Lawmaker Seeks New 'Family Consent' Law

Oct 6, 2011

End-of-life decisions can be wrenching for families. In the early 2000s, the case of Terri Schiavo riveted the nation, as her family battled over whether to remove her feeding tube or keep her on life support. Now, 44 states have so-called “family consent” laws, which help determine which family member should make health care decisions. Missouri is one of the six states with no such law, putting families and doctors in legal limbo. But a bill headed for the Missouri legislature could change that.

Charley Shurtz knows how hard it can be to make a health care decision for another human. “Many years ago, my mother was at work—she had a job and she helped raise seven kids— and she passed out at work,” said Shurtz. His mother had lung cancer, and fluid was building up in her lungs and around her heart. It fell to Shurtz and his siblings to decide whether to go ahead with a procedure that could extend her life. They said yes.

“But when she come off the ventilator, she said, ‘if I had my choice, I would have never been on that. Don’t you guys ever do that to me again.’” Now, technically, that kind of decision falls in a sort of gray area legally, said State Representative Bill White, Republican from Joplin.

“Most people think that, you know, their spouse, their children, their parent, can deal with their health care issues, give consent,” he said. “But there’s no legal basis in Missouri for anyone other than the patient themselves giving consent to authorize any medical care.”

That is, unless the patient has previously created an advance directive – but only about one third of Americans has done so. Earlier this year, White introduced a bill to address the issue by establishing a default order of family members who could step in to make health care decisions, for patients without an advance directive. But not everyone thinks that’s a great idea.

Daniel Baker is a lawyer, with the Missouri Catholic Conference, which opposes White’s bill. “I mean, the fact is, we live in a world of dysfunctional families,” he said. “I would reckon, a good number of people would look at their immediate family members and say, ‘uh, well, maybe he or she does not have my best interests at heart.’”

But White said under his bill, disagreeing family members could take their case to court – just as they can now under current law. But what about family members who aren’t even listed – who are not legally recognized?

Joanne Schleiker is a social worker at a hospital in St. Louis. She said she’s seen many a case where a same-sex partner was excluded by family members. “When if that patient were awake, and able to say, they would want their partners to make those decisions for them.”

White said the problem is defining these relationships that are not recognized by the state of Missouri. “Does your significant other for a week count, or does it have to be two years, or five years?” White plans to re-introduce a new version of the bill at the beginning of the next legislative session in January.