Health Care Decisions for the “Unbefriended” — a Report from “Aging and Law” Program at 2015 AALS in D.C.
My thanks to Becky Morgan for her words of support regarding the task ahead of me as the incoming chair of the Aging and the Law Section of the American Associations of Law Schools (AALS). AND, more importantly, our thanks to Mark Bauer, from Stetson Law, the outgoing chair on Aging, and Thaddeus Pope, Hamline Law, the chair of the Law, Medicine and Healthcare Section, who worked together to present a great program.
The focus of the 2015 joint program was examination of how health care providers approach the question of medical decisions — and not just end-of-life treatment decisions — for a unique, but not rare, group of individuals. We were asked to consider whether current law and practice adequately serve those who have not expressed their views in advance (such as by a written “living will” or other care directive), have not appointed a surrogate decision maker (such as by naming an agent in a written directive, whether in the form of a Power of Attorney or specialized health-care directive), are not able personally to communicate with a doctor or care provider to give direction and consent to treatment, and for whom there is no family member or close individual recognized by formal law or informal practice as having decision-making authority. Sometime this individual is simply someone who has outlived her family and close friends.
The discussion was good, especially with the help of the 50-state legal review from the wonderful Erica Wood of the American Bar Association’s Commission on Law and Aging, and key practical perspectives and experiences from Ellen Fox, M.D., who was Chief Officer, Ethics in Health Care, for the Department of Veterans Affairs for 15 years, and who now is the CEO for Integrated Ethics Consulting LLC.
David Orentlicher. J.D., M.D., and the co-director of the Center for Law and Health at Indiana University School of Law provided an intriguing examination of “clear and convincing evidence” standards as used in health-care decision making for “unbefriended” patients. Sharona Hoffman, from Case Western Reserve Law also added good food for thought, including talking about “precedent autonomy,” which for me was a new label to consider. This latter concept resonated with me on a personal level, as for many years my father made it very clear how he did not want to live under certain circumstances if he developed certain disabling conditions, but who now seems to have quite a different view — acceptance of life, perhaps –“with” dementia.
Great discussion, including wise observations from members of the audience about the number of years that society has struggled with these issues of treatment decisions for those who cannot express their personal wishes, and the incremental (and sometimes frustrating) nature of change.
I always hope to come away from AALS programs with new things to read and study, both for myself and my students. So, along that line, here are two takeaways:
- Ellen Fox is a co-author for “Ten Myths About Decision-Making Capacity,” including the first “myth that decision-making capacity and competency are the same.”
- A paper on “The Concept of Precedent Autonomy” by John K. Davis.