Jan Slater, J.D., M.B.A. Bioethics Faculty, OU Tulsa School of Community Medicine Office Phone: Palliative Care Summit “Advance Care Planning”

Under Accreditation Council for Continuing Medical Education guidelines disclosure must be made regarding financial relationships with commercial interests within the last 12 months. Jan Slater, J.D. I have no financial relationships or affiliations to disclose.

“Advance Care Planning” Learning Objectives Upon completion of this presentation, participants should by being able to: Recognize health care providers obligations under Federal and State law regarding advance care planning. Advise clients/patients about end-of-life care and assist them to execute advance care directives. Discuss with clients/patients the following laws and documents : Advance Directives Do-Not-Resuscitate Orders Physician Orders for Life Sustaining Treatment Powers of Attorney Guardianships

Medical Case Study WD is a 75 year old male with terminal bladder cancer with metastasis to the brain. Admitted to hospital incompetent with respiratory arrest due to kidney failure. Treatment Options: Surgery Benefits: potentially reverse kidney failure and facilitate weaning from the ventilator. Burdens: pain and disability and potential death from the surgery. Dilemma facing physicians and family: WD had no advance directive to indicate his wishes about life-sustaining treatments. Should WD be allowed to die free from invasive, temporary life-support? Should surgery be done as a temporary fix which WD may not survive? If he survives surgery, he still faces terminal cancer with hospice care. WD’s had never discussed his wishes with his family, however his two adult children believed that WD would not have wanted his life extended artificially If WD had executed an advance directive the medical team and family would have had some guidance for this decision. 4

Ethical Implications for End-of-Life Care There was a time when death was a part of every day life Today we are strangers to death What has changed from days past? 1. The power of advanced technology 2. Most injuries and infectious diseases are curable 3. Less emotional closure and peace with the death of a loved one 4. We don't know what to expect when someone is dying Monica Williams-Murphy M.D. and Kristian Murphy It’s OK to Die 5

Should we use technology because we have it? Carotid endarterectomy in a bed bound 91-year-old? Ventilator for a patient speechless for 10 years with a peg tube? CPR on 75-year-old with end-stage diabetes in cardiac arrest? Emergency evacuation of brain hemorrhage for patient with advance dementia? 6

Lessons We Have Learned When physicians feel compelled to cure illness and families press for “everything to be done” for a dying patient: Comfort care should replace cure focused medicine. Death is not "failure ". We all die. “Artificial life-support "may be "artificial death extension.” Monica Williams-Murphy M.D. and Kristian Murphy It’s OK to Die 7

What is a “Good Death "? Attributes of a "good death“ as identified by healthcare professionals: A sense of control and honoring wishes of one who is dying Assuring comfort and dignity A sense of closure Affirming unique personal qualities of the dying Trust in the healthcare providers Acceptance of impending death Honoring the dying persons beliefs and values Monica Williams-Murphy M.D. and Kristian Murphy It’s OK to Die 8

Advance Care Planning An ongoing process of planning for future medical care Identify who to speak on one’s behalf Describe decisions one wants them to make Ensure wishes, values and goals are honored Two documents that assist Advance Care Planning: Advance Directive, OkPOLST document. 9

Advanced Directive Act, 63 OS §3101 continued… I. Living Will If my attending physician and another physician determine that I am no longer able to make decisions regarding my health care, I direct my attending physician and other health care providers, pursuant to the Oklahoma Advance Directive Act, to follow my instructions as set forth below: (1) If I have a terminal condition, that is, an incurable and irreversible condition that even with the administration of life-sustaining treatment will, in the opinion of the attending physician and another physician, result in death within six (6) months: (Initial only one option) _____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. _____ I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. _____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. (Initial only if applicable) _____ See my more specific instructions in paragraph (4) below. 10

