Chapter 5.A.3 The Incompetent Patient

This page has notes for p.529, pp.546-547, p. 549, pp.553-554, and pp.557-558 of the casebook.

p.529

As mentioned in the text, this case arose when Ms. Jobes' nursing home refused the request of her family to have her feeding tube withdrawn. After Ms. Jobes' husband sought judicial authorization, the trial court appointed a guardian ad litem for Ms. Jobes, and the guardian supported the family's request. The nursing home sought appointment of a "life advocate" for Ms. Jobes, but the trial court denied that request. The Public Advocate intervened as a party in oppositon to the family. After a seven-day trial, the court approved the removal of the feeding tube but held that the nursing home could refuse to participate in the removal and could require transfer of Ms. Jobes to another facility before discontinuation of feeding. When the court entered its judgment, it stayed relief pending final determination on appeal. Ms. Jobes' husband and the nursing home appealed directly to the New Jersey Supreme Court.

pp.546-547

For an interesting case involving cardiovascular surgery on a prominent heart surgeon, with important questions about the influence of a patient's denial on decision-making capacity, the freedom of family members to override a patient's stated wishes, and the effect of a patient's fame on the care that the patient receives, see Lawrence K. Altman, "The Man on the Table Was 97, but He Devised the Surgery," N.Y. Times, December 25, 2006.

p.549, note 7

Perhaps the most extreme family dispute occurred in the case of Terri Schiavo in Florida.  A dispute between Ms. Schiavo’s husband and parents resulted in nearly seven years of litigation with more than a dozen state and federal court decisions, statutes by the Florida Legislature and Congress, and intervention by Governor Jeb Bush and President George Bush.  Ms Schiavo’s husband requested the withdrawal of her feeding tube after she had been in a persistent vegetative state for several years.  After reviewing the testimony, the trial court judge concluded that there was clear and convincing evidence that Terri would not want a feeding tube, based on her prior oral statements to family members.  In re Schiavo, 780 So. 2d 176, 179-180 (Fla. Ct. App. 2001).  Ms. Schiavo’s parents petitioned successfully for reinsertion of the feeding tube, and after a second removal and reinsertion in 2003, Ms. Schiavo’s feeding tube was finally removed in March 2005.  Her death ensued 13 days later.  For further discussion, see symposia at 22 Const. Commentary 383 (2005) and 35 Stetson L. Rev. 1 (2005); Barbara A. Noah, Politicizing the End of Life: Lessons from the Schiavo Controversy, 59 U. Miami L. Rev. 107 (2004); Lois Shepherd, Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family, 35 Cumb. L. Rev. 575 (2004/2005).  For a timeline of the case and links to key documents, see the University of Miami Bioethics Program’s website.

pp.553-554, note 4

In another Florida case, a court concluded that a living will takes priority over a durable power of attorney when the surrogate's decision would conflict with the wishes expressed in the living will.  In In re Pinette, the trial court judge rejected a wife's effort to maintain life-sustaining treatment for her terminally ill husband.  The husband, Harford Pinette, had executed a living will and a durable power of attorney on the same day, and he appointed his wife as his surrogate.  In his living will, wrote the court, Mr. Pinette "directed that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong the process of dying, that he wanted to die naturally and receive medication only to alleviate pain."  The decision is consistent with Florida statutory law, which states that a living will takes priority over a durable power of attorney "if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise."  Fla. Stat. 709.08(3)(c)(3).

pp.557-558

This assignment (which is discussed on pages 557-558 of the casebook) is an exercise designed to help you understand the human and emotional dimension of making decisions about life-sustaining treatment. You are required before the end of the semester to fill out this Health Care Power of Attorney form with a real person and write a 1 page, single spaced report about the reasoning behind the choices made and your impressions of the process.

25 SUGGESTED TOPICS TO DISCUSS WITH YOUR HEALTH CARE AGENT

Before having your health care agent sign any forms, you should discuss your beliefs and wishes with him or her. When instructing your health care agent about your wishes in the event you become incapacitated and they need to make health care decisions, we suggest you consider the following questions. We suggest no particular answers. Each person should answer these questions based on their own beliefs and convey those beliefs and wishes to their health health care agent. Any other wishes or desires that you feel your health care agent should know should also be given to them so that they can carry out their responsibilities as you would wish.

  1. Do you think you would want to have any of the following medical treatments performed on you?
  2. Do you want to donate parts of your body to someone else at the time of your death? (This is called "organ donation.")
  3. How would you describe your current health status? If you currently have any medical problems, how would you describe them?
  4. If you have current medical problems, in what ways, if any, do they affect your ability to function?
  5. How do you feel about your current health status?
  6. If your have a doctor, do you like him or her? Why?
  7. Do you think your doctor should make the final decision about any medical treatments you might need?
  8. How important is independence and self-sufficiency in your life?
  9. If your physical and mental abilities were decreased, how would that affect your attitude toward independence and self-sufficiency?
  10. Do you wish to make any general comments about the value of independence and control in your life?
  11. Do you expect that your friends, family and/or others will support your decisions regarding medical treatment you may need now or in the future?
  12. What will be important to you when you are dying (e.g., physical comfort, no pain, family members present, etc.)?
  13. Where would you prefer to die?
  14. What is your attitude toward death?
  15. How do you feel about the use of life-sustaining measures in the face of terminal illness?
  16. How do you feel about the use of life-sustaining measures in the face of permanent coma?
  17. How do you feel about the use of life-sustaining measures in the face of irreversible chronic illness (e.g., Alzheimer's disease)?
  18. Do you wish to make any general comments about your attitude toward illness, dying, and death?
  19. What is your religious background?
  20. How do your religious beliefs affect your attitude toward serious or terminal illness?
  21. Does your attitude toward death find support in your religion?
  22. How does your faith community, church, or synagogue, view the role of prayer or religious sacraments in an illness?
  23. Do you wish to make any general comments about your religious prayer or religious sacraments in an illness?
  24. Do you wish to make any general comments about your religious background and beliefs?
  25. What else do you feel is important for your agent to know?

If, over time, your beliefs or attitudes in any area change, you should inform your health care agent. It is also wise to inform your health care agent of the status of your health when there are changes such as new diagnoses. In the event that you are informed of a terminal illness, this, as well as the ramifications of it, should be discussed with him or her. How well your health care agent performs depends on how well you have prepared them.

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