Friday, April 16, 2010

Obama's hospital visitation memo -- it's really not just about same-sex couples

From the press reports of President Obama's directive on hospital visitation and medical decisionmaking, you'd think it was a divisive gay rights issue, just one step short of authorizing same-sex marriage. And it is absolutely true that it should help prevent the tragedies involving gay and lesbian partners, including one in Florida, another in Maryland, and another about to go to trial in Washington state.

But the memo's reference to the elderly with no children who might be denied the companionship of a good friend is not just a throwaway. It's a fact. And it's a fact that will affect many gay people by assuring them the comfort of close friends, by legitimating that those friendships are a critical component of a happy life. And think of unpartnered gay people of all ages estranged from parents and siblings. They need this directive as much as any same-sex couple. For that matter, the deep relationships we form with friends even when we do have partners also deserve recognition.

There's a critical detail in the directive that bears mention. I read the memo as requesting that the new regulations ensure that a person selected as a decisionmaker in an advance medical directive be allowed to visit. (The syntax of the sentence is a bit convoluted, and if there is any doubt I hope the HHS rule writers will read it this way.) This is important because the easily available advance directive forms often do not state this. So it's actually possible for a person with a valid medical power of attorney to find himself or herself excluded from visitation. (see the examples from the states in the first paragraph, above.) Ridiculous and tragic, but there are enough stories for us to know this happens.

The new regulations will not create a right for a same-sex partner or close friend to make medical decisions. That is still left to each of us to designate in writing, or to state law which often ignores unmarried partners and friends. But it's an important step for all of us, not just for those of us in couple relationships. Yeah!


NG said...

Nancy, thanks as always, for bringing clarity to this and correcting the media's unfortunately narrow interpretation. I'd love to know how you interpret the list of reasons hospitals can't deny visitors, and whether it leaves a loophole. I'm concerned that an incapacitated patient without an advance directive would not have the opportunity to designate a certain visitor, who could then be denied visitation for any reason not listed. Obviously, marital status is not on the list. Am I over-thinking this? More at

Nancy Polikoff said...

You are not overthinking it. New Jersey family lawyer William Singer pointed out to me that the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)defines "family" as "The person(s) who plays a significant role in the individual's [patient's] life. This may include person(s) not legally related to the individual." Would that be a great definition of who could visit?

NG said...

That would indeed be great!