Transcript Domains of Law in End-of

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
2
Advance Directives: Legalities

Written advance directive, Maryland



Written advance directive, out-of-state


Maryland requirements or those of the other state
Oral advance directive, Maryland


Signatures of patient and two witnesses, date
No required form (statutory form optional)
Medical record with physician and witness
signatures, date
Advance directives presumed valid

Family can’t revoke (“She didn’t understand what
she signed”)
3
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
4
When Is a Living Will-Type
Instruction Effective?

Certification of incapacity


Certification of condition


Attending + second physician
Attending + second physician
Must have procedures for certification
5
Terminal Condition



Incurable
No recovery even with life-sustaining
treatment
Death “imminent”


No definition of “imminent”
Medicare hospice criterion sometimes used
6
End-Stage Condition


Progressive
Irreversible


Advanced to the point of complete physical
dependency


No effective treatment for underlying condition
No ADL independently
Death not necessarily “imminent”

Primarily advanced dementia, maybe other
diseases
7
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
8
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
9
Patient’s Instruction via Living
Will: Effect on Agent

Agent to make decisions based on



Valid, clearly applicable living will controls


“Wishes of the patient,” unless “unknown or
unclear”
Then, “patient’s best interest”
Exception: guidance not meant as binding
Why? Living will = clear, known evidence of
wishes
10
Surrogate Decision Making


Assumes no health care agent
Law sets priority among surrogates


1. Guardian of the person (by court)
2. Spouse





3.
4.
5.
6.
As of July 1, 2008, “or domestic partner”
Adult children
Parents
Adult siblings
Other relatives or friends
11
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
12
Surrogate Rejection of LifeSustaining 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
13
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
14
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?
15
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
16
Key Elements in Form









Main goal of care
Advance directive and contact information
Code status?
Ventilator?
Hospitalization?
Medical workup?
Antibiotics?
Feeding tubes?
Other?
17
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
18
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
19
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
20
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
21
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
22