Five Wishes: A Rebuttal
Recently I posted (here) a summary of a recent Illinois Bar Journal article about potential problems with the Five Wishes directive. I almost immediately received an e-mail from someone affiliated with Five Wishes, saying "stay tuned for a rebuttal." The rebuttal has now been published in the Illinois Bar Journal -- I'm publishing it here as well (with permission):
May 18, 2009Dear Editor:
We’re flattered that authors Koenig and Hyde (“Be Careful What You Wish For: Analyzing the Five Wishes Advance Directive,” IBJ May 2009) pored over our document, and as would a law student studying a model contract, found areas that might-could-maybe-potentially become a problem. While we can all be grateful for detail-oriented attorneys, their article falsely suggests Illinois residents’ health care decisions won’t be honored if not written on the state form.
Acknowledging the legal intricacies of advance care planning, in 1997 we consulted with the American Bar Association’s Commission on Law and Aging in developing the national version of Five Wishes. Some 13 million copies of Five Wishes later, there have been zero cases of litigation in Illinois or elsewhere. Indeed, Illinois ranks among the top five states where Five Wishes is distributed. What few complaints we receive about Five Wishes generally come from people in non-Five Wishes states (currently fewer than 10) who don’t understand why they must use government words and forms to express their own personal wishes.Even in the states that still have statutorily required language, mandatory warnings and forms, some people have pointed out that state advance directive laws are intended to complement and enhance fundamental constitutional and common law principles that affirm patient autonomy and that any authentic expression of a patient's wishes should be respected. Nevertheless, in the non-Five Wishes states, we have taken the more conservative position and advise people to complete Five Wishes and attach it to their completed state form. It would be unfortunate for Illinoisans if they were now told to add that cumbersome layer of formality to what is now a simple and understandable process, both for the public and health care providers.
Five Wishes is immensely popular precisely because it is easy to understand and use and is written in clear, everyday language (23 languages). Five Wishes, unlike state forms, addresses personal, family, spiritual, dignity and comfort issues, which are the things people say would matter most to them if they were seriously ill or near death. Five Wishes has thus helped shift the focus to what the patient wants or doesn’t want so that his comfort and dignity are honored. We’re proud of the many Illinois health care providers, employers, businesses, places of worship and attorneys that are among our 15,000 partner organizations nationwide and that are themselves part of a larger engine driving change in America. For our part, we continue to consult with the ABA Commission on Law and Aging to keep current on all legal matters related to advance care planning.
Koenig and Hyde conclude that because Five Wishes is popular, lawyers and the General Assembly should go back and make the Illinois state form more user-friendly, sort of like trying to build a rounder wheel. A more sensible option would be to simply affirm patient rights and honor their wishes, not to perpetuate the notion that their decisions will not be honored unless the words they use are endorsed by the Illinois General Assembly.
Sincerely,
Paul Malley
President, Aging with Dignity
Aging with Dignity is a national non-profit organization
Here's my take on the letter:
I'm not crazy about the snotty tone. Mr. Malley isn't "flattered" by the authors of the article poring over the Five Wishes directive; rather, he's ticked off that the authors are pointing out what they see as flaws in the document. As a result, he belittles their efforts.
Does Mr. Malley belittle their efforts because he thinks their conclusions are incorrect? I have no idea. Mr. Malley is not interested in debating the merits of the conclusions, and I can't tell from his letter whether he understands or has even read these conclusions. Instead, he is interested in PR -- there are appeals to authority ("we worked with the ABA on this!"), and platitudes about how everyone has a right to express their wishes.
You could, I suppose, read the original IBJ article as criticizing the Five Wishes document or its creators, although I doubt that was the intention of the authors. Or you could think carefully about what the article says, and consider whether the points it raised are valid. Is Aging With Dignity trying to make a better document? From this letter, it sure doesn't seem like it.
