There was a well-known case in the late 1970s in New Jersey, in fact in Sussex County, involving a woman named Karen Ann Quinlan [In re Quinlan, 70 NJ 10 (1976)]. At the time, there was no advance directive in New Jersey. She was a young woman who overdosed at a party and slipped into a coma with a healthy body, but with no hope for recovery. She was put on life support and kept alive by the hospital and doctors in a permanent vegetative state.
At that point, if the doctors and hospital, regardless of the wishes of the parents, had decided to discontinue life support, they would have faced civil and indeed possible criminal sanctions. After that case, New Jersey enacted a statute which authorized the execution of a living will, which is an advance directive for healthcare or for withholding medical treatment, taking the discretion away from medical professionals.
What it means is that a person can designate a trusted relative or a spouse, or in the alternative, if the spouse is unavailable, a son, daughter, brother or sister, to interface with doctors, treating physicians and hospitals, or nursing homes. They can arrange for or withhold appropriate medical care and treatment if that person is incapable of acting or making medical decisions on their own. It allows a person to state in advance, for instance, that if their condition is terminal, or they are permanently unconscious and the doctors execute affidavits confirming that there’s no hope, that they do not want to be kept alive by artificial means or maintain in a permanent vegetative state.
The living will may provide that all you want the medical professionals to do is for you to give me fluids, but to withhold any other treatment or whatever special instructions the person wishes to undertake. The living will can also include a “do not resuscitate” directive so that if a person has a cardiac arrest, for example, medical professionals are directed not to resuscitate and let the person enjoy a peaceful and dignified passing. That takes all the pressure off the doctors and the hospitals to engage in defensive medical practice.
In the past, when someone went into the hospital without a living will, doctors would feel obliged to order comprehensive tests and take extraordinary measures to diagnose and treat the patient in order to avoid claims of medical malpractice. The living will takes all of that pressure off the physicians, hospitals, and close family members in the instance where the patient is terminally ill or injured and there’s no reasonable hope for recovery.
In addition, a New Jersey living will deals with non-terminal illness scenarios. For example, if someone’s in a car accident and in a coma, it authorizes the trusted friend or relatives, spouse or brother, sister, aunt, uncle, parent or son to interface with the doctors and the hospitals to make critical medical decisions – Do we operate or not? Do we amputate or not? Do we carry out other medical intervention designed to save the life of this person?
Q: Is the person making the health care decisions bound by the wishes of the patient?
They are bound as articulated within the document. It’s a burden and a responsibility. And if the person is not comfortable with it, then he or she should not accept that designation. It’s always a good idea to have the designated representative countersign the living will to show that they understand they are being appointed and confirm they are aware of the responsibility so that there is no misunderstanding.
In some states, the representative isn’t always bound by the document. In New Jersey, however, it’s more of a requirement that the designated representative interface and collaborate with the treating physicians and the hospital to carry forward the wishes of the terminal patient.
Usually the representative is going to go along with what the doctors or the hospital say, but in the end, the decision is up to the representative who decides to terminate the person’s care or not. Most doctors are happy to be guided by the terms of the living will and the instructions they received from the designated representative.
