WHAT CALIFORNIA'S ADVANCE HEALTH CARE DIRECTIVE CANNOT COMMAND FROM MEDICAL PROFESSIONALS AND MEDICAL STAFF
(California Probate Code, Section
4701)
(by Stan Dundon)
Introduction
In the earlier note, "A
Realistic Scenario…", the freedoms of the dying person were laid out in
scenarios related to five conditions described in "Part 2" of a
common form of the California advance health care directive (attached to the
earlier note,). What was not dealt with in that note was the situation where a
person is incompetent to make health care decisions but is not dying. The question we will deal with here is what a competent
person can direct his health-care agent to do or to prevent being done and
expect the advance health care directive to guarantee that it will be done or
prevented, should the person become incompetent but without actually being
dying. .
Middle Level Principles
Stated positively, a liberal reading of
the statute could be based on the common-sense principle that you should be able to ask(and have granted)
that an agent do for you whatever you could legally (and/or
morally) do for yourself if you were competent.
Stated
negatively: You cannot ask an agent to do
for you or get medical professionals do (or fail to do) for you what is legally
and by their professional ethics forbidden to them were you competent.
The earlier note emphasized that the
patient's condition of being actually dying (and at the most arrested or
delayed in that process by some technology) significantly enlarges the
patient's liberty to decline medical interventions which neither cure nor add
to comfort. It is not the case that being incompetent increases this liberty.
It may well increase the motivation of a person who foresees a period of
incompetence to wish to be free from that unhappy period. But that motivation
does not automatically translate into a right to demand that medical
professionals or staff do or neglect to do things which their professional
responsibility would demand them to do or prevent.
Scenarios
A few examples will help: (1) Suppose a
severely handicapped patient in a convalescent hospital were being given a
haircut. The nurse slips on spilled orange juice and stabs the scissors into
the patient's carotid. The competent patient would not succeed (morally or
legally) in demanding that he/she be allowed to bleed to death. Neither could
the patient write a directive which requires such negligence.
(2)
Suppose a competent handicapped patient is being bathed and is normally capable
of sitting up-right in the bath tub, allowing the nurse to momentarily go in
search of a towel or more shampoo. If a momentary faint should put the patient
underwater, the returning nurse could in no way be obliged to let the patient
drown.
These exotic examples are meant to make clear
that once a patient has placed him/herself in the care of the professional
medical staff, conditions for which they are responsible remain within their
moral and legal realm of responsibility and cannot be altered by the patient's
directive.
(3) An actual
example is the following. A doctor encountered (by phone) a case of a young
woman suffering from a brain lesion which did not, per se, make her
incompetent, but often caused such violent seizures and wild jerking of head
and limbs that it traumatized the staff to merely witness it. Without seeing
the patient the doctor advised against anesthetizing her while some cure for
the seizures was sought. But when faced with actually treating her, the horror
and danger of the seizures caused him to do exactly that: put her in a
medically induced coma. The mother of the girl who had, in the interim, become her legal health care agent asked the
doctor to remove her feeding and hydration tubes. The doctor refused saying that
since she was unable to eat only because of his action, the girl would have to
first be allowed to awaken. Her dependence on the tubes was not part of any
dying process but was merely a danger of death should they be removed while she
is still in the medically induced coma. . He understood that when the patient
is in danger of death (especially by the doctor's own doing) and under his
care, to allow that danger to progress to the point where the patient is
actually dying is to be guilty of negligent killing.
In short, what the advanced directive
cannot do is require medical personnel or staff to kill by negligence. The
resort of the person who wants more autonomy is to remove him/her from the
responsibility of the medical personnel. That removal any competent person
could always do and the advance directive could be read as allowing the agent
to do the same: I.e. take the patient home or to some other location. But it
cannot be read as rewriting the norms of
professional responsibility in others, here by legalizing passive killing, i.e.
introducing a new cause of death by
inaction.
