Advance Directives for Health Care

In their advance directive statutes, many state legislatures have attempted to draw distinctions between artificial sustenance (i.e., feeding and hydration tubes inserted either surgically in the patient's stomach or manually through the patient's nose and throat), on the one hand, and other forms of life-sustaining medical treatment (e.g., ventilators, antibiotics) on the other. Specifically, many statutes try to make it more difficult procedurally for families or other proxy decision makers for incompetent patients to refuse or withdraw feeding and hydration tubes than to refuse or withdraw other forms of life-sustaining medical treatment. Advocates for these legal provisions sincerely believe they are necessary to protect especially vulnerable patients from unfair undertreatment; nonetheless, advance directive statutes that discriminate on the basis of the type of medical treatment being refused by the patient or surrogate are probably unconstitutional.

The courts and legislatures have consistently made it clear that state advance directive statutes are not intended to be the only means by which patients may exercise their right to make future decisions about medical treatment. For example, a patient might express wishes regarding future medical treatment orally to the physician during a medical appointment, with the physician recording the patient's words in the medical chart. When that patient later becomes incapable of making medical decisions, the patient's oral instructions are just as valid legally as would be a written document executed in compliance with all the statutory formalities found in the state's advance directive statute.