A New Era in End-of-Life Planning: The New Health Care Power of Attorney, Living Will and Organ Donation Statutes

1. A New Era in End-of-Life Planning: The New Health Care Power of Attorney, Living Will and Organ Donation Statutes Kristin L. Burrows Attorney Graham, Nuckolls & Brown, PLLC Kristin L. Burrows

2. What is an Advance Directive? • An Advance Directive is a legal document that communicates one’s desires regarding future health care decisions, • To be used if one can no longer make or communicate those decisions. Kristin L. Burrows

3. What is anAdvance Directive? • Two Main Types: • Living Wills state treatment preferences, usually for limiting life-prolonging treatment. • Health Care Powers of Attorney authorize another person to make health care decisions on one’s behalf. Kristin L. Burrows

4. A Little History • North Carolina’s first Living Will statute was enacted in 1977 • North Carolina’s first Health Care Power of Attorney statute was enacted in 1991 Kristin L. Burrows

5. Rationale: Why do we have Advance Directives? • Advance Directives can encourage people to formulate and communicate their desires regarding health care. • Advance Directives can enhance people’s control over decisions about their health care. Kristin L. Burrows

6. Rationale: Why do we have Advance Directives? • Advance Directives can prevent confusion and conflict over health care decisions. • Statutory Advance Directives create a legal safe harbor for health care professionals who honor them. Kristin L. Burrows

7. So What’s New? • This past Summer, the North Carolina General Assembly enacted a revised Advance Directives statute, effective October 1, 2007. • This was the first major revision of NC’s Advance Directive statutes since 1991. Kristin L. Burrows

8. So What’s New? • The law was changed in response to concerns raised by the Terri Schiavo case. • In 2005, NC Legislators decided to review the clarity of the laws relating to Living Wills and Health Care Powers of Attorney. Kristin L. Burrows

9. So What’s New? • Generally: • Reformed Statutory Advance Directive Forms. • Includes new terms to describe medical conditions and treatments. • Offers new choices about treatment preferences. Kristin L. Burrows

10. So What’s New? • Attempt to resolve conflicts between Living Wills and Health Care Powers of Attorney • Allows one to CHOOSE whether the authority of a health care agent, or the wishes stated in a Living Will, “trumps” in the event of a conflict. Kristin L. Burrows

11. So What’s New? • Living Will includes a “SHALL” option, requiring that one’s Living Will be honored. • Note: A Living Will cannot force a doctor to do something against his or her beliefs. Kristin L. Burrows

12. So What’s New? • Attempts to clarify statutory terms. • Brings consistency to the terminology used in the Living Will and Health Care Power of Attorney statutes. • Attempts to make the terminology clearer to both doctors and patients. Kristin L. Burrows

13. So What’s New? • Attempt to create a more “user-friendly” and understandable statutory form, with more flexibility in exercising choices. • Not everyone agrees that the new forms are “user-friendly”. • Note that the statutory forms are non-exclusive; many attorneys have adapted the forms, or created their own. Kristin L. Burrows

14. So What’s New? • Attempt to clarify the procedures for withholding life-prolonging measures when no Living Will or Health Care Power of Attorney exists. Kristin L. Burrows

15. The Problem: Conflicts between LWs and HCPOAs • When HCPOAs were authorized in 1991, many lawyers and health care providers thought they would replace the LW, but most people execute both documents. • If a health care agent gives an instruction that conflicts with LW instructions, which controls? Kristin L. Burrows

16. The Problem: Conflicts between LWs and HCPOAs • Under the old law it was unclear: • Many lawyers argued the LW prevailed because Chapter 32A (the HCPOA statute) states: “In the event of a conflict between the provisions of this Article and [the living will statute], the provisions of [the living will statute] control.” Kristin L. Burrows

17. The Problem: Conflicts between LWs and HCPOAs • However, one could argue that the health care agent’s authority prevails because, under the HCPOA statute, the health care agent has the power to give consent to medical treatment, whereas the LW deals with withholding or withdrawing treatment; therefore, one could argue no actual conflict exists. Kristin L. Burrows

18. The Problem: Conflicts between LWs and HCPOAs • IMPORTANT: The new statute does NOT resolve the conflict for LWs and HCPOAs executed under the OLD law. • Many people executed both documents - one person may think his LW controls, another may think his HCPOA controls - and it would be inappropriate for retroactive legislation to purport to determine a court’s consideration of the legal arguments for both positions. Kristin L. Burrows

