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

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

3 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 cant revoke (She didnt understand what she signed)

4 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

5 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

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

7 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

8 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

9 The Case of Ms. X 87 y/o, Alzheimers, 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

10 Patients Instruction via Living Will: Effect on Agent Agent to make decisions based on Wishes of the patient, unless unknown or unclear Then, patients best interest Valid, clearly applicable living will controls Exception: guidance not meant as binding Why? Living will = clear, known evidence of wishes

11 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

12 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

13 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

14 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

15 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?

16 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 physicians order

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

18 Medically Ineffective Treatment Attending physician need not offer medically ineffective treatment Medically ineffective = treatment that: Does not benefit patients health status; and If patients death is impending, will not prevent it Requires concurrence of consulting physician Possible application to: Attempting CPR Tube feeding

19 DNR Status Could be based on … Patient w/ capacity direct decision Patients living will Agents decision Surrogates decision Physician certification that attempted CPR medically ineffective

20 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

21 What Should the Nursing Home Do About DNR Order? Honor it, but promptly … Assess residents 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

22 Additional Resources 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