“Its Medically Indicated” v. “It’s the Patient’s Choice” Law and Ethics at the End-of-Life

“Its Medically Indicated” v. “It’s the Patient’s Choice”Law and Ethics at the End-of-Life 2012 SJPHS Grady Conference September 21, 2012 Presented by: Laura Miron Napiewocki Hall, Render, Killian, Heath & Lyman, PLLC

Autonomy • Autonomy is the capability for self-determination. • Autonomy implies that one should be free from coercion in deciding to act or forgo action. • In the practice of healthcare, a person’s autonomy is exercised through: • the process of Informed Consent • the right to accept or refuse treatment • the creation of advance directives • the appointment of surrogate decision-makers © Hall Render Killian Heath & Lyman, PLLC, 2012

Informed Consent • Elements of Information • Nature of Procedure • Risks, Common or Severe • Benefits • Alternative Medical Treatment Options • Consent • Understanding/Comprehension • Voluntary © Hall Render Killian Heath & Lyman, PLLC, 2012

Process of Informed Consent • Documentation • Process of Deliberation • Shared Decision-making • Communication of news, information about disease, and its management. • Physicians have a direct responsibility, regardless of barriers (e.g. insurance) © Hall Render Killian Heath & Lyman, PLLC, 2012

Right to Refuse Treatment • Patient has the right to make an informed decision to receive, continue, or refuse medical treatment. • Patient may choose to withhold or withdraw treatment at any time. • Patient may also choose palliative care treatment (including hospice care & pain management). © Hall Render Killian Heath & Lyman, PLLC, 2012

When Patient Lacks Decision-Making Capacity © Hall Render Killian Heath & Lyman, PLLC, 2012

Competency v. Capacity • Competence – legal determination made by the court. • If a person is adjudged incompetent, he is legally not capable of making health decisions or other decisions. • Court will appoint guardian(s) to act on behalf of the incompetent person (also known as a “ward”). • Capacity – medical determination made by the physician. • Capacity requires the ability to: • Comprehend • Deliberate • Communicate • Capacity may wax and wane; should reassess capacity for each significant health decision. © Hall Render Killian Heath & Lyman, PLLC, 2012

Determining Capacity • Existence of mental illness, mental handicap, or dementia does not automatically render a patient incapable of making medical decisions. • Patient’s who are unable to give informed consent may still be capable of designating a surrogate, and may still benefit from discussion regarding treatment plans. © Hall Render Killian Heath & Lyman, PLLC, 2012

If there is Uncertainty… • Determine if the patient has been adjudged incompetent and, if so, contact guardian for health care decision-making. • If patient has not been adjudged incompetent or you do not know, order a psychiatric consult or consult with another physician or licensed psychologist. • If the psych consult indicates that the patient has capacity, patient may make health care decisions. • If the psych consult indicates that patient lacks decision-making capacity, identify existence of surrogates and/or advance directives, if any. © Hall Render Killian Heath & Lyman, PLLC, 2012

Advance Directives • Allows patients to document their preferences for medical treatment (or non-treatment) while they are still competent. • Directives can help guide decision-makers in the event that a patient later becomes incapacitated. © Hall Render Killian Heath & Lyman, PLLC, 2012

Terminology of Advance Directives • The following may all be considered an Advance Directive: • Instructional Statement • Living Will (not legally recognized in MI) • Durable Power of Attorney for Health Care • Values History • Personal letter • Medical Directive • Advance care planning is the process of discussion, documentation, and implementation of the advance directive. © Hall Render Killian Heath & Lyman, PLLC, 2012

Common Issues with Advanced Directives • Very few individuals have completed an advance directive. • Individuals are unable to foresee future medical circumstances. • Difficult for surrogate decision-maker to understand the wishes of the patient • Inability of physician to locate or access patient’s advanced directive • Instructions are vague, confusing, or even “medically impossible” to achieve. © Hall Render Killian Heath & Lyman, PLLC, 2012

Do-Not-Resuscitate Orders • Michigan DNR Procedure Act • Setting outside of a hospital, a nursing home, or a mental health facility owned or operated by the department of community health • Executed by a patient or patient advocate (if patient lacks decision-making capacity) © Hall Render Killian Heath & Lyman, PLLC, 2012

A properly executed DNR must be: • Dated and signed by the patient / patient advocate • Executed voluntarily • Witnessed by declarant, patient’s attending physician, and 2 additional witnesses (one of whom is not a family member) • The DNR order should remain in possession of the patient and should be accessible within his or her place of residence. • The DNR may be revoked at any time by patient or patient advocate. © Hall Render Killian Heath & Lyman, PLLC, 2012

POLST Paradigm • Originated in Oregon after various reports that patients’ documented decisions for end-of-life treatments were not being carried out • Advantages over other Advanced Care Planning Techniques: • Easily portable between health care settings • Puts a greater emphasis on conversations between patients and health care providers • Patient’s preferences are recorded as written medical orders that are easily understood and implemented © Hall Render Killian Heath & Lyman, PLLC, 2012

Surrogate Decision-Makers • Standards for Surrogate decision-making • Substituted Judgment – making decisions based on patient’s preferences / values, if known • Best Interests – If patient’s preferences are not known, surrogate must act in patient’s best interests. (“Reasonable person” standard) • Health care providers have a duty to evaluate and / or question surrogate’s decisions. • Health care providers should consider declining to follow surrogate’s instructions if not consistent with patient’s preferences or best interests. © Hall Render Killian Heath & Lyman, PLLC, 2012

Types of Surrogate Health Care Decision-Makers in Michigan © Hall Render Killian Heath & Lyman, PLLC, 2012

