individual in order to protect the patient's dependents, public morals, and the preservation of each citizen's productivity for society's benefit.18 The individual's power to make decisions concerning his own body is subject to other limitations also-the civil and criminal sanctions that may await the doctor who participates in the decision or the acts that result from it.

Having established the legal foundation for the right, albeit qualified, to die a natural death, it is important to consider briefly the special dilemma of the comatose patient who is unable to exert such a right. On the one hand, the state has a compelling interest in protecting the lives of patients unable to provide for their own wellbeing, while on the other hand, the comatose condition of such individuals prevents them from asserting their right to refuse treatment. It is in connection with this type of situation that the living will has been proposed. 19

The Living Will

The "living will," first proposed by Professor Luis Kutner, is a testamentary document executed by the patient in the expectation that his physical condition might later prevent him from refusing extraordinary life prolonging treatment, and asking that he be allowed to die naturally, 20

The statement serves to terminate the patient's consent to continued extraordinary treatment once hope for recovery is gone and death is imminent. 21 The Euthanasia Education Council has widely distributed a living will which, although not legally binding and frought with uncertainties, serves as notice to the physician of his patient's desires:

TO MY FAMILY, MY PHYSICIAN, MY CLERGYMAN, MY LAWYER

If there is no reasonable expectation of my recovery from physical or mental disability, I request that I be allowed to die and not be kept alive by artificial means or heroic measures. Death is as much a reality as birth, growth, maturity, and old age-it is the one certainty. I do not fear death as much as I fear the indignity of deterioration, dependence, and hopeless pain. I ask that drugs be mercifully administered to me for terminal suffering even if they hasten the moment of death.

This request is made after careful consideration. Although this document is not legally binding, you who care for me will, I hope, feel morally bound to follow its mandate. I recognize

that it places a heavy burden of responsibility upon you, and it is with the intention of sharing that responsibility and of mitigating any feelings of guilt that this statement is made. Signed

date witnesses

While the "living will" as proposed by Kutner and distributed by the Euthanasia Education Council is not legally binding, a similar document, which is legally valid, does exist in some States. Legal living wills or directives are the result of Natural Death legislation passed in eight States and under consideration in many others.

California was the first State to enact Natural Death legislation. 22 The Act, implemented on January 1, 1977, permits patients, diagnosed by two physicians as "terminally ill," to sign a directive that life-sustaining or prolonging procedures be withheld, or if begun, terminated when their use only postpones inevitable death. For this testamentary document to be legally binding upon the physician, it must be signed not less than 14 days after the diagnosis of a "terminal" illness has been made, and attested by two witnesses unrelated to the patient or involved with his medical care, or having any claim upon his estate. When a directive is executed in a nursing home, one witness must be a representative of the State Department of Aging. As is true of all testamentary directives, the patient must be emotionally and mentally competent to make the decision. 23

The directive is effective for five years after the signing unless revoked by the patient by verbal statement, destruction of the document, or written revocation. If an unqualified patient executes a directive, the physician is not legally bound to enforce it, but may take it as advisory. Failure to comply with a legally valid directive is deemed unprofessional conduct unless arrangements have been made to transfer the patient to the care of another physician. Compliance with the directive as long as valid,* does not constitute suicide or homicide and does not therefore, expose a licensed health professional to criminal or civil liability. Furthermore it does not in any way affect the signer's life insurance. Concealment or destruction of a directive, against the will of the patient is a misdemeanor. 25

*The validity of a directive is determined by the physician. An otherwise valid directive is unenforceable if the patient is pregnant.

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The terminally ill, who do not wish to sign a directive, or are incompetent to do so, will be treated according to the standards of medical practice in his or her community and will be afforded the appropriate care for the dying patient in that community. 26

Since passage of the California law in 1977, seven States have enacted legislation modeled on the California Act, some with significant modifications.

Arkansas, 27 California, 28 Idaho, 29 Nevada, 30 New Mexico,31 North Carolina, 32 Oregon, 33 and Texas 34 have Natural Death legislation effective since 1977. Some of the modifications of the California act are as follows:

The Arkansas statute requires that the directive exercising the right to refuse artificial means to prolong life, or in the alternative, requesting that all means be used to prolong life, be executed with the same formalities as a will, but does not require re-execution after five years. It is significant that no diagnosis of any illness needs to be made before the directive can be executed. This statute also allows a relative or legal guardian to execute a directive for a minor or a mentally incompetent, or physically incapable adult. The statute contains no provision for revocation, and does not exempt pregnant women from executing a valid directive. There are no penalties under Arkansas law for a physician who refuses to comply.

