Consultation Paper on Bioethics - Law Reform Commission

second generation of statutes emerged, permitting the creation of durable
powers of attorney which were specifically concerned with health care
decisions. 45 Subsequently, a third generation of hybrid statutes developed,
which combined provisions related to living wills with the option of appointing a
proxy decision-maker. A fourth generation of advance care directive legislation
has recently emerged, which vests power in the patient‟s family members where
the patient has not made an advance directive. 46
2.23 In 1985 the Uniform Rights of the Terminally Ill Act was drafted by
the US Uniform Law Commissioners in an attempt to make state laws uniform in
purpose and form. However, the success of this legislation appeared to have a
limited effect: in a 1989 report it was noted that only 9% of Americans had
executed advance directives. 47
(3) Cruzan v Director, Missouri Department of Health
2.24 The Supreme Court decision in Cruzan v Director, Missouri
Department of Health 48 in 1990 served as a powerful catalyst for legislative
reform. There, the family of Nancy Cruzan, who was in a persistent vegetative
state, sought to withdraw life-sustaining medical treatment based on an earlier
conversation in which Ms Cruzan had stated she did not wish to live if she
would face life as a „vegetable‟. The Supreme Court held that competent
persons have a “constitutionally protected liberty interest in refusing unwanted
medical treatment.” 49 A flurry of legislative activity took place in the United
States as a result of Cruzan. First, existing legislation was amended, as the
Supreme Court had not drawn a distinction between the withdrawal of artificial
nutrition and hydration and other medical treatment. 50 Second, and more
importantly, the Supreme Court held that states could insist on “clear and
convincing evidence” of a patient‟s wishes before permitting hospitals to
withdraw life support. The Court noted that written instructions - such as those
provided in a living will – are persuasive evidence of an individual‟s “prior
45 The first and best-known example was again in California: the Durable Power of
Attorney Health Care Act 1983.
46 Indiana is an example of a state which has enacted such legislation.
47 Emanuel and Emanuel “The Medical Care Directive: A New Comprehensive Care
Document” (1989) 261 Journal of American Medical Association 3288 cited by
Brennan J (dissenting) in Cruzan v Missouri Department of Health (1990) 110 S
Ct 2841 at 2875 n.21.
48 (1990) 497 US 261.
49 Ibid at 278.
50 Kennedy and Grubb Medical Law (3 rd ed Butterworths 2000) at 2047.
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