End-of-life decisions

1. End-of-life decisions • Patient has the right to accept or refuse medical treatment (federal constitutional right, plus state constitutional right and/or state common law right) • Even if the treatment is life-sustaining • Includes all treatments, whether ventilator, dialysis, antibiotics, or artificial nutrition and hydration • Regardless of patient’s diagnosis and prognosis • Reflects concerns with self-determination and private decision-making (not the kinds of decisions governments should make)

2. End-of-life decisions • Right to have treatment withheld or withdrawn survives a patient’s loss of mental capacity • Reassurance for competent persons • Encourages trust in the health-care system • Preserves private decision-making • Protects patient from suffering and indignity

3. Substitute decisionmaking • Look to prior instructions from patient (e.g., advance directive, oral statements, pattern of practice, religious or other moral views) • Follow prior instructions if they give “clear and convincing” evidence of the patient’s preferences • Either preferences with regard to treatment or with regard to surrogate decision maker • Note the absence of formalities that we’ll see with preferences about the distribution of one’s estate

4. Substitute decisionmaking • Evidence of the patient’s wishes is clear and convincing when it is “sufficient to persuade the trier of fact that the patient had a firm and settled commitment” to decline treatment. O’Connor, 531 N.E.2d 607, 613 (N.Y. 1988).

5. Clear and convincing evidence • Some states look only at specific evidence • Other states (including IN) look at full range of evidence. • Some states find that patient’s prior statements amount to clear and convincing evidence while other states would find the same evidence to be insufficient.

6. Clear and convincing evidence absent • Provide treatment (NY before 2010) • Defer to the family’s wishes (IN, MA, VA) • Decide on basis of patient’s best interests (AZ, MN) • Vary the standard depending on the patient’s prognosis (CA, MI, NJ, NY, PA, WI) • These “default” rules are the medical treatment analogues for intestacy rules • Implemented by court decision or statute

7. Indiana’s living will statute • The attending physician shall . . . certify . . . that a person is a qualified patient if . . . • The attending physician has diagnosed the patient as having a terminal condition. . . . • Ind. Stat. Ann. § 16-36-4-13

8. Indiana’s living will statute • “Terminal condition” means a condition . . . from which . . . • there can be no recovery; and • death will occur from the terminal condition within a short period of time without the provision of life prolonging procedures. • Ind. Stat. Ann. § 16-36-4-5

9. Indiana’s living will statute • The living will declaration of a person diagnosed as pregnant by the attending physician has no effect during the person’s pregnancy. • Ind. Stat. Ann. § 16-36-4-8(d)

10. Indiana’s living will declaration • If at any time my attending physician certifies . . . that • (1) I have an incurable . . . illness, • (2) my death will occur within a short time; and • (3) the use of life prolonging procedures would serve only to prolong the dying process, • I direct that such procedures be withheld or withdrawn . . . . • Ind. Stat. Ann. § 16-36-4-10

11. Indiana’s living will declaration • ____I wish to receive artificially supplied nutrition and hydration, even if the effort to sustain life is futile and excessively burdensome to me. • ____I do not wish to receive artificially supplied nutrition and hydration, if the effort to sustain life is futile or excessively burdensome to me. • ____I [leave] the decision [about artificially supplied nutrition and hydration to my health care proxy]. • Ind. Stat. Ann. § 16-36-4-10

12. Indiana’s living will statute • A declaration must be substantially in the form set forth in either [the living will declaration or the life prolonging procedures declaration], but the declaration may include additional, specific directions. • The invalidity of any additional, specific directions does not affect the validity of the declaration. • Ind. Stat. Ann. § 16-36-4-9

13. Indiana’s living will statute • This chapter does not impair or supersede any legal right or legal responsibility that any person may have to effect the withholding or withdrawal of life prolonging procedures in any lawful manner. • Ind. Stat. Ann. § 16-36-4-17(e).

