Legal Answers vs. Practical Answers

BY ATTORNEY SUSAN I. JEAN August 16, 2019

When discussing medical decision-making, I often explain to clients that there are situations where the legal answer is not the way things actually work.  A classic example is end of life decision-making. 

Imagine that Hazel is 89 years old and is in a coma in the hospital.  She (very smartly) has signed an Advance Medical Directive outlining her end of life choices.  What now?  

First, a doctor (or a doctor and a capacity reviewer, more on that in another blog) needs to decide if Hazel is unable to make her own medical decisions.  As long as Hazel can make her own medical decisions, she does.  Nothing else in the Advance Directive matters.  Nothing else in the Medical Power of Attorney matters.  Virginia law says: 

“Incapable of making an informed decision” means the inability of an adult patient, because of mental illness, intellectual disability, or any other mental or physical disorder that precludes communication or impairs judgment, to make an informed decision about providing, continuing, withholding or withdrawing a specific health care treatment or course of treatment because he is unable to understand the nature, extent or probable consequences of the proposed health care decision, or to make a rational evaluation of the risks and benefits of alternatives to that decision.

If the doctors decide Hazel is unable to make her own medical decisions, the next question is whether Hazel is in a persistent vegetative state or terminal condition.  In Virginia, we normally define this as:

“Persistent vegetative state” means a condition caused by injury, disease or illness in which a patient has suffered a loss of consciousness, with no behavioral evidence of self-awareness or awareness of surroundings in a learned manner, other than reflex activity of muscles and nerves for low level conditioned response, and from which, to a reasonable degree of medical probability, there can be no recovery.

“Terminal condition” is a condition caused by injury, disease or illness from which, to a reasonable degree of medical probability a patient cannot recover and (i) the patient’s death is imminent or (ii) the patient is in a persistent vegetative state.

If Hazel is unable to make her own medical decisions and is in a persistent vegetative state or a terminal condition, the Advance Medical Directive tells the doctor what type of treatment Hazel wants.  So, in fact, this is Hazel telling the doctor what to do.  She just made the decision ahead of time. 

But that sounds like they won’t ask to the family????? 

That doesn’t sound right!

Here is where law and real life diverge.  In theory, if the doctor determines that Hazel cannot make her own decision, and that Hazel is in a persistent vegetative state, the Advance Medical Directive tells the doctor what to do.  He or she must follow the directive. 

However, that’s generally not what happens.  The doctor will talk to the person named to make Hazel’s medical decisions.  But the conversation is different.  For example:

“I believe that Hazel does not understand enough to make her own decisions, and that the Advance Directive indicates she would not want to continue life in this condition.  I believe that Hazel has said that it is time to turn off the machines that are keeping her alive, and just keep her comfortable.“

Then the doctor will likely turn to the medical agent to make the decision. 

Why? 

Doctors will tell you that medicine is an art as well as a science.  And as you can see, the doctor’s opinion (can she make her own decision?  Is she in a terminal condition?) matters.  And opinions can differ.  

So this is a classic situation where the law and the realities of the situation may differ.  What is important is for Hazel to put in writing what her wishes are, to discuss them with her family and her doctor, and then for her family to love and honor her and respect her right to make those decisions, regardless of how difficult it may be for them.