Advance Directives Ethics Champion Program Carol Bayley, PhD VP Ethics and Justice Education Catholic Healthcare West

Do you have an advance directive? Living will Durable Power of Attorney for Health Care I don’t have an advance directive

What percentage of Americans have an advance directive? 38% 20% 15% 6%

Which federal law authorizes advance directives? 1976 Quinlan (U.S. Supreme Court) 1989 EMTALA 1991 Patient Self-Determination Act No federal law; advance directives are regulated by the states

Which does the law NOT require: Hospital patients must be advised that they can refuse treatment Patients must be advised that they can make an advance directive Nursing home patients must make an advance directive witnessed by an ombudsperson.

Who can create an advance directive? Only the patient’s physician Any person Any person with capacity to make medical decisions

Advance Directives 101 Written document of person’s wishes for treatment or non-treatment Two forms –Living Will –Durable Power of Attorney for Health Care Only a competent person may create AD. Usually takes effect when the patient does not have capacity to make a medical decision. One of the conditions of participation in Medicare/Medicaid for hospitals and nursing homes

What about witnesses? Two witness; at least one of them must not be related to the person (by blood, marriage, or adoption—it’s about the estate…) Witnesses only attest identity of person creating AD; can be total strangers. In nursing home, ombudsperson must also sign. Hospital workers cannot witness patients’ AD.

What problems can an Advance Directive solve? Family does not know how long to continue treatment Family feels guilty about terminating treatment Patient wished to avoid specific types of treatment

What problems ADs cannot solve Appointed agent who cannot follow patient’s wishes Dysfunctional families (!) Doctors who only stop when they think further treatment is useless Doctors who believe ADs are only for dying patients

More things ADs won’t solve The difficulty of value -laden decisions under conditions of uncertainty Loss of meaning; loss in general Grief

Advance Directives are not a substitute for Care plans to carry forward a patient’s goals for treatment DNR orders Family conversation about end of life care

What do we do when the appointed surrogate is acting contrary to patient wishes? If patient has capacity, surrogate is irrelevant. If patient has expressed wishes clearly and they are charted, surrogate can be educated. Legal ground for surrogate’s authority: Best interest of patient

Questions?