By Thaddeus Mason Pope
THIS special symposium issue of the SMU Law Review commemorates the thirtieth anniversary of the U.S. Supreme Court’s decision in Cruzan v. Director, Missouri Department of Health. In that famous and seminal decision, the Court held that the U.S. Constitution permits states to require clear and convincing evidence of an incapacitated patient’s preferences before allowing that patient’s family to direct the withholding or withdrawing of life-sustaining medical treatment.
The key question in Cruzan 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.
Thaddeus Mason Pope, Video Advance Directives: Growth and Benefits of Audiovisual Recording, 73 SMU L. Rev. 163 (2020).