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The Legal Myths and Realities of End-of-Life Care

Am Fam Physician. 2001 May 1;63(9):1847-1850.

Considerable clinical, legal and ethical consensus currently exists concerning end-of-life care; yet, many misconceptions still abound. In many families, relatives of dying patients want to discuss end-of-life issues with the physician, but such communication is often inadequate. This situation may center on the fact that while clinical decisions may be ethically and morally appropriate, legalities raise concerns, and it is these legalities that influence medical intervention and outcome. One factor cited by physicians that influences end-of-life care is liability, the risk of which is overestimated when dealing with terminally ill patients and their families. Meisel and colleagues (for the American College of Physicians-American Society of Internal Medicine End-of-Life Care Consensus Panel) discuss several barriers to appropriate end-of-life care.

The accompanying table discusses seven current legal myths and realities of end-of-life care. One myth is that physicians cannot withhold life-sustaining treatment for an incapacitated patient unless there is evidence that this would have been the patient's wish. Advance directives are, of course, the best evidence of the patient's own wishes, but less than one fifth of patients have an advance directive in place. If an advance directive is not in place, most states support the right of family members to authorize discontinuation of life support in a patient without decision- making capacity based on the patient's probable wishes (New York requires evidence of the patient's actual wishes about end-of-life care and, under certain circumstances, so do Missouri, Michigan and Wisconsin). The belief is that family members are considered to be the best judges of the patient's wishes. The difficulty develops when there is no clear evidence of what the patient wanted, and when family members disagree on treatment (or its deferment). Thus, many physicians adopt a default position that favors aggressive treatment because the physician (or institution) is concerned about litigation. Making decisions about end-of-life care for patients who are incapacitated but not permanently unconscious (e.g., those with Alzheimer's disease) raises additional challenges.

Another myth about advance directives is that these directives are not portable (that is, transferable between states). In reality, most states allow advance directives to be transferred from another state because, like an oral statement, they provide the best guidance about a patient's wishes. In addition, all conversations with patients about their end-of-life care should be documented in their medical record because such conversations may be more specific and provide more guidance to the physician than a living will or other written advance directive.

Physicians are urged to become familiar with the laws of the state in which they practice so they may understand the legal issues and risks surrounding end-of-life care for their patients.

End-of-Life Care: Current Legal Myths And Realities

Myth Reality

Forgoing life-sustaining treatment in patients without decision-making capacity requires evidence that this was the patient's actual wish.

Such treatment may be forgone if the patient's surrogate relates that this was the patient's actual wish or, in most states, if it was the patient's probable wish. Only a few states require “clear and convincing” evidence of patient wishes. In a few states, it is even permissible to terminate life support with the surrogate's permission if the patient's wishes are not known, if termination of treatment is in the patient's “best interests.”

Withholding or withdrawing of artificial fluids and nutrition from terminally ill or permanently unconscious patients is illegal.

Like any other medical treatment, fluids and nutrition may be withheld or withdrawn if the patient refuses them or, in the case of an incapacitated patient, if the appropriate surrogate decision-making standard is met.

Risk management personnel must be consulted before life-sustaining medical treatment may be terminated.

There is no legal requirement that a risk manager be consulted before making end-of-life decisions although some hospital policies may require it.

Advance directives must comply with specific forms, are not transferable between states and govern all future treatment decisions. Oral advance directives are unenforceable.

Advance directives, often the best indication of an incapacitated patient's wishes, may guide end-of-life decision making even if all legal formalities are not met. A living will or surrogate should not be consulted if the patient retains decision-making capacity unless expressly authorized by the patient. Oral statements previously made by the patient can also be legally valid advance directives.

If a physician prescribes or administers high doses of medication to relieve pain or other discomfort in a terminally ill patient, resulting in death, he or she will be criminally prosecuted.

If a patient inadvertently dies as the result of high doses of medication intended to treat pain, the physician has not committed murder or assisted suicide.

When a terminally ill patient's suffering is overwhelming despite palliative care, and he or she requests a hastened death, there are no legally permissible options to ease suffering.

Although physician-assisted suicide is illegal in most states, terminal sedation is a legal option to treat otherwise intractable symptoms in the imminently dying.

The 1997 Supreme Court decisions outlawed physician-assisted suicide.

Physician-assisted suicide is currently legal in Oregon. Other statesare free to legalize or prohibit it.


Adapted with permission from Meisel A, Snyder L, Quill T. Seven legal barriers to end-of-life care. Myths, realities, and grains of truth. JAMA 2000;284:2496.

End-of-Life Care: Current Legal Myths And Realities

View Table

End-of-Life Care: Current Legal Myths And Realities

Myth Reality

Forgoing life-sustaining treatment in patients without decision-making capacity requires evidence that this was the patient's actual wish.

Such treatment may be forgone if the patient's surrogate relates that this was the patient's actual wish or, in most states, if it was the patient's probable wish. Only a few states require “clear and convincing” evidence of patient wishes. In a few states, it is even permissible to terminate life support with the surrogate's permission if the patient's wishes are not known, if termination of treatment is in the patient's “best interests.”

Withholding or withdrawing of artificial fluids and nutrition from terminally ill or permanently unconscious patients is illegal.

Like any other medical treatment, fluids and nutrition may be withheld or withdrawn if the patient refuses them or, in the case of an incapacitated patient, if the appropriate surrogate decision-making standard is met.

Risk management personnel must be consulted before life-sustaining medical treatment may be terminated.

There is no legal requirement that a risk manager be consulted before making end-of-life decisions although some hospital policies may require it.

Advance directives must comply with specific forms, are not transferable between states and govern all future treatment decisions. Oral advance directives are unenforceable.

Advance directives, often the best indication of an incapacitated patient's wishes, may guide end-of-life decision making even if all legal formalities are not met. A living will or surrogate should not be consulted if the patient retains decision-making capacity unless expressly authorized by the patient. Oral statements previously made by the patient can also be legally valid advance directives.

If a physician prescribes or administers high doses of medication to relieve pain or other discomfort in a terminally ill patient, resulting in death, he or she will be criminally prosecuted.

If a patient inadvertently dies as the result of high doses of medication intended to treat pain, the physician has not committed murder or assisted suicide.

When a terminally ill patient's suffering is overwhelming despite palliative care, and he or she requests a hastened death, there are no legally permissible options to ease suffering.

Although physician-assisted suicide is illegal in most states, terminal sedation is a legal option to treat otherwise intractable symptoms in the imminently dying.

The 1997 Supreme Court decisions outlawed physician-assisted suicide.

Physician-assisted suicide is currently legal in Oregon. Other statesare free to legalize or prohibit it.


Adapted with permission from Meisel A, Snyder L, Quill T. Seven legal barriers to end-of-life care. Myths, realities, and grains of truth. JAMA 2000;284:2496.

Meisel A, et al. Seven legal barriers to end-of-life care. Myths, realities, and grains of truth. JAMA. November 15, 2000;284:2495–501.


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