Research On Advance Directive For Health Care

Advance health care directive is a very important and essential concept and legal measure in the protective system of patient right to self-determination.Competent adult patients are entitled to exercise their right to be informed and give consent at any stage of the medical intervention has become globally recognized and accepted,however,when it comes to the incompetent patients,their right to self-determination,especially the right to make a negative choice about their own life,health and body,is usually deprived or limited.Under this medical circumstances,substitute decision maker,such as legal guardians appointed by the court or the other family members are asked to fill in to give informed consent on behalf of the incompetent patients,in case they make some foolish or irrational decisions which would bring harm to both themselves and the others who share the same interests with them.Following this logic pattern,legal competence has become a standard to assess whether the patient are qualified to make autonomous medical decisions for themselves or not.Along with the development of global aging and disability,the psychologists and neurologists,together with the legislators start to realize that being incompetent does not necessarily mean that all the cognitive functions of the patients are damaged,instead,their decision making capacity are retained at certain levels,all they need is for someone to assist them to express their wishes.And given the fact that patients who suffer severe illness,such as advanced dementia and other physical diseases,are already vulnerable enough,being deprived of the constitutional and civil right to make the final and vital decisions which relate to their own life,health,body and privacy only makes their situation much more miserable.So if there is a legitimate way to carry their medical wishes out after the loss of their cognitive functions and break the monopoly of legal competence standard which impedes the implementation of patient autonomy,it will greatly promote the exercise of patient self-determination,especially that of the aged and disabled ones,and in return,the establishment of the legitimate way will also prevent them from being exposed to potential abuse of their legal guardians or family members.This legitimate measure refers to the advance directive,its emerging as a supportive decision making model not only reflects the pursuit of autonomy of will,but also appeals to the calling of respecting dignity of risk of the aged and disabled population.This dissertation contains six major chapters along with the introduction part.The first chapter mainly introduces the basic theory of advance health care directive and its development.Section one focuses on the concept and nature of the advance health care directive;the two particular measures which compose it,i.e.,living will and durable power of attorney for health care;and one more important concept which forms the premise of the whole regime,medical decision making capacity.Section two explores the origin and development of advance directive.The arise of every regime is the outcome of certain social conditions.Due to the severe ageism,the U.S.Government found it hard to cover the medical expense of the senior citizens,especially the ones during the period of terminal illness,whilst the patients themselves did not appreciate the mercy of the federal government which prolonged not only their meaningless life,but also the painful process of dying.A large mount of patient took extreme measures to realize the mercy killing.Given this universal social phenomenon,the first generation of advance directive,living will was introduced by the human rights lawyers and soon spread across the country.But the medical conditions can be complex and volatile,the vagueness,narrowness of a single and simple statement may not fit in the later specific medical circumstances.And during the clinical practice,the doctor clearly wanted to be connected to a person rather than a document,then the second generation of advance directive was created,which provided the patients with more flexible choices.The second chapter focuses on the discovery of legitimacy basis for advance directive,which falls into four layers.As a newly emerging regime,especially the one that challenges the tradition understanding of ration,the institutionalization of advance directive faces difficulties from both sides of the law and ethics.The first judicial basis and also the basis at the core is the patient right to self-determination,this section mainly deals with how advance directive protects patient autonomous right to decide what treatment are allowed to act on their own body,and their right to die and do harm to themselves which may cause a tension between medical patemalism/familism,and how advance directive finds a way to extend patient autonomy status to the loss of their decision making capacity and provide them with the chance to control their own medical fate,even the fate to die naturally,with the help of the legal recognization of patients' constructive intent and their needs to remain personality integrity.The second basis is the promotion of the dignity of risk theory from disability law reform,which prevents the vulnerable patients who lack decision making capacity from being completed protected and watched by their legal guardians,in return,this theory enables them to take a reasonable risk,such as issuing an advance directive to continue controlling their medical affair,and do whatever they need to realize their personality.The third basis is the criticizing of the defect of traditional substitute decision making model,which is consist of the intervention by both legal guardians and family members.The intervention by the substitute decision makers undermines the chance patients have to reach their self-determination,so patients are in need of a measure which would prolong their capacity and protect their true intent,advance directive gives them an access to that goal.The fourth basis is the supportive functional orientation of advance directive,especially the durable power of attorney for health care.The establishment of supportive decision making model is the requirement of U.N.documents,the member states are obliged to reform their current substitute decision making model and provide their citizens with a regime which could enable the vulnerable patients to extend their autonomous status after being found incompetent.Advance directive is created for a more equal and free relationship,for remaining patient dominant role in the process of decision making as long as possible,and for respecting patient true wishes at the highest level.Considering the factors above,advance directive fills in the scope of supportive decision making model.The four theories form a solid foundation for the validity of advance directive,and smooth its way to a more greater use.The third chapter is about the discovery of medical decision making capacity.Section one illustrates the importance and essence of this unique capacity in the establishment of advance directive.It is not only the