[Attorney disclaimer. The following is information/opinion only. Always seek local legal advice for specific issues or circumstances pertaining to yourself.]
Howdy,
With all due respect to the legal eagles at Bethel, in my opinion the Society's "No Blood Card" is a woefully inadequate piece of legal expression. The card which is styled an "Advanced Medical Directive/Release" is more useful and likely to be held to limit liability of the health care provider than to be enforced/respected under most circumstances. In other words, the "release" part is more important and effective than the "advance medical directive" part. Let me explain.
The first thing to note is that the Blood Card is only meant to be relevant and indeed is only an issue when the person needing the blood is unconscious or otherwise unable to express for themselves that they wish to refuse blood (or whatever parts of blood). If the person is conscious and able to express their wishes, then the health care provider would follow the patient's wishes in accord with its policies which may or may not defer to the patient's wishes and have them sign their own release of liability forms, refuse treatment (if possible and if it wouldn't expose them to greater liability), or in some circumstances seek legal intervention.
The reason that I mention these rather obvious things is because sometimes I get the impression from Witnesses that they think that the purpose of the Blood Card is as a crib sheet, like they are going to pull it out and cite Acts 15, etc. Some might indeed do this but that isn't the reason for having the card and doesn't address the legal effectiveness of the document.
Thus, the central issue to consider is, in the situation that the person is unconscious (and absent other legal documents), whether the Blood Card is likely to impact the medical provider's decisions or not.
I submit that the Blood Card doesn't qualify as any of the three usual types of documents for this purpose and so whether or not it is given any weight or credence at all is going to be entirely dictated not so much by applicable law, but rather, by the particular policies of the health care provider and maybe even by the personal decisions of the individuals involved.
[Incidently, this is probably why the Society now pushes its real durable power of attorney instead.]
Permit me to explain further....
There have been historically three forms of setting forth one's wishes in advance as far as medical treatment/emergency care goes. These are: 1) documents termed "living wills", 2) "health care proxies" and 3) "durable power of attorney" (for health care) aka "advanced medical directives."
Living wills specify medical treatment or in this case it would be the refusal of a particular treatment in the event the person becomes incapacitated. The Society's Blood Card is closest to this form of legal document, even if it is vague on whether a person could take their own blood like in cell recovery or autologous machines (sp?) since it only refers to "blood transfusions," but note that no where in the "legal directive" portion of the card does it state that the document is to be effective upon the person's incapacity or what would constitute such an incapacity. I think this may be a critical flaw in the document. Since there is no specificity of WHEN the document is supposed to be rendered effective, it is likely that a health care provider could consider it no more than "information" about the person's religious beliefs. Secondly, while some living wills have been upheld they are pretty much disfavoured. Third, the document would have to satisfy all of the requirements of the statute of wills whatever these may be in the person's state. So if holographic wills or wills which are not notarized are not ok, there may be problem there.
Health care proxies and Durable Power of Attorneys function essentially the same way and these are what are preferred by the courts and the medical field. But note very carefully what they do: They give someone else the right to make medical decisions for you under specified conditions.
Now look at the Blood Card carefully. Do you see anywhere that it actually does that?
The front and back sides (back of the front as folded) we can ignore here as these are just the front and in back it just has spaces to note allergies, etc.. The opposite folded side has the places for one "Emergency Contact" info and an alternate.
The inside is the purported "legal directive" that contains the (crap) we all know and love, has the signature section and is the part that is witnessed by two witnesses. Note carefully what the last paragraph states:
I authorize the person(s) named on the reverse to see that my instructions set forth in this directive are upheld and to answer any questions about my absolute refusal of blood.
Several problems here.
1) The persons named on the reverse are the emergency contact info. (Not the two (elder) witnesses who signed the card.) These are often family members who may or may not support the no blood decision. Witnesses who do want their wishes upheld better make sure the emergency contacts are fully supportive.
2) More importantly instead of explicity stating that the persons on the reverse have the right to MAKE the medical decisions in the person's stead, it only says that they are authorized to see that the person's instructions are "upheld."
What does that mean? It might mean that the persons named are given the right to go to court and represent the person as kind of power of attorney to get a court order for no blood but that clearly isn't going to have any legal effect outside of doing just that. I suppose they can talk, scream, cajole, etc. the medical provider in an attempt to "uphold" the person's decision but there's no legal reason why the provider has to even listen and in fact absent explicit authority they couldn't just defer the decision to named persons. (And as for the latter part of "answering any questions about my absolute refusal of blood" this couldn't possibly be understood to vest decision making authority in the named persons, it clearly states that such persons are to be consulted if the provider has "questions.") [Humor aside: Yeah I got a question. Is your son/daughter really this stupid?]
3) Third is the major problem already pointed out. No trigger. All health proxies and advanced medical directives SPECIFY not only that the document is effective only upon incapacitance but most go into detail as to what constitutes incapacity. And most advanced medical directives go into detail as to what treatments the person is authorized to approve and as to what decisions the person is authorized to make. Further, these documents conform to a legal standard including form, witnesses and notarization.
The botom line is that without a specific statement about WHEN the directive is effective and explicitly empowering someone else to make medical decisions on behalf of the incapacitated Witness, the document is useless as a either a healthcare proxy or an advanced medical directive!
Thus the problems with interpreting the document are tremendous for the healthcare provider, nevermind deciding whether to comply with or face the potential consequences of not complying in the heat of the moment.
In our court system we still have a little thing called damages that shapes a lot of outcomes and decisions. True, someone's civil rights may be violated if they are transfused without their consent and without a court approval, but if their life is saved or no harm comes from the violation, a judge is not likely to impose massive damages and might only award nominal damages, in a situation such as this one. (Unless they were extremely libertarian.) If I was a risk assessment coordinator, I would take that over the possibility of having the person die (or be injured) then facing wrongful death or negligence lawsuits from the family or estate of the deceased or the remorseful patient. [This is not to say that blood transfusions always result in better outcomes or are the difference between a person livng or dying; but it is probably a safe assumption to believe that is true in the majority of serious cases.]
Anyway that is my two cents.
-Eduardo
