Hostname: page-component-84b7d79bbc-l82ql Total loading time: 0 Render date: 2024-07-27T11:28:14.423Z Has data issue: false hasContentIssue false
  • English
  • Français

The Living Will from the Nurse's Perspective

Published online by Cambridge University Press:  27 April 2021

Sarah D. Cohn
Get access Rights & Permissions [Opens in a new window]

Extract

A living will is a directive from a competent, seriously ill individual to medical personnel and family members regarding the treatment he wishes to receive when he becomes incompetent to make decisions for himself. It is important to remember that a living will is not necessary when an adult is competent and chooses to refuse treatment since it is clear that generally, an adult, whether critically ill or not, may refuse any treatment for any reason. A living will is applicable only when a previously competent patient is seriously ill and incompetent.

Recent concern about new medical technologies which can prolong the dying process without improving the quality of life has sparked interest in rhe living will. More than five million copies of sample living wills have been distributed throughout the country, often by churches and senior citizens groups. State governments have also responded to this interest; the first Natural Death Act was signed into law in California in 1976. Since then, thirteen states and the District of Columbia have passed similar legislation, sometimes referred to as right-to-die statutes (see table accompanying this column).

Type
NLE Rounds
Information
Law, Medicine and Healthcare , Volume 11 , Issue 3 , June 1983 , pp. 121 - 136
Copyright
Copyright © American Society of Law, Medicine and Ethics 1983

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Eisendrath, S.J. Jonsen, A., The Living Will: Help or Hindrance? Journal of the American Medical Association 249: 2054 (April 15, 1983).Google ScholarPubMed
Cal. Health & Safety Code §7185–7195 (West 1982).Google Scholar
These states were: Alaska, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and West Virginia. See Society for the Right to Die, News Release: Recent Developments in Natural Death Legislation and Other Significant Right to Die Gains (undated).Google Scholar
See, e.g. In re Storar, , 438 N.Y.S.2d 266 (N.Y. 1981).Google Scholar
See Comparison of Right to Die Laws, in Legal & Ethical Aspects of Treating Critically & Terminally Ill Patients (Doudera, A. E. Peters, J. D., eds.) (AUPHA Press, Ann Arbor, Mich.) (1982) at 306–09 app.; Society for the Right to Die, 1983 Handbook (Society for the Right to Die, New York) (forthcoming 1983).Google Scholar
D.C. Code Ann. §6–2422(a) (1982).Google Scholar
Id. In addition, some states require that the document be notarized. See, e.g., Idaho Code §39–4504 (1982). Others require that the document be executed with the same formalities as a testamentary will. See, e.g., Ark. Stat. Ann. §82–3802 (1981). A state may permit another person to sign for the patient in his presence and at his express direction. Kans. Stat. Ann. §65–28.103(a) (1980).Google Scholar
D.C. Code Ann. §6–2422(4) (1982). Some statutes have fewer requirements. Vermont, for example, requires that the witness not be an heir, spouse, attending physician, or person acting under the direction or control of the attending physician, or creditor of the estate. Vt. Stat. Ann. tit. 18, §5254 (1982).Google Scholar
Del. Code Ann. tit. 16, §2503 (1982).Google Scholar
See, e.g., Tex. Rev. Civ. Stat. Ann. art. 2590h §3 (Vernon 1982).Google Scholar
See, e.g., D.C. Code Ann. §6–2422(c) (1982). A person may, for example, refuse organ transplantation, surgery, antibiotics, or intravenous feeding. J. Robertson, the Rights of the Critically Ill (Ballinger Books, Cambridge, Mass.) (1983) at 105 [hereinafter referred to as Critically Ill].Google Scholar
See Critically Ill, supra note 11, at 168 (providing sample living wills from California, Concern for Dying, and the Society for the Right to Die).Google Scholar
See, e.g., Kan. Stat. Ann. §65–28,101 — 28,109 (1980).Google Scholar
See, e.g., Idaho Code §39–4506 (1982); Del. Code Ann. tit. 16, §2506(c) (1982) (requiring re-execution every ten years); Or. Rev. Stat. §97.055(6) (1982) (requiring re-execution every five years; when declarant is comatose or unable to communicate with attending physician, however, directives shall remain in effect for duration of condition).Google Scholar
A Living Will, in Terminally Ill Patients, supra note 5, at 315 app.Google Scholar
Idaho Code §39–4505(1) (1981).Google Scholar
N.C. Gen. Stat. §90–321(e) (1981).Google Scholar
See, e.g., Ala. Code §2208A-8 (1982).Google Scholar
D.C. Code Ann. §6–2421(5) (1982).Google Scholar
D.C. Code Ann. §6–2421(3) (1982). Not every state uses these terms or requires the same procedures. For example, North Carolina requires that the attending physician determine that the declarant's present condition is terminal and incurable; this determination must be confirmed by another physician. N.C. Gen. Stat. §90–321(b) (1981).Google Scholar
See, e.g., D.C. Code Ann. §6–2421(3) (1982).Google Scholar
See, e.g., Del. Code Ann. tit. 16, §2503(d) (1982).Google Scholar
See Critically Ill, supra note 11, at 168 (living will from Concern for Dying, Inc.)Google Scholar
See, e.g., Nev. Rev. Stat. §449.640 (1979).Google Scholar
See, e.g., N.M. Stat. Ann. §24-7-1 (1981).Google Scholar
Critically Ill, supra note 11, at 104.Google Scholar
See, e.g., D.C. Code Ann. §6–2427(b) (1982).Google Scholar
See, e.g., Wash. Rev. Code Ann. §70.122.050 (1981).Google Scholar
Critically Ill, supra note 11, at 99.Google Scholar
Annas, G. J. Glantz, L. Katz, B., The Rights of Doctors, Nurses, and Allied Health Professionals (Ballinger Books, Cambridge, Mass.) (1981) at 221.Google Scholar
438 N.Y.S.2d 266 (N.Y. 1981).Google Scholar
In re Quinlan, 355 A.2d 647 (N.J. Super. 1976).Google Scholar
Eichner, supra note 31, at 274, quoting Addington v. Texas, 441 U.S. 418, 427 (1979) and Backer Mgt. Corp. v. Acme Quilting Co., 413 N.Y.S.2d 135 (N.Y. 1978).Google Scholar
For the view that Eichner and its accompanying case, In re Storar, can be applied only to patients who have been adjudicated incompetent, see Dunn, L.J., The Eichner/Storar Decision: A Year's Perspective, Law, Medicine & Health Care 10(3): 117 (June 1982).Google Scholar
Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Working paper 28) (1982) at 69. It is partly this notion that led the Law Reform Commission to explicitly reject the adoption of living will legislation. It should be noted that the Commission is now receiving public comment on its working paper and then plans to submit its revised final views to the Ministry of Justice and to Parliament.Google Scholar
Id. at 70–71.Google Scholar
See Eisendrath, & Jonsen, , supra note 1, at 2055.Google Scholar
Id. at 2056.Google Scholar
Id.Google Scholar
See, e.g., Kans. Stat. Ann. §63–28.103(a) (1980).Google Scholar
See, e.g., D.C. Code Ann. §6–2423 (1982).Google Scholar
See, e.g., Idaho Code §39–4505(1) (1981).Google Scholar
See, e.g., D.C. Code Ann. §6–2422(b) (1982).Google Scholar
Critically Ill, supra note 11, at 99.Google Scholar
Greenlaw, J.L., Orders Not to Resuscitate: Dilemma for Acute Care as Well as Long Term Care Facilities, Law, Medicine & Health Care 10(1): 29 (February 1982).Google Scholar