Advanced Directive Act, 63 OS §3101 continued… (2) If I am persistently unconscious, that is, I have an irreversible condition, as determined by the attending physician and another physician, in which thought and awareness of self and environment are absent: (Initial only one option) _____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. _____ I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. _____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. (Initial only if applicable) _____ See my more specific instructions in paragraph (4) below. 11

Advanced Directive Act, 63 OS §3101 continued… (3) If I have an end-stage condition, that is, a condition caused by injury, disease, or illness, which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective: (Initial only one option) _____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. _____ I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. _____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth, I wish to receive artificially administered nutrition and hydration. (Initial only if applicable) _____ See my more specific instructions in paragraph (4) below. 12

Advanced Directive Act, 63 OS §3101 continued… (4) OTHER. Here you may: (a) describe other conditions in which you would want life-sustaining treatment or artificially administered nutrition and hydration provided, withheld, or withdrawn, (b) give more specific instructions about your wishes concerning life- sustaining treatment or artificially administered nutrition and hydration if you have a terminal condition, are persistently unconscious, or have an end-stage condition, or (c) do both of these: _______________________________________________________________ Initial 13

Advanced Directive Act, 63 OS §3101 continued… II. My Appointment of My Health Care Proxy If my attending physician and another physician determine that I am no longer able to make decisions regarding my health care, I direct my attending physician and other health care providers pursuant to the Oklahoma Advance Directive Act to follow the instructions of ______________________________, whom I appoint as my health care proxy. If my health care proxy is unable or unwilling to serve, I appoint______________________________ as my alternate health care proxy with the same authority. My health care proxy is authorized to make whatever health care decisions I could make if I were able, except that decisions regarding life- sustaining treatment and artificially administered nutrition and hydration can be made by my health care proxy or alternate health care proxy only as I have indicated in the foregoing sections. If I fail to designate a health care proxy in this section, I am deliberately declining to designate a health care proxy. 14

Advanced Directive Act, 63 OS §3101 continued… The AD must be signed by the declarant when competent. witnessed by two witnesses who are not legatees, devisee's or heirs of the declarant. If a Physicians is unable or unwilling to comply with a valid AD, the physician is obligated to arrange for care by another physician or healthcare provider willing to comply. 15

Useful Tips When filling out an Advance Directive Appointment of co-proxies complicates medical decision making. A Proxy’s duty to make decisions based on known wishes of the declarant is often misunderstood. If you want a trusted Proxy to make all medical decisions: leave Living Will section 1,2 and 3 blank and complete the remainder of the advanced directive; make clear in the Living Well subsection (4) that you want your proxy to make decisions the proxy believes best represent the needs and wishes of your family, however, that you would not want your life to be artificially prolonged and you consents to withdrawal of life-sustaining treatment and AAHN. Families need permission to refuse care and permit a loved one to pass peacefully. 16

Useful Tips When filling out an Advance Directive Everyone should have an Advance Directive. Refusing AAHA in they dying process will NOT cause a painful death: Forcing AAHN on a dying patients may greatly increase their suffering. At least one proxy should be younger than you. Include a social security number or other identification on your Advance Directive. 17

Useful Tips When filling out an Advance Directive Give a copy of your AD to your proxy, key family members, the your attending physician and hospital. Failure to have an advance directive can cause strife among your family members who disagree about treatment you should have once you can’t speak for your self. The most common defects in advance directives seen in hospitals include: The declarant’s signature is not legible. A witness is related to the declarant. Only one witness signature appears on the document. The advanced directive was executed on behalf of the declarant after declarant lost capacity. Written instructions are illegible or unclear. The document lacks a date. 18

Do-Not-Resuscitate Consents The law presumes that every person has consented to be resuscitated in the event of cardiac or respiratory arrest. Exceptions to the presumption: Physician informed by a patient of his/her wish for a do- not-resuscitate (“DNR”) order; Incompetent person’s legal representative consents to a DNR order; Advance Directive or DNR consent exists refusing resuscitation; Physician certification that clear and convincing evidence exists of a person's wishes not to be resuscitated. 19

