Directive to Physicians

Directive made this_____day of_______(month, year). I_______, being of sound mind, willfully and voluntarily make known my desire that my life shall not be artifically prolonged under the circumstances set forth below and do hereby declare:

1. If at any time I should have an incurable condition caused by injury, disease, or illness certified to be a terminal condition by two physicians, and where the application of life-sustaining procedures would serve only to artifically prolong the moment of my death and where my attending physician determines that my death is imminent whether or not life-sustaining procedures are utilized, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally.

The Texas statute specifically exempts the "administration of medicine or the performance of any medical procedure deemed necessary to alleviate pain." This is a critical provision in any type of living will and should be expressly stated in jurisdictions that do not living will and should be expressly stated in jurisdictions that do not establish it by statute.

The two physicians cited are the attending physician and a physician of the patient's choice. These physicians must personally examine the patient and certify, in the medical record, that the patient's disease is incurable. The statutory definition of incurable is very sketchy (treatment would only "prolong the moment of my death"), leaving the patient's physicians wide discretion in the definition of an "incurable" illness.

2. In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this directive shall be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal.

This section addresses the problem of the patient who becomes incompetent before death. The directive gives the physicians clear authority to carry out the patient's wishes, even in the face of opposition by the patient's family. Since the family has no legal standing to decide the patient's care, this section only reiterates the existing law. It would also be expected that a court would refuse to rule against the directive if relatives asked it to intervene.

3. If I have been diagnosed as pregnant and that diagnosis is known to my physician, this directive shall have no force or effect during the course of my pregnancy.

This section is intended to avoid the complex legal problem of indirectly terminating a pregnancy. Clearly, under existing law, a woman could obtain an abortion (before the third trimester) and avoid the effect of this section.

4. I have been diagnosed and notified as having a terminal condition by ___________________,M.D., whose address is ______________, and whose telephone number is ___________, I understand that if I have not filled in the physician's name and address, it shall be presumed that I did not have a terminal condition when I made out this directive.

This section merely serves to document the diagnosis of a terminal condition. If the patient is not suffering from a terminal condition at the time the directive is entered into, this information can be added, with a proper notation of the date and the person who made the addition.

5. This directive shall be in effect until it is revoked.

6. I understand the full import of this directive and I am emotionally and mentally competent to make this directive.

7. I understand that I may revoke this directive at any time.

Signed____________________

While the revocation may be oral if the patient is unable to write, the revocation should, if possible, be written and witnessed. If the revocation is oral, it should be reduced to writing and witnessed even if the patient is unable to sign it. The written memorandum of revocation should be attached to the directive, and the directive itself should be voided by writing VOID on each page of the directive.

City, County, and State of Residence____________________.

The declarant has been personally known to me and I believe him or her to be of sound mind. I am not related to the declarant by blood or marriage, nor would I be entitled to any portion of the declarant's estate on his decease, nor am I the attending physician of declarant or an employee of the attending physician or a health facility in which declarant is a patient, or a patient in the health care facility in which the declarant is a patient, or any person who has a claim against any portion of the estate of the declarant upon his decease.

Witness_________________________

Witness_________________________

This section seeks to establish that the witness did not have any personal stake in hastening the patient's death and that the witnesses are not in any way involved in the patient's treatment. This section is important if the directive is challenged in court. By explicitly ruling out any persons who might profit by the patient's death, the directive allows the judge to assume that the witnesses were impartial without the necessity of producing them in court.

State of Texas

County of ___________

Before me, the undersigned authority, on this day personally appeared _____________, and _____________, known to me to be the declarant and witnesses whose names are subscribed to the foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the declarant, __________ declared to me and to the said witnesses in my presence that said instrument is his Directive to Physicians, and that he had willingly and voluntarily made and executed it as his free act and deed for the purposes therein expressed.

Declarant___________________

Witness_____________________

Witness_____________________

Subscribed and acknowledged before me by the said Declarant, ______________, and by the said witnesses, ________________and ______________, on this ____ day of ________, 19___.

______________________________

Notary Public in and for ____

________________County, Texas

This notary endorsement ensures that the signatures of all parties are valid and, coupled with the previous section, allows a judge to assume that the "directive" is valid on its face. This obviates most of the potential legal reasons for attacking the directive and strengthens its legal effect.

The patient may specify certain therapies that are to be allowed or may authorize the health care providers to use their judgment in providing needed care. A demand for care by the patient that occurs after the patient becomes incompetent is very difficult to deal with. There can be great pressure by the family and even by members of the health care provider team to render care. As a practical matter, in the situation where the incompetent patient requests care, the legal liability is very limited for rendering care against the original refusal. The persons requesting that care be rendered will be estopped from later questioning the rendering of care. If the patient were miraculously to survive because of the care that was rendered, the courts would be loath to hold the health care provider liable in damages for saving the patient's life.

Problems

There are two legal problems the hospital may face with respect to ignoring living wills. First, any person who strongly believes that the patient's refusal of care should be honored could request a judicial determination of competency to revoke the living will. If the court upheld the living will, the providers could be liable for extending the patient's ordeal.

The second problem associated with not honoring the living will is the difficulty of collecting bills for the care. The executor of the patient's estate may refuse to pay (or to authorize third parties to pay) for any care that was rendered against the patient's written wishes. Unless the persons urging the rendering of care are willing to ensure payment of the ensuing bills, the health care provider may find the bills uncollectable.

Another problem with living wills is the difficulty of honoring the patient's wishes even when the patient does not request care after becoming incompetent. There may be pressure from family and friends to continue treating the patient, even though these persons have no legal right to interfere with the patient's decision to refuse care. There may also be pressure to include the patient on research protocols or to use the patient for teaching material. These requests must be denied. The essence of a living will is the right to die with dignity. If the patient's wishes were ignored in order to further a research project, a relative who wanted the patient's wishes observed could embroil the health care providers in an unpleasant court battle. Health care providers must be extremely sensitive to the public's distaste for unauthorized medical research. Unauthorized care that would be tolerated for therapeutic services would well be unacceptable if done for research reasons.