Advance Directives in the United States

Health Care and Living Will Advance Directives

Advance directives are legal documents prepared in order to express the health care wishes of a patient who may be unable to speak directly with health care personnel due to health issues. This document could have a variety of different titles, including Living Will, Do Not Resuscitate Order (DNR) or even Health Care Proxy or Power of Attorney. The latter two documents can simply be used to name the individual who is responsible to make health care decisions for a patient who is unable to communicate, but can also include the patient’s wishes in an end of life scenario.

This advance directive would be put into play in a situation where a patient is unable to make and express their own medical decisions. That the patient is indeed in such a state must be certified by more than one physician. As state laws vary, other requirements may exist and different terminology may be used in the documents. Generally, the medical condition must be certified as “terminal illness” or “permanent unconsciousness” in order for an advance directive to be put into use. Further, should the patient again become able to make their own health care decisions, the agent’s authority under the advance directive would end.

One situation in which an advance directive would not be applicable is in the care of emergency personnel who may be called to the scene of an accident. In such a case, the emergency personnel are obligated to stabilize a patient’s condition and transfer them to the appropriate health care facility for further treatment. At that point, once a patient’s situation has been evaluated by a medical doctor, an advance directive may be put into use.

While advance directives, under a variety of terms, are valid throughout the United States, as stated previously, state laws vary and not all states will acknowledge a directive drafted under another state’s laws. Therefore, anyone who maintains a residence in more than one state, or who may work or travel often to another state, should prepare a directive in each state according to each state’s laws, in order to protect themselves properly.

Only completion of a new advance directive will invalidate the old directive, as these directives do not expire. Nevertheless, advance directive should be reviewed periodically to determine if they still reflect the wishes of the patient. If you wish to make even one change in the directive, it is advisable to prepare a completely new document.

Surrogate Decision making in Health Care

Hans-Martin Sass, Robert M. Veatch, & Rohito Kimura, editors of the book “Advance Directives and Surrogate Decision making in Health Care: United States, Germany, and Japan” examine many aspects of advance medical decision-making and the laws in the USA, Germany, & Japan.

According to the book, in the United States, when state laws have attempted to limit the scope of Advance Directives, the courts have usually allowed the written Advance Directives to prevail.
Some states have attempted to set a higher standard of proof for the decision to withhold or withdraw food and water, but courts have usually ruled that these are forms of medical treatment, which can therefore be decided in the same ways as any other treatments.
When there are no surrogates named, the law says that doctor should ask the ‘next of kin’.
But the law cannot tell the difference between kin who are close and kin who are estranged.

Germany

The book states that the status of Advance Directives in Germany is a few decades behind their status in the United States.
Few doctors have been asked to deal with them. They are not yet legal documents. And most of the suggested forms are about refusing treatment.

Japan

The situation in Japan is similar: Paternalism from the medical profession prevails. When no one is willing to acknowledge the dying process,Advance Directives for Medical Care are irrelevant.
In Japan ADs are only for people already dying. And, as in Germany, Advance Directives do not yet have the force of law.

U.S. Federal Law on Advance Directives

The Federal Patient Self Determination Act i. (enacted in 1990) addresses the rights of health. (including mental health)

Articles and Papers

A. Akabayashi, M. D. Fetters & T. S. Elwyn (1999). Family Consent, Communication, and Advance Directives for Cancer Disclosure: A Japanese Case and Discussion. Journal of Medical Ethics 25 (4):296-301.

Akira Akabayashi, Brian Taylor Slingsby & Ichiro Kai (2003). Perspectives on Advance Directives in Japanese Society: A Population-Based Questionnaire Survey. [REVIEW] BMC Medical Ethics 4 (1):1-9.

Jacob Appel (2010). When Any Answer Is a Good Answer: A Mandated-Choice Model for Advance Directives. Cambridge Quarterly of Healthcare Ethics 19 (03):417-421.

Judith Areen (1991). Advance Directives Under State Law and Judicial Decisions. Journal of Law, Medicine and Ethics 19 (1-2):91-100.

Julie M. Aultman (2010). Ethics of Translation: Molst and Electronic Advance Directives. American Journal of Bioethics 10 (4):30 – 32.

S. G. Barber (1999). (In)Valid Consent of Advance Directives. Journal of Medical Ethics 25 (6):549-550.

Jeffrey T. Berger (2010). What About Process? Limitations in Advance Directives, Care Planning, and Noncapacitated Decision Making. American Journal of Bioethics 10 (4):33 – 34.

R. L. Berghmans (1998). Advance Directives for Non-Therapeutic Dementia Research: Some Ethical and Policy Considerations. Journal of Medical Ethics 24 (1):32-37.