The Idaho statute closely resembles the California act but with these differences: there is no 14 day waiting period after the pronouncement of a terminal illness and only one physician needs to make the diagnosis of a terminal illness; there is no exemption of pregnant women, nor is there a special provision for nursing home patients. While in the California

act there are criminal sanctions against concealing a revocation or forging a directive, they are noticeably absent in the Idaho law. A physician who refuses to comply with a directive is not required to transfer his patient.

The Nevada law provides that the directive must be executed with the same formalities as a will. Even so, the directive is not legally binding on the physician, it is merely evidence of the patient's wishes which he will consider in his decision pertaining to the patient's care. Falsification of a directive, or withholding a revocation constitutes murder. An interesting provision of the Nevada law is that an instrument executed before July 1, 1977, directing the withholding or withdrawing of life sustaining procedures, may be given the same weight as a directive executed in accordance with the new law.

In New Mexico, as in Arkansas, an agent can execute a living will on behalf of a minor. Also, a person in good health, including a pregnant woman, may execute a directive which need not be re-executed after five years. A physician in New Mexico however, can be civilly and criminally liable if it is proved that his actions "violated the standard of reasonable professional care and judgment under the circumstance."3.

North Carolina law is unique in that it includes a definition of brain death. The directive is not binding on the physician (and hence need not be reexecuted after five years), although he is protected by law if he complies with it (oddly, the hospital may not be protected). 36 A pregnant woman is not exempted from executing a directive.

The Oregon law does not exempt pregnant women nor does it require that the physician determine the validity of the directive. A physician is not open to charges of unprofessional conduct for failure to transfer a patient in order to give effect to a directive. Only California and Oregon law provide for a State Department of Aging ombudsman to be present as a witness in a skilled nursing facility. With the exception of this provision, the Texas legislature adopted the California act in its entirety. 38

As would be expected, the Natural Death legislation is not without its problems and critics. Beyond the many moral and ethical questions it raises, there are some very practical problems.

In those bills which use the term "imminent" to define that time in a patient's decline when death will soon occur, there is the problem of imprecision, of knowing when death is immi

39

nent. As stated earlier, some directives must be re-executed after five years to be enforceable. In the case of a patient in a degenerating condition, five years time may mean the loss of his ability to re-execute the will in the competent state required by the law. The 14 day waiting period, also required by some States, is criticized on similar grounds. While a will (also a testamentary document) is enforceable whether made at a time when the testator is ill or perfectly healthy, a natural death directive is not, requiring in many States a prior diagnosis of terminal illness. Questions of equal protection of the laws may arise here.40

For California hospitals, a problem has arisen with respect to the form of the directive. The act neglected to specify where forms should be made available to patients or whether a standardized form is required. 41 Standardized directive forms have the same deficiencies as do standardized wills in that they fail to meet the individual needs of the patient or the testator.

REFERENCES

'Cant, Gilbert. "Deciding When Death is Better Than Life," Time, (July 16, 1973). pp. 36-37.

2 Black's Law Dictionary, (4th edit. rev., 1968). p. 654. 3 Russell, O. Ruth, Freedom to Die-Moral and Legal Aspects of Euthanasia. New York: Human Science Press, 1977. p. 19.

4 Martin v. Commonwealth 184 Va. 1009, 37 S.E. 2d. 43 (1946).

5 Russell, Freedom to Die, p. 19.

6 Fletcher, G. P. "Prolonging Life," 42 Washington Law Rev. 999 (1967).

7Survey, "Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations," 48 N.D. Law Rev. 1202, at 1207.

*Foreman, P. "The Physician's Criminal Liability for the Practice of Euthanasia", 27 Baylor Law Rev. 54 (1975). 'Louisell, D.W., "Euthanasia and Biathanasia: On Dying and Killing," 22 Catholic Law Rev. 732 (1973).

10 Russell, Freedom to Die, p. 19.

Erikson v. Dilgard 44 Misc. 2d. 27, 252 NY 2d. 705 (1962). Palm Springs Gen'l. Hospital v. Martinez (1971).

15 US v. Perkins 383 F. Supp. 922 (1974).

16"The Living Will-An Individual's Exercise of His Rights of Privacy and Self Determination," 7 Loyola Univ. Law 714, at 720.

