Medical Advance Directives
By Mary Tillman
Editor’s Note: Although West Virginia law was used to develop this article, all states have very similar legal requirements in regard to 'living wills.'
The much-publicized tragedy of Terri Schiavo's dehydration/starvation has brought to the public eye the important issue of the artificial provision of food and hydration to disabled persons. What does the Catholic Church teach about this moral issue, and how are we to act? (1)
On September 14, 2007, the Congregation for the Doctrine of the Faith (CDF), with the approval of the Pope, issued answers to two questions posed by the United States Conference of Catholic Bishops (USCCB). In their letter dated July 11, 2005, the USCCB asked about the nutrition and hydration of patients in a condition commonly called a "vegetative state." Dated August 1, 2007, and being dubbed the "Terri Schiavo Responses," the CDF's questions and answers with accompanying four-page commentary are extremely welcome and important in giving clear moral guidance. The text reads as follows:
First question: Is the administration of food and water (whether by natural or artificial means) to a patient in a "vegetative state" morally obligatory except when they cannot be assimilated by the patient's body or cannot be administered to the patient without causing significant physical discomfort?
Response: Yes. The administration of food and water even by artificial means is in principle an ordinary and proportionate means of preserving life. It is therefore obligatory to the extent to which and for as long as it is shown to accomplish its proper finality which is the hydration and nourishment of the patient. In this way suffering and death by starvation and dehydration are prevented.
Second question: When nutrition and hydration are being supplied by artificial means to a patient in a "permanent vegetative state", may they be discontinued when competent physicians judge with moral certainty that the patient will never recover consciousness?
Response: No. A patient in a "permanent vegetative state" is a person with fundamental human dignity and must therefore receive ordinary and proportionate care which includes in principle the administration of water and food even by artificial means.
The Commentary traces the pertinent authoritative teachings of the Church leading up to the present in this regard and shows how all these teachings have been consistent with one another. In a statement dated September 14, 2007, the National Catholic Bioethics Center (NCBC) remarked that the CDF responses "provide a clear rejection of the claim of certain theologians that the provision of food and water for patients in the persistent vegetative state is not morally obligatory." To which I say, Deo gratias!
How does this apply to us? First, it means that every Catholic and indeed all persons of good will should examine carefully those legal documents variously called "advance directives," "living wills," "medical/durable powers of attorney," etc. "Living wills" were invented in 1967 by the Euthanasia Society of America and the Euthanasia Education Council. Written by attorney Luis Kutner (who later founded Amnesty International) they were not used widely until the U.S. Congress enacted the Patient Self-Determination Act in 1991. Threatened with the loss of federal funds, hospitals were then required to offer information and documents to patients regarding the right to refuse treatments. State laws were enacted in turn. In West Virginia, we have the WV Health Care Decisions Act (HCDA), which is found in the WV Code at Sections 16-30-1 through 16-30-25. The suggested advance directives in these state laws contain language that runs counter to Catholic Church teaching. (2)
Specifically, health care facilities are required by law to make available to persons, upon admission, living will and medical power of attorney forms (Section 16-30-4(e)). (In 2007, a combined form was developed but it has the same problems as the individual forms.) The law provides a sample form for all three documents, but also notes that one's living will, medical power of attorney form, or combined form "may, but need not, be in the …form" suggested in the statute (HCDA, Section 16-30-4(g), (h), and (i)). A brief survey of some secular and Catholic hospitals in West Virginia reveals that by and large, the suggested statutory forms are those which are being used by hospitals in our state. Concerning the food and hydration issue, the critical language in the suggested statutory form for a living will is as follows:
“If I am very sick and not able to communicate my wishes for myself and I am certified by one physician, who has personally examined me, to have a terminal condition or to be in a persistent vegetative state (I am unconscious and am neither aware of my environment nor able to interact with others), I direct that life-prolonging medical intervention that would serve solely to prolong the dying process or maintain me in a persistent vegetative state [hereafter PVS] be withheld or withdrawn. (3) There is a space provided where one might also give ‘special directives or limitations’ on ‘tube feedings,’ but the "failure to provide special directives or limitations does not mean that I want or refuse certain treatments."
