Advance Medical Directives (cont.)
History of Advance Directives
Advance directives began to be developed in the United States in
the late 1960's.
The First Living Wills: In 1967, an attorney named Luis
Kutner suggested the first living will. Kutner's goal was to
facilitate "the rights of dying people to control decisions about
their own medical care."
In 1968, the first living will legislation was presented to a
state legislature. Walter F. Sackett, a doctor elected to the
Florida legislature, introduced a bill that would allow patients to
make decisions regarding the future use of life-sustaining
equipment. The bill failed to pass in 1968. Sackett reintroduced
the bill in 1973 and it was again defeated.
While Dr. Sackett was introducing living will legislation in
Florida, Barry Keene was presenting similar bills in the California
legislature. Keene's interest in living wills was based on personal
experience. In 1972, Keene's mother-in-law was unable to limit
medical treatment for a terminal illness even after having signed a
power of attorney. Keene was elected to the California State senate
in 1974. The living will legislation he designed was defeated that
same year. Keene reintroduced the bill in 1976 and in September of
that year California became the first state in the nation to legally
sanction living wills.
The States: Within a year, forty-three states had
considered living will legislation and seven states had passed bills.
Advance directive legislation has subsequently progressed on a state-
by-state basis. By 1992, all fifty states, as well as the District
of Columbia, had passed legislation to legalize some form of advance
directive.
The first court decision to validate advance directives was at the
state level. The decision was handed down by the New Jersey Supreme
Court in 1976. In Case 70 N.J. 10, 355 A 2nd 647, Chief Justice
Robert Hughes upheld the following judicial principles:
- If patients are mentally unable to make treatment
decisions, someone else may exercise their right for them.
- Decisions that can lead to the death of a mentally
incompetent patient are better made not by courts but by families, with the
input of their doctors.
- Decisions about end-of-life care should take into
consideration both the invasiveness of the treatment involved and the
patient's likelihood of recovery.
- Patients have the right to refuse treatment even if this refusal
might lead to death.
The case in which Judge Hughes ruled was the request by Joe
Quinlan to make legally binding health care decisions for his
daughter, Karen Ann Quinlan. As a result of the case, Karen Ann
Quinlan was gradually weaned from mechanical ventilation.
The Federal Government: The U.S. federal government has
evidenced its interest in advance directives through two of its
bodies, the Congress and the Supreme Court.
The U.S. House of Representatives in 1991 enacted the Patient Self-
Determination Act. The Act stipulates that all hospitals receiving
Medicaid or Medicare reimbursement must ascertain whether patients
have or wish to have advance directives. The Patient Self-
Determination Act does not create or legalize advance directives;
rather it validates their existence in each of the states.
It was not until 1990 that the United States Supreme Court agreed
to hear a case on the legality of advance directives. The Supreme
Court had been reticent to hear cases on advance directives,
reflecting to some degree the belief that advance directives are
determined at the state rather than federal level. In 1990, the
Court heard Cruzan vs Director. The case, similar to that of Karen
Ann Quinlan, involved the desire to discontinue the percutaneous
gastrostomy feedings of Nancy Cruzan. The United States Supreme
Court decided in favor of the individual right to refuse treatment,
even life-sustaining treatment. The Supreme Court refused to hand
down a specific decision on medical treatment in the case. Following
the opinion of the Supreme Court, the case was referred back to the
Missouri Supreme Court. The Missouri Supreme Court heard testimony
of a verbal advance directive that was deemed to be sufficient
evidence to support the refusal of medical treatment.
The landmark Quinlan and Cruzan cases emerged out of similar
situations and similar needs. Both cases dealt with the medical care
of young, physically strong people in a persistent vegetative state.
While similar in these regards, the two judicial decisions dealt with
different types of advance directives. The case of Karen Ann Quinlan
dealt with the ability of the individual to appoint a health care
proxy. The case of Nancy Cruzan addressed the right of a healthy
individual to establish a binding living will.
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