Ellen W. Bernal (2008). Review of Planning for Uncertainty: Living Wills and Other Advance Directives for You and Your Family , 2nd Edition by David John Doukas, M.D., and William Reichel, M.D. [REVIEW] Philosophy, Ethics, and Humanities in Medicine 3 (1):1-3.

Violeta Beširević (2010). End-of-Life Care in the 21st Century: Advance Directives in Universal Rights Discourse. Bioethics 24 (3):105-112.

D. Blondeau, M. Lavoie, P. Valois, E. W. Keyserlingk, M. Hébert & I. Martineau (2000). The Attitude of Canadian Nurses Towards Advance Directives. Nursing Ethics 7 (5):399-411.

D. Blondeau, P. Valois, E. W. Keyserlingk, M. Hebert & M. Lavoie (1998). Comparison of Patients’ and Health Care Professionals’ Attitudes Towards Advance Directives. Journal of Medical Ethics 24 (5):328-335.

Dan W. Brock (1993). A Proposal for the Use of Advance Directives in the Treatment of Incompetent Mentally Ill Persons. Bioethics 7 (2-3):247-256.

Alister Browne & Bill Sullivan (2006). Advance Directives in Canada. Cambridge Quarterly of Healthcare Ethics 15 (03):256-260.

Allen Buchanan (1988). Advance Directives and the Personal Identity Problem. Philosophy and Public Affairs 17 (4):277-302.

Vanessa Carbonell (forthcoming). Interactive Capacity, Decisional Capacity, and a Dilemma for Surrogates. AJOB Neuroscience.

Ho Mun Chan (2004). Sharing Death and Dying: Advance Directives, Autonomy and the Family. Bioethics 18 (2):87–103.

Laura Crow (2008). Decision-Making in the Absence of Advance Directives : A Personal Story of Letting Go. In James L. Werth & Dean Blevins (eds.), Decision Making Near the End of Life: Issues, Development, and Future Directions. Brunner-Routledge.

M. D. David M. Zientek (2005). The Texas Advance Directives Act of 1999: An Exercise in Futility? HEC Forum 17 (4).

Angus Dawson & Anthony Wrigley (2010). A Dead Proposal: Levi and Green on Advance Directives. American Journal of Bioethics 10 (4):23 – 24.

David Degrazia (1999). Advance Directives, Dementia, and ‘The Someone Else Problem’. Bioethics 13 (5):373-391.

Louis-jacques Bogaert Deogratias Biembe Bikopvano (2010). Reflection on Euthanasia: Western and African Ntomba Perspectives on the Death of a Chief. Developing World Bioethics 10 (1):42-48.
Largely, the concept of energy or vital force, as first analysed by Placide Tempels in Bantu Philosophy , permeates most African ontology systems, worldviews and life views. The Ntomba Chief is chosen because of his above average vital force. This puts him in the position of intermediary between the Supreme Being, the ancestors, and his subordinates. The waning of his energy is incompatible with his position because his energy is that of his tribe. When installed, he takes an oath that, (…)

Evan G. DeRenzo (1996). Book Review: Making Sense of Advance Directives. [REVIEW] Journal of Law, Medicine and Ethics 24 (2):156-157.

K. Devolder (2005). Advance Directives to Protect Embryos? Journal of Medical Ethics 31 (9):497-498.

Peter H. Ditto (2008). What Would Terri Want? : Advance Directive and the Psychological Challenges of Surrogate Decision Making. In James L. Werth & Dean Blevins (eds.), Decision Making Near the End of Life: Issues, Development, and Future Directions. Brunner-Routledge.

Vegetative State and Coma in Philosophy of Cognitive Science
Welfare in Social and Political Philosophy
$35.18 new $47.05 used $56.54 direct from Amazon (collection) Amazon page

G. Don Murphy, Tom Schenkenberg, Jeff S. Hunter & Margaret P. Battin (1997). Advance Directives: A Computer Assisted Approach to Assuring Patientsâ Rights and Compliance with PSDA and JCAHO Standards. [REVIEW] HEC Forum 9 (3):247-255.

