not done with all involved together it would be best to first have a consultation with the primary physician about what needs to be placed in the advance directive, what would be the best solution to your wishes and what these solutions would indicate, so you know the risk and consequence of your wishes. Because you know understand what you are truly deciding for an end-of-life treatment and because the physician now understands and could assist other physicians in understanding the wishes of the individual, there is no longer a chance for either individual to misunderstand or misinterpreted the advance directive. If after this you would like to have even further insurance in knowing the correct decisions in end-of-term treatments are being implemented you may still decide to assign a power of attorney. You may indicate what was arranged with the physician and directly communicate what would be your true wished. Most of the time this individual is a spouse of an offspring, this makes it more difficult to communicate end-of-life situation and there is an additional believe that this individual would only want the best and would know what this would be, however as indicated previously this is not always so and it is important to let them know what they really need to know about the principle. Even if there is no declared surrogate it would be recommended to still have this talk with family members and friend so to have them understand and be accepting of the end-of-life treatment. It may also become necessary if there is a situation in which an individual forgets to give copies of his or her advance directive to someone else. It has been indicated that more than 50% of advance directives have been placed in locations no one know of other than the patient thus being inapplicable (Broadwell, Boisaubin, Dunn, & Engelhardt, 1993, p. 167). Finally remember to periodically go through the information documented on the advance directive and inform family members, surrogates, and physicians of any changes to the advance directive and decisions to end-of-life treatment requests so there is no surprise or confusion to which wishes are the right ones. Just share all information that seems to be necessary to ensure the right thing is done in the end. To be certain continuously communicate these directives even though there are indications that the changes in advance directives are very uncommon unless it is a downgrade in aggressive end-of-life care (Wittink, et al., 2008). The main form of ensuring this would be conducted would be to continuously enforce the Patient Self-Determination Act. Though studies have shown that many nurses are following the requirement to inform patient of the advance directive, however there was little done after this point. In a study it was shown that 70% of 210 patients who were interviewed were asked if they had or would like to obtain an advance directive by a nurse however after everything was said and done only 15% created an advance directive. It is important to improve this communication and increase the amount of individuals who understand the importance of creating an advance directive. (Silverman, Tuma, Schaeffer, & Singh, 1995)

Conclusion

There are many problems that have come to light after the increase in individuals that have created advance directives. Though all of the problems that advance directives carry cannot be solved with the implementation of only one solution, the many items that would solve most of the problems created by this document is communication, however, it is a difficult task to create good lines of communication and to enforce continues communication. All that can be done is to guild individuals with the information they need to be able to create a very well implemented advance directive. There are also additional steps that need to be taken to correct the mistakes within the advance directive. For example opening communication would not ensure that physician would adhere to the advance directives. There is just a deeper and more careful examination to see what other solutions could be implemented to solve the problems with the advance directives. But the biggest step is just opening the doors of communication, though it may be difficult to talk about death, it has been shown to be necessary and helpful.

Works Cited

Broadway, B. (1997, July 5). Court Ruling Highlights a Burden of Faith. The Washington Post, p. B06.

Broadwell, A. W., Boisaubin, E. V., Dunn, J. K., & Engelhardt, H. T. (1993, February). Advance Directives on Hosiptal Admission: A Survey of Patient Attitudes. Southern Medical Journal, 86(2), 165-8.

Faden, R. R., & Beauchamp, T. L. (1986). A History and Thory of Informed Consent. New York: Oxford University Press.

Gilbert, S. (1995, November 22). Study Finds Doctors Refuse Patinets' Requests on Death. The New York Times, 1.

Pazgar, G. D. (2007). Legal Aspects of Health Care Administration. Boston: Jones and Bartlett.

Perkins, H. S. (2007, July 3). Controlling Death: The False Promise of Advance Directives. Annals of Internal Medicine, 147(1), 52-4.

Shalowitz, D. I., Garrett-Mayer, E., & Wendler, D. (2006, March 13). The Accuracy of Surrogate Decision Makers. Archives of Internal Medicine, 166(5), 493-497.

Silverman, H. J., Tuma, P., Schaeffer, M. H., & Singh, B. (1995, March 13). Implementation of the Patient Self-Determination Act in a Hospital Setting. Archives of Internal Medicine, 155(5), 502-10.

Thompson, T., Barbour, R., & Schwartz, L. (2003, October 30). Adherence to Advance Directives in Critical Care Decision Making: Vignette Study. British Medical Journal, 327(7422).

Weiss, R. (2006, March 14). Patients' Surrogates Often Wrong About Preferred Treatment. The Washington Post, A03.

Wittink, M., Morales, K. H., Meoni, L. A., Ford, D. E., Wang, N.-y., Klag, M. J., et al. (2008, October 27). Stability of Prefernces for End-of-Life Treatment After 3 Years of Follow-up. Archives of Internal Medicine, 168(19), 2125-30.