Healthcare Power of Attorney
Definition of Term and Background/Historical Context
Healthcare power of attorney is the practice through which an individual can delegate responsibility for his or her healthcare decisions, particularly in preparation of possible future incapacitation (Martyn 780). The ability of an individual to designate a healthcare power of attorney came about in 1979 in the form of the Uniform Durable Power of Attorney Act (Martyn 787). Before legislation allowing delegation of healthcare decisions, physicians would often have to make sensitive decisions about end-of-life care for debilitated patients, or struggle with decisions of what family member should be allowed to make an individual’s healthcare decisions. Physicians making healthcare decisions for patients could be problematic when physicians’ decisions inevitably strayed from the wishes of even some members of the patient’s family. Prior to the Uniform Durable Power of Attorney Act, a common practice for communicating end-of-life desires was a living will, which “written by a legally competent adult, constitutes an affirmative directive to medical personnel to withhold artificial life-support systems in certain instances” with the goal to reaffirm the right to “die peacefully and as painlessly as possible, without futile prolongation of life” (Martyn 786).
Today, living wills are still a relatively common practice, as roughly 18 percent of the population have living wills (Emanuel). Living wills created many issues within end-of-life care, however, as “Neither physicians nor philosophers agree on what constitutes an ‘extraordinary’ or ‘useless’ treatment, or an ‘invasive technique [was]’” (Martyn 783). If a patient declared they did not want extraordinary measures taken, no one could be quite sure what they meant. A patient’s family member may have a different definition of “invasive technique” than a patient’s physician, which could lead to a physician performing a procedure which a family member finds entirely too invasive. As a result of such moral and legal ambiguity, fearing liability, physicians often hesitate to follow even the most specifically-expressed wishes of a patient (Martyn 784).
A key case that inspired end-of-life legislation was that of Karen Ann Quinlan (Martyn 788). In 1975, 22-year old Karen Ann Quinlan fell into a coma with no signs of brain activity – her parents requested that her life support be withdrawn but doctors refused to remove her life support in fear of violating the Hippocratic Oath (Rothman 222-224). Karen Quinlan’s parents filed a lawsuit to allow her life support to be removed so that her respirator would no longer cause her pain and eventually won, leading to today’s end-of-life legislation (Rothman 225). The Quinlan case led first to the 1976 California Natural Death Act, which was the “first [U.S.] statute to recognize the legitimacy of private medical directives” before eventually giving way to the 1979 Durable Power of Attorney Act (Martyn 788).
Before the late 1900’s, end-of-life directives were not a major concern. In 1900, “pneumonia, gastritis, and tuberculosis were the leading causes of death… all attack[ing] their victims relatively early in life” (Martyn 780). With unexpected, early deaths from such diseases, people didn’t have time to think about their end of life care and did not need to due to the suddenness of such deaths; there weren’t many long drawn-out deaths. However, “by 1980, heart disease, cancer, and cardiovascular disease had become the primary threats to life” (Martyn 780). Due to heart disease, cancer, and cardiovascular disease attacking victims in older age and resulting in often years of suffering, issues of legislation were raised. As Martyn said of these post 1980’s deaths, “Frequently, the dying patient’s last glimpse of life is a blur of sterile white nurses’ and physicians’ garb, beset by reflections from I.V. containers amid the tubes that artificially connect the patient to a world of which he is no longer a part” (Martyn 780). Understandably, both patients and their families, like in Ann Quinlan’s case, sought better healthcare solutions to better life endings. Now, because of the Durable Power of Attorney Act, people can designate a family member or friend to make their healthcare decisions should they become incapacitated, including whether or not to withdraw life support.
Pictured: Karen Ann Quinlan’s parents speaking to media following the litigation regarding removing their daughter in a persistent vegetative state from her respirator, 1976. Source: Madison.com
Controversy/Perspectives
While the practice of asking a person to make one’s end-of-life decisions may seem simple and straightforward, it has proved not to be. A survey of senior center participants published in the Archives of Internal Medicine showed that both physicians and spouses inaccurately predicted patients’ resuscitation preferences – “spouses significantly overestimated patients’ preferences in three of six illness scenarios” (Roe 289). In a scholarly criticism of healthcare power of attorney published in the bioethical journal the Hastings Center Report, two bioethicists argued “family members or the surrogate designated in a [durable power of attorney] were not available, were ineffectual, or were overwhelmed with their own concerns and did not effectively advocate for the patient” (Fagerlin).
Another issue with healthcare power of attorney is that many elderly people have specific wishes for the end of their lives but few have discussed them with either their physician or their family members: the same aforementioned study found that although 98% of a population of patients wanted limitations on life support, only 36% of the study’s 59 participants had executed a durable healthcare power of attorney (Roe 289, 294). This discrepancy between desires and follow-through is so great that according to another researcher, “Autonomous decision-making for the nursing home resident is more often a topic of discussion among professionals than a realistic event” (Cohen-Mansfield et al 289). According to the Kaiser Family Foundation, a non-profit organization that analyzes healthcare policy, most adults support a practice of requiring doctors to discuss end-of-life care with their patients. Some patients do not want to employ a power of attorney and prefer to leave their end-of-life decisions to doctors for reasons such as being unable to choose a proxy (Kaiser Family Foundation).
