“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:

“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

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

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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

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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)


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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).


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When Patient Lacks Decision-Making Capacity


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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.


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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.


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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.


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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.


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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.


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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.


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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)


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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.


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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


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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.


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Types of Surrogate Health Care Decision-Makers in

Michigan


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Guardians of Incapacitated Adults


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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.

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


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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.


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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.


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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

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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.


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Other Legal and Ethical Dilemmas at the End-of-

Life


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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


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“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.


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“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.


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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.


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Questions?


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Documents

“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: