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Planning For The End: When Courts Have To Make Medical Decisions

Todd Bookman

This week, we’ve been looking at end-of-life planning in the Granite State, and some efforts to streamline and increase the use of  advance directives--the legal documents that let people name who can make medical decisions for them and what treatments should be avoided to preserve dignity. We continue our series with this look at what can happen when there is no plan in place, forcing the medical system to turn to the legal system for answers.

Dr. Tim Lahey prefers to spend his days in hospitals and clinics, not courtrooms.

But earlier this year, he found himself in front of a judge. At issue was the fate of a critically injured patient on life support.

“So this is a young man, really had been healthy for his whole life, loved being out in the out-of-doors on his motorcycle on a sunny day, and so that was what he was doing,” says Lahey. “And unfortunately, he got into an accident with a car and got a horrible head injury.”

The man was brought into Dartmouth Hitchcock with multiple fractures to his face and skull, and bleeding inside of his brain.

“They tried to give him medicines to try to relieve the pressure that began to build on his brain, and really nothing helped,” says Lahey.

“He was catastrophically and irretrievably broken.”

After 5 weeks in the ICU, it was clear to doctors his condition wouldn’t improve. The patient— young and previously healthy—had never spoken to his family about what type of care  he would want in this type of emergency.

“This poor guy and his poor family were in this horrible situation which is unfortunately not that uncommon here in New Hampshire,” says Lahey. “The problem is, he didn’t have a legal document that said what he wanted in case of catastrophe, and the truth is most of us don’t.”

Turning To The Courts For Answers

Without guidance, and out of an abundance of caution, the family petitioned the court to decide if they could remove life sustaining treatment.

The judge asked Lahey to testify: in addition to his medical work, he’s also Chair of Dartmouth Hitchcock’s Bioethics Committee.

In was an emotional hearing, and one that could have been avoided with a completed advance directive.

But in New Hampshire, roughly three out of four adults lack these legal documents. Judges, for their part, would rather not be involved.

“No, I shouldn’t make that decision,” says David King, who has 23 years on the bench in New Hampshire.

“The decision should be made by the individual while they have capacity to make the decision. Not by a judge who never met the person, in some cases is trying to determine the credibility of siblings…some say dad would want to be kept on life support, others say he wouldn’t. Dad is the one who should make that decision.”

To be clear, as long as family is in agreement about what should happen, these cases typically don’t find their way to court.

For many relatives, though, it’s often surprising to learn that they don’t get automatic authority to take over decision-making power for a loved one.

That’s because New Hampshire is one of only a handful of states without a default surrogate consent statute. It’s basically a hierarchy, laid out in law, that says if someone is deemed unable to make their own medical decisions, someone else close to them--a spouse, adult child, parent or sibling--gets that control.

Changes Could Come Soon

Senator Peggy Gilmour says there’s a group working to draft a bill that would create this type of system in New Hampshire. It could be ready as early as this fall.

But she says it isn’t so straightforward.

“If you do a default, and so, what is it, the oldest child? Well, you know families are more complex than a series of hierarchy,” says Gilmour.

If not properly implemented, these default systems can also take away the rights and wishes of disabled people and those with dementia.   

For people with no family to serve as decision-maker, there’s even a last resort option in New Hampshire.

The court can turn to the Office of Public Guardian, a non-profit based in Concord. Staff get assigned to incapacitated clients, legally known as wards of the state.

But even with a network to protect the voiceless, Dr. Tim Lahey says advance directives are the only way to maintain complete control of your care.

“Life is complicated,” says Lahey. “They don’t solve every problem. But wouldn’t it be better for the patient’s voice to still be in the room and for their preferences to be honored.”

Part 1: New Hampshire's Advance Directive Gets An Update

Part 2: Talking About Death Often Stands In The Way

In Plain Language: A Glossary Of Terms For End-Of-Life Planning

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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