ADVANCED DIRECTIVES

What Are They and Why Everyone Should Have One

Ellen M. Briotte

MBA – Health Law

Summer 2010
BLW618HY
 INTRODUCTION & PURPOSE

I chose the topic of advance directives for two reasons. The first reason is that I have

been asked to sit on the Advance Directives Committee at my place of employment, so I figured

while I am working on this project for the committee, I might as well turn it into a research

paper. The second reason why I chose this topic was because after reading all of the classic cases

about death and dying in the Pence book I think this is a very important topic and one that needs

to be addressed by people of all ages, at least 18 years of age and older, not just the elderly or the

terminally ill. I think decisions about end of life care need to be made when we are young and

healthy or before something tragic happens. But young people and most healthy people don’t

think about dying.

Therefore, the purpose of this paper is to explain what advance directives are and why it

is important to have them. In addition to further educating myself in this area to be able to better

serve the patients of our community.

“The Quinlan case caused written advance directives to become popular. In April of

1975, 21 year old Karen Quinlan became comatose from drinking alcohol after taking either

barbiturates or benzodiazepines, or both.”(Pence, 2008) “These drugs combined with alcohol had

suppressed her breathing, caused loss of oxygen to her brain and after 30 minutes destroyed her

higher brain. Karen was in a serious coma called a persistent vegetative state (PVS). PVS is a

generic term covering a type of deep unconsciousness that, if it persists for a few months, is

almost always irreversible.” (Pence, 2008) After six months of Karen being on a respirator as

well as requiring a nasogastric feeding tube her parents came to the realization that she would

never regain consciousness and they decided to remove the respirator and let Karen’s body die.

2
Karen did not have an advance directive and the decision to turn off the respirator was not going

to be as easy as the Quinlan’s thought. Even though Karen had expressed to her parents more

than once that she would never want to be kept alive as a “vegetable” if anything terrible ever

happen to her. Her parents had to fight the courts and the physicians to turn off the respirator. In

January 1976, the court ruled in the favor of the Quinlans. The physicians although did not

remove Karen from the respirator right away but instead weaned her from it. “Weaned, which

means that they gradually trained the body off the machine by building up different muscles. The

tired, confused Quinlans and their inexperienced lawyer did not understand what this meant, and

the real implication would become painfully clear over the next ten years.”(Pence, 2008) After

more than ten years in a nursing home Karen Quinlan’s body finally expired, in June of 1986. If

Karen Quinlan had an advance directive, which was specific to her wishes, neither she nor her

family would have had to suffer for as long as they did.

ADVANCED CARE PLANNING

Advanced care planning is a process of planning in which a person makes plans for future

medical care in the event they are unable to make their own decisions. This planning process

helps the individual in preparing for sudden unexpected illness, from which they expect to

recover, as well as the dying process and ultimately death. This process also allows the

individual to maintain control over how they are treated so that they will receive the type of care

they desire.

ADVANCED DIRECTIVES
The advanced directive is a part of the advanced care planning process and is a legal

document that governs how an individual’s health care decisions are made, and notifies their

3
doctors and others about their wishes in case a serious medical problem or injury prevents them

from deciding for themselves. Having an advance directive is extremely important not only for

the health care needs of the individual but can also be extremely helpful to families and loved

ones because they will know exactly what the persons wishes are in advance. In the state of New

York an advanced directive can include a Living Will, a Health Care Proxy and Medical Orders

for Life –Sustaining Treatment also known as the MOLST form.

LIVING WILL
A living will is a legal document that a person uses to make known his or her wishes

regarding life prolonging medical treatments. The importance of a living will is that it informs

your health care providers and your family about your desires for medical treatment in the event

you are not able to speak for yourself. Generally, a living will describes certain life prolonging

treatments. Within the living will the individual or the declarant will indicate which treatment

they do or do not want applied to them in the event they suffer from a terminal illness or are in a

permanent vegetative state. A living will does not become effective unless you are incapacitated;

until then you are able to speak for yourself to indicate what treatment you do or do not want.

