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Message #644 Natural Death Act

mp3 #644 California’s Natural Death Act (mp3 file)

Suppose you are severely injured in an accident, or critically ill from a disease. Suppose there is nothing your doctors can do to save your life, and you are going to die. Suppose you become physically unable to express your wants and needs to other people, because you are in a coma. If you were in that situation, what would you want your doctors to do for you? Would you want your doctors to use every available medical device to keep you alive and prolong the dying process for as long as possible? Or would you want your doctors to stop using breathing machines and other extraordinary measures, and permit you to die?

California laws allow you to give your physician a written directive, to stop using life-sustaining procedures when you are in a terminal condition. California's Natural Death Act has been in effect since 1977, and it is part of the health and safety code, from section 7185 to section 7194.

In these laws, the California legislature makes these findings:

--"that modern medical technology has made possible the artificial prolongation of human life beyond natural limits;

--"that such prolongation of life for persons with a terminal condition or a permanent unconscious condition may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.

--and "that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition, or a permanent unconscious condition."

A directive to your physicians must substantially include the following provisions:

"if I should have an incurable and irreversible condition that has been diagnosed by two physicians, and that will result in my death within a relatively short time without the administration of life-sustaining treatment, or has produced an irreversible coma or persistent vegetative state, and I am no longer able to make decisions regarding my medical treatment, I direct my attending physician, pursuant to the Natural Death Act of California, to withhold or withdraw treatment, including artificially administered nutrition and hydration, that only prolongs the process of dying, or the irreversible coma or persistent vegetative state, and is not necessary for my comfort or to alleviate pain.

If I have been diagnosed as pregnant, and that diagnosis is known to my physician, this declaration shall have no force or effect during my pregnancy."

You then date and sign the declaration, and you include your address. When you sign it, you must have two witnesses present, who also add their signatures and addresses, certifying that you voluntarily signed the declaration in their presence. Your two witnesses may not be beneficiaries of your estate when you die, and they may not be health care providers or their employees, nor the operator or employee of a community care facility or a residential care facility for the elderly.

You should then give a copy of your signed and witnessed declaration to your physicians or other health care providers. They will make it a part of your medical record, and if they are unwilling to carry out your wishes, they will promptly tell you of their unwillingness, so you can find a health care provider who will carry out your wishes.

If, at the time you complete this document, you are a patient in a skilled nursing facility or in a long-term care facility, then one of your two witnesses must be a state-designated patient advocate or ombudsman.

Your declaration does not become operative until:

1-you or someone else gives a copy to your attending physician, and

2-you are diagnosed to be in a terminal condition, and you are no longer able to make decisions regarding the administration of life-sustaining treatment. The diagnosis must be certified in writing by your attending physician, and by a second physician who has also personally examined you.

When your declaration becomes operative, your attending physician and other health care providers shall act in accordance with your stated wishes, or they will transfer you to physicians and health care providers who will comply with your wishes.

You may complete your declaration at any time after your 18th birthday, and your declaration continues indefinitely, unless you revoke it, or unless you state in your declaration that it continues only for a stated length of time.

Even though you complete this declaration, that directs your physician to withhold or withdraw life-prolonging treatment under certain circumstances, your physician will still provide you with treatment for your comfort, care, or alleviation of pain.

California law states that this declaration "does not condone, authorize, or approve mercy killing or assisted suicide, nor does it permit any affirmative or deliberate act or omission to end life, other than to permit the natural process of dying."

A death, resulting from this declaration's directives to withhold or withdraw life-sustaining treatment, does not constitute suicide or homicide, and it will not affect life insurance benefits.

No one may require you to sign such a declaration, as a condition for insuring you for, or providing you with health care services.

If you have signed a similar declaration in another state, in compliance with the laws of that state or with California's laws, then it is also valid in California.

What if you also complete a Durable Power of Attorney for Health Care, designating someone else to make health care decisions for you if you become mentally or physically unable to make them for yourself? Which document prevails, between the two documents? California law says that it is the Durable Power of Attorney for Health Care which is followed, rather than the declaration under the Natural Death Act, if there is any conflict between your two documents.

The question then arises, is there any reason to complete both documents -- both the durable power of attorney for health care, and the Natural Death Act Declaration? Or if you do just one, which one is better for you?