Grey Areas
Could a person write into an
advance directive that, should I become incompetent I do not want any life
saving medical procedures imposed on me such as:
1)
If
I should I refuse to eat, or become incapable of eating normally, no feeding
tubes are to be used.
2)
Should
I develop cancer, I refuse any chemotherapy.
3)
Should
I develop any kind of infection, I refuse any antibiotics except to relieve
pain.
4)
Should
I fall into any kind of danger of death by any means, I refuse any kind of
rescue, except to relieve pain.
If 1) and 2) can, by any probable opinion be
seen as part of a dying process, then the freedom of the dying laid out in the
first note is operative. If the question is "grey" the patient (and
the agent) has the right to choose the most favorable opinion. Clearly 4) is too broad and would conflict
with principles laid out above, namely that we cannot relieve professionals of
their professional responsibilities while remaining in their care.
But 3) is a tough one. Nosocomial
pneumonias are really the product of medical care and medical environments.
They are so common and so easily cured in some cases that it would be hard to
distinguish failure to intervene from the exotic bleeding or drowning scenarios
given above. In other cases it may be that the frequency and growing intractability of the pneumonias are viewable
as part of a dying process and not a mere danger of dying. This is to say that
the pneumonias are not solely nosocomial, but are part of the dying process as related to a weakening
of the immune system. . Here the reasoning can be that the patient does not
have to wait to succumb to the latest possible pneumonia simply because newer
antibiotics are being discovered. This is not really curing but simply dragging
out the dying process.
Critical Distinction
The distinction between dying and
being in danger of death is critical. Everyone who is dying is in danger of
death. But there are many situations in which one is in danger of death but is
not even sick or even injured and every natural power of the person is fighting
that danger. Deliberate passivity in the face of the danger is generally
regarded as homicidal when the
endangered person is under the responsibility of the person choosing passivity.
This assumes that the danger can be ended by normal zealous effort.
It is this responsibility that the
advance directive cannot remove. It is part of a mutual relationship which the
patient can only avoid by terminating the relationship.
Conclusion
Medical staff are not barbers.
Presumably, a person could ask a barber for a styling which was a horror to
see. But even barbers may have some sense of professional pride and can ask the
customer to find someone else to carry out the horror. But the medical
profession and its institutions are clearly not related to patients as if they
were the employees of the patient. The patient cannot by any directive (whether
competent or not) rewrite the other side of the medical relationship (to cure
or keep comfortable). To achieve greater autonomy the patient or the agent will
have to take the step of not entering or of leaving the relationship.
If at some time the public succeeds in
unilaterally changing the definition of medical responsibility so that it includes
active or passive killing, little that has been said above will have much legal
relevance. It will continue to have important moral relevance to those who
retain the traditional objection to suicide or killing. But it clearly would be a distorting interpretation of the advance
directive statute to read it as already authorizing passive killing. Were that
the case, we would not be debating the merits of assisted suicide legislation.
We would have it already.
Postscript on Patient Autonomy
Should the acceptance of medical
killing become legal, the illusion that we have finally secured complete
patient autonomy will soon become clear. Doctors and high school nurses will
not be dispensing "Romeo and Juliet" pills to heart-broken teenagers and
dentists will not let pernicious dental infections go untreated because the
patient wants to die rather than live in an unhappy marriage. Both will
recommend more reasonable solutions. Regardless of patient autonomy, death is
unreasonable and killing unacceptable when not in accord with professional
judgment. Patient autonomy will never be absolute. But when a medical profile
of "rational suicide candidate" has been written, all those who fit
the profile will be under the pressures noted in 2.1 a (5) in the directive, namely the costs of staying alive
versus the "benefits." Once suicide/killing is a legitimate act of
patient and doctor, as the costs of refusal of suicide/killing grow, what was
first a "rational" autonomous choice will become an "arbitrary
refusal" and finally an "irrational demand" for access to
medical resources. No society has ever revered autonomy to the extent of
allowing its "irrational" exercise to impose huge burdens on the
public. Neither will ours. It is a Pandora's Box.