14. Indiana’s life prolonging procedures declaration • [I]f at any time I have an incurable . . . illness determined to be a terminal condition I request the use of life prolonging procedures that would extend my life. • This includes appropriate nutrition and hydration. . . . • Ind. Stat. Ann. § 16-36-4-11

15. Indiana’s living will statute • A living will declaration . . . shall be given great weight by the physician in determining the intent of the patient. . . . • Ind. Stat. Ann. § 16-36-4-8(f) • A life prolonging procedures will declaration . . . does require the physician to use life prolonging procedures as requested. • Ind. Stat. Ann. § 16-36-4-8(g)

16. Indiana’s living will statute • An attending physician who refuses to use, withhold, or withdraw life prolonging procedures from a qualified patient shall transfer the qualified patient to another physician who will honor the patient’s living will declaration . . . • Ind. Stat. Ann. §16-36-4-13(e)

17. Indiana’s living will statute • If the attending physician, after reasonable investigation, finds no other physician willing to honor the patient’s declaration, the attending physician may refuse to withhold or withdraw life prolonging procedures. • Ind. Stat. Ann. § 16-36-4-13(f)

18. Indiana’s power-of-attorney statute • [An attorney in fact who] has the authority to consent to or refuse health care . . . [may have health care] withdrawn or withheld when it is not beneficial or when any benefit is outweighed by the demands of the treatment . . . . • Ind. Stat. Ann. § 30-5-5-17(a)

19. Indiana’s power-of-attorney statute • To empower the attorney in fact to act, the following language must be included in an appointment under IC 16-36-1 in substantially the same form set forth below: • I authorize my health care representative to make decisions in my best interest concerning withdrawal or withholding of health care. If at any time based on my previously expressed preferences and the diagnosis and prognosis my health care representative is satisfied that certain health care is not or would not be beneficial or that such health care is or would be excessively burdensome, then my health care representative may express my will that such health care be withheld or withdrawn . . . even if death may result. • Ind. Stat. Ann. § 30-5-5-17(a)

20. Indiana’s power-of-attorney statute • My health care representative must try to discuss this decision with me. However, if I am unable to communicate, my health care representative may make such a decision for me, after consultation with my physician or physicians and other relevant health care givers. • To the extent appropriate, my health care representative may also discuss this decision with my family and others to the extent they are available. • Ind. Stat. Ann. § 30-5-5-17(a)

21. Indiana’s Health Care Consent Act • An individual . . . may appoint another individual as a representative to act for the appointor in matters affecting the appointor's health care. • An appointment and any amendment must meet the following conditions: • Be in writing. • Be signed by the appointor or by a designee in the appointor's presence. • Be witnessed by an adult other than the representative. • [Note that living will statute and out-of hospital DNR statute restrict who may serve as a witness.] • Ind. Stat. Ann. §16-36-1-7

22. Indiana’s Health Care Consent Act • The appointor may specify in the appointment appropriate terms and conditions, including an authorization to the representative to delegate the authority to consent to another. • The authority granted becomes effective according to the terms of the appointment. • The appointment does not commence until the appointor becomes incapable of consenting. The authority granted in the appointment is not effective if the appointor regains the capacity to consent. • Ind. Stat. Ann. §16-36-1-7

23. Indiana’s Health Care Consent Act • When a surrogate decision-maker has not been appointed, health care consent may be given by: • a judicially appointed guardian of the person, or if no guardian • a spouse, a parent, an adult child, or an adult sibling, or • the individual's religious superior, if the individual is a member of a religious order • Ind. Stat. Ann. §16-36-1-5

24. Out-of-hospital DNR statute • Applies when the patient has either: • a terminal condition (as defined in the living will statute) or • a medical condition such that, if the person were to suffer cardiac or pulmonary failure, resuscitation would be unsuccessful or within a short period the person would experience repeated cardiac or pulmonary failure resulting in death. • Ind. Code § 16-36-5-10

25. Out-of-hospital DNR statute • Applies to locations other than acute care hospitals • Ind. Code 16-36-5-5 • May be executed by the patient or the patient’s representative • Ind. Code 16-36-5-11 • May be issued only by the patient’s attending physician • Ind. Code 16-36-5-12 • Emergency medical services commission instructed to develop a DNR bracelet or necklace • Ind. Code 16-36-5-17 • The statute does not create a presumption regarding the intent of a person who has not executed an out-of-hospital DNR • Ind. Code 16-36-5-24

26. In re Martin • “Only when the patient’s prior statements clearly illustrate a serious, well thought out, consistent decision to refuse treatment under these exact circumstances, or circumstances highly similar to the current situation, should treatment be refused or withdrawn.” • End of Section IV (emphasis added)

27. Alternatives to statutory forms • Medical Directive • ABA health care planning guide • Description of goals of treatment • E.g., I want treatment only if it will allow me to: • Maintain or regain the ability to recognize and communicate with family and friends • Maintain or regain consciousness • Leave the hospital • Important to ensure that the alternative form satisfies the state statutory form’s procedural formalities