(California Probate Code, Section 4701)

(by Stan Dundon)



          In the earlier note, "A Realistic Scenario…", the freedoms of the dying person were laid out in scenarios related to five conditions described in "Part 2" of a common form of the California advance health care directive (attached to the earlier note,). What was not dealt with in that note was the situation where a person is incompetent to make health care decisions but is not dying. The question we will deal with here is what a competent person can direct his health-care agent to do or to prevent being done and expect the advance health care directive to guarantee that it will be done or prevented, should the person become incompetent but without actually being dying. .


Middle Level Principles

        Stated positively, a liberal reading of the statute could be based on the common-sense principle that you should be able to ask(and have granted) that  an agent  do for you whatever you could legally (and/or morally) do for yourself if you were competent.


Stated negatively: You cannot ask an agent to do for you or get medical professionals do (or fail to do) for you what is legally and by their professional ethics forbidden to them were you competent.

        The earlier note emphasized that the patient's condition of being actually dying (and at the most arrested or delayed in that process by some technology) significantly enlarges the patient's liberty to decline medical interventions which neither cure nor add to comfort. It is not the case that being incompetent increases this liberty. It may well increase the motivation of a person who foresees a period of incompetence to wish to be free from that unhappy period. But that motivation does not automatically translate into a right to demand that medical professionals or staff do or neglect to do things which their professional responsibility would demand them to do or prevent.



        A few examples will help: (1) Suppose a severely handicapped patient in a convalescent hospital were being given a haircut. The nurse slips on spilled orange juice and stabs the scissors into the patient's carotid. The competent patient would not succeed (morally or legally) in demanding that he/she be allowed to bleed to death. Neither could the patient write a directive which requires such negligence.

(2) Suppose a competent handicapped patient is being bathed and is normally capable of sitting up-right in the bath tub, allowing the nurse to momentarily go in search of a towel or more shampoo. If a momentary faint should put the patient underwater, the returning nurse could in no way be obliged to let the patient drown.

        These exotic examples are meant to make clear that once a patient has placed him/herself in the care of the professional medical staff, conditions for which they are responsible remain within their moral and legal realm of responsibility and cannot be altered by the patient's directive.

(3) An actual example is the following. A doctor encountered (by phone) a case of a young woman suffering from a brain lesion which did not, per se, make her incompetent, but often caused such violent seizures and wild jerking of head and limbs that it traumatized the staff to merely witness it. Without seeing the patient the doctor advised against anesthetizing her while some cure for the seizures was sought. But when faced with actually treating her, the horror and danger of the seizures caused him to do exactly that: put her in a medically induced coma. The mother of the girl who had, in the interim,  become her legal health care agent asked the doctor to remove her feeding and hydration tubes. The doctor refused saying that since she was unable to eat only because of his action, the girl would have to first be allowed to awaken. Her dependence on the tubes was not part of any dying process but was merely a danger of death should they be removed while she is still in the medically induced coma. . He understood that when the patient is in danger of death (especially by the doctor's own doing) and under his care, to allow that danger to progress to the point where the patient is actually dying is to be guilty of negligent killing.

        In short, what the advanced directive cannot do is require medical personnel or staff to kill by negligence. The resort of the person who wants more autonomy is to remove him/her from the responsibility of the medical personnel. That removal any competent person could always do and the advance directive could be read as allowing the agent to do the same: I.e. take the patient home or to some other location. But it cannot be read  as rewriting the norms of professional responsibility in others, here by legalizing passive killing, i.e. introducing a new cause of death by inaction. 


Grey Areas

          Could a person write into an advance directive that, should I become incompetent I do not want any life saving medical procedures imposed on me such as:

1)    If I should I refuse to eat, or become incapable of eating normally, no feeding tubes are to be used.

2)    Should I develop cancer, I refuse any chemotherapy.

3)    Should I develop any kind of infection, I refuse any antibiotics except to relieve pain.

4)    Should I fall into any kind of danger of death by any means, I refuse any kind of rescue, except to relieve pain.

If  1) and 2) can, by any probable opinion be seen as part of a dying process, then the freedom of the dying laid out in the first note is operative. If the question is "grey" the patient (and the agent) has the right to choose the most favorable opinion.  Clearly 4) is too broad and would conflict with principles laid out above, namely that we cannot relieve professionals of their professional responsibilities while remaining in their care.

        But 3) is a tough one. Nosocomial pneumonias are really the product of medical care and medical environments. They are so common and so easily cured in some cases that it would be hard to distinguish failure to intervene from the exotic bleeding or drowning scenarios given above. In other cases it may be that the frequency and growing  intractability of the pneumonias are viewable as part of a dying process and not a mere danger of dying. This is to say that the pneumonias are not solely nosocomial, but are part of  the dying process as related to a weakening of the immune system. . Here the reasoning can be that the patient does not have to wait to succumb to the latest possible pneumonia simply because newer antibiotics are being discovered. This is not really curing but simply dragging out the dying process.


Critical Distinction

          The distinction between dying and being in danger of death is critical. Everyone who is dying is in danger of death. But there are many situations in which one is in danger of death but is not even sick or even injured and every natural power of the person is fighting that danger. Deliberate passivity in the face of the danger is generally regarded as homicidal when  the endangered person is under the responsibility of the person choosing passivity. This assumes that the danger can be ended by normal zealous effort.

        It is this responsibility that the advance directive cannot remove. It is part of a mutual relationship which the patient can only avoid by terminating the relationship.



          Medical staff are not barbers. Presumably, a person could ask a barber for a styling which was a horror to see. But even barbers may have some sense of professional pride and can ask the customer to find someone else to carry out the horror. But the medical profession and its institutions are clearly not related to patients as if they were the employees of the patient. The patient cannot by any directive (whether competent or not) rewrite the other side of the medical relationship (to cure or keep comfortable). To achieve greater autonomy the patient or the agent will have to take the step of not entering or of leaving the relationship.

        If at some time the public succeeds in unilaterally changing the definition of medical responsibility so that it includes active or passive killing, little that has been said above will have much legal relevance. It will continue to have important moral relevance to those who retain the traditional objection to suicide or killing. But it clearly would be a distorting interpretation of the advance directive statute to read it as already authorizing passive killing. Were that the case, we would not be debating the merits of assisted suicide legislation. We would have it already.


Postscript on Patient Autonomy

          Should the acceptance of medical killing become legal, the illusion that we have finally secured complete patient autonomy will soon become clear. Doctors and high school nurses will not be dispensing "Romeo and Juliet" pills to heart-broken teenagers and dentists will not let pernicious dental infections go untreated because the patient wants to die rather than live in an unhappy marriage. Both will recommend more reasonable solutions. Regardless of patient autonomy, death is unreasonable and killing unacceptable when not in accord with professional judgment. Patient autonomy will never be absolute. But when a medical profile of "rational suicide candidate" has been written, all those who fit the profile will be under the pressures noted in 2.1 a (5) in the directive, namely the costs of staying alive versus the "benefits." Once suicide/killing is a legitimate act of patient and doctor, as the costs of refusal of suicide/killing grow, what was first a "rational" autonomous choice will become an "arbitrary refusal" and finally an "irrational demand" for access to medical resources. No society has ever revered autonomy to the extent of allowing its "irrational" exercise to impose huge burdens on the public. Neither will ours. It is a Pandora's Box.