Oklahoma Do-Not Resuscitation Act continued… If no other indicia exists, a physician may order DNR if the person’s death is imminent. Executing a DNR consent or wearing a necklace, bracelet or carrying a wallet card can indicate a desire for a DNR order. Patient or representative can revoke at any time. Physicians required to comply with patient’s DNR Consent or transfer immediately. 20

Oklahoma Do-Not Resuscitation Act, 63 OS §3131 continued… A DNR Order/Consent is transferable; must be recognized and honored by all healthcare providers. a DNR order may not be given in violation of a valid AD for Healthcare. This law is designed for a person at the end- of-life and not every client. 21

Physicians Order for Life-Sustaining- Treatment (POLST) Physician’s order form outlines wishes for medical treatment and goals of care for patients with life limiting and irreversible conditions; Translates ADs and DPAHC into a physician’s order. Can stand alone without an advance directive. Lists choices of medical treatments. Can be completed by Legal Representative of incapacitated patients. 22

POLST Document continued.. Valid, when discussed with and signed by patient and/or Legal Representative. Must be signed by a physician. Combining the OkPOLST with AD is more likely to ensure patients’ wishes are honored at end-of-life; it is a physician’s order and travels with the patient across health care settings. Becomes effective at the time of signing. Use of OkPOLST always voluntary. More information at 23

POLST vs. Do Not Resuscitate Order  Similarities: – Physician orders. – Address Do Not Resuscitate. – Intended for medically frail or those with life limiting or irreversible conditions. – Honored across all care settings. 24

POLST vs. Do Not Resuscitate Order POLSTDNR Order  Allows for choosing resuscitation  Allows for other medical treatments  Can only use if choosing DNR  Only applies to resuscitation 25

Advance Directive vs. POLST Advance Directive For all adults Covers many health contingencies States patient preferences Often not accessible Open to interpretation Delayed implementation POLST For seriously ill at any age Provides either/or choices Preferences indicated by check boxes Stays with patient Portable and transferable Provides specific medical orders 26

OkPOLST Form 27

Powers of Attorney (“POA”) A legal document granting powers to another person to act in one’s stead. “Principal” – executes a power of attorney “Attorney-in-fact” or “Agent” – is given the power to act Powers can be general or specific but are narrowly interpreted. Common examples of POA: Parental consents for student emergency treatment, Real estate agent contract. Powers cease when Principal becomes incapacitated. Not very useful in the healthcare setting. All POAs must be signed by Principal when capacitated and Notarized and Witnessed by two adults (18 years or older) not related by blood or marriage to Principal or Agent. 28

Durable or Springing Powers of Attorney (“DPA”) Powers may be exercised by Agent when Principal is incapacitated. Powers are often abused. Most DPAs only deal with property and financial matters. A Durable Power of Attorney for healthcare: Grants powers to Agent to provide or consent to personal and medical care. Can include powers for medical care along with other business related powers. Have the same signing requirements as other POAs. Always ask patient about treatment preferences if capacitated. If incapacitated: Ask the family if the patient has an AD or DPAHC, Put a copy on the chart, Read carefully to ensure it contains powers to make medical decisions. Only provide care granted by the powers, Check that the DPA has been signed, dated and notarized by the patient and 2 witnesses. 29

Guardianship Is a court appointed agent authorized to take care of a person and/or the person’s property. Is necessary to authorize withdrawing or withholding life sustaining care when an incompetent person has no AD, POLST or DPAHC. Seeking a Guardianship should be the last resort as it is: Expensive, Time consuming, Guardians are restricted from withdrawing or withholding life- sustaining treatment without court approval, Courts rarely grant permission to withdraw life-support. The Guardian must: Appear before a judge, prove the patient (ward) is incapacitated, report back to the court periodically regarding Ward’s condition and how the Ward’s resources have been spent. 30

What About Mr. WD? Questions? 31