Document Type

Article

Publication Date

2020

Publication Information

73 SMU Law Review 161 (2020)

Abstract

The key question in Cruzan v. Director, Missouri Department of Health was one of substantiation and evidence: how can the incapacitated patient’s surrogate decision maker prove that the health care decisions she makes on the patient’s behalf are the same health care decisions that the patient would have made for herself? Answering this question, the Court observed that an advance directive would constitute adequate proof because an advance directive constitutes clear and convincing evidence of a patient’s wishes.

Today, clinicians and policymakers no longer focus on the constitutional question of how much evidence state law may require from a patient’s surrogate. Instead, the current relevant question is more practical than legal: how can people best assure that their health care wishes are known and respected after they lose decision-making capacity? Thirty years ago, the Cruzan Court identified advance directives as a paradigm solution to this problem. And that is how policymakers have understood the lesson of the case. But if advance directives are a good way to communicate one’s wishes, then video advance directives are even better.

This article makes the case for video advance directives as a valuable, additional way for individuals to record their health care treatment preferences. Supplementing a traditional advance directive with a video advance directive increases the likelihood that surrogates and clinicians will understand and follow the patient’s recorded wishes in the way the patient intended.

The primary purpose of advance directives is to assure that incapacitated patients get both the medical treatment they want and avoid the medical treatment they do not want. These objectives are more likely to be achieved by supplementing a cold and sterile paper document with an audiovisual recording of the patient’s own voice, body language, and facial expressions. In short, video advance directives offer material advantages over traditional written advance directives.

Part II describes two persistent problems with traditional advance directives: uncertainty regarding their validity and uncertainty regarding their meaning. Part II explains how video advance directives avoid or mitigate these problems. The benefits of video advance directives are demonstrated by analogous experience with video wills, as well as by new research on video advance directives. Given this evidence base, it is no surprise that the use of video advance directives has been growing. Part IV describes seven companies that offer video advance directive services. Finally, Part V concludes that stakeholders promoting advance directives should also promote audiovisual recording.

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