Health Care Decision Making: The Law and the Forms

Jack SchwartzAttorney General’s Office

May 2008

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Presentation Topics Advance directives Agents and surrogates

Decision making standards Life-Sustaining Treatment Options

form Medically ineffective treatment EMS/DNR

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Advance Directives: Legalities Written advance directive, Maryland

Signatures of patient and two witnesses, date No required form (statutory form optional)

Written advance directive, out-of-state Maryland requirements or those of the other state

Oral advance directive, Maryland Medical record with physician and witness

signatures, date Advance directives presumed valid

Family can’t revoke (“She didn’t understand what she signed”)

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When Does a Health Care Agent Have Authority? Depends what the advance

directive says “When I can no longer decide for

myself” One physician? Two physicians? Up to

the individual “Right away”

Patient with capacity can revoke

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When Is a Living Will-Type Instruction Effective? Certification of incapacity

Attending + second physician Certification of condition

Attending + second physician Must have procedures for

certification

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Terminal Condition Incurable No recovery even with life-

sustaining treatment Death “imminent”

No definition of “imminent” Medicare hospice criterion sometimes

used

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End-Stage Condition Progressive Irreversible

No effective treatment for underlying condition Advanced to the point of complete

physical dependency No ADL independently

Death not necessarily “imminent” Primarily advanced dementia, maybe other

diseases

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Persistent Vegetative State No evidence of awareness Only reflex activity, conditioned

response Wait “medically appropriate period of

time” for diagnosis One of two physicians who certify PVS

must be neurologist, neurosurgeon, or other expert re cognitive functioning Important to differentiate MCS

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The Case of Ms. X 87 y/o, Alzheimer’s, certified

incapable Certified end-stage Advance directive

Gives broad authority to agent In living will portion, no feeding tube

Ms. X to hospital for infection, returns with feeding tube

Agent insists on continued use

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Patient’s Instruction via Living Will: Effect on Agent Agent to make decisions based on

“Wishes of the patient,” unless “unknown or unclear”

Then, “patient’s best interest” Valid, clearly applicable living will

controls Exception: guidance not meant as binding

Why? Living will = clear, known evidence of wishes

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Surrogate Decision Making Assumes no health care agent Law sets priority among surrogates

1. Guardian of the person (by court) 2. Spouse

As of July 1, 2008, “or domestic partner” 3. Adult children 4. Parents 5. Adult siblings 6. Other relatives or friends

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Domestic Partner Not related or married Gender irrelevant “In a relationship of mutual

interdependence in which each contributes to the maintenance and support of the other”

Evidence may be required Affidavit Financial documents Health insurance coverage

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Surrogate Rejection of Life-Sustaining Treatment Guardian: as authorized by court Other surrogates: if two physicians

certify that patient is in Terminal condition End-stage condition Persistent vegetative state

Preexisting, long-term mental or physical disability not a basis for decision

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Disputes Among Equally Ranked Surrogates All within category (e.g. adult children)

have same authority Potential disagreements:

Patient condition Course of treatment

Effect of advance directive Referral to ethics committee Attending physician may follow ethics

committee recommendation Immunity for doing so

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Implementing Decisions Facilities need a systematic

approach Anticipate likely crisis points Relate planned responses to goals of

care – common examples: Attempt resuscitation? Transfer to hospital?

Why? Why not?

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Instructions on Current LST Options Form (née PPOC) Standardized format re

patient/proxy preferences about current end-of-life issues

Nursing homes must offer LST Options form as of April 1, 2008

Everything else remains the same Not an advance directive or

physician’s order

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Key Elements in Form Main goal of care Advance directive and contact information Code status? Ventilator? Hospitalization? Medical workup? Antibiotics? Feeding tubes? Other?

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Medically Ineffective Treatment Attending physician need not offer

“medically ineffective treatment” “Medically ineffective” = treatment that:

Does not benefit patient’s health status; and If patient’s death is impending, will not

prevent it Requires concurrence of consulting physician

Possible application to: Attempting CPR Tube feeding

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DNR Status

Could be based on … Patient w/ capacity direct decision Patient’s living will Agent’s decision Surrogate’s decision Physician certification that attempted

CPR medically ineffective

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The Case of Mr. Y 63 y/o, DSS guardian Hospitalized for multiple medical

problems CPR certified as medically ineffective EMS/DNR order written on discharge

No notice to guardian Transfer to nursing home

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What Should the Nursing Home Do About DNR Order? Honor it, but promptly … Assess resident’s current condition Consult with guardian per LST Options

form Reaffirm DNR order if CPR still medically

ineffective Supplant DNR order with full code status

if CPR no longer medically ineffective

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Additional Resources www.oag.state.md.us, click “Health Policy”

Text of Health Care Decisions Act Summary, slide shows, algorithm Advance directive materials Proxy handbook Ethical Framework Explanatory Guides Legal opinions and advice letters

“I am now thoroughly confused but better informed.”

Martin Dawes, BMJ 331 (2005): 362