Refusing unwanted medical treatment–Part 2

In Part 1, I provided an actual case of unwanted life-sustaining medical treatment (LSMT), listed Professor Pope’s “Twelve Leading Causes of Unwanted Life-Sustaining Treatment,” gave the causes of action that may be available for unwanted LSMT, and briefly discussed Physician’s Orders for Life-Sustaining Treatment (POLST) and other similar documents used in various states.  Here, in Part 2, I delve further into Professor Pope’s research on unwanted LSMT.

The basic right to accept only that medical treatment that we choose is grounded in the very fundamentals of our law:  “Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment.” (Kansas Justice Alfred G. Schroeder from Natonson v. Kline, 1960)

Similarly, in other cases unrelated to medical treatment, the US Supreme Court has adhered for almost 120 years to the Enlightenment view found in our Constitution that persons have autonomy about what happens to their bodies:  “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (141 U.S. 250, Union Pac. Ry. Co. v. Botsford, 1891)

In the 1990 Cruzan case, the Court again enunciated a clear understanding of the liberty interest as it relates to refusing unwanted LSMT: “The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.” (497 U.S. 261, 269)

Today, the right to refuse LSMT is entrenched in our law and in bioethics, along with the right of surrogates to act on behalf of an incapacitated patient.  Of significance is the fact that “all states have laws enabling patients and surrogates to refuse medical care.”  If a provider refuses to comply with a decision by a patient or surrogate, the usual legal approach is to seek an injunction or a declaratory judgment to enforce the right.  While the right to refuse unwanted LSMT was often ignored for two decades after the Cruzan decision, it is more often respected today.

Historically, there has been a presumption favoring doing everything medically possible to keep a person alive.  But, for the last 30 years, advance directives (ADs) have been seen and promoted as the way to know a person’s healthcare decisions about end-of-life care.  Even so, they have not been followed even half the time, according to one survey cited by Professor Pope.  A 2012 study in California showed that only 44% of family members surveyed agreed that their loved one’s medical wishes were “completely followed and honored.”  Other studies cited show 75% compliance with ADs, 58% (“most or all the time”), 35%, and 47%.  Apparently, most medical practitioners look at a patient’s “prognosis, perceived quality of life, and family wishes,” rather than at the patient’s written advance directive.

To be sure, there are problems with ADs.  Many patients do not have one (23%, 24%, 35%, 33% in various studies), they are not available when needed, they are vague (“if I am close to death”), or they are not seen as applying to “current medical circumstances.”

Professor Pope sees a POLST as an encouraging solution to the deficiencies of ADs.  The difference between an advance directive and a POLST is that an AD is a legal document; a POLST is a medical order. The advantages of a POLST can be summarized as follows–

1. POLSTs are meant to supplement, not replace, traditional advance directives
2. POLSTs are for those patients expected to die within the next year
3. POLSTs are signed by both the issuing physician and the patient
4. “no need for interpretation or translation”
5. “POLST is an immediately actionable medical order”
6. “POLST is on a single-page, standardized form,” making it easy to follow
7. POLST is “brightly colored [and] clearly identifiable”
8. “POLST addresses not just CPR” (which is what a DNR order covers)
9. POLST addresses “an entire range of life-sustaining interventions, such as IV fluids, antibiotics, a feeding tube, and artificial breathing.”
10. POLST “travels with the patient, from hospital, to nursing home, to ambulance, to the patient’s home”
11. “POLST is recognized and honored across all these different treatment settings.”

For more information about POLSTs, see this overview, an explanation of POLST in California, a review of MOLST in New York here, for POLST in Oregon here, and West Virginia here.

Empirical evidence from my own discussions, mostly with seniors, confirms the view that a high percentage of people, if asked, do not want LSMT if they are seriously ill with little chance of recovering a satisfactory quality of life.  Professor Pope cites a survey in which “67% would prefer to ‘die a natural death’ if their heartbeat or breathing stopped, while only 7% would want medical providers to ‘use everything to prolong life’.”  Another found that “71% of individuals agreed that it is ‘more important to enhance the quality of life for seriously ill patients, even if it means a shorter life’.”

POLSTs provide a new tool for patients near the end of life to control their medical treatment better than advance directives alone, though both are important.

In Part 3 of this series, I will look in more detail at Professor Pope’s research into problems with advance directives.