Much ado about nothing. That is the phrase that comes to mind when I hear opponents of the recently enacted health reform legislation decry the use of “Death Panels”.
These so-called death panels are actually the provision in the health reform law (which was removed) to allow your doctor to get paid for the time he spends with you explaining life-support treatment options in the event you are terminally ill. In fact, the Department of Human Services Center for Medicare and Medicaid Services is so timid of being attacked for creating death panels that they have already rescinded a regulation allowing doctors to get paid for this time.
Lawyers and Doctors, while oftentimes adversarial, are together when in comes to the ability of a patient to get adequate information about end-of-life treatment options. The living will is the most widely known example of a right-to-die advance directive. The Illinois Living Will Act was the first such law that took effect in 1984. Under the Living Will Act, a competent adult may make a written declaration instructing his or her physician to withhold or withdraw death-delaying procedures in the event of a terminal condition. The living will does not empower anyone to make a decision, but only states the intention of the person. The living will cannot be used to remove nutrition or hydration devices because the cause of death would be the result of starvation or dehydration rather than the terminal illness. Furthermore, if a woman is pregnant, the living will has no force if a physician determines that the fetus could survive so long as life-sustaining measures are taken.
Another attempt by the Illinois General Assembly was the Health Care Surrogate Act (HCSA) that has been in effect since 1991. The HCSA permits a person other than the patient to make decisions regarding treatment, including life-sustaining treatment, if the patient lacks decisional capacity or simply the ability to understand the nature of the decision. The person acting as the surrogate decision maker under the HCSA is determined in the following order: the patient’s guardian of the person, spouse, adult child, parent, adult sibling, adult grandchild, close friend, or guardian of the estate. For one of these individuals to make an end-of-life decision, the patient must have a terminal condition, permanent unconsciousness, and an incurable and irreversible condition.
Another alternative for making a decision is the Health Care Power of Attorney (HCPOA). This is by far the strongest instrument under Illinois law for enacting one’s wishes about life-sustaining treatment. A health care surrogate cannot act if a HCPOA exists. This law, enacted in 1987, allows an adult to name a competent adult (usually a spouse, relative, or close friend) to act as his or her decision maker with the same authority as if the patient made the decision. The HCPOA allows a person to write out specifically what types of medical treatments should be administered, whether or not to administer life-sustaining treatment, and under what conditions to halt life-sustaining treatment. The form is intended to cover most types of medical decisions, including the withholding of food and hydration as well as organ donation, admission to health care facilities, and access to medical records.
Advance directives are usually signed as a part of a person’s overall estate plan and may need to be updated periodically along with revisions to a will or trust. Also, you are able to obtain a basic health care power of attorney form to complete at any hospital when you are admitted.
Even if your will is up to date, everyone should consider this issue carefully and consult an attorney about the appropriate advance directive documents for each individual situation and wishes. It is important to discuss your wishes and the advance directives you put in place with those that may be faced with making decisions on your behalf.
However, remember that it is important to be able to talk to your doctor about these alternatives, too. A doctor can give you more important information as to the actual practical medical consequences of any advanced medical directive. Your lawyer can give you the legal ramifications. If your lawyer gets paid to give you this advice, should not your doctor be able to get paid for counseling you on these issues also? Do not be scared by the rhetoric. Seek information.