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St. Thomas Law Review

First Page

37

Document Type

Article

Abstract

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. "' -Henry Van Dyke.

Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in In re Quinlan,' regarding the right of an individual to decline medical treatment based on the constitutional right to privacy. Fourteen years later, the United States Supreme Court showed support for the Quinlan ruling by holding that an individual's constitutionally established right to refuse medical treatment may be broader than the rights granted by state statutes. However, in the same decision, the Court also held that states have the right to require that evidence of an incompetent person's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence and that the states have a legitimate interest in the preservation and protection of human lives within their borders.6 In an effort to protect patient autonomy, many states began authorizing advance health care directives as a method of providing evidence for unforeseen future health needs. In 1990, the Patient Self Determination Act' (hereinafter "PSDA") passed, requiring Medicare-participating health care facilities to: inquire whether patients have advance health care directives; document this information in the patient's chart; and provide information to all patients about their rights with regard to medical treatment decision making. Additionally, under the PSDA, Medicare and Medicaid participating facilities may not condition the provision of care, or otherwise discriminate against an individual, based on whether or not a patient has executed an advance directive, and participating facilities must provide their staff and the community with regular education and training on issues related to advance directives. Generally, advance health care directives are legal documents by which competent adults give instructions regarding their medical care in the event that they lose the ability to make their own health care decisions in the future. These documents serve two distinct purposes: (1) designating an individual to make health care decisions on behalf of the designator; and (2) providing guidance about the type and amount of medical care the individual desires. Loss of the ability to make medical decisions may be due to a variety of circumstances, including: mental infirmity, unconsciousness (including temporary unconsciousness), or the inability to communicate verbally or otherwise. Legal practitioners in the fields of Estate Planning and Elder Law have found that planning for end-of-life treatment, decision-making, and health care surrogacy has become an area of much concern for their clients, especially with the prevalence of highly-publicized cases like the case of Terri Schiavo. This article will concentrate primarily on critiques of advance directives and practical issues relevant to the Florida practitioner, and will provide some possible solutions. However, a number of the problems addressed in this article are similar to those faced by out-of-state peers.

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