Rights in Social and Political Philosophy

David J. Doukas, Toni Antonucci & Daniel W. Gorenflo (1992). A Multigenerational Study on the Correlation of Values and Advance Directives. Ethics and Behavior 2 (1):51 – 59.
The development of the Values History instrument for use in advance directive decision making has raised the question of the importance of values in eliciting advance directives. This pilot study examines the relationship between the domains of values and advance directives drawn from the Values History in three generation intrafamily triads. Significant correlations between values and advance directives were found primarily within the youngest generation. Results reveal a relatively high familiarity by the participants of the various established forms of advance (…)

Annette Dufner (2013). Should the Late Stage Demented Be Punished for Past Crimes? Criminal Law and Philosophy 7 (1):137-150.
The paper investigates whether it is plausible to hold the late stage demented criminally responsible for past actions. The concern is based on the fact that policy makers in the United States and in Britain are starting to wonder what to do with prison inmates in the later stages of dementia who do not remember their crimes anymore. The problem has to be expected to become more urgent as the population ages and the number of dementia patients increases. This paper (…)

Moral Psychology, Misc in Normative Ethics
Neuroethics, Misc in Applied Ethics
Psychopathology and Responsibility in Meta-Ethics
Punishment in Criminal Law in Philosophy of Law
(7 more)

Gerald Dworkin (2007). Pt. IV. The End of Life. The Definition of Death / Stuart Youngner ; The Aging Society and the Expansion of Senility: Biotechnological and Treatment Goals / Stephen Post ; Death is a Punch in the Jaw: Life-Extension and its Discontents / Felicia Nimue Ackerman ; Precedent Autonomy, Advance Directives, and End-of-Life Care / John K. Davis ; Physician-Assisted Death: The State of the Debate. [REVIEW] In Bonnie Steinbock (ed.), The Oxford Handbook of Bioethics. Oxford University Press.

Autonomy in Applied Ethics in Applied Ethics
Defining Death in Applied Ethics
Life Extension in Applied Ethics
Life Support in Applied Ethics
$20.00 used $44.17 new $46.75 direct from Amazon (collection) Amazon page

John D. Engel, Gregory Kane, Deborah L. Jones, Debra Lynn-McHale, Martha Swartz, Paul Durbin & Don Klingen (1997). The Patient Self-Determination Act and Advance Directives: Snapshots of Activities in a Tertiary Health Care Center. [REVIEW] Journal of Medical Humanities 18 (3):193-208.
This study describes the results of a retrospective review of patients’ charts who had an advanced directive (AD) and who were hospitalized in a tertiary, acute care teaching hospital. The purpose of the review was to understand from clinical, sociological, ethical and legal perspectives the nature and utility of ADs. Findings and implications of the review are discussed in terms of: patient demographics; diagnoses; quality of ADs; influence of ADs on clinical decisions; and legal aspects of ADs.

Robert L. Fine (2001). The Texas Advance Directives Act of 1999: Politics and Reality. [REVIEW] HEC Forum 13 (1):59-81.

A. Flew (1999). Advance Directives Are the Solution to Dr Campbell’s Problem for Voluntary Euthanasia. Journal of Medical Ethics 25 (3):245-246.
Dr Neil Campbell suggests that when patients suffering extremes of protracted pain ask for help to end their lives, their requests should be discounted as made under compulsion. I contend that the doctors concerned should be referred to and then act upon advance directives made by those patients when of sound and calm mind and afflicted by no such intolerable compulsion.

Euthanasia in Applied Ethics

Leslie Pickering Francis (1993). Advance Directives for Voluntary Euthanasia: A Volatile Combination? Journal of Medicine and Philosophy 18 (3):297-322.
Defenders of patient autonomy have successfully supported the legal adoption of advance directives. More recently, some defenders of patient autonomy have also supported the legalization of voluntary active euthanasia. This paper explores the wisdom of combining both practices. If euthanasia were to become legal, should it be permitted by advance directives? The paper juxtaposes the most significant doubts about advance directives, with the most significant doubts about euthanasia. It argues that the doubts together raise more concern about the combined practices (…)

Autonomy in Applied Ethics in Applied Ethics
Euthanasia in Applied Ethics
(8 more)

Heather J. Gert (1999). The Death Penalty and Victims’ Rights: Legal Advance Directives. [REVIEW] Journal of Value Inquiry 33 (4):457-473.

Rights in Social and Political Philosophy

R. Gillon (1999). Research Into Emergency Treatments–Could the Offer of ‘Advance Directives’ Help? Journal of Medical Ethics 25 (4):291-292.

Sara Goering (2007). What Makes Suffering “Unbearable and Hopeless”? Advance Directives, Dementia and Disability. American Journal of Bioethics 7 (4):62-63.

Disability in Applied Ethics

Tolga Guven & Gurkan Sert (2010). Advance Directives in Turkey’s Cultural Context: Examining the Potential Benefits for the Implementation of Patient Rights. Bioethics 24 (3):127-133.
Advance directives are not a part of the healthcare service in Turkey. This may be related with the fact that paternalism is common among the healthcare professionals in the country, and patients are not yet integrated in the decision-making process adequately. However, starting from the enactment of the Regulation of Patient Rights in 1998, this situation started to change. While the paternalist tradition still appears to be strong in Turkey, the Ministry of Health has been taking concrete measures in the (…)

Autonomy in Applied Ethics in Applied Ethics
Rights in Social and Political Philosophy

Chris Hackler, Ray Moseley & Dorothy E. Vawter (eds.) (1989). Advance Directives in Medicine. Praeger.

