The PDF, which includes endnotes and footnotes, in which this article appears can be found in Bifocal, Vol. 45 Issue 6.
It All Starts With Cruzan
Cruzan v. Missouri Department of Health (1990) was the first “right to die” case heard by the Supreme Court and returned a 5-4 decision in favor of Missouri that it was acceptable to require clear and convincing evidence when a patient wishes to withdraw life sustaining measures and life support. The Cruzans wanted to take their daughter off of life support after she was left in a persistent vegetative state after an automobile accident. The central issue was Missouri’s requirement of “clear and convincing evidence” for the removal of life support and if the Fourteenth Amendment Due Process Clause was violated in refusing to remove their daughter from life support. The Supreme Court held that this higher standard of evidence was Constitutional since family members of the incompetent individual might make decisions that the incompetent individual would not have wanted. Cruzan v. Director, Mo. Dept. of Health. 497 U.
S. 261 (1990). This case opened the door for mandating the use of an advance directive (AD) to express an individual’s clear and convincing desires regarding end of life care.
The Use of Advance Directives in Withholding or Withdrawing Life Sustaining Treatments
When planning for end of life decision making, it is advisable for someone to express their wishes using a written AD. This appoints an Agent who will act in the best interests of the patient in accordance with their written wishes or what they feel is in the best interest of the patient if those wishes are unknown or unrecorded. So long as the principal created this AD while competent, or ensured that an Agent was informed while competent, their AD would be honored if/when they became incompetent. In the absence of any type of AD, nearly all jurisdictions would say that an incompetent individual cannot provide informed consent. There are only a very small number of cases and places that have allowed for someone deemed incompetent to express wishes for their right to die. Health-Care Decisions Act Summary.
Uniform Law Commission. (2016).
Many States have differing regulations concerning the use of AD to sustain, withhold, or withdraw life-sustaining treatment. It is best to confer with a lawyer who is familiar with that State’s regulations. As an example, the standard Maryland AD specifically addresses terminal conditions, end-stage conditions, persistent vegetative state, and coma. Maryland Code,
Health-General Article § 5-601.
Maryland law also defines “best interest” as determining that the benefits of life sustaining treatment must outweigh the burdens, taking into account a number of factors. The basic framework comes from the 1982 Model Act which primarily addresses consent to treatment. Health-Care Decisions Act Summary. Uniform Law Commission. (2016). However, in 1993 the more comprehensive Uniform Health-Care Decisions Act was promulgated which addresses both the right to make decisions and the right to withdraw or withhold treatment, allowing the patient their right to die. Any adult with capacity or an emancipated minor may give oral or written instructions to the health-care provider which remains in place even after the patient loses capacity. Id. The patient may also execute a written power of attorney including an AD that allows for the Agent to make “any health-care decision that the individual could make while having capacity”. Id. Under the Act, the health-care provider is bound to accept the decisions made by the patient or the agent and must make a good-faith effort to comply. The latest Act provides a solution to those questions and opens the door for topics such as physician-assisted suicide (PAS) and euthanasia to be discussed. End of Life Option Act: Resources & Materials. UCLA Health.