E-Case #3

Jan 22-26, 2001

Angelina A. Platas, M.D.

An 84 year old woman presents to you to establish care because her previous doctor's group stopped taking Medicare/Medicaid. She has a history of mild hypertension and remote TIAs, but is otherwise quite healthy. Her main concern is that she would like to establish some legal paperwork to "keep them from jump-starting my heart if it quits . . . I'm already way past my expiration date, honey . . . " Her older sister died 2 months ago after a massive heart attack and a month of ventilator care in an ICU. She received cardiac resuscitation twice with "shocks, medicine, the whole deal". Your new patient found this very traumatic and would like to ensure that it does not happen to her.

• PMH: as above, no history of depression

• Meds: ECASA 325 mg qd, HCTZ 25 mg qd All: NKDA

• Habits: 30 pk yr h/o tobacco, quit 1975, no ETOH

• SH: Widowed for 20 yrs, independent in ADLs, uses Metro for all of her transportation, very active in her church and the gospel choir. She lives with a long time female friend who is also widowed for the last 10 years. Her only child was killed in an auto accident 10 years ago. She also has a cousin in Louisiana that she and her roommate visit every winter for 3 months.

• FH: non-contributory

• ROS: negative

• O: very pleasant, talkative, articulate AA woman. BP 125/75, P 80, Wt18Cardiac, pulmonary and extremity exams are unremarkable.

You accept your patient's request that you act as her advocate in making these end of life arrangements, but as you attempt to assist her  the following questions come up:

Questions

1. What is the Patient Self-Determination Act (1991)?

2. What is an advanced directive in the state of Washington? How must the directives be documented legally?

3. In the state of Washington, how are legal decisions made if the patient is unable to give informed consent?

4. What if the patient's physician disagrees with the patient's wishes as stated in an advance directive?

5. Is