By William Winslade
The furious battle between Michael Schiavo and the Schindler family about the fate of Terri Schiavo raised many questions but provided few answers. More than fifteen years after Terri suffered brain damage from lack of oxygen and lapsed into a persistent vegetative state, the central controversy was whether the artificial nutrition and hydration that kept her alive should be withdrawn.
The case provoked protracted litigation, state and federal judicial rulings, interventions by the Florida’s state legislature and governor, Jeb Bush, and the United States Congress—plus extensive media coverage, many public demonstrations, and an angry national debate. Courts repeatedly ruled that Michael Schiavo, as Terri’s legal guardian, had authority to order that her nutrition and hydration be withdrawn. Michael Schiavo said he did what Terri would have wanted—what she had told him about her views concerning artificial life support. Although Terri’s parents and siblings vehemently disagreed, the courts upheld his right to decide. Thirteen days after the artificial nutrition and hydration was withdrawn, Terri died—but the debate lives on.
Many suggested that had Terri Schiavo written a “living will” with directives to her doctors, the dispute would have been resolved. The law in Texas, as in other states, allows competent adults to write such advance health care directives. In Texas, there are two types: a directive to physicians and a medical power of attorney.
A directive to physicians tells a person’s preferences concerning artificial life support. If a patient can’t communicate and is terminally ill or suffering from an irreversible condition such as permanent unconsciousness, then the directive tells physicians whether to use devices such as a respirator or artificially administered food and water to prolong life. The other advance directive, a medical power of attorney, appoints another person to communicate a patient’s wishes regarding medical care if the patient can’t communicate them.
Beginning with California in 1976, every state enacted a law establishing some type of advance directives for health care. In 1991, Congress passed the Patient Self-Determination Act requiring hospitals receiving federal funds to tell patients about their rights under state law to execute advance directives. Despite much public advocacy for these “living wills,” critics have noted that they are often vague, ambiguous, and provide only conclusions rather than needed information about a patient’s thoughts, reasons, and preferences. As a result, cautious physicians are reluctant to act on written documents alone.
When medical decisions must be made, the patient’s representative should be able to answer the question, “What would the patient want?”
A medical power of attorney, however, is far superior. By legally authorizing another person to carry out your health care wishes, you are much more likely to see them carried out: physicians and hospitals are much more responsive to a legally authorized person who can articulate, clarify, communicate, and implement the preferences of a patient who no longer can speak for himself or herself. When medical decisions must be made, the patient’s representative should be able to answer the question, “What would the patient want?” Of course, the patient must discuss preferences in advance with the person appointed to serve as medical power of attorney. And the person named must be willing to accept and convey the person’s wishes. Even a medical power of attorney won’t be effective if the person named lacks the ability or will to advocate the patient’s intentions. But in the real world of difficult medical decision-making for those who can no longer speak for themselves, this is the best choice we have.
William Winslade is a professor of medical ethics and jurisprudence at the University of Texas Medical Branch at Galveston and at the University of Houston Law Center.