19. The Resolution: Conflicts between LWs and HCPOAs • The new law allows a person to choose whether a health care agent’s authority or a living will provision controls in the event of a conflict. Kristin L. Burrows

20. The Resolution: Conflicts between LWs and HCPOAs • Either the LW or HCPOA, or both, may specify which instrument prevails. • New statutory LW form contains a section in which one can make this choice. • In an attempt to avoid confusion and conflicts, the new statutory HCPOA does NOT include a similar section, but such a section could be drafted into the HCPOA. Kristin L. Burrows

21. The Resolution: Conflicts between LWs and HCPOAs • The statutory LW also specifies that the LW prevails if a choice is not specified. Kristin L. Burrows

22. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • The old LW and HCPOA statutes used ambiguous, dated and inconsistent terms to address: • When treatments could be withheld and • What treatments could be withheld. Kristin L. Burrows

23. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • OLD TERMS • The Living Will statute provided that certain treatments could be withheld if the person’s condition was either: • Terminal and Incurable OR • Diagnosed as a Persistent Vegetative State. Kristin L. Burrows

24. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • OLD TERMS • The HCPOA gave the agent the power to withhold treatments when the patient: • Is Terminally Ill, • Is Permanently in a coma, • Suffers Severe Dementia, OR • Is in a Persistent Vegetative State. Kristin L. Burrows

25. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • Inconsistency between the LW and HCPOA • The LW makes no mention of “severe dementia” • So, is severe dementia grounds for withholding treatment ONLY if one had appointed a health care agent? Kristin L. Burrows

26. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • Inconsistency between the old LW and HCPOA • “Terminal and Incurable” vs. “Terminally Ill” • Is a person in a “terminal and incurable” state as used in the LW also a person who is “terminally ill” as used in the HCPOA? Kristin L. Burrows

27. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • Ambiguous Medical Terms • What comas are “permanent”? • What is “severe” dementia? • Does “terminal” illness imply imminent death? Kristin L. Burrows

28. The Problem: Ambiguous and Inconsistent Medical Terms for When Treatment Withheld • Outdated Medical Terms • “Persistent Vegetative State” • Now, physicians use that term to refer to an intermediate condition of being vegetative for longer than one month. • And they now use the term “Permanent Vegetative State” to refer to a more prolonged vegetative state that is probably not reversible. Kristin L. Burrows

29. The Resolution: New Terms for When Treatment Withheld • Under the new LW treatment may be withheld in the following situations: • Incurable or irreversible condition that will result in death within a relatively short period of time; OR • Unconscious and, to a high degree of medical certainty, will never regain consciousness; OR Kristin L. Burrows

30. The Resolution: New Terms for When Treatment Withheld • Advanced Dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible. • NOTE: The person can choose for the LW to apply in any or all of the above conditions. Kristin L. Burrows

31. The Resolution: New Terms for When Treatment Withheld • Are these new terms really better? Less ambiguous? • The group that collaborated on drafting these terms admit that no terms are perfect, but they believe these terms are a vast improvement … Kristin L. Burrows

32. The Resolution: New Terms for When Treatment Withheld • Why are the new terms an improvement? • They are not tied to current medical jargon, so there is less chance of the terms becoming outdated, like the term “persistent” vegetative sate did. Kristin L. Burrows

33. The Resolution: New Terms for When Treatment Withheld • Why are the new terms an improvement? • They are less confusing to the average person. • For instance, rather than using the word “coma”, they used the phrase “unconscious and … will never regain consciousness” to paint a clearer picture. Kristin L. Burrows

34. The Resolution: New Terms for When Treatment Withheld • Why are the new terms an improvement? • They are tied temporally to imminent death: “death within a relatively short period of time is preferable to “terminal” Kristin L. Burrows

35. The Resolution: New Terms for When Treatment Withheld • The new HCPOA form does NOT include the new terms used in the LW. • Why? The drafting group decided that a person chooses a health care agent whom they trust to make decisions, so the HCPOA form did not need these explicit standards. Kristin L. Burrows

36. The Resolution: New Terms for When Treatment Withheld • Why are the new terms an improvement? • They are not susceptible to the unintended expansion that some people fear: • E.g., the qualifier “high degree of medical certainty” is inserted, and • the phrases “advanced dementia” and “substantial loss of cognitive ability” are considered better than “severe dementia” Kristin L. Burrows

