Facing End-of-Life

February 14, 1993|By SARA ENGRAM

This past week, the Dutch parliament officially recognized an informal consensus about mercy killing that has been unofficially honored by legal and medical authorities in the country for several years.

The story made front-page news. But the important point is not that a country legalized euthanasia -- the action stopped somewhere short of that -- but rather that an elected legislature approved a consensus on a far more radical issue than questions about living wills or other decisions about end-of-life health care matters.

If Dutch legislators can handle that hot potato, maybe there's hope that Maryland's General Assembly can agree this session on legislation setting out legal guidelines for the painful decisions that face increasing numbers of families.

The issue is too important to put off another year, especially since a recent Court of Appeals decision involving a comatose man specifically threw the ball back in the legislature's court: "Where the values themselves are in a state of flux in society," the majority opinion said, "a legislative body is better equipped to determine, within constitutional limits, whether some lives are not worth living and, if so, how to determine [them]."

Under current law, decisions are made all the time in behalf of incapacitated patients by doctors and families. Most everyone agrees that's exactly how those decisions should be made.

But Jack Schwartz, chief of opinions for the Maryland attorney general, notes "There is large gap between what actually happens and how Maryland law describes the situation. . . . Maryland law at present doesn't give the participants the assurance it ought to that their decisions will necessarily be honored."

Maryland law not only needs clearer guidelines from the legislature on how families and physicians should go about making "substituted judgments" for an incapacitated patient. It also needs to revise its provisions for allowing people to draw up documents stating how they want these decisions to be made.

Currently, Maryland is one of only three jurisdictions that does not specifically provide for a durable power of attorney for health care. And the state's living will statute recognizes only a narrow range of circumstances in which the document could take effect.

Two bills have been introduced in the General Assembly. They have some key differences, but those disagreements have narrowed considerably during the drafting process and there is no reason to think that acceptable compromises cannot be worked out.

The longer of the two bills, a hefty piece of legislation, was crafted by a committee headed by Judge John Carroll Byrnes of the Baltimore City Circuit Court. Judge Byrnes has taken a special interest in these kinds of decisions since 1986, when a Baltimore clergyman, accompanied by physicians and lawyers, appeared before him asking permission to remove life support from his wife, Jacquelyn Cole, who had been in a coma since suffering a massive stroke 41 days earlier.

Judge Byrnes was not prepared to grant permission. Six days later, Mrs. Cole woke up.

For Judge Byrnes, the case illustrates how even the most loving, well-meaning families can make premature decisions. He also wants the law to recognize that some families are dysfunctional, that mistakes can be made. He thinks the legal guidelines should take care to balance all the competing interests even if that seems to impinge on family decision-making.

nTC The second bill is based largely on the law adopted last year in Virginia. It is a leaner piece of legislation and gives more weight to families in the decision-making process.

Professor Diane Hoffman of the University of Maryland School of Law, who helped draft the measure, maintains that this bill is better suited to the realities under which most of these decisions are made.

She says, "The problem in this country is not under-treatment, but over-treatment," which, she suggests, indicates the state interest in preserving life is often being given more consideration than the wishes of the people who know the patient best.

Given all the debate and thought that has gone into each of these bills, it seems likely that once they come before the legislature the differences will be relatively few and the choices will be clear

The groundwork has been done. What's left for the legislature to do is to decide where the lines will be drawn. But one thing is sure, this is the year the legislature needs to draw those lines.

The key question is whether legislators are willing to grapple with issues that are never easy and not always clear -- but clearly essential.

Sara Engram is editorial-page director for The Evening Sun.

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