Critical terms in the forms made available to patients are not defined in the forms themselves. One would have to go to the law (which is not made available to patients) to find these definitions. Thus, "life-prolonging intervention" is defined in the law as including "nutrition and hydration administered intravenously or through a feeding tube" (Section 16-30-3(m)). "Persistent vegetative state" is defined as "an irreversible state as diagnosed by the attending physician or a qualified physician in which the person has intact brain stem function [emphasis mine] but no higher cortical function and has neither self-awareness or awareness of the surroundings in a learned manner" (Section 16-30-3(s)). Note that since "death" is defined as either "the irreversible cessation of circulatory and respiratory functions; or…the irreversible cessation of all functions of the entire brain, including the brain stem"[emphasis mine], then a person in PVS, by definition, is not dead --nor, for that matter, necessarily even "dying." "Terminal condition" is defined as an "incurable or irreversible condition as diagnosed by the attending physician or a qualified physician for which the administration of life-prolonging intervention will serve only to prolong the dying process" (Section 16-30-3(aa)). "Dying process" which is a very critical concept to all of this is not defined. Thus, the statutory form of the living will is directing the withdrawal of food and hydration if one is deemed to be "terminal" or in a PVS! Obviously, if one does not have the life-prolonging intervention of being nourished or hydrated, one indeed will enter into a dying process: starvation. Therefore, use of this form would be contrary to Church teaching, because of its direct opposition to the CDF statement in regard to persons in a vegetative state, and certainly risky for persons diagnosed as "terminal," since "dying process" is undefined.
Looking at the statutorily suggested language for a medical power of attorney, we find similarly that the designated representative is empowered to consent to the withholding or withdrawal of "life-prolonging interventions." (Remember, that is defined elsewhere as including food and hydration). However, at least the representative is not required to order the withdrawal of food and hydration in the medical power of attorney form as is stated in the living will. On the other hand, the representative still could order the withdrawal of food and hydration.
If one already has signed such a form, the law states that it may be revoked by (1) being destroyed by the principal; (2) a written revocation signed and dated by the principal and delivered to the attending physician; or (3) a verbal expression of the intent to revoke in the presence of a witness at least 18 years of age who signs and dates a written confirmation that such expression of intent was made and communicates that information to the attending physician (Section 16-30-18(a)). (4)
In order to protect oneself from the fate Terri Schiavo suffered, one must look elsewhere for a "pro-life" form. There are five that I am aware of: (1) the Protective Medical Decisions Document (PMDD), available through the International Task Force on Euthanasia and Assisted Suicide (ITF), in Steubenville, Ohio; (2) the West Virginia Medical Power of Attorney Will to Live Form (WTL), available through National Right to Life (NRTL); (3) the Loving Will, available through American Life League (ALL); (4) the Health Care Proxy and the Advance Medical Directive forms, available through the National Catholic Bioethics Center; and (5) the Medical Power of Attorney, Christian Version, available through Christian Life Resources. These forms are not alike, and it would be beyond my expertise to state which one is "best," but I can make a few observations about each.
Pro-Life Advance Directives
Available from ITF (P.O. Box 760, Steubenville, OH 43952; telephone 740-282-3810; website: www.iaetf.org) for a suggested donation of $8.00. The PMDD is written by a pro-life, Catholic attorney and tailor-made to fit the legal requirements for each of the fifty states. Thus, the number of witnesses, whether or not a notary is needed, and terminology peculiar to each state have been researched and used. It reads much like any other medical power of attorney, but with the important distinction of (1) directing that nutrition and hydration be provided "unless death is inevitable and truly imminent so that the effort to sustain my life is futile or unless I am unable to assimilate food and fluids." Furthermore, the PMDD (2) directs that one's life not be ended by assisted suicide or euthanasia.
ALL, (PO Box 1350, Stafford, VA 22555; telephone 866-538-5483; website: www.all.org) makes available for $9.95 the "Loving Will," which is to be used in conjunction with a Durable Power of Attorney. This form is NOT state-specific. It provides that one is "not to be denied food or water as long as my body is able to assimilate them" and that "mechanical or artificial means are to be utilized if necessary" to assure the provision of food and hydration. In addition, it provides that if pregnant, "maximum effort is to be made to save my life and the life of the child I carry."
NCBC (6399 Drexel Road, Philadelphia, PA 19151-2511; telephone: 215-877-2660; website: www.ncbcenter.org) has available for $2.50 down-loadable Advance Medical Directive and Health Care Proxy forms. They are not state-specific. Meant to be used together, they provide that one wishes to follow the moral teachings of the Catholic Church; that one wishes to receive the sacraments of the Church; and that there should be a presumption in favor of providing nutrition and hydration.
