As more families discover every day, Maryland's laws governing how health care decisions are made at the end of life need to be brought up to date. A recent Court of Appeals decision said as much, when it noted in a case involving custody of a man in a persistent vegetative state that legislatures, not courts, were the proper place to debate the societal values that should influence life-and-death decisions about medical care.
Maryland is almost alone among states in not specifically providing for a durable power of attorney for health care matters -- the power to appoint a family member or friend to make decisions about treatment in case they become incapacitated. This state does have a living will statute, but it covers only a narrow range of conditions -- not including some of the situations that terrify people most, such as advanced Alzheimer's disease or a persistent vegetative state.
This session, the General Assembly has before it bills representing two approaches to providing a framework for these decisions. Both would update Maryland's provisions for living wills and power-of-attorney documents, but there are larger questions to address. Of the two approaches, sentiment is shifting toward a bill that is shorter, clearer, more "user friendly" and gives greater weight to the interests of patients and families than to the state's interest in preserving life. The competing bill, drafted by a group headed by Judge John Carroll Byrnes of the Baltimore City Circuit Court, does more to address potential abuses, situations in which people have no close family or friends to be their advocates, or cases in which families are clearly dysfunctional.
Those are valid concerns, but critics of the Byrnes bill argue that this approach puts an unfair burden on functional families. Moreover, evidence suggests the larger problem in health care institutions is not undertreatment of dying patients but rather overtreatment -- which is why living wills and other advance directives have become such a big concern. The differences between these two approaches got a public debate in November when the Byrnes bill was the subject of an all-day conference at the University of Maryland School of Law.
That dialogue helped to clarify the issues, especially the public fear that health care providers will more often err toward overtreatment than undertreatment -- particularly in the absence of a clear and understandable law. We feel that, with adequate safeguards, the shorter bill would serve as the clearer guide in these matters. What is beyond doubt is that better guidance is needed in Maryland law, and that this is one issue the legislature should not put off.