$3.34 used $256.88 new Amazon page

Martin Harvey (2006). Advance Directives and the Severely Demented. Journal of Medicine and Philosophy 31 (1):47 – 64.
Should advance directives (ADs) such as living wills be employed to direct the care of the severely demented? In considering this question, I focus primarily on the claims of Rebecca Dresser who objects in principle to the use of ADs in this context. Dresser has persuasively argued that ADs are both theoretically incoherent and ethically dangerous. She proceeds to advocate a Best Interest Standard as the best way for deciding when and how the demented ought to be treated. I put (…)

(7 more)

Miki Hayashi, Chieko Hasui, Fusako Kitamura, Masaaki Murakami, Mika Takeuchi, Hisao Katoh & Toshinori Kitamura (2000). Respecting Autonomy in Difficult Medical Settings: A Questionnaire Study in Japan. Ethics and Behavior 10 (1):51 – 63.
Some people in Japan are still comfortable with the paternalistic role of doctors, but others wish that their own decisions would receive a greater amount of respect. A total of 747 students of universities and colleges and 114 parents of these students participated in a questionnaire survey. Most of the participants thought that autonomy should be respected in situations involving death with dignity and euthanasia, whereas it should not be respected in attempted suicide and involuntary admission of individuals with mental (…)

Autonomy in Applied Ethics in Applied Ethics
Death and Dying, Misc in Applied Ethics

Elizabeth Heitman & Virginia Gremillion (2001). Ethics Committees Under Texas Law: Effects of the Texas Advance Directives Act. [REVIEW] HEC Forum 13 (1):82-104.

Cees Hertogh, Marike de Boer, Rose-Marie Dröes & Jan Eefsting (2007). Beyond a Dworkinean View on Autonomy and Advance Directives in Dementia. Response to Open Peer Commentaries on “Would We Rather Lose Our Life Than Lose Our Self? Lessons From the Dutch Debate on Euthanasia for Patients With Dementia”. American Journal of Bioethics 7 (4):4-6.

Autonomy in Applied Ethics in Applied Ethics
Euthanasia in Applied Ethics

Susan E. Hickman, Bernard J. Hammes, Alvin H. Moss & Susan W. Tolle (2005). Hope for the Future: Achieving the Original Intent of Advance Directives. Hastings Center Report 35 (6 Supplement):s26-s30.

Bjørn Hofmann, Anne Myhr & Søren Holm (2013). Scientific Dishonesty—a Nationwide Survey of Doctoral Students in Norway. BMC Medical Ethics 14 (1):1-9.
BackgroundThe knowledge of scientific dishonesty is scarce and heterogeneous. Therefore this study investigates the experiences with and the attitudes towards various forms of scientific dishonesty among PhD-students at the medical faculties of all Norwegian universities.MethodAnonymous questionnaire distributed to all post graduate students attending introductory PhD-courses at all medical faculties in Norway in 2010/2011. Descriptive statistics.Results189 of 262 questionnaires were returned (72.1%). 65% of the respondents had not, during the last year, heard or read about researchers who committed scientific dishonesty. One (…)

T. Hope (1996). Advance Directives. Journal of Medical Ethics 22 (2):67-68.

Violeta Be Irević (2010). End-of-Life Care in the 21st Century: Advance Directives in Universal Rights Discourse. Bioethics 24 (3):105-112.
This article explores universal normative bases that could help to shape a workable legal construct that would facilitate a global use of advance directives. Although I believe that advance directives are of universal character, my primary aim in approaching this issue is to remain realistic. I will make three claims. First, I will argue that the principles of autonomy, dignity and informed consent, embodied in the Oviedo Convention and the UNESCO Declaration on Bioethics and Human Rights, could arguably be regarded (…)

Trefor Jenkins, Darrel Moellendorf & Udo Schüklenk (2001). The Distribution of Medical Resources, Withholding Medical Treatment, Drug Trials,Advance Directives, Euthanasia and Other Ethical Issues: The Thandi Case (II).

Yvonne Johnson (2009). The Bioethical Underpinnings of Advance Directives. Ethics and Social Welfare 3 (1):32-53.

Marshall B. Kapp (1996). Book Review: Making Sense of Advance Directives. [REVIEW] Journal of Law, Medicine and Ethics 24 (2):153-155.

Soyoon Kim, Ki-Hyun Hahm, Hyoung Wook Park, Hyun Hee Kang & Myongsei Sohn (2010). A Korean Perspective on Developing a Global Policy for Advance Directives. Bioethics 24 (3):113-117.

Advance Directives