1. “Its Medically Indicated” v. “It’s the Patient’s Choice” Law and Ethics at the End-of-Life 2012 SJPHS Grady Conference September 21, 2012 Presented by: Laura Miron Napiewocki Hall, Render, Killian, Heath & Lyman, PLLC

2. Autonomy Autonomy is the capability for self-determination. Autonomy implies that one should be free from coercion in deciding to act or forgo action. In the practice of healthcare, a person’s autonomy is exercised through: the process of Informed Consent the right to accept or refuse treatment the creation of advance directives the appointment of surrogate decision-makers © Hall Render Killian Heath & Lyman, PLLC, 2012 2

3. Informed Consent Elements of Information Nature of Procedure Risks, Common or Severe Benefits Alternative Medical Treatment Options Consent Understanding/Comprehension Voluntary © Hall Render Killian Heath & Lyman, PLLC, 2012 3

4. Process of Informed Consent Documentation Process of Deliberation Shared Decision-making Communication of news, information about disease, and its management. Physicians have a direct responsibility, regardless of barriers (e.g. insurance) © Hall Render Killian Heath & Lyman, PLLC, 2012 4

5. Right to Refuse Treatment Patient has the right to make an informed decision to receive, continue, or refuse medical treatment. Patient may choose to withhold or withdraw treatment at any time. Patient may also choose palliative care treatment (including hospice care & pain management). © Hall Render Killian Heath & Lyman, PLLC, 2012 5

6. When Patient Lacks Decision-Making Capacity © Hall Render Killian Heath & Lyman, PLLC, 2012 6

7. Competency v. Capacity Competence – legal determination made by the court. If a person is adjudged incompetent, he is legally not capable of making health decisions or other decisions. Court will appoint guardian(s) to act on behalf of the incompetent person (also known as a “ward”). Capacity – medical determination made by the physician. Capacity requires the ability to: Comprehend Deliberate Communicate Capacity may wax and wane; should reassess capacity for each significant health decision. © Hall Render Killian Heath & Lyman, PLLC, 2012 7

8. Determining Capacity Existence of mental illness, mental handicap, or dementia does not automatically render a patient incapable of making medical decisions. Patient’s who are unable to give informed consent may still be capable of designating a surrogate, and may still benefit from discussion regarding treatment plans. © Hall Render Killian Heath & Lyman, PLLC, 2012 8

9. If there is Uncertainty… Determine if the patient has been adjudged incompetent and, if so, contact guardian for health care decision-making. If patient has not been adjudged incompetent or you do not know, order a psychiatric consult or consult with another physician or licensed psychologist. If the psych consult indicates that the patient has capacity, patient may make health care decisions. If the psych consult indicates that patient lacks decision-making capacity, identify existence of surrogates and/or advance directives, if any. © Hall Render Killian Heath & Lyman, PLLC, 2012 9

10. Advance Directives Allows patients to document their preferences for medical treatment (or non-treatment) while they are still competent. Directives can help guide decision-makers in the event that a patient later becomes incapacitated. © Hall Render Killian Heath & Lyman, PLLC, 2012 10

11. Terminology of Advance Directives The following may all be considered an Advance Directive: Instructional Statement Living Will (not legally recognized in MI) Durable Power of Attorney for Health Care Values History Personal letter Medical Directive Advance care planning is the process of discussion, documentation, and implementation of the advance directive. © Hall Render Killian Heath & Lyman, PLLC, 2012 11

12. Common Issues with Advanced Directives Very few individuals have completed an advance directive. Individuals are unable to foresee future medical circumstances. Difficult for surrogate decision-maker to understand the wishes of the patient Inability of physician to locate or access patient’s advanced directive Instructions are vague, confusing, or even “medically impossible” to achieve. © Hall Render Killian Heath & Lyman, PLLC, 2012 12

13. Do-Not-Resuscitate Orders Michigan DNR Procedure Act Setting outside of a hospital, a nursing home, or a mental health facility owned or operated by the department of community health Executed by a patient or patient advocate (if patient lacks decision-making capacity) © Hall Render Killian Heath & Lyman, PLLC, 2012 13

14. A properly executed DNR must be: Dated and signed by the patient / patient advocate Executed voluntarily Witnessed by declarant, patient’s attending physician, and 2 additional witnesses (one of whom is not a family member) The DNR order should remain in possession of the patient and should be accessible within his or her place of residence. The DNR may be revoked at any time by patient or patient advocate. © Hall Render Killian Heath & Lyman, PLLC, 2012 14

15. POLST Paradigm Originated in Oregon after various reports that patients’ documented decisions for end-of-life treatments were not being carried out Advantages over other Advanced Care Planning Techniques: Easily portable between health care settings Puts a greater emphasis on conversations between patients and health care providers Patient’s preferences are recorded as written medical orders that are easily understood and implemented © Hall Render Killian Heath & Lyman, PLLC, 2012 15

16. Surrogate Decision-Makers Standards for Surrogate decision-making Substituted Judgment – making decisions based on patient’s preferences / values, if known Best Interests – If patient’s preferences are not known, surrogate must act in patient’s best interests. (“Reasonable person” standard) Health care providers have a duty to evaluate and / or question surrogate’s decisions. Health care providers should consider declining to follow surrogate’s instructions if not consistent with patient’s preferences or best interests. © Hall Render Killian Heath & Lyman, PLLC, 2012 16

17. Types of Surrogate Health Care Decision-Makers in Michigan © Hall Render Killian Heath & Lyman, PLLC, 2012 17

18. Guardians of Incapacitated Adults © Hall Render Killian Heath & Lyman, PLLC, 2012 18 Who Initiates: Individual or Interested person How Initiated: Petition to court; appointment by will or other writing When Initiated: Court appointment; or, if by will, when appointed guardian files acceptance in court where will containing appointment is probated. Requirements: Petition containing specific facts about individual's condition and recent conduct; notice to interested parties; hearing; order Powers: Guardian has those powers and duties specifically enumerated by court order that are necessary as means of providing continuing care to individual. NOTE: If individual properly executed patient advocate designation before becoming legally incapacitated, then guardian does not have power of making medical or mental health treatment decisions Surrogacy Effective: Upon issuance of court order Duration: Determined by court order; stated in order Termination: Upon death of guardian or ward, incapacity of guardian; order of resignation or removal by court.