Certification from the individual’s physician and another physician is usually required to deem

that you are suffering from a terminal illness or permanently unconscious before the living will

can become effective. For example, if you have a heart attack and are not terminally ill or are not

permanently unconscious, a living will, will not have any effect. You would still be resuscitated,

even if you had a living will indicating that you do not want life prolonging procedures.

Therefore a living will is only used when your ultimate recovery is hopeless. I addition to stating

in the living that if a person is terminally ill, permanently unconscious or in a minimally

conscious condition which they are permanently unable to make a decision or express their

4
wishes they may also add specifics such as they do not want cardiac resuscitation, mechanical

respiration, artificial nutrition, hydration or antibiotics. They may also specify that they want

maximum pain relief even if it will expedite the dying process. The living will needs to be dated

and signed by the individual who is creating it as well as by two adult witnesses.

HEALTH CARE PROXY

In a case where someone is incapacitate and is not able to speak for themselves, but their

health is not so dire that their living will becomes effective, an individual should also have a

health care proxy or health care power of attorney. A health care proxy is a legal document that

gives someone else the authority to make health care decisions for you in the event you are

incapacitated. For example a family member or close friend can be appointed as the agent or

proxy to make decisions about medical care for you if you are unable to do so yourself. The

person that you choose as your agent should be able to clearly understand your wishes and be

willing to accept the responsibility to make serious medical decisions. In addition if you appoint

your spouse as your proxy or agent and you get divorced or legally separated their authority will

be revoked upon divorce or legal separation, unless otherwise specified. A second person can

also be appointed as an alternate proxy in the event the first person you designated is unable,

unwilling or unavailable to act on your behalf.

There are also people that you cannot appoint as your proxy or agent. Those individuals

include an “operator, administrator or employee of a healthcare facility in which you are a

resident or a patient, or to which you have applied for admission, at the time you sign your

proxy, unless that person is related to you by blood, marriage or adoption. As well as, the

patient’s attending physician, or anyone who is a proxy to ten or more people, unless they are

5
related to you by blood, marriage or adoption.”(National Hospice and Palliative Care

Organization)

In order for a health care proxy to be effective the law requires that an individual sign and

date the Healthcare Proxy in the presences of two adult witnesses and that these witnesses sign a

statement within the Healthcare Proxy confirming that the individual signed the document

willingly and free from duress, if the individual is unable to sign they may direct someone else to

sign for them in their presence. Also, the person who is named as the proxy or the alternate

cannot act as a witness.

The most important factor when it comes to a Healthcare Proxy is that the individual who

is designating an agent, needs to have a conversation with their agent no matter how difficult the

conversation maybe. It should be a very detailed conversation with that person, specifically

letting them know what their wishes are, because hospitals, doctors, nursing homes and other

health care professional must follow the direction of the agent. It is a very big responsibility for

someone to have to make medical decisions for another person, so it is extremely important to

have this conversation, because if and when it comes time for them to make decisions about your

health care they will not be second guessing themselves, nor do you want them to be.

The Healthcare Proxy gives the agent the right to direct the physician to remove or

sustain feeding tubes from the patient if these tubes are the only things that are keeping the

person alive. In addition health care proxies have become very necessary due to conflicts among

relatives of the incapacitated person. For example in the case of, “Terri Schiavo, on February 25,

1990, a 27 year old, anorexic, women went into a coma because of anoxia, a lack of oxygen to

her brain, perhaps from a heart arrhythmia caused by an imbalance of potassium in her body,

6
causing severe brain damage.” (MedLawPlus.com, 2005) Terri Schiavo was institutionalized for

fifteen years, her legal case went from 1998 to 2005 which concerned the diagnosis and weather

Terri’s should live or die due to the fact that she was in a persistent vegetative state. In 1998

“Terri’s husband petitioned the courts to remove her feeding tube, claiming that she would not

want to continue to live this way. He was opposed by her parents, who argued that their daughter

was conscious and would want to continue to live. This case went to court nearly twenty times,

when finally the court decided that Terri would not want to continue life-prolonging measures

and her tubes were disconnected, she died on March 31, 2005.” (World Net Daily, 2005)

Therefore, if Terri Schiavo had a health care proxy, appointing her husband or one of her parents

as her agent this whole controversy may have been avoided.