Guardians of Incapacitated Adults • Who Initiates: Individual or Interested person • How Initiated: Petition to court; appointment by will or other writing • When Initiated: Court appointment; or, if by will, when appointed guardian files acceptance in court where will containing appointment is probated. • Requirements: Petition containing specific facts about individual's condition and recent conduct; notice to interested parties; hearing; order • Powers: Guardian has those powers and duties specifically enumerated by court order that are necessary as means of providing continuing care to individual. • NOTE: If individual properly executed patient advocate designation before becoming legally incapacitated, then guardian does not have power of making medical or mental health treatment decisions • Surrogacy Effective: Upon issuance of court order • Duration: Determined by court order; stated in order • Termination: Upon death of guardian or ward, incapacity of guardian; order of resignation or removal by court. © Hall Render Killian Heath & Lyman, PLLC, 2012

Guardians of Developmentally Disabled Adults • Who Initiates: Interested person or entity; individual • How Initiated: Petition to court • When Initiated: After court determines that individual lacks the ability to do some or all of the tasks necessary to care of him/herself or estate. • Requirements: Petition to court accompanied by report or evaluations; notice to person & interested parties; hearing ; order. • Powers: • Plenary Guardians possess the legal rights and powers of a full guardian of the person. • Partial Guardianspossess those powers and duties specifically enumerated by court order. • Surrogacy Effective: • Plenary: Upon issuance of court order, even when patient appears to have capacity • Partial: Upon issuance of court order, only when patient lacks decision-making capacity • Does not extend to extraordinary procedures unless previously ordered by court. • Duration: As stated in court order • Termination: Discharge or modification order by the court; death of ward or guardian; incapacity of guardian © Hall Render Killian Heath & Lyman, PLLC, 2012

Michigan OAG Opinion • In 2000, the Michigan Office of the Attorney General determined that a Guardian of a Developmentally Disabled Adult does not have the authority… • to sign a designation of a patient advocate on behalf of the ward under the Patient Advocate Act; • to sign a do-not-resuscitate order on behalf of ward under the Michigan Do-Not-Resuscitate Procedure Act • when the ward has been determined by the court to not be of sound mind. © Hall Render Killian Heath & Lyman, PLLC, 2012

Durable Power of Attorney • Who Initiates: Patient • How Initiated: Patient executes document • When Initiated: While patient has decision-making capacity • Requirements: Written document signed by patient; signed and accepted by person granted durable power of attorney; witnesses • Powers: Those stated in the document • NOTE: must specifically state that person granted durable POA has the power to make health-care decisions on behalf of the individual! • Surrogacy Effective: Only during such times when the patient lacks decision-making capacity • Duration: When revoked by patient or as stated in the document. © Hall Render Killian Heath & Lyman, PLLC, 2012

Patient Advocate • Who Initiates: Patient • How Initiated: Patient executes document • When Initiated: While patient has decision-making capacity • Requirements: Written document signed by patient; executed in presence of at least 2 witnesses; statement that authority only granted when patient lacks capacity; signed by patient and 2 witnesses. • Powers: • Powers concerning care, custody, and medical or mental health treatment decisions • May make decision to withhold /withdraw treatment that would allow the patient to die if patient has expressed in clear and convincing manner that patient advocated is authorized to make such a decision • Surrogacy Effective: During times when patient lacks decision-making capacity. • Duration: Until revoked, or as stated in document. • Termination: When revoked, or if patient advocate does not accept, becomes incapacitated, resigns, or is removed. © Hall Render Killian Heath & Lyman, PLLC, 2012

Default Surrogates • In the event that an individual has not appointed a guardian, or the guardian is unavailable, Michigan law recognizes the following individuals as default surrogates: • Parent or legal guardian of a patient who is a minor • Members of the immediate family, or the next of kin • A default surrogate may participate in health-care decision-making and may receive health care information on behalf of the patient when the patient lacks decision-making capacity. • No priority is given among default surrogates -- can lead to issues if there is an indecision among family members. © Hall Render Killian Heath & Lyman, PLLC, 2012

Medical Futility • Futile for what goal? • (as defined by patient /surrogate with physician) • Objective determination of ineffectiveness for goal • Rather than subjective opinion of treatment worth or patient’s continued life • Consider a second opinion • Use of ethics consultation/committees • Transfer of Care option © Hall Render Killian Heath & Lyman, PLLC, 2012

“Right to Die” • Medical technology has made it possible for individuals to delay death indefinitely. • The “right-to-die” movement is supported by those who believe that delaying an inevitable death through technological means is cruel, undignified and even inhumane. © Hall Render Killian Heath & Lyman, PLLC, 2012

“Right to Die” (Cont’d.) • Cruzan v. Missouri Director of Health (U.S. 1990) • Supreme Court decision establishing that competent patients have the constitutional right to forego aggressive technological interventions. • Court also upheld Missouri statute requiring “clear and convincing evidence” of individual’s desires to withhold or withdraw life-sustaining treatment when individual lacks capacity. © Hall Render Killian Heath & Lyman, PLLC, 2012

Physician-Assisted Suicide • US Supreme Ct (1997) – no constitutional right to assisted suicide. States free to develop their own laws. • MI: felony for a person to assist an individual in committing suicide. • However, MI law recognizes that the withdrawal or withholding of medical treatment is not considered “assisting in suicide,” even if the effect of withdrawal is death for the individual. © Hall Render Killian Heath & Lyman, PLLC, 2012

“Its Medically Indicated” v. “It’s the Patient’s Choice” Law and Ethics at the End-of-Life