January 19, 2007

Competency To Commit Suicide?

You knew this was coming, right?

A patient with a pre-existing living will ("no life support, no intubation, no blood products") attempts to OD, is brought to the ER, and requires intubation to live.    So now what?

What makes this situation needlessly complex-- i.e. it is actually quite simple-- is two major misunderstandings.

First, questions about living wills are only appropriate in cases of irreversible, terminal illness.  In other words, if a person has a notarized living will saying no intubation, can they get temporary intubation to stabilize them, with the expectation that they will survive and go on with life?  Of course.  So that a living will exists is mostly irrelevant unless we are dealing with irreversible, terminal illness. 

Generally, suicides lack capacity to make decisions about life saving procedures; we assume that psychiatric disease is impacting their ability to make rational decisions.  Substituted judgment, as the standard, can be here interpreted to mean "what the patient would want, now that he has damaged himself through a suicidal act, but if he was now also free of psychiatric disease."  So it's possible that free of depression he might still actually want to die; but in non-backwards cultures (gauntlet thrown down!) we assume this is unlikely.

Second, there's quite a bit of confusion on what  a living will actually is.  It's a type of advance directive (not the other way around.)  It's a document to be read and interpreted by one reader, the surrogate decision maker.  Period.  Not the doctor, or the Ethics committee, but the surrogate.

This sounds confusing, because it is typically the doctor who reads the living will-- but that's because generally there isn't a dispute, and the doctor actually becomes the surrogate.  But what if there was a dispute?  What if the wife wants him alive?

Consider Florida: if a patient has a terminal illness, and if there is no surrogate available, the doctor can proceed according to the living will.  But-- and this is the big but:

If there is a dispute or disagreement concerning the attending physician's decision to withhold or withdraw life-prolonging procedures, the physician cannot proceed pending an expedited judicial review.

(Within seven days.)  

In other words, either the potential surrogates AND the doctor agree with the living will, or you go to court.  Or: just because there's a living will, doesn't mean you get to do what it says, over the objections of anyone. 

The other type of Advance Directive is the power of attorney. Usually legally specified, the spirit still remains an appointed surrogate who will interpret the living will: family members, etc.

So now, in the above scenario, we have a situation where a living will is to be interpreted by a surrogate (say, the wife) in the spirit of "what he would have wanted if he wasn't so depressed."  I think you see the difficulty that arises, and why, the obvious, easy, and likely only legally defensible maneuver is to treat aggressively, psychiatrically stabilize, and debate later.


In difficult questions, it can be useful to get guidance from areas that have direct stake in the matter. 

Most life insurance policies are invalidated in suicide.   This would include a living will/advance directive withholding of life sustaining measures following a suicide attempt, even if this took place years later.  In other words, the fact that doctors, et al, decide the patient "has capacity" to die, insurance companies are not bound by this.

For you all with strong opinions on the abortion question, here's a noodler to show you your inconsistent logic: should a terminally ill pregnant woman by allowed to invoke a living will and end life sustaining treatment? If you say yes, then you must also agree that abortion is ok; if you say no, then abortion can't be ok (otherwise, why are you forcing her to stay alive?)

In most states where abortion is prohibited or restricted, a pregnant woman may not invoke a living will-- by virtue of being pregnant, all measures will be given over the objections of the woman, unless they don't help the baby and are actually harmful to the woman (i.e. you can't hurt her to keep her alive.) (P.S. the State is obligated to pay for all costs if insurance won't.)

Here's the homework question for this week: If our society has determined that there is no right to suicide, can a convict sentenced to death waive his automatic appeal?