Health Care Decision Making: The Law and the Forms

Health Care Decision Making: The Law and the Forms Jack Schwartz Attorney General’s Office May 2008

Presentation Topics • Advance directives • Agents and surrogates • Decision making standards • Life-Sustaining Treatment Options form • Medically ineffective treatment • EMS/DNR

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”)

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

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

Terminal Condition • Incurable • No recovery even with life-sustaining treatment • Death “imminent” • No definition of “imminent” • Medicare hospice criterion sometimes used

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

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

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

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

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

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

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

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

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?

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

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

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

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

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

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

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

Health Care Decision Making: The Law and the Forms