17 In Re Brooks 32 Ill. 2d. 361, 205 N.E. 2d. 435 (1965). 18 Ibid., at 718.

19 Survey, supra, 1244.

207 Loyola University Law 714.

21 Kutner, "The Living Will, A Proposal," 44 Indiana Law 539 (1969).

The Natural Death legislation also fails to address the problem of the comatose patient. In addition there are administrative difficulties with respect to the patient's medical charts. The Natural Death legislation does not address the necessity for adequate and prompt marking of the medical charts of those who have executed directives, or once having done so, revoked them. (California law does require that a copy of the directive be included in the patient's medical records). The problem also arises when the directive is put into a voluminous folder and is for all intents and purposes "lost" among the many pages and folders that make up the medical record of a terminally ill patient. Finally, many of the acts do not speak to the right of minors to execute such a directive.

It seems certain that Natural Death legislation will eventually exist in all 50 States. We have done much in America to improve the quality of life. It seems therefore natural that we also will improve the quality of death.

22 Friedman, "California Hospitals Design Natural Death Act Procedures," Hospitals, Vol. 51, (1977). p. 62. 23 Ibid., p. 62.

24 Raible, "The Right to Refuse Treatment and Natural Death Legislation," Medicolegal News, Vol. 5, No. 4, p. 6 (Fall 1977). California Health and Safety Code, Part I, Section 7188.

25 Ibid., p. 7.

26 Arkansas Statutes, (Annotated Ed.), 82-3801-804 Vol. 7a, Part II, (1977).

27 Deerings Health and Safety Code, (Cal.), Section 7185-95, (1978).

28 Idaho Code, Vol. 12A Section 39-4501-08, (1978).

29 Nevada Revised Statutes, Vol. 16, Sections 449-540-690, (1978).

30 New Mexico Senate Bill 16 (The Right to Die Act), (1977). 31 General Statutes of North Carolina, Sections 90-320 to 90322 (1978).

32 Oregon Senate Bill 438 Section 5(3) (a), (1977).

33 Revised Civil Statutes of Texas, art. 4590(h) (1978).

34 New Mexico Senate Bill 16, (1977).

35 Friedman, "Natural Death Laws Cause Hospitals Few Problems," Hospitals, Vol. 52 (May, 1978) p. 1291. 36 Ibid., at 126.

37 Ibid., at 126.

38 Raible, supra, at 7.

39 Ibid., p. 8.

40 Friedman, supra, at 62.

41 Ibid., p. 63.

42 Raible, supra, at 8.

Note: Legal cites may be understood as follows:

The first number after the case name represents the volume number. The letters refer to a Reporter Series. A Reporter is a law book containing the published court cases from a particular area in the United States. The number following the Reporter name is the page number on which the case may be found in that volume. The date of the case follows the page.

Suicide After Sixty

Marv Miller*

Older Americans are deadly serious about killing themselves.

My personal estimate is that at least 10,000 people 60 or older will commit suicide in our country this year. That means an age group which comprises 18.5 percent of the population will account for about 23 percent of all suicides. Why is this tragic and unnecessary loss of life allowed to continue unchecked? The primary reason is that suicide is such a complex behavior it is exceptionally difficult to prevent or effectively control. A host of psychological instruments have been used to predict suicidal behavior, but so far they have only produced an unacceptably high number of "false positives" (i.e., people who appear to be potentially suicidal on paper, but who aren't so in reality). As frustrated behavioral scientists retreat to their drawing boards, the number of suicides committed each year continues to rise.

Another basic reason is the very low priority placed on saving the lives of those who are already out of the workforce. Once people retire in the United States, their status quickly diminishes because in economic terms they are no longer productive. It is therefore presumed that their deaths do not represent a serious loss to the economy and this unfortunate ethic appears to have already permeated American values.

Men More Often Than Women

In later life, suicide is focused quite clearly on men, especially white Protestant men. Since before the turn of the century, suicidologists have known, when all ages are taken into consideration, men commit suicide about three times as

* Dr. Miller received his Ph.D. from the University of Michigan and is presently serving as a consultant in Suicidology. He has written numerous articles on the subject. His new book, Suicide After Sixty: The Final Alternative is scheduled for publication next spring.

** Adapted from Suicide After Sixty The Final Alternative. By Marv Miller. (New York: Springer Publishing Company, Inc. April 1979). Copyright © 1979 by Marv Miller. Used by permission of the author and the publisher.

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often as women. Although it appears that the number of suicides among women is rapidly increasing and that the male/female ratio is therefore shrinking, in late life the ratio becomes far more dramatic. In the 65 to 69 age group, male suicide rates outnumber those of their female counterparts by about four to one, but by age 85 the ratio increases to twelve to one, and while the suicide rate for women tends to reach its peak by age 50, the rate for men continues to climb with each successive decade of age reaching its peak when they are in their eighties.

