HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Sunday, April 23, 2006

Family Decision Making at the End of Life

For those of us who live outside New York, it's easy to forget that it is one of about a dozen states that do not allow family members to make end-of-life treatment decisions for patients who lack decision making capacity in the absence of a living will or medical proxy.  The most recent reminder is an editorial in today's New York Times in support of the Family Health Care Decisions Act, which in one version or another has been kicking around Albany since 1992.  A summary of A.5406 (and the identical S.5807) is here; the full text is here.

The current situation is pretty grim:

As things stand now, family members in New York have no legal authority to consent or object to medical treatment for an incapacitated adult in the absence of a signed health care proxy or other specific treatment instructions, such as a living will. A 1988 ruling by the state's highest court, the Court of Appeals, held that family members cannot make decisions about life-sustaining treatment.

Since only about 20 percent of New Yorkers have signed health care proxies or living wills, the Legislature's inaction perpetuates an untenable situation for health care providers and family members. In the vast majority of cases, families cannot even review the medical records of an incapacitated relative, much less withdraw life-sustaining treatment or have the patient transferred to a hospice.

With no family member legally authorized to speak for the patient, it is not uncommon for invasive and painful treatment to be prolonged unreasonably, while treatment that could make the final months more comfortable is denied.

Of course, having a family-friendly law is no guarantee that things will turn out well for the patient or the family (cf. the Schiavo-Schindler debacle), but for every bad case there are literally thousands of cases every week in which families are allowed to speak for their loved ones to ensure that they receive the end-of-life care they would have wanted.  [tm]

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