Article Explores the Unintended Consequences of Advance Directive Law
In a clinical setting, advance directives often are used in conjunction with other forms of verbal or written communication of patients’ wishes. In contrast, advance directive law takes a strict, legal-transactional approach to advance care planning that is akin to signing a will. This approach has resulted in many legal requirements and restrictions to execute an advance directive. In addition, each state has adopted its own statutes that govern advance directives. This study sought to identify the unintended legal consequences of advance directive law that may prevent patients from communicating end-of-life preferences. Investigators, including three attorneys, examined advance directive legal statutes for all 50 U.S. states and the District of Columbia, and reviewed publications (1966 through August 2010) on advance directive statutes. Analysis included 105 federal and state legal proceedings focused on how courts have interpreted and applied advance directive statutes, as well as 20 articles that specifically addressed advance directive law.
- Unintended negative consequences of advance directive legal restrictions may prevent all patients, vulnerable patients in particular, from making and communicating their end-of-life wishes and having them honored.
- Five overarching legal and content-related barriers were identified: poor readability (i.e., laws in all states were written above a 12th-grade reading level); restrictions on who may serve as a healthcare agent; execution requirements (steps needed to make forms legally valid); inadequate reciprocity (acceptance of advance directives between states); and religious, cultural, and social inadequacies. These restrictions have rendered advance directives less clinically useful.
- Advance directive statues meant to protect patients’ right of self-determination may instead better protect physicians from punitive action. For example, many states have provisions that enable physicians to presume the validity of an advance directive in the absence of actual knowledge that the directive is invalid.
- Author recommendations include improving readability (e.g., older persons read at a 5th-grade level), allowing oral advance directives, and eliminating witness or notary requirements. They also suggest that patients be allowed and encouraged to document their values, cultural traditions, and other socially or culturally important information.
- Only appellate-level legal cases were available, which may have excluded some relevant cases.
- This assessment may not reflect the most up-to-date statutes.
Ms. Castillo is part of the San Francisco VAMC. Dr. Sudore is supported by an HSR&D Career Development Award and is part of HSR&D’s Program to Improve Care for Veterans with Complex Comorbid Conditions in San Francisco.
Castillo L, Williams B, Hooper S, Sabatino C, Weithorn L, and Sudore R. Lost in Translation: The Unintended Consequences of Advance Directive Law on Clinical Care. Annals of Internal Medicine January 18, 2011;154(2):121-28.