Christian Life Resources, Inc. (2949 N. Mayfair Road, Suite 309, Milwaukee, WI 53222-4304; telephone: 414-774-1331; website: www.christianliferesources.com) makes available for free, a state-specific, down-loadable "Medical Power of Attorney, Christian Version." An addendum, which is made part of the document, specifies that no permission is given for the withdrawal of nutrition or hydration. There are several more sections relating to the medical care desired in the event the person is pregnant, and organ donation.
National Right to Life Committee (512 10th Street, NW, Washington, D.C. 20004; telephone: 202-626-8800; website: www.nrlc.org) has available a free, downloadable Medical Power of Attorney Will to Live form for all fifty states. It directs that food and fluids are to be provided orally, intravenously, or by tube. There are additional directions relating to keeping one alive, should it save an unborn child. There is a rejection of treatments that use tissues or organs from aborted children or would hasten the death of another.
Physician Orders for Scope of Treatment, or "POST" Forms
Since 2003, an additional "end of life" form being used in West Virginia has been the Physician Orders for Scope of Treatment, or "POST" form. Bright pink, and to be kept as the first page of a person's medical record, this form has check-off boxes that specify which treatments if any are desired by the patient. The form gives choices ranging from "No feeding tube" to "Feeding tube long-term," as well as whether or not one wants antibiotics, CPR, or IV fluids. Therefore, the safer course here would be to check off "feeding tube long-term", and add to the "Other Instructions" section, the additional caveat that feeding tube usage is to be discontinued only if the body could not assimilate the food/fluids, or if trying to continue its use would cause extreme discomfort. I would recommend a positive statement such as "Feeding tube is requested, even if physician has diagnosed me to be in PVS," to be on the safe side.
I will finish with one more piece of advice based solely on personal anecdote. When my husband and I recently reviewed and updated our Wills and Powers of Attorney forms, we went to a local, highly-respected attorney, known for his specialty in an estates and trusts practice. I had researched this issue, and asked that he insert into his usual "boilerplate" language in the power of attorney forms, a paragraph about provision of food and fluids. He readily did so, but commented that he had never seen language of that sort in all his years of practice. This means that unless you know your lawyer is a practicing Catholic or Christian and especially sensitive to pro-life issues, he or she is probably NOT going to have such language in the forms they suggest you sign.
(1) I am not addressing the issues of terminal sedation, hospice, palliative care, or futile care theory in this article.
(2) Doctors or other health care providers who disagree with advance directives of their patients that are "contrary to the individual provider's sincerely held religious beliefs or sincerely held moral convictions" are not required to honor them, but must follow certain provisions of WV law about transfer of care.
(3) Section 16-30-4(g)
(4) If you have been named by a friend or relative as their medical power of attorney representative, review the document now (while the friend/relative is still competent). If that person's legal document contains language that requires dehydration/starvation in the event of PVS, notify them that you will be unwilling to carry out those wishes for them, and that they should void that document and make a new one.
For more information:
For more information, I recommend the following sources:
Hentoff, Nat. "Who Will Decide You Should Die?" Human Life Review (Summer 2006).
Isajiw, George, M.D. "Advance Mis-Directives: Euthanasia in Catholic Hospitals in the United States," presented at the World Congress of Catholic Medical Associations in Seoul, Korea (Sept. 3, 2002), found at http://www.wf-f.org/Isajiw-MisDirectives.html
Marker, Rita L., J.D. Euthanasia, Assisted Suicide & Health Care Decisions: Protecting Yourself & Your Family. Steubenville, OH: International Task Force on Euthanasia and Assisted Suicide, 2006.
Smith, Wesley J. "Dehydration Nation," Human Life Review (Fall 2003).
Vincent, Stephen. "Dylan Must Die," Human Life Review (Summer 2006).
Mary and Mike Tillman have six children; all of them are homeschooled. Once a practicing attorney, after the birth of her third child, Mary found the logistics of parenting and homeschooling made her practice seem impractical. She is a member of Immaculate Conception parish in Clarksburg, WV (Harrison county), and works with West Virginians for Life as well as the local pregnancy resource center.