Multi-Language Advance Directives — Should they be federally mandated?

In her note, Catherine J. Jones (Managing Editor, Elder Law Journal) argues that advance directives should be provided in multiple languages.  See Say What? How the Patient Self-Determination Act Leaves the Elderly with Limited English Proficiency out in the Cold, 13 Elder L.J. 489 (2005).

Here is the conclusion of her article:

As it stands, the PSDA ignores the right to self-determination of 1.8 million elderly LEP Americans. The PSDA has a history that strongly suggests that its purpose is to educate and empower individuals regarding end-of-life medical treatment, and yet it potentially abandons a rapidly growing part of the population who could gain great advantage from its provisions. LEP elders, like all older Americans, have an interest in advance directive legislation and policy, and because their age group more frequently faces decisions regarding end-of-life medical treatment, their interest is even greater than that of most Americans.

Without a stipulation that advance directive written information be provided in multiple languages, LEP elder patients are put at a severe disadvantage. They are left behind because the PSDA’s mandate for knowledge and empowerment does not apply to them. All of the written instructions in the world amount to nothing if the patient who receives them cannot understand the language in which they are written. This oversight not only leaves LEP patients unable to fully enjoy the rights they are entitled to, it also undermines the very purpose of an act that is premised on educating the public. Furthermore, leaving health care facilities with little guidance regarding their obligations towards LEP elder individuals and their end-of-life treatment rights may expose facilities to discrimination litigation under the Civil Rights Act.

States have always had the option of adding provisions for linguistic accommodation to their advance directive statutes, and yet none have done so. Against that backdrop, Congress, to effectuate the PSDA’s purpose, should amend the Act to include a provision that instructs states not only to provide written information about their statutes, but also to provide appropriate translations so that all residents of the state may enjoy the security of knowing their rights in the event of incapacitation. Modern technology provides a forum – the internet – in which information can be made accessible to large geographic areas without wasting resources.

Amending the PSDA in this way would help the Act fulfill its purpose of educating the public, no matter what language in which it communicates, on the importance of executing advance directives