A Critique of Advance Directives and Advance Directives Legislation

• Author: Emily Clough
• Pages: 16-39

16 APPEAL  VOLUME 11  2006

A CRITIQUE OF ADVANCE

DIRECTIVES AND ADVANCE

DIRECTIVES LEGISLATION

Emily Clough

The goal [of an advance directive] is to have open, serious, and

intensive conversation between seriously ill people and their families,

friends and physicians about the prospects of death and the way

that everyone expects to behave as death comes closer. The

underlying protection here is not in the specifics or what is said, but

in the fact that people are talking.

1

I. Preface

When I began this paper, I intended to write about the benefits of

instructional directives. I believed that instructional directives could

help stop the imposition of unwanted life support on patients who

would prefer to die. Perhaps instructional directives could also help

avoid family conflicts like the battle that happened over the death of

Terry Schiavo.

2

I had even counselled people on the value of

instructional directives while teaching a course on chronic disease

1

R.A. Burt, D eath Is That Man Taking Names: Intersections of American

Medicine, Law, and Culture (Berkeley, CA: University of California Press,

2002) at 171.

2

For more discussion about the Schiavo case, see infra note 94.

APPEAL  VOLUME 11  2006 17

management.

3

Without a doubt, I was a supporter of instructional

directives.

So when I found some medical research that noted problems with

instructional directives, I was skeptical. However, the evidence soon

became overwhelming. There were numerous medical studies, all

from credible journals, noting major practical problems in the actual

use of instructional directives in health care settings. Several legal

scholars also pointed out theoretical problems with the concept of

autonomy and the ability to pre-determine good health care decisions.

It quickly became clea r to me that instructional directives were not all

that I had thought them to be.

Advance directives affect the lives of dying patients and health care

practitioners on a daily basis. Although the move towards greater

patient autonomy may be worthy in theory, it appears to be falling

short in the practice of instructional directives. There is room for

more discussion and thought on this subject, in particular regarding

better ways to help people make good health care decisions based on

their personal values and wishes.

II. Introduction

An advance directive is a planning tool that is intended to give

patients the ability to make life and death choices based on their

personal values, goals and life plan. Advance directives can contain

two parts: an instructional directive (or “living will”) and a proxy

directive. Both directives come into force when a patient loses the

ability to make his or her own decisions (or is deemed m entally

incompetent). An instructional directive allows a patient to decide

ahead of time what medical treatments she does and does not want to

receive in the future.

4

A proxy directive allows a patient to select

3

The six-week course is entitled “Chronic Disease Self-Management

Program.” In BC, it is coordinated by the Centre on Aging at the

University of Victoria. Online: The Centre on Aging

/www.coag.uvic.ca/cdsmp>.

4

There is some uncer tainty as to whether an instructional directive can be

used only to refuse treatment or whether it can also be used to positively

demand treatment. For example, the rejection of resuscitation is a

common use of an instructional directive, a do-not-resuscitate (DNR)