The recent passage of the Patient Self Determination Act (PSDA), sponsored by Senators John C. Danforth and Daniel Patrick Moynihan, creates pressures for the withholding and withdrawing of health care defined as “medical or surgical treatment.”
PSDA is seen as a victory by the Concern for Dying/Society for the Right to Die which plans to play art active role in educating state agencies which review the law while exercising vigilance “in making sure the law is followed.” Rose Gasner, director of legal services at Concern for Dying/Society for the Right to Die said, “Our experience has been you can have a lot of very good laws on the books and still have problems at the bedside (Hospitals, Feb. 5, 1991).
The Act requires that States develop written descriptions of “advance directives” such as “a living will or durable power of attorney for health care.” Such information must be provided by all hospitals, nursing facilities, home health care agencies, hospice programs, and health maintenance organizations which receive federal health care reimbursements. The provider must then document the existence of any “advance directives” in the patient’s medical record (Congressional Record — House, Oct. 26.1990, H12482).
In addition, the Act requires that a national campaign be initiated to “inform the public of the option to execute advance directives” and “the patient’s right to “direct health care decisions.” Materials must be developed at the Federal level for dissemination to the “public, and the medical and legal profession” educating them on “each person’s right to make decisions concerning medical care.” The information will also be mailed to Social Security recipients and added to Medicare Handbooks (Ibid ).
The passage of the Patient Self Determination Act follows the 1990 U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health . In that decision, the Supreme Court affirmed a lower court decision that “informal written instructions” would meet the state’s “clear and convincing” evidence standard for the withdrawal of a feeding tube from Nancy Cruzan, a woman who suffered reduced functional abilities as the result of an automobile accident.
Chief Justice Rehnquist held that competent adults have a “liberty interest” to accept or refuse medical treatment. The Cruzan decision is viewed as constitutionalizing “patient rights to refuse treatment.”
The Court also indicated that the artificial provision of nutrition and hydration is medical treatment. Justice Sandra O’Connor stated in her concurring opinion:
… Artificial feeding cannot be readily distinguished from other forms of medical treatment … accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water (U.S. at 110 S. Ct. at 2852).
In addition, the Court supported the appointment of surrogate decision making on behalf of patients.
