Context for Life-or-Death Decisions

April 18, 1993

Earlier this year, in a decision involving custody of a man in a persistent vegetative state, Maryland's Court of Appeals noted that legislatures, not courts, are the proper place to debate societal values that influence life-and-death decisions. The General Assembly rose to that challenge by passing a bill giving families a key framework for some of the hardest decisions they will ever face.

The Maryland Health Care Decisions Act does a number of important things. It updates state law regarding documents like living wills or durable power of attorney for health care decisions that provide guidance to physicians and hospitals in case a person is incapacitated.

Most Americans are comfortable with decisions to withhold or withdraw life-sustaining treatment in cases where a patient has clearly indicated a preference. The harder decisions come when the patient has left no instructions. Many laws tend to favor family decision-making while including safeguards against abuse. The new Maryland law follows this approach and sets out the order for determining who should act as surrogate.

There are safeguards for any surrogate's decision about life-sustaining procedures, including a requirement that two physicians certify that, to a reasonable degree of medical certainty (not mere probability), the patient has a terminal or end-stage condition or is in a persistent vegetative state. Any health care provider who feels the decision is inconsistent with generally accepted standards of care can appeal to an institutional ethics committee or a court. Family members and qualified surrogates can also file suit to overturn such decisions. The act strictly forbids mercy killing.

One of the more controversial aspects is a provision for ending life-sustaining procedures in cases that do not fit traditional definitions of terminal diseases -- "end-state" conditions like Alzheimer's disease in which the time of death is not imminent as it would be in advanced cases of cancer.

The bill contains many compromises between those who wanted to place great trust in families to make these decisions and those who caution many families are dysfunctional and any decisions about life and death should be made in a context that includes strong safeguards. Fortunately, this debate drew a great deal of interest from a wide range of groups and individuals. The public discussion and the compromises produced a better bill, one that tackled hard questions and produced some reasonable answers.

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