37. New Terms: What they mean to Physicians • “Unconscious and, to a high degree of medical certainty, will never regain consciousness” implies a sustained medical condition arising from severe brain damage or some other condition, whereby in the judgment of the attending physician, the patient suffers from a complete loss of self-awareness, the condition is irreversible and, without the use of life-prolonging measures, the patient would succumb to death within a short period of time. Kristin L. Burrows

38. New Terms: What they mean to Physicians • “Advanced dementia” applies when dementia becomes an irreversible, progressive, terminal illness that has progressed to such a degree that, in the attending physician’s judgment, the patient no longer has any of the following: discernible cognitive function including memory and judgment; the ability to interact meaningfully with others; the ability to ambulate or control physical movements; and the ability to maintain oral nutrition due to loss of the swallowing reflex. Kristin L. Burrows

39. The Problem: Defining What Treatment Could Be Withheld • Old LW Terms: • The old LW provided that either • Extraordinary Means OR • Artificial Nutrition and Hydration could be withheld. Kristin L. Burrows

40. The Problem: Defining What Treatment Could Be Withheld • Old LW Terms: • Extraordinary Means was defined as “any medical procedure or intervention which in the judgment of the attending physician would serve only to postpone artificially the moment of death by sustaining, restoring, or supplanting a vital function.” Kristin L. Burrows

41. The Problem: Defining What Treatment Could Be Withheld • Old LW Terms: • Artificial Nutrition and Hydration was NOT defined. Kristin L. Burrows

42. The Problem: Defining What Treatment Could Be Withheld • Old HCPOA Terms: • Allowed a person to grant their health care agent the authority to withhold “life-sustaining procedures” Kristin L. Burrows

43. The Problem: Defining What Treatment Could be Withheld • Old HCPOA Terms • Life-Sustaining Measures were defined as “those forms of care or treatment which only serve to artificially prolong the dying process, and • may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of treatment which sustain, restore or supplant vital bodily functions, but do not include care necessary to provide comfort or to alleviate pain.” Kristin L. Burrows

44. The Problem: Defining What Treatment Could Be Withheld • Problem with the LW terms: • The distinction between “extraordinary means” and the undefined term “artificial nutrition and hydration” • Belief of some Roman Catholics and Christians that “food and water” should be provided until the “very end,” and therefore even food and water provided through tubes should never be considered extraordinary means. Kristin L. Burrows

45. The Problem: Defining What Treatment Could Be Withheld • Problem with HCPOA terms: • Included artificial nutrition and hydration as one of many examples of “life-sustaining procedures”. • Reflected the understanding of most health care providers that artificial nutrition and hydration is an extraordinary and invasive procedure … Kristin L. Burrows

46. The Problem: Defining What Treatment Could Be Withheld • Artificial Nutrition and Hydration • Rhetorical Question: What is the difference between a feeding tube and a mechanical ventilator? Isn’t air just as fundamental to life as food and water? • Is dialysis “extraordinary” in an otherwise healthy kidney patient just because dialysis is more complicated than nutrition and hydration? Kristin L. Burrows

47. The Problem: Defining What Treatment Could Be Withheld • Confusion between the LW and HCPOA • Are “life-sustaining procedures” as used in the HCPOA different from “extraordinary means” as used in the LW? • Hard to answer, given the different wording of the definitions and especially given the inclusion of artificial nutrition and hydration among “life-sustaining procedures” but not among “extraordinary means.” Kristin L. Burrows

48. The Problem: Defining What Treatment Could Be Withheld • As you can see, the old terms in the LW and HCPOA for what treatment may be withheld could lead to confusion, especially if a patient had both documents. Kristin L. Burrows

49. The Resolution: New Terms for What Treatment Withheld • New term: • “Life-prolonging measures” • Used in BOTH the LW and HCPOA • Replaced “life-sustaining” because the verb “prolong” connotes the concept of artificial postponement of death better than does the verb “sustain”. Kristin L. Burrows

50. The Resolution: New Terms for What Treatment Withheld • Definition of “life-prolonging measures” • Medical procedures or intervention which in the judgment of the attending physician would serve only to postpone artificially the moment of death by sustaining, restoring, or supplanting a vital function, including mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment. Life-prolonging measures do not include care necessary to provide comfort or to alleviate pain. Kristin L. Burrows