Such glaring variations in the male/female suicide rates are primarily explained in terms of the means and motivation leading to these final acts. Men are more likely to use violent means (e.g., guns, knives, and ropes) to take their lives while women show a strong preference for more passive approaches (e.g., drugs, gas, and poisons). Naturally, the more time it takes for the passive means to accomplish its self-destructive goal, the greater the likelihood of women being rescued or experiencing a "change of heart."

Suicidologists have also noted female suicidal activity is often a response to marital and romantic problems, whereas with men it is more likely to be a reaction to employment difficulties such as retirement, downward job mobility, and the concomitant loss of status. Since marital problems tend to appear and then be resolved relatively early in life, the number of female suicides begins to decline long before old age. However, many employment problems, most notably those associated with compulsory and

Research has indicated that about three-quarters of the elderly who kill themselves see a physician within a month

before their deaths.

voluntary retirement, affect men later in lifeoften too late for there to be any meaningful resolution.

Suicides as the Result of Loss

The suicidal scenario in the later years is invariably associated with the suffering of vital losses. And naturally, the older a person is, the longer he/she has had in which to have suffered significant losses.

Although the losses associated with growing older can be quite diverse, they all seem to have

one thing in common-their deleterious effect. Such losses might be economic, physical, social, psychological, emotional, or any combination of these factors.

What appears to be crucial is not the effect of any one loss in particular, but rather the unexpectedness and suddenness of its onset, the sufferer's personal reaction to it, and its synergistic effect when combined with extant problems. Thus a series of losses striking in rapid succession is often devastating.

If that is so, and research has consistently indicated it is, then why do only a small minority of the older people plagued with such problems actually commit suicide? Perhaps the answer is that many older people have developed remarkably resilient personalities which enable them to cope successfully with virtually any trauma they might experience. Having learned how important it is to try to supplant their vital losses, rather than succumb to protracted depressive reactions, their positive outlook and philosophy act as a buffer that insulates them from suicide. Other less fortunate older people who never developed similar abilities may live highly tentative, marginal existences while merely trying to survive. Add a few negatives to their already dismal lives and they will gladly "throw in their cards."

For some older people, emotional vestiges of tragic childhood situations continue to inhibit their enjoyment of life and torment them throughout adulthood. In such cases, the outstanding factor seems to be an extremely domineering, insensitive, inconsiderate, or violent parent. Thus many older people may have already been pointed in a suicidal direction while still children.

In addition to the typical methods of selfdestruction, the elderly have other means that are peculiar to their age group. These would include: self-imposed starvation, refusal to follow a physician's orders, not taking medication, engaging in hazardous activities, delaying treatments or operations, and voluntarily secluding themselves.

Older Americans, as is the case with their younger counterparts, may also commit suicide very slowly and gradually by: drinking excessively, smoking, mismanaging their diets (especially in cases of diabetes), and through drug abuse. However, none of these long-term processes, which are the result of "suicidal erosion," would be included in the suicide statistics because in a medical-legal sense, suicide is seen strictly as a single act.

The "Quality of Life" Versus
The "Quantity of Life"

Lying dormant within all of us is an extremely personal equation which determines when the quality of our lives has depreciated to such a low point we would no longer wish to live. This "level of unbearability," as it might be called, usually exists only on a subconscious level and we are therefore not normally cognizant of it. However,

The suicidal scenario in
the later years

is invariably associated with the suffering of

vital losses.

when we actually approach an intolerable situation, even for the first time in our lives, the concept of the "level of unbearability" quickly enters our consciousness.

Once that "level" is crossed, a crisis is triggered. Those who still maintain a glimmer of hope cry out for help. Those who don't are likely to kill themselves quickly and with determination. The real tragedy is that most could probably cope successfully with their problems if each problem could be isolated long enough to be resolved by itself. However, as indicated, when problems strike en masse, or are simply added to a set of unresolved problems, the net result may be suicide. To make matters that much worse, the majority of older people who become suicidal have never been in a suicidal crisis before and therefore can't rely on their experience to help them.

What would cause a person to cross the hypothetical "level of unbearability"? Because the perception of what constitutes an unbearable plight is so extremely personal, no two people's constellation of problems is identical. A good example relates to people who kill themselves because they suspect they have cancer. Although several doctors may have assured them of their good health, the mere spectre of cancer may push these people to the point where they will kill themselves rather than continue living with their dread. On the other hand, many people who actually die of cancer never even consider taking their lives.

Another example concerns widowerhood. After some wives die, their widowers kill themselves rather than try to cope with their grief, yet other widowers outlive two or three wives and don't kill themselves. Therefore, it