California Health Care Decisions

California Health Care Decisions Law and the Right to Die

With the media attention that the Terri Schiavo case received, most individuals who we meet with are asking how they can avoid being in the same predicament. The simple answer is that if a client’s wishes are adequately addressed in a valid Advanced Health Care Directive they will never face that kind of predicament.

If a client does not want to be kept alive with life sustaining treatment, and artificial nutrition and hydration, the client should provide clear instructions to his or her agent in his or her Advanced Heath Care Directive.

The California Heath Care Decisions law recognizes the right of an adult person to instruct a physician to withhold or withdraw life sustaining treatment because adults have a fundamental right to control decisions relating to the rendering of their own medical care, including the decision to have life-sustaining treatments withheld or withdrawn. The act specifically recognizes that medical technology has made the prolongation of life beyond natural limits possible, and that individual autonomy must be protected. Personal autonomy must be weighed against the duty of the state to preserve life. The duty of the state to preserve life must also encompass a recognition of an individual’s right to avoid efforts to sustain life which may demean or degrade humanity.

In an Advance Health Care Directive, the client can provide instructions as to what condition he or she would not want to continue receiving life-sustaining treatment. Most commonly, our clients instruct that they would want life-sustaining treatment withdrawn or withheld if he or she is diagnosed with a “brain dead” irreversible coma. In addition, most of our clients instruct that they would want artificial nutrition and hydration withdrawn simultaneously. The distinction is important because doctors may disagree as to whether artificial nutrition and hydration constitutes life-sustaining treatment, rather than basic care. In addition, a person may direct in their Advance Health Care Directive that life-sustaining treatment be withheld or withdrawn even in the absence of terminal illness, permanent coma, or persistent vegetative state. These issues should be carefully discussed with a physician and an attorney.

California Heath Care Decisions law prohibits an agent from permitting any affirmative or deliberate act or omission to end a principal’s life. The exception to that rule is that the agent may withhold or withdraw health care pursuant to the principal’s specific written instructions or as instructed to permit the natural process of dying. The Advance Health Care Directive may give the agent authority to direct the withholding or withdrawal of artificial nutrition and hydration, and all other forms of health care services. Case law also supports the right to give another the authority to refuse medical treatment or request the withdrawal of it. The rationale is to protect an individual’s fundamental right to control decisions relating to his or her own medical decisions, including the decision to have medical treatment withheld or withdrawn.

It is imperative that client’s who do not want to receive life-sustaining treatment make that known by written instructions, or else, a Terri Schiavo case can result. In that case, Terri’s husband and Terri’s parents could not agree on what decision Terri would make if she were able to assess her own condition and make her own decision. Terri’s husband and parents also could not agree on what her condition was, although court appointed doctors had consistently found that she was in a persistent vegetative state.

In 1990, at age 27, Terri suffered a cardiac arrest as a result of a potassium imbalance allegedly due to bulimia. She never regained consciousness. As early as 1996, the CAT scans of Terri’s brain showed a severely abnormal structure, with much of her cerebral cortex being replaced by spinal fluid due to oxygen deprivation of the brain.

In short, Terri was beyond the help of medicine and nothing short of an act of God, or a true miracle, could have brought Terri back. She would have always remained in an unconscious, reflexive state, totally dependent on others to feed her and care for her most private needs.

Even with such a dire diagnosis, Terri’s parents engaged in a continuous legal battle to preserve their daughter’s life by objecting to the removal of her feeding tube. This is a case in which the Florida Legislature, Governor,the U.S. Congress, and the President all got involved. The stakes are high with this emotional issue which is why it is so important to have your wishes documented in an Advanced Health Care Directive.

Terri’s husband was left with the daunting task of proving by “clear and convincing evidence” that Terri would not have wanted to be kept alive artificially in that condition. Terri’s husband presented evidence that Terri stated to him and others, after seeing a movie, “no tubes for me.” The court weighed that evidence as well as evidence about Terri and her beliefs and consistently found that she would not have wanted to live that way. Of course, Terri’s husband would not have been in this position had Terri put her wishes in writing as we are recommending here.

In the absence of an Advanced Health Care Directive, the State of California requires that a conservator be appointed by the court to make medical decisions on behalf of a conservatee who has been declared to lack the capacity to give informed consent for medical treatment.

The conservator has exclusive authority to make decisions on the conservator’s behalf, in good faith based upon medical advice and the conservatee’s best interest. The conservator must take into account the conservatee’s personal values to the extent known to the conservator. A conservator can authorize the removal of a nasogastric (feeding) tube from a conservatee who is in a persistent vegetattive state, if the decision is made in good faith and is based on medical advice which includes a prognosis that there is no reasonable possibility to return to a normal, cognitive and sapient life. This stems from the fact that a person has the fundamental right to determine the scope of his or her medical treatment, including the right to refuse treatment, and that right survives incompetence so that each patient retains the right to have the appropriate decisions made on their behalf. In contrast to following written directions in an Advanced Health Care Directive, the decisions made by a conservator derive authority from the power of the state to protect incompetant persons.

On the other hand, under California case law, a conservator may not withhold artificial hydration and nutrition from a conscious, severely impaired conservatee who was not terminally ill, comatose, or in a persistent vegetative states, and who had not left formal instructions for health care or appointed an agent or surrogate for health care decision, absent clear and convincing evidence that the conservator’s decision is in accordance with the conservatee’s own wishes or his or her best interest.

If there is an objection and a legal battle ensues, it will have to be shown to the court by “clear and convincing evidence” that the conservatee would have wanted life-sustaining treatment withdrawn or that it would be in the conservatee’s best interest. The “clear and convincing evidence” test requires a finding of high probability, based upon evidence so clear as to leave no substantial doubt and sufficiently strong as to command the unhesitating assent of every reasonable mind.

As the polls suggested, the great majority of individuals in Terri Schiavo’s position would not want to be kept alive. With that in mind, and drawing from the Schiavo case, if a client does not wish to be kept alive by artificially administered means and wants to avoid a protracted legal battle, it is important that their Advance Health Care Directive include the client’s wishes as directives of authority to the agent. This will help to have the client’s individual wishes and desires known and followed, without the necessity of court involvement, and save the family from the trauma of denying care and treatment on their own volition, instead they will be in the easier position of following clearly written instructions rather than denying care and treatment on their own volition.

Please feel free to contact this office regarding an Advance Health Care Directive or to update an existing one.

4180 Truxel Road, Suite 100 Sacramento, CA 95834 • Tel. 916-419-2100 • FAX 916-419-1222

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8.3Mark Steven Drobny