A health care proxy is a legal document through which a person appoints someone else to make health care decisions for them if they are incapacitated. A proxy goes together with a living will in which a person expresses the kinds of care that they would and would not like to receive in the case of terminal illness or accident.
Massachusetts law authorizes the use of health care proxies and creates a number of protections so that health care proxies cannot be abused, most importantly, perhaps, preventing conflicts of interest — for example, staff of an institution like a nursing home cannot be the proxies of the people under their care.
The Massachusetts Medical Society strongly encourages the use of health care proxies to help patients avoid degrading and unnecessary end-of-life care. In the absence of clear advance directives, families, physicians and hospitals usually feel compelled to take extreme measures to preserve technical life, measures which most patients would decline if they were conscious and able to make their own decisions.
None of this is about assisted suicide, mercy killing or any deliberate act to end another person’s life. These are all specifically prohibited as a subject of health care proxies under Massachusetts law. Proxies are about whether or not undertake painful and costly measures that might extend lives reaching their natural end.
A couple of constituents have recently been in touch with me to urge that everyone be required by law to execute a health care proxy. While I do believe that everyone of a certain age should execute a health care proxy and living will, and my wife and I have both done so, I’m a little reluctant to impose that obligation on people as a matter of law.
An approach more consistent with the freedoms that we enjoy in this country might be to put in place programs that would lead more people to be aware of the opportunity to take charge of the care that will be provided to them in their final health care experience.
It’s clear that a great many thoughtful people are already working hard to make people aware of the opportunity. I’d be interested in hearing from thoughts about needs for legislation in this area. Not every problem calls for a legislative solution, but if there are actions that we should be taking to support greater use of proxies, I’d be very interested to consider developing a bill.
Note: My staff has been able to identify only two bills pending on the subject in the present legislative session and they are both modest in scope — House 1456 (which would strengthen the binding effect of directives in a proxy document, a simple but significant change) and Senate 1591 which would prevent various wrong-doers from serving as health care agents.
Thoughts appreciated.
I’m pretty young and not thinking about dying any time soon, but here’s my take:
The right to determine how one dies is as fundamental as the various rights we grant concerning how one lives. Personally, I am in favor even of assisted suicide, providing the right precautions are taken (such as conflict of interest laws and requirements that the patient be in extreme pain and have a terminal condition). There are several countries and states that have shown that it’s possible to let people in extreme pain die peacefully without resorting to Soylent Green.
That said, back to the specific question, I’m generally against a so-called “nanny state” — I believe that while the state is within its bounds to prod and encourage certain behavior, mandates require a higher burden of proof that the intrusion into people’s rights is worthwhile. I don’t believe such a mandate would be right with regard to health care proxies. It would, however, be proper to mandate or strongly encourage primary health physicians to bring the subject up, especially with patients who are very old or have a terminal disease.
Will, I agree with your reluctance to legally require people to complete paperwork. This will always be a thorny issue, but perhaps a better alternative if the Legislature feels the need to do something would be to clarify to a greater extent the rights and responsibilities of various parties in the absence of a health care proxy, so hospitals and other parties can exercise their best judgment with less concern about a court second-guessing them for not having tried hard enough?