Life Legal is devoted to protecting all vulnerable human life. We work to protect life at the very beginning of existence – and we also intervene when patients are denied life-sustaining care. Based on our experience in these cases, three Life Legal attorneys recently spoke and answered questions at an End-of-Life Decisions Conference in the San Francisco Bay Area.
It should be noted that most of our cases do not involve patients at the natural end of their lives. Rather, we often intervene on behalf of young people in their twenties and thirties who have never contemplated who would make decisions for them if they were to suddenly become incapacitated. In many cases, these individuals are given a grim prognosis and their families are encouraged to withhold such basic care as nutrition and hydration because the patient “wouldn’t want to live that way.” These decisions are made without any express consent from the patient.
While our presentations explained the legal aspects of decision-making in cases where patients are threatened with removal of life-sustaining care, we also gave listeners guidance on how to protect themselves and their loved ones before a critical incident. In many of the denial of care cases we handle, discussions surrounding life-sustaining care can be complicated by a variety of factors, including lack of resources and family dynamics. These complications threaten the lives of our clients and can end up in protracted court battles.
We will vigorously protect a patient’s right to life in court, but our goal is to avoid unnecessary and futile litigation when possible. Judges are often ill-equipped to hear these cases – and they may come to the bench with preconceived ideas about “quality of life” and other highly subjective matters.
In order to keep you and your loved ones out of court and to ensure that you receive the medical treatment you want, we recommend the following:
First, discuss your wishes with your family members and/or close friends. Ideally, this would entail a series of detailed conversations stating what type of care you would like in the event of injury or illness. Be specific about your desire for ventilator support and artificial nutrition and hydration. Well-meaning family members or friends may authorize removal of care if they are unclear about their loved one’s wishes.
Second, document your preferred medical care in an advance directive. Because the default position is to withdraw care as quickly as possible, we suggest stating that you want long-term medical treatment, including mechanical ventilation and a feeding tube. Your directive should clearly communicate that you want such care to continue in the event you are incapacitated. We strongly recommended naming a trusted individual as your health care agent or proxy who can make these decisions for you in real time.
We caution against using templates for this document, since they often include boilerplate language stating that care should only continue for a short assessment period – in our experience, this can be as short as 24-48 hours.
Once the advance directive is properly executed, it should become part of your medical record. Give a copy to your doctor, as well as your health care agent and close family members. In cases where decisions regarding treatment must be made quickly, having an advance directive on file and a trusted individual to make these decisions can save time – and lives.
In cases where these steps may not have not been taken and life-sustaining care is denied, Life Legal will hard fight for you and your loved ones.