Respecting Our Elder's Wishes

n an open, democratic society, the idea is to craft laws and policies that promote good and hinder evil--more or less, anyway. It would be a strange and unfortunate state of affairs if there were laws that required us to hit our neighbors over the heads, to deceive people we do business with, or to discriminate against ethnic minorities. The reason there are no such laws is because assault, fraud, and bias are wrong.

Morality precedes and should guide the law. Sometimes it is fairly easy to tell right from wrong. And, to be sure, sometimes it is not so easy, even in an open society. But then the virtues of free inquiry and communication are often available to guide us.

When it comes to refusing medical treatment, even life-sustaining medical treatment, we have another area in which there is broad and solid agreement between ethics and law--well, some law.

Here is the deal: Informed, competent, uncoerced adults can refuse any treatment they want, even if that refusal precedes or causes their death. Put differently, you may say "no" to your doctors and nurses, even if it kills you. Living wills let you express those wishes before any loss of competence or capacity. The ethics is pretty straightforward. People have rights to self-determination, to refuse unwanted touching, to want dignity at the end of life.

The law is a little more difficult to parse. Case law, or rulings in individual cases, is as clear as a bell. The Florida Supreme Court and the U.S. Supreme Court have both reached decisions affirming people's right to refuse life-sustaining medical treatment, and that such refusals should be respected. This means that people may ask that treatment not be started or, if it has, that it be stopped. (Make no mistake here: Withholding or withdrawing unwanted treatment has absolutely nothing ethically or legally in common with assisted suicide, active euthanasia, or any sort of "mercy killing.")

But the relation between the judicial and the legislative branches of government is a strange and wonderful thing. I mean, sometimes they disagree, or seem to. While state and federal supreme courts have been clear about patients' rights to refuse treatment, some legislatures, including Florida's, have been less clear. The Florida Legislature last year passed generally praiseworthy legislation to update the law on living wills. But for a host of reasons, most of which are hard to understand, the Legislature and the governor decided to leave in place restrictions on rights to refuse treatment through living wills.

Basically, the living will statute requires that patients have a "terminal condition" certified by two physicians before a living will can be respected. But the official definition of "terminal condition" is confusing and counter-intuitive. The effect--especially in Florida, with a large elderly population--is that many patients receive treatment they don't want. That is wrong.

All this has generated a fair bit of controversy around the state. Now, a good political scrap is often good for the democratic fiber. But when it comes to quality end-of-life care, there is so little to disagree about. Everyone agrees that we need to do a better job providing palliative care, including adequate pain control; everyone agrees that it's wrong to stick tubes in people who wish you wouldn't; everyone knows that we should show greater respect for our elders.

Fortunately, these truths are enjoying greater currency all the time. The ethics are clear enough. Now we can look forward to the law catching up, perhaps in the current legislative session.