19. Guardians of Developmentally Disabled Adults Who Initiates: Interested person or entity; individual How Initiated: Petition to court When Initiated: After court determines that individual lacks the ability to do some or all of the tasks necessary to care of him/herself or estate. Requirements: Petition to court accompanied by report or evaluations; notice to person & interested parties; hearing ; order. Powers: Plenary Guardians possess the legal rights and powers of a full guardian of the person. Partial Guardians possess those powers and duties specifically enumerated by court order. Surrogacy Effective: Plenary: Upon issuance of court order, even when patient appears to have capacity Partial: Upon issuance of court order, only when patient lacks decision-making capacity Does not extend to extraordinary procedures unless previously ordered by court. Duration: As stated in court order Termination: Discharge or modification order by the court; death of ward or guardian; incapacity of guardian © Hall Render Killian Heath & Lyman, PLLC, 2012 19

20. Michigan OAG Opinion In 2000, the Michigan Office of the Attorney General determined that a Guardian of a Developmentally Disabled Adult does not have the authority… to sign a designation of a patient advocate on behalf of the ward under the Patient Advocate Act; to sign a do-not-resuscitate order on behalf of ward under the Michigan Do-Not-Resuscitate Procedure Act when the ward has been determined by the court to not be of sound mind. © Hall Render Killian Heath & Lyman, PLLC, 2012 20

21. Durable Power of Attorney Who Initiates: Patient How Initiated: Patient executes document When Initiated: While patient has decision-making capacity Requirements: Written document signed by patient; signed and accepted by person granted durable power of attorney; witnesses Powers: Those stated in the document NOTE: must specifically state that person granted durable POA has the power to make health-care decisions on behalf of the individual! Surrogacy Effective: Only during such times when the patient lacks decision-making capacity Duration: When revoked by patient or as stated in the document. © Hall Render Killian Heath & Lyman, PLLC, 2012 21

22. Patient Advocate Who Initiates: Patient How Initiated: Patient executes document When Initiated: While patient has decision-making capacity Requirements: Written document signed by patient; executed in presence of at least 2 witnesses; statement that authority only granted when patient lacks capacity; signed by patient and 2 witnesses. Powers: Powers concerning care, custody, and medical or mental health treatment decisions May make decision to withhold /withdraw treatment that would allow the patient to die if patient has expressed in clear and convincing manner that patient advocated is authorized to make such a decision Surrogacy Effective: During times when patient lacks decision-making capacity. Duration: Until revoked, or as stated in document. Termination: When revoked, or if patient advocate does not accept, becomes incapacitated, resigns, or is removed. © Hall Render Killian Heath & Lyman, PLLC, 2012 22

23. Default Surrogates In the event that an individual has not appointed a guardian, or the guardian is unavailable, Michigan law recognizes the following individuals as default surrogates: Parent or legal guardian of a patient who is a minor Members of the immediate family, or the next of kin A default surrogate may participate in health-care decision- making and may receive health care information on behalf of the patient when the patient lacks decision-making capacity. No priority is given among default surrogates -- can lead to issues if there is an indecision among family members. © Hall Render Killian Heath & Lyman, PLLC, 2012 23

24. Other Legal and Ethical Dilemmas at the End-of-Life © Hall Render Killian Heath & Lyman, PLLC, 2012 24

25. Medical Futility Futile for what goal? (as defined by patient /surrogate with physician) Objective determination of ineffectiveness for goal Rather than subjective opinion of treatment worth or patient’s continued life Consider a second opinion Use of ethics consultation/committees Transfer of Care option © Hall Render Killian Heath & Lyman, PLLC, 2012 25

26. “Right to Die” Medical technology has made it possible for individuals to delay death indefinitely. The “right-to-die” movement is supported by those who believe that delaying an inevitable death through technological means is cruel, undignified and even inhumane. © Hall Render Killian Heath & Lyman, PLLC, 2012 26

27. “Right to Die” (Cont’d.) Cruzan v. Missouri Director of Health (U.S. 1990) Supreme Court decision establishing that competent patients have the constitutional right to forego aggressive technological interventions. Court also upheld Missouri statute requiring “clear and convincing evidence” of individual’s desires to withhold or withdraw life-sustaining treatment when individual lacks capacity. © Hall Render Killian Heath & Lyman, PLLC, 2012 27

28. Physician-Assisted Suicide US Supreme Ct (1997) – no constitutional right to assisted suicide. States free to develop their own laws. MI: felony for a person to assist an individual in committing suicide. However, MI law recognizes that the withdrawal or withholding of medical treatment is not considered “assisting in suicide,” even if the effect of withdrawal is death for the individual. © Hall Render Killian Heath & Lyman, PLLC, 2012 28

29. Questions? © Hall Render Killian Heath & Lyman, PLLC, 2012 29