Apparently, there is no guarantee that the patient will get what he or she wants.
Living wills are considered as “advisory”, not compulsory. Doctors and EMT personnel may be free to ignore living will directives if
- The patient is not otherwise classified as terminally ill;
- The patient has not been certified as incompetent by two doctors;
- Doing so would violate the doctor’s conscience;
- The patient is being treated outside of a hospital setting;
- The patient is pregnant; or
- For any of a range of exceptions mandated under various state laws.
There is no penalty for the doctor if he/she chooses to violate the living will. The doctor need merely affirm that he or she is using “best medical judgment.”
If a doctor refuses to follow instructions, he may or may not have an obligation to refer the patient to another physician. The obligation varies by state. Many doctors simply don’t give referrals.
In states with right-to-die laws, doctors or hospitals are free to refuse to help the patient die, and many do. There are entire geographic areas in Oregon and California, for example, in which they are no physicians either willing or allowed to assist in death. Many will not refer the patient to another medical facility or professional.
In one publicized case in Oregon, a terminally ill patient shot himself to death in a bathtub after assistance was refused by all local physicians.
What this means for you:
- You need to determine which facilities and doctors are willing to abide by your wishes. This may mean shopping around well in advance of the time when this becomes a need.
- You need to have someone with you to serve as your advocate in the event that you cannot do so yourself. One option is to retain an attorney for this purpose. You can use a friend or family member, if you are sure that their emotions won’t cloud their judgment at the critical time.
- You need to know what the limitations and requirements of your state are. In a state like Missouri, you might want to consider moving elsewhere.
- You need to review your life insurance coverage to determine what exclusions the insurer imposes. Some policies have no exclusions after coverage has been in force for a certain length of time; others may not pay in the case of suicide or assisted-death.
- JoNel Aleccia, “Aid-in-Dying Laws Don’t Guarantee That Patients Can Choose To Die,” Kaisesr Health News, 26 January 2017. http://khn.org/news/aid-in-dying-laws-dont-guarantee-that-patients-can-choose-to-die/?utm_campaign=KHN%3A+Daily+Health+Policy+Report&utm_source=hs_email&utm_medium=email&utm_content=41389837&_hsenc=p2ANqtz–eY9RgmyrXRxFZIw_mw1i7O9N802tPQw0kDE7O87UJ7RDS20dDY095XCKk9RV0AxE8SRS96UiJE8JPm3CEDo1CoM0olrUs_ElkZ6TL22VR0mxtwXU&_hsmi=41389837
- American Bar Association, Commission on Law and Aging, “Myths and Facts About
Health Care Advance Directives,” undated PDF.
- “Health Care Directives: Is there a Duty to Follow Them?” FindLaw (undated). http://estate.findlaw.com/living-will/health-care-directives-is-there-a-duty-to-follow-them.html
- Denis Massino, “What Circumstances Can Overrule a Living Will?” Legalzoom, undated. http://info.legalzoom.com/circumstances-can-overrule-living-will-23319.html
- Nicole M. Saitta and Samuel. D. Hodge, Jr. “What are the consequences of disregarding a “do not resuscitate directive” in the United States?” MedLaw, 2013 Dec;32(4):441-58.
- Nadia Sawicki, “A New Life for Wrongful Living,” New York Law School Law Review, v. 58 (2013-14), pp. 279-302.