prerequisite of the advance directive,but also incapacity indicates the validity of the directive.Furthermore,it is the last defense line which protects patients self-determination and dignity.Therefore,its independent status is discovered and recognized by the legislators.Section two argues the defect of incompetence equals to non-autonomous status.In the early days,there is a burr between the concept of legal competence and medical decision making capacity,patient who lack legal competence is also considered incapacitated in the decision making process.However,the development of psychology and neurology technique finds the defect of the fixed legal competence and its maladjustment to the flexible decision making process,and suggests that medical decision making capacity is an independent concept,and should be separated from being considered as part of the global legal competence.Section three explains the difference between legal competence and medical decision making capacity,and explores the new content of the latter.First,medical decision making capacity recognizes the both sides of aging.Aging does not only mean the gaining of the autonomous status,but also indicates the loss of capacity due to humans' intrinsic aging rule.The advance directive legislation should take some precaution on this change.Second,this concept identifies the role physical factor plays in the generating process of human's will,and considers the special circumstance under which vulnerable patient who does not possess the physical power to be involved in the decision making process.Third,this capacity holds a more comprehensive attitude towards intelligence factor.The flaw of intelligence does not necessarily mean that patient has lost all the ability to make decisions,advance directive tends to respect the last piece of intelligence that patient possesses and gives it the credit it deserves.This attitude also influences the assessment of medical decision making capacity,psychologists and neurologists develop the so called three factors or four factors that are essential to patients capacity,advance directive legislation absorbs those theories and set the two complementary rules,i.e.,the result of patients' decision does not effect their capacity assessment,but the capacity should be commensurate with the gravity of the decision.The fourth chapter introduces the legislation experience from foreign law perspective.Section one analysis the constituted requisites of advance directive,including the formality and the qualification of the involved subjects,such as the patient,durable power of attorney and witness.The more strict the law requires,the more protection advance directive offers the patient,but tedious paperwork would also decrease the usage of the advance directive.Section two demonstrates the basic principles of advance directive,best respect principle and least intervention principle supplement each other,the respect of patient intent and remaining capacity relies on setting reasonable interventive condition and intervening level.If the application of the above principles is impossible,best interests principle applies,while applying this principle,certain boundaries should be clarified between the patient and the actual decision maker,spiritual interests should be considered,and at the same time,special medical decisions,such as organ donating,should be limited.Section three deals with the realization of the advance directive,i.e.,its unique validity rules,effectiveness and operativity rules and revocation requirements.Section four mainly focuses on the two models of the supervision,from both the public and private sector,each has its own advantages and disadvantages,the combining of the two models would offer patient with more protection and more space to exercise their autonomy is suggested.The fifth chapter examines the deficiency of advance directive in China's legal system.Section one reflects as a traditional familistic state,China's legislation has long been ignoring patient right to self-determination,instead,family members,no matters being appointed as legal guardians or not,are involved deeply in the private decision making process of the patients,given the mandatory and abusive nature of the family intervention,familism is turning into a new paternalism,which may effect patients' self-determination in a negative way.Although a series of regulations have tried to pull the legislative theory back to the individualism pattern which values patient own involvement and opinions toward their medical affairs,the newly established Tort Law brings the opposite by confirming familism at both legal and clinical levels.Section two reviews the lack of supportive decision making model,such as the advance directive in our legal system.First,the independent status of medical decision making capacity is not recognized by the current legislation,even it reflects a more specific,unique ability that differs from the global,simple legal competence concept which lacks expectation for the aging and disabling society.Also,the lack of guidelines on how to acutely assess this capacity fails to offer patients the protection for their autonomy they deserve.Second,the new voluntary guardianship introduced by the General Principles of Civil Law does not function as a supportive advance directive,for the new guardianship model follows the same validity requirement and the duty standards as the legal guardianship has,so it is still a substitute decision making regime.Under this circumstances,the patients still has not been provide a way to extend their autonomous status to the loss of their actual medical decision making capacity.The sixth chapter visualizes the establishment possibility of advance directive in our current legal system.Section one analysis the social conditions for the establishment of advance directive are mature,first,the severe ageism and the development of disability remind us that the vulnerable patient groups indeed has the urge to improve their current situation of lacking total control over their medical affairs.Second,the destruction of familism indicates that the base for medical familsm is also annihilated,medical individualism is developing,which provides advance directive with a more consolidated ground.Furthermore,more and more family members suffer great pressure and moral condemnation making vital decisions for patients regarding their life,body,health issues,while an advance directive can easily avoid such negative impact.Third,the stimuli such as the establishment of advance directive in Singapore and Taiwan,China also suggests that advance directive can be adjusted for the familistic culture in Asia and can be used at its full strength in helping incapacitated patients extending their autonomy.Section two focuses on discovering an appropriate position for advance directive in our legal system,such as defining the legal doctrine and basis for the legislation and its title;recognizing the independent status of medical decision making capacity;setting the constituted requirement,basic principles,validity and effectiveness,supervision rules in the specific legislative process.