If you wish to choose just one of these two documents, the Durable Power of Attorney for Health Care probably meets the needs of most people. Its two main advantages are the following, as compared to the Natural Death Act Declaration:

1--In the Durable Power of Attorney for Health Care you appoint a person you trust to make sure that physicians and other health care providers actually carry out your wishes, instead of just relying on their voluntary cooperation without any monitoring.

2--With the Durable Power of Attorney for Health Care, you do not have to be diagnosed as having a condition that will result in your death within a relatively short time, nor in an irreversible coma or persistent vegetative state, in order for your agent or representative to act on your behalf. Without yet having reached any of those extreme conditions, you may still want treatment withheld or withdrawn, and that might not be possible without a Durable Power of Attorney for Health Care.

The only reason for having a Natural Death Act Declaration would be if you have no person you want to appoint as your agent in a Durable Power of Attorney for Health Care. For more information about the Durable Power of Attorney for Health Care, listen to SmartLaw message 643.

To obtain copies of the Natural Death Act Declaration, write to California Medical Association Publications Department, Post Office Box 7690, San Francisco, California 94102-7690, telephone number area code 415, 882-5175. Payment must accompany your order. The price for the Natural Death Act Declaration is $2.00 for one copy, plus local sales tax. Checks are made payable to California Medical Association Publications Department. Discounts are available for larger orders.

Or you may contact your local public library, law library, stationary store, physician, hospital, or medical society.

After completing your Natural Death Act Declaration, you should give a copy to your attending physicians, in case your future medical condition qualifies under the California Natural Death Act.

California law does not require you to complete either the Durable Power of Attorney for Health Care, or the Natural Death Act Declaration, in order for your wishes to be carried out, but it is surer if you complete one of the documents.

In 1983, a California court of appeal in Los Angeles, considered the case of a man who had had fairly routine surgery. Then in the hospital recovery room, his heart stopped beating and he stopped breathing. Doctors and nurses were able to revive him, and they placed him on life support equipment. After several days however, his doctor determined that he had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent. This man had not signed a declaration authorized by California's Natural Death Act, but he had once told his wife that he would not want to be kept alive by machines. After consulting with his doctors, his wife and eight of his children signed a directive to the hospital in his medical chart, stating that they wanted all machines taken off that were keeping him alive. The man's breathing machine and other life sustaining equipment were then removed. The man was able to breathe without the equipment, but he did not improve. Two days later, after again consulting with his family, his doctors ordered the removal of the tubes that provided him with fluids and food. A few days later, the man died. His two doctors were later charged with first degree murder, for removing his breathing machine and his food and fluids, while he was in a coma from which there was almost no chance of recovery, because they had allegedly hastened his death, by removing these life supports.

The California court of appeal in 1983 ruled that the doctors could not be prosecuted for murder, because the doctors had no duty to continue treatment, once they realized that the treatment was ineffective, useless, and futile, with no reasonable benefit to the patient.

In its published opinion, the court of appeal discusses California's Natural Death Act, and concludes that the Natural Death Act does not represent the exclusive basis for terminating life-support equipment in California. A competent adult patient has the right to refuse medical treatment at any time, whether or not the patient has signed a declaration under the Natural Death Act. If the patient is not capable of indicating whether or not he wants certain medical treatment, then the patient's immediate family might make that decision, guided by the patient's previously expressed feelings and desires, and the patient's best interests. The court of appeal also found that there was no legal requirement in California that a court must give prior approval before any decision to withdraw medical treatment can be made. The court of appeal also stated that formal guardianship proceedings were not required, given the facts of this case, although guardianship proceedings could have been used.

The name of this court of appeal case is barber versus superior court, and the decision was filed on October 12, 1983. The case citation is 147 Cal. App. 3d 1006. The lesson of this case is this: you may use the declaration authorized by California's Natural Death Act. But as an alternative, while you are still mentally competent, you may tell your family and your physicians that you do not want to be kept alive with life support equipment, when it will only prolong your dying process. You have the legal right to refuse medical treatment at any time, if you are mentally competent. If you are not mentally competent, your immediate family may refuse certain medical treatment on your behalf. And if you have no immediate family, such as a spouse or an adult child, you may wish to have a guardian appointed for this purpose, while you are still competent to do so. Another effective alternative is to obtain a durable power of attorney for health care, which is described in SmartLaw message 643.

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