Even when healthcare power of attorney is implemented per the patient’s directive, there can be issues with application. In the court case Barber vs. Superior Court, physicians were charged with murder for withdrawing life support of a comatose patient at the request of the patient’s family (Areen 233). Due to such events, a terminal patient, even after properly putting into place a plan of action, has no assurance that his or her wishes will be honored (Martyn 783). Legal interpretation of the Uniform Durable Power of Attorney Act has been varied which results in non-uniform implementation of advanced directives. Implementation of advanced directives depends specifically upon the type of treatment attempting to be withheld, a study of 444 full-time university hospital faculty presented with patient scenarios showed that even with patient-physician discussion and proper designation of a patient healthcare decision-making proxy, the proportion of physicians who were willing to withhold therapies was variable: for cardiopulmonary resuscitation 100% of physicians were willing to withhold therapy, for administration of artificial nutrition and hydration, 82%, for administration of antibiotics, 80%, and for administration of pain medication, 13% of physicians were willing to withhold treatment (Mower 375).
As per the tables above, reasons for patient use of durable power of attorney for healthcare include desire for their end-of-life wishes to be known and not wanting to be put on machines, and reasons for not executing a durable power of attorney for health care include difficulty selecting a proxy and the belief that one’s family should make decisions. Source: Kaiser Family Foundation
Relation to Politics of Health
Healthcare power of attorney related to politics of health because it involves patients taking charge of their ability to live and die. Using Michel Foucault’s concept of biopower as control over one’s body, healthcare power of attorney is one method in which individuals can increase their biopower in that they are regaining control over their bodies by letting a chosen proxy determine whether they live or die and how they will be treated instead of a medical institution. (Taylor 13-14) In designating a healthcare power of attorney, individuals can take back the decision-making power over their bodies from external institutions. Medical institutions may not always treat all populations properly, as is evidenced, for example, the fact that medical professionals were shown to systematically undertreat black Americans’ pain in a 2016 study conducted through online surveys and observation of medical professionals (Hoffman). A patient’s family member may recognize a patient’s pain more accurately than a medical professional with no relationship to the patient, resulting in choosing treatment which results in less suffering for the patient than if the medical professional had made the patient’s decision and healthcare power of attorney had not been executed.
Accurate communication of end of life preferences known is also important for religious representation, as many religions have made statements on their belief system’s preferences in end-of-life care (Martyn 780). If physicians aren’t obligated to follow healthcare power of attorney directives, then they may be violating individual’s expressed religious beliefs. Furthermore, if individuals’ wishes are documented, physician violation of their wishes becomes more concrete and obvious, helping prevent such violation. Proper implementation and application of healthcare power of attorney is essential for judicial healthcare – healthcare power of attorney can help prevent needless suffering of patients and uphold respect of patient’s rights.
Works Cited
Areen J. The Legal Status of Consent Obtained From Families of Adult Patients to Withhold or Withdraw Treatment. JAMA. 1987;258(2):229–235. doi:10.1001/jama.1987.03400020071034
Cohen-Mansfield, J. “The decision to execute a durable power of attorney for health care and preferences regarding the utilization of life-sustaining treatments in nursing home residents.” Archives of Internal Medicine, vol. 151, no. 2, Jan. 1991, pp. 289–294., doi:10.1001/archinte.151.2.289.
Emanuel, L. L., Barry, M. J., Stoeckle, J. D., Ettelson, L. M., et al. (1991). “Advance directives for medical care”: Reply. The New England Journal of Medicine, 325(17), 1256.
Fagerlin, Angela, et al. “Projection in surrogate decisions about life-sustaining medical treatments.” Health Psychology, vol. 20, no. 3, 2001, pp. 166–175., doi:10.1037//0278-6133.20.3.166.
Hoffman, Kelly M., et al. “Racial bias in pain assessment and treatment recommendations, and false beliefs about biological differences between blacks and whites.” Proceedings of the National Academy of Sciences, vol. 113, no. 16, Apr. 2016, pp. 4296–4301., doi:10.1073/pnas.1516047113.
Martyn, Susan R.; Jacobs, Lynn Balshone. “Legislating Advance Directives for the Terminally Ill: The Living Will and Durable Power of Attorney,” Nebraska Law Review vol. 63, no. 4 (1984): p. 779-809.
Mower, W. R. “Advance directives. Effect of type of directive on physicians therapeutic decisions.” Archives of Internal Medicine, vol. 153, no. 3, Aug. 1993, pp. 375–381., doi:10.1001/archinte.153.3.375.
Roe, J. M. “Durable power of attorney for health care. A survey of senior center participants.” Archives of Internal Medicine, vol. 152, no. 2, Jan. 1992, pp. 292–296., doi:10.1001/archinte.152.2.292.
Rothman, David J. Strangers at the bedside: a history of how law and bioethics transformed medical decision making. BasicBooks, 1991.
Taylor, Dianna. Michel Foucault : Key Concepts, Taylor & Francis Group, 2014. ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/Vand/detail.action?docID=1886870.
“10 FAQs: Medicare’s Role in End-of-Life Care.” The Henry J. Kaiser Family Foundation, The Henry J. Kaiser Family Foundation, 11 May 2017, www.kff.org/medicare/fact-sheet/10-faqs-medicares-role-in-end-of-life-care/.
“1976: Karen Ann Quinlan.” Madison.com, Madison, 20 Mar. 2016, host.madison.com/karen-ann-quinlan/image_bcc239e0-f69c-11e5-b508-03cf0ba6a389.html.
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