MEDICAL ORDERS FOR LIFE-SUSTAINING TREATMENT (MOLST)

Lastly, another important document for end of life care is the Medical Orders for Life-

Sustaining Treatment, otherwise known as the MOLST form. MOLST is designed to improve

the quality of care people receive at the end of life by translating their wishes into medical

orders. Healthcare professionals should discuss MOLST with patients who have advanced

progressive chronic illness, are terminally ill or with patients that are just interested in further

defining their medical care wishes. It is based on communication between the patient, health care

agent, or other health care decision maker and health care professionals that ensures informed

medical decision making. Its goal is to improve the communication of personal wishes about

life-sustaining treatments resulting in higher quality medical care. “The MOLST form is a bright

pink medical order form signed by a New York State Licensed physician that communicates

patient wishes regarding life-sustaining treatment to health care providers. The form includes

medical orders and patient preferences regarding, cardiopulmonary resuscitation, intubation and

7
mechanical ventilation, artificial hydration and nutrition, future hospitalization, transfer and

antibiotics.”(New York State Department of Health)

The MOLST form also helps EMS make important life-saving decisions when

responding to a call as to what treatment they should provide according to that individuals

wishes. When an individual is at home the MOLST form should be keep on the refrigerator, by

the phone in the kitchen or by the bedside. In the case of an emergency, EMS personnel are

trained to look for the MOLST form in these locations.

In addition the MOLST form, supplemental forms, traditional advance directives and

documentation of any “clear and convincing evidence” should be kept together and transferred

with the patient upon discharge.

Although the MOLST form summarizes advance directives, it does not take the place of

traditional advances directives such as the health care proxy and the living will. The MOLST

form is although the legal equivalent of an inpatient Do Not Resuscitate Order (DNR).

CONCLUSION

In conclusion, prior to doing this research paper, my recommendation to the committee

was to ask the physicians to capture everyone forty years of age and older. I have since change

my mind and my recommendation. At first, I thought that I really did understand all of the

aspects of advance care planning. I did not know about the MOLST form, and exactly what it

purpose and goals were. I learned certain facts about advance directives that I was not initially

aware of, such as who cannot be a healthcare agent; I think it is a good idea for an individual to

appoint an alternate agent just in case the original agent is not able to carry out their duties as

well as educating myself to other factors. I have made a recommendation to the committee that
8
we have the physicians capture or try to capture and educate everyone 18 years of age or older

about the importance of advance directives. I think that so many people are unaware of what

advanced care planning entails and why it is so important to think about it when they are young

and healthy. As, I mentioned several times earlier, after reading several of the cases in the Pence

book, I don’t believe that most people really understand how difficult it is to have a family

member or loved one taken off life support when that person does not have an advance directive,

living will or the MOLST form. Let’s face it, the young think they are invincible; the young

adults don’t want to think about it and the population who is getting closer to middle age keeps

putting it off. So, I think maybe the best place to start is with their physicians to at least get the

conversation started so people get to thinking about it, and then maybe they will at least talk it

over with their family and decide to document their wishes which will provide “clear and

convincing” evidence when and if the time comes to make serious medical decisions and no one

will have to guess what their wishes are and no one will have to suffer longer than necessary.

9
 REFERENCES

Pence, G. (2009). Medical Ethics, Accounts of the Cases That Shaped and Define Medical
Ethics, The McGraw-Hill Companies.
Med Law Plus.com, http://www.medlawplus.com/library/legal/schiavo.htm, Retrieved June 20,
2010.
World Net Daily, http://www.wnd.com/, Retrieved June 23, 2010

National Hospice and Palliative Care Organization, www.caringinfo.org. Retrieved June 19,
2010.
New York State Department of Health, http://www.health.state.ny.us. Retrieved June 24, 2010

10