Living Wills

A "living will" or "advance directive" is a document by which a person makes provision for health care decisions in the event that in the future he/she becomes unable to make those decisions.

  • Living wills can adress any number of issues, but most are written to expressly control medical treatment desired.
  • Doctors do not always follow instructions if Living Wills but make their own decisions.
  • While some people do sign Do Not Resucitate orders (DNRs), the majority want the Living Will to protect their right to treatment even if they are incapacitated.
  • When the terminology used to describe treatment and euthanasia becomes blurred, the wording of the will might be drastically misinterpreted.

Advance Directives and Living Wills

An Advance Directive, is an instruction given by a patient to a physician, about how they are to be treated, in the event of medical intervention. This type of agreement is standard everyday medical practise.

Prior to childbirth, for instance, the patient will discuss various options available and decide, in advance, on a course of action for the birth. This is common as the woman may not want to focus on medical options when going through labour.

A Living Will, is a type of Advance Directive which sets out instructions, for a course of action, in a case where a terminal prognosis has been made. This will clarify what type of treatment the patient does or does not want, in quite a specific manner.

Another type of Advance Directive is where a person gives Enduring Power of Attorney to another person, usually a close family member so that person can act on their behalf if they become incompetent and need to have important medical decisions made on their behalf.

The New Zealand Situation
The New Zealand Medical Association (NZMA) has endorsed a report, written by the Otago Bio Ethics Centre, recommending that where a patient's wishes are known and documented, in an Advance Directive, then this is persuasive evidence, that a decision to withdraw a particular treatment, is acceptable and in accord with the patients wishes and "good medical practice" in such situations.

The NZMC, has also laid out guidelines for the use of Advance Directives in accordance with Section 11 of the New Zealand Bill of Rights (1990), in which a patient has the right to refuse medical treatment. This means a doctor cannot ignore an Advance Directive, unless there are reasonable grounds to so.

Despite efforts to raise people's consciousness about living wills, these efforts have generally failed to achieve the desired effect.

Problems with Vagueness in a Typical 'Living Will'

"If I should have an incurable or irreversible condition [does this include asthma, diabetes, cerebral palsy, heart conditions, or AIDS that may worsen considerably in the future -- or even be cured?] that will cause my death within a relatively short time, [this could be hours or weeks or even months] and if I am no longer able to make decisions [what if the person is affected by medication or allergies? What if he is temporarily disoriented or depressed? Stoned? Or senile?] regarding any medical treatment, I direct my attending physician [family doctor? Friend? Attorney-in-fact? What about a doctor in a strange city who knows nothing about you?] to withhold or withdraw treatment [what about respirators or chemotherapy? How about insulin, nitroglycerin, blood pressure medicine, oxygen, antibiotics, even food and water?] that only prolongs the dying process and is not necessary to my comfort or to alleviate pain [if you are transitorily comatose or drugged, what degree of pain is being specified here?]."

Source: "Living Wills" Pamphlet by Mary C. Senander, Human Life Alliance of Minnesota, Inc.

Dangers of Living Wills
In America, a person can make an Advance Directive without a physician's involvement and it is still binding. The average person, does not know enough about the medical nature of their illness, to make an informed decision about unspecified future treatment yet they are being urged to do so.

In New Zealand, although more medical intervention is required when making a Living Will, once it has been made, it is up to whoever is contesting it to prove it is invalid.
A doctor may end up acting against his/her personal beliefs about the correctness of a patient's choice, contained in a Living Will.
A proponent of Living Wills, Linda Emanuel, states that they are useful in creating a discussion about life and death issues. She says:

"Living Wills can help doctors and patients talk about dying" and this can "open the door to a positive, caring approach to death." 2

One of the reasons Living Wills are popular with pro-Euthanasia groups is that they claim to uphold a person's autonomy. That person feels confident their wishes are being heard. Many other administrative health bodies, legal personnel and other groups promote Advance Directives as they claim it is better to have something written down.

A study completed by K.M. Coppola, found that emergency room doctors, who were unknown to patients, more accurately predicted patients wishes, when given a Living Will, than doctors who had no access to documents.3

Often, Living Wills do not have any effect on the care of patients, even when properly written and when the person knew what they were doing. Not available when a patient enters hospital, they are often stored in solicitor's offices, home safes or otherwise lost in transition.

"Researchers, in the US, reviewed 182 patients who had completed a Living Will before being hospitalised. Only 26% of them had accurately recorded information from these charts while only 16% contained the actual form." 4
Another positive effect for the relatives of a patient is that Living Wills often cut expensive health costs for family members.

Other reasons health professionals in the US advocate Living Wills, is that people gain confidence their surrogates will understand their choices should a medical situation arise. It would also lift the burden of guilt off relatives when forced to turn off a life support mechanism. Another positive effect for the relatives of a patient, is that Living Wills often cut expensive health costs for family members.

Ironically, these claims however valid, have no bearing on the well being of the patient or accuracy of compliance with the patients health preferences.

A Case Study
Joanne Doran, Area Medical Director of Palliative Care at St Vincent's Hospital, in NSW, Australia, writes about her first experience with an Advance Directive as a junior doctor.
Despite having an Advance Directive to the contrary, Mike was adamant he wanted to receive treatment for his pneumonia. The situation was stressful for everyone involved. His next of kin was very traumatised by the whole experience

"Mike was a 45-year-old with advanced AIDS. He had written an Advance Directive, stating that he did not wish to have intravenous antibiotics as a life-prolonging treatment, should he become too unwell to make his own clinical decisions.

Unfortunately, Mike became quite unwell with pneumonia, which had led him to become quite confused. Despite his confusion, however, he was adamant he wanted to receive treatment for his pneumonia, which was a direct contradiction to his Advance Directive. The dilemma was further compounded by his next of kin, a solicitor, who was adamant that Mike should not receive antibiotics, despite his requests, when he became unwell and confused.

With any sort of treatment dilemma, particularly if there are conflicting proposals, it seems the best way forward is always with clear, round-table discussions, communications and trying to keep the process as informal as possible without having to resort to solicitors, lawyers and the Guardianship Tribunal.

In the above example, Mike was quite consistent with his requests and so did receive intravenous antibiotics. His symptoms and confusion improved and he was grateful for his treatment, when well again. He died a few weeks later.

The situation was quite stressful for everyone involved and the outcome could equally have gone the other way, ie. Mike could have had his treatment and considered it ?battery' that his advance directive had not been followed. His next of kin was very traumatised by the whole experience, as she believed, like everyone else, she was only acting in his best interests and thereafter she had little to do with his care." 5

America's disability activist organisation, Not Dead Yet, has an example of an Advance Medical Directive: Mike Ervin has developed a one-size-fits-all AMD for folks who want to stay around and continue to be a pain in the [rear] to the medical establishment -- and offers tips on how to use it. Read Article

(1) Council on Ethical and Judicial Affairs of the American Medical Association, Surrogate Decision Making E8.081.

(2) L. Emanuel, "Living Wills Can Help Doctors and Patients Talk about Dying," Western Journal of Medicine 173 (2000): 368.

(3) K.M. Coppola et al., "Accuracy of Primary Care and Hospital-based Physicians' Predictions of Elderly Outpatients' Treatment Preferences with and without Advance Directives," Archives of Internal Medicine 161, no. 3 (2001): 431-40.

(4) Cox and Sachs, "Advance Directives and the Patient Self-Determination Act."

(5) Doran, J. "Palliative Care and Advanced Directives"