Define and distinguish between the 4 types of Euthanasia and Physician Assisted Suicide (Case Assignment, Session Long Project)
Discuss the link and implication of the Patient Self Determination Act relative to Euthanasia and Physician Assisted Suicide (Case Assignment)
Describe the current state of the law regarding Euthanasia and Physician Assisted Suicide (Session Long Project)
The Patient Self-Determination Act of 1991, a federal law, protects the rights of individuals to make decisions regarding their own health care. The act provides that each individual has a right to make decisions concerning his/her medical care, including the right to accept or refuse medical or surgical treatment. This begs the question How does a patient make decisions concerning medical care and treatment? This is where informed consent comes in…
Click here for a PowerPoint presentation on Informed Consent.
Defenses and Failure to Inform
Remember that the burden of proving the lack of informed consent is on the plaintiff. Several defenses are available to healthcare providers sued for lack of informed consent. For example, New York provides the following defenses:
The risk not disclosed is too commonly known to warrant disclosure
The patient assured the provider that he did not want to be informed of the risks or consequences of the procedure
Consent by or on behalf of a patient was not reasonably possible
The provider, after considering all factors, decided that informing the patient of the risks and consequences of the procedure would adversely affect the patients condition
It has been estimated that of the 2 million Americans who die every year, approximately 80% die in hospitals or nursing homes, and 70% of those die after a decision to forego life sustaining treatment.”
Cruzan v. Director of the Mo. Dept. of Health (1990) 497 U.S. 261, 110 S.Ct.2841.
Advances in medical technology have given us the power to prolong life. With this extension of life, many issues have surfaced raising legal concerns. Euthanasia or Mercy killing and assisted suicide remain hot topics for debate.
Traditionally, death has been defined as the Cessation of respiration, heartbeat, and certain indications of central nervous system activity such as respiration and pulsation. Blacks Law Dictionary.
With technological advances allowing us to maintain the respiration and circulation of a patient, it was necessary to rethink the definition of death. In 1974, the American Medical Association recognized that death occurs when there is Irreversible cessation of all brain function including the brain stem. This is known as Brain death.”
The significance of the definition of death is that it impacts the respective roles of the physician, patient and family as it relates to decision-making.
The following should help you remember the distinction between the four categories of euthanasia:
Active Voluntary One other than the patient brings about the death of the patient, with the patients consent. Example Overdose of morphine injected by a nurse after consent by the patient.
Active Involuntary One other than the patient brings about the death of the patient, without the patients consent. Example Overdose of morphine injected by a nurse while the patient is in a coma.
Passive Voluntary Death is brought on by withholding/ withdrawing life sustaining treatment with the patients consent. Example Discontinuing respirator after patient specified request either verbally or in writing.
Passive Involuntary Death is brought on by withholding/ withdrawing life sustaining treatment. Consent for the act comes from one other than the patient. Example Discontinuing respirator upon request by family members, or pursuant to court order.
Active Euthanasia, whether voluntary or involuntary is illegal in the United States. Dr. Kevorkian was prosecuted and convicted because he effectively committed an act of Active Euthanasia. Passive Euthanasia on the other hand is legal and has been practiced for years.
Physician Assisted Suicide (PAS)
Take a look at a site on Assisted Suicide.
Decision Making Devices
In recognition of a patients right to self-determination concerning medical care and treatment, every state permits some form of decision making in the event the individual is incapacitated or otherwise unable to make decisions.
In general, Advance Directives are written instructions expressing an individuals health care wishes in the event that he or she becomes incapacitated and unable to make decisions. Click to see a sample directive.
A living will is a document in which an individual expresses his/her wishes regarding the application of life-support or other life-sustaining treatment in the event that he/she is unable to do so in the future. In other words, an individual can describe the treatments that he/she does not wish to receive, in advance. Forty-one states have statutes allowing a patient to state his/her wishes in advance. Click to see a sample form.
The Durable Power of Attorney, as recognized in every state including the District of Columbia (called Durable Power of Attorney for Health Care in California), is a legal device that permits a person (called the Principal”) to give another person (called Attorney-in-fact”) authority to act on his/her behalf. While the person holding the power of attorney has authority to handle a wide range of legal matters, the Durable Power of Attorney for Health Care limits the authority to matters concerning the health and medical treatment of the principal.
Click to learn more about power of attorney in general.
A Health Care Proxy, recognized in thirteen states, allows a person to appoint an Agentto make treatment decisions in the event the individual becomes incapacitated and unable to make decisions. Click to learn more about healthcare proxy.
Of course, in the absence of an appointed agent or dispute among family members, a court of proper jurisdiction may appoint a guardian to make decisions on behalf of the incapacitated patient. Guardianship or Conservatorship is a legal mechanism by which a court declares a person incompetent and appoints a guardian.
Module 5 Background
Consent/End of Life
Required Readings
Benak, L. D. and Applegate, S. (2006). Informed Consent and Issues Surrounding Lack of Capacity vs. Incompetence. Journal of Forensic Nursing 2 (1), pg. 48. Retrieved on May 22, 2008 from Proquest.
Ferguson, P. (1997, December). Causing death or allowing to die? Developments in the law. Journal of Medical Ethics 23 (6), 368. Retrieved on May 22, 2008 from Proquest.
Salladay, S. A. (2000, August). Grandmothers plea. Nursing 30 (8), 66. Retrieved on May 22, 2008 from Proquest.
Websites
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