One of the big memes from the media about the Schiavo case is that the ultimate solution lies with living wills:

Schiavo case sparks push for living wills
Living Wills: Everyone Ought to Have One
Schiavo debacle shows why living wills a must
Living wills bring peace of mind

It’s good that the Schiavo case is raising awareness about end-of-life decisions, but in the media frenzy to provide easy answers to the public, the flaws and shortcomings of livings wills are getting glossed over.

James Q. Wilson noted some of the problems earlier this week:

Some people believe that all of these issues can be resolved if everyone signs a living will that specifies what is to be done to them under various conditions. The living will is supposed to determine unambiguously when a “Do Not Resuscitate” sign should be placed on a patient’s hospital chart. Terri Schiavo had not signed a living will. If she had, we would not be facing these issues.

But scholars have shown that we have greatly exaggerated the benefits of living wills. Studies by University of Michigan Professor Carl Schneider and others have shown that living wills rarely make any difference. People with them are likely to get exactly the same treatment as people without them, possibly because doctors and family members ignore the wills. And ignoring them is often the right thing to do because it is virtually impossible to write a living will that anticipates and makes decisions about all of the many, complicated, and hard to foresee illnesses you may face.

The mention of the Michigan research sparked my interest. You can find the report and other related publications here at the Hastings Center website and at the University of Michigan Health System site. ElderLaw News has a good summary:

In an article in the March/April 2004 issue of the bioethics journal the Hastings Center Report, an internal medicine researcher and a professor of law and internal medicine report some provocative findings: The documents designed to help people choose the treatments they would like when dying fail to meet five key criteria for success. Worse, the evidence suggests they don’t work. The researchers base their conclusions on a comprehensive review of hundreds of studies of living wills, end-of-life decisions and the psychology of making choices.

…The University of Michigan researchers say living wills may be useful for patients who are imminently facing death, who know their medical circumstances and who have strong and specific beliefs about them. But they conclude that living wills offer a false promise of control over end-of-life treatment.

“Our review shows that the evidence about living wills demonstrates that they fail all five tests that would have to be passed for them to work,” says co-author Angela Fagerlin, Ph.D., a research scientist with the University of Michigan Medical School and the VA Ann Arbor Healthcare System.

“First, most people don’t even have living wills. Second, those who do rarely know what care they would truly want in some hypothetical future. Third, it’s surprisingly hard for people to state their wishes accurately and understandably. Fourth, the document is often unavailable when decisions need to be made. Fifth, even when it is available, surrogate decision makers usually cannot reliably apply its instructions to the patient’s current health condition.”

Co-author Carl Schneider, a University of Michigan Law School and Medical School professor comments, “Living wills don’t fail for lack of effort, education, intelligence, or good will. They fail because of basic traits of human psychology.”

For instance, studies show that people have great trouble predicting their own preferences about even simple, everyday things, like what snacks they will want or what groceries they will buy next week. “If they have trouble predicting what is familiar,” asks Schneider, “why should we expect them to succeed when they are predicting what they will want in circumstances they have never experienced and can’t foretell?”

The functional illiteracy of many Americans, and the difficulty even for skilled writers of expressing their wishes well, add to the problem, Fagerlin notes. And, people’s preferences often change as their situations or medical technology changes.

The researchers instead recommend that for most people, a durable power of attorney (DPA) for health care may be adequate.

DPA’s allow people to name someone whom they would want to make decisions about their care. That person is usually the patient’s spouse or child, but it can be any trusted individual.

“DPA’s only require a few simple choices, and they don’t differ significantly from the existing system of allowing family members to make medical decisions about incompetent patients,” says Schneider. “They also allow the decision-maker to use the information about the patient’s condition that’s available at the time a decision is needed, rather than asking the patient to guess about something far in the future. And they’re inexpensive.”

You can find power of attorney and health care forms for the 50 states here.

Another alternative to traditional livings wills are Physician Orders for Life-Sustaining Treatment.

Update: Doug Kern has a thoughtful reflection related to the limitations of living wills at Tech Central Station (hat tip: Clinton Watson Taylor, whose own thoughts on the Schiavo case are at The American Spectator).

Update II: John Eastman at The Remedy writes on Terri’s agony, our duty…

Today is Good Friday, one of the holiest days on the Christian calendar. For Christians, it is a day for the deepest of reflection on the agony and passion of our Lord. This year, it is also a day to reflect on the agony being suffered by Terri Schiavo at the hands of a Florida Court, who has ordered not just the removal of a feeding tube, but barred anyone from giving her even the most basic sustenance, such as an ice chip on the tongue. All this, based on what the Florida Court of Appeals conceded was “precious little evidence” of what Terri Schiavo’s own wishes would have been here. Although the Florida Courts nevertheless found that there was “clear and convincing evidence” that Terri would have chosen to die by starvation, one comes away from reading the relevant judicial opinions that the court’s view of the quality of Terri’s life is what is really driving the decisions.

The fact is, without explicit written instructions, we really cannot know what Terri Schiavo would have wished in such circumstances. In the much more mundane arena of property law, our law has for centuries prohibited transfers of property without a written contract, and even prevented oral contracts for leases that extend to more than a year, for precisely this reason. That salutary development in the law traces back to the English Statute of Frauds, enacted in 1677. Florida law, like the law of every state, follows one version or another of this rule.

A statute of frauds for end-of-life decisions would be an equally salutory development. It would prevent courts from substituting their judgment on “quality of life” issues from that of the incapacitated patient, or even from issuing rulings that might have that appearance. It would prevent the decision from resting with a spouse, who might have profound personal and financial conflicts of interest. Indeed, the first guardian ad litem appointed in this case specifically found that Michael Schiavo had a financial conflict of interest. The Florida Court of Appeals acknowledged that conflict, noting in its 2001 decision that the “sizeable” amount of money in the trust fund that had been established from the proceeds of a malpractice settlement, for the care and rehabilitation of Terri Schiavo, would go to Michael if Terri dies. Yet the Court nevertheless upheld the lower court’s determination, based on little more than Michael’s own word, that Terri would have wished this kind of death. A statute of frauds for right to die cases would at least give us the peace of mind to know that the extraordinary step of ordering the starvation death of an innocent person was undeniably in furtherance of that person’s wish.

Read the whole thing.

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