A Catholic Look at NC Advance Directives
Bob Mason
Originally published in Catholic News & Herald, Catholic Diocese of Charlotte (8/2005)
(Minor Modifications Made)
On March 20, 2004, Pope John Paul II gave a concluding address to the Vatican-sponsored International Congress On Life-Sustaining Treatments and Vegetative State. He had some wonderful words on the topic of end-of-life (and perhaps “not-so-end-of-life”) decision making, especially in the context of a “persistent vegetative state”. The words were immediately misquoted and misunderstood. The address certainly rankled many who did understand what he had to say.
Shortly after the address, I spoke to a physicians’ group on legal issues involving Advance Directives. One Catholic physician approached me at break and asked “So, Bob, what do you think now that the Pope has condemned advanced directives”? As I mentioned, many misunderstood what the Holy Father said.
In fact, any Catholic with an understanding of the Church’s teaching on the subject (particularly the teaching of our late pope) will understand the immediate need to carefully prepare and execute advance directives that comply with secular law. These directives, also misunderstood, can be used to enforce death . . . and to enforce life.
In this article, I will summarize the state of North Carolina law in view of the Church’s teaching and what you can do to ensure that you have a set of Advance Directives that complies with both secular law and the Church’s teaching.
The Church’s Teaching In a Nutshell
An in depth treatment of the Church’s position on the topic is impossible in this article. Catholic Social Services of the Diocese of Charlotte, however, is sponsoring a number of seminars around the diocese from August 10 through September 27. Make plans to go. The program looks wonderful, and it will be an opportunity to learn more about this very big topic.
In a nutshell: Euthanasia is the intentional killing of another for the purposes of eliminating all suffering. It is never acceptable. Never. It is, on the other hand, morally permitted to forego aggressive medical treatment that will be disproportionate to the expected results and impose an excessive burden in view of the patient’s real situation when death is clearly imminent and inevitable. “Disproportionate” means that there will be a cost-benefit analysis; if the pain and intrusiveness of the treatment clearly outweigh any expected benefit to the patient, the intervention will be “disproportionate”. Whether the termination of medical treatment amounts to euthanasia involves an examination of the will behind the omission and the means used.
Interestingly, the foregoing standards might be considered a base moral norm. Pope John Paul II wrote in
Evangelium Vitae that the voluntary acceptance of suffering, while a heroic measure perhaps not meant for everyone, might be worthy of praise (obviously he continued to teach us, by example, to the end; as St. Francis said: “Preach always, use words when necessary”). Nevertheless, a Catholic may forgo aggressive medical treatment with a clear conscience if death is neither willed nor sought, and if that decision to forgo will not prevent the discharge of important moral and religious duties.
Also in the nutshell: Furnishing nutrition and hydration (please avoid distinctions between ‘artificial’ and ‘real’) is never a medical act, it is an ordinary act. As an ‘ordinary act’ it is usually (let’s say “almost always”) going to be morally obligatory. When might they not be morally obligatory? Pope John Paul II, in his address to the International Congress, provided an answer: When hydration and nutrition have reached their “proper finality”, when they neither provide nourishment nor the relief of pain.
And finally: Vegetative state. A patient in a vegetative state is not a vegetable. He or she retains all of the dignity of a human being created by, and in the image of, God. The consideration of whether a patient is in what some physicians may determine to be a technical vegetative state is never appropriate when making end of life decisions. Never. The North Carolina statutory definition of “persistent vegetative state” must be carefully considered. More on that follows.
These are difficult teachings to thoroughly understand. When in doubt talk to your priest, inform yourself, and pray. Then set out to understand North Carolina law.
North Carolina law: Use It
The term “Advance Directives” is a general term covering both living wills and health care powers of attorney (also ‘do not resuscitate’ orders in a hospital – a topic for another article). In North Carolina, a living will is also known as a declaration of desire for a natural death (“DDND”). The terms are synonymous.
Health Care Powers of Attorney: A Heath Care Power of Attorney is a document used to designate one or more persons to make health care decisions for you if you are unable to do so. If you do not have a health care power of attorney, the situation will be ripe for confusion and discord over whom the appropriate decision maker will be. You may or may not agree with the person who ultimately prevails as your decision maker. For example, one adult child may be more appropriate than another to make health care decisions for a parent, or a frail and infirm spouse may not be a good decision maker.
If you do not have a Living Will (DDND), but you do have a Health Care Power of Attorney, the agent named under the Health Care Power of Attorney likely will be able to make the same end-of-life decisions that you could have directed under a DDND.
Talk to your Health Care Agent carefully and make sure that person both knows and understands your wishes and is familiar with (and will rely on) Church teaching. You must trust the person appointed and be able to rely upon that person to “do the right thing”.
North Carolina law provides an approved Health Care Power of Attorney form.
(You may download one by
clicking
here) The form is readily available, and in its statutory form provides very broad powers to the Health care Agent, both in routine medical situations and more dire situations.
You can limit the Agent’s powers. In fact, unless you thoroughly and explicitly trust your agent in all situations, you should limit the Agent’s powers. Item 4 of the Statutory Form provides a bit of space to do this. I know of very few individuals lacking legal or medical training who could do an adequate job of completing the “blank space”.
The North Carolina statute provides that the form supplied is not the only way to comply with the statute. I have told clients they can write a valid advance directive on the back of a grocery bag . . . as long as they know what they are doing! National Right to Life has valid forms on line for all states. Go to
www.nrlc.org and click on “Will To Live”. The North Carolina version is the statutory form, stripped of some provisions and with more structure given for Item 4.
Most importantly, a statutorily valid Health Care Power of Attorney that has been reviewed
informally by canon lawyers
in the Diocese of Charlotte and that complies with Church teaching is posted on
this website by clicking
here.
Health Care Powers of Attorney allow you to appoint someone else to make decisions for you. Not all individuals have the luxury of a trusted, solid and available person to fill the role. Further, the person chosen may not always be available. Or you may simply want to insure that your wishes are carried out. A Declaration of a Desire for a Natural Death will override (will “trump”) a Health Care Power of Attorney to the extent of any inconsistencies. All Catholics should carefully consider completing one, notwithstanding the rather distasteful “Natural Death” title. As I will explain, the statutory form is not the only way to go.
Declaration of a Desire for a Natural Death (“DDND”): That North Carolina Catholics understand how the state’s Right to Natural Death Act works is vitally important. The Act will apply to you whether you like it or not and regardless of whether you complete a DDND.
First, the Act defines “persistent vegetative state” as “a medical condition whereby in the judgment of the attending physician [and one other physician] the patient suffers from a sustained complete loss of self-aware cognition and, without the use of extraordinary means or artificial nutrition or hydration, will succumb to death within a short period of time." The definition is almost laughable if one analyzes it carefully: Two physicians need only agree that the patient (i) suffers from a "sustained" loss of self cognition, and (ii) without . . . artificial hydration or nutrition the patient will die. If the two physicians can agree to what ever "sustained" means, they can certainly agree that the patient will die if not given nutrition and hydration.
Second, the statutory form contains provisions, that if improperly completed, render the document self-negating.
A Statutory DDND is
available by clicking
here.
Third (perhaps the most disturbing part), the Act provides that if some sort of Advance Directive that complies with the Act has not been completed, and if two physicians determine that the patient is either “terminable and incurable” or in a “persistent vegetative state”, then a decision to withhold extraordinary medical treatment OR artificial hydration and nutrition may be taken by (in order): the healthcare agent appointed under a HCPOA, the guardian, the spouse, and then "a majority of the relatives of the first degree". If none of the foregoing are available then the attending physician may decide.
In other words, there is not a "substituted judgment standard" here ("what would Terri have wanted" as proved (supposedly) by clear and convincing evidence . . . in Florida, at least the courts went through the motions of attempting to determine what Terri's subjective intent was). Because of this rather disturbing situation, I believe it is important for all Catholics to complete a directive that comports with both Church teaching and the North Carolina statute.
Fortunately, a “Declaration of a Desire for a Natural Death” form that does comply with Church teaching is available. The form has been reviewed
(again, informally) by canon
lawyers in the Diocese of Charlotte and is available
by clicking
here.
Because the forms posted
on this website have not
been formally reviewed
and approved by officials of
the Diocese of Charlotte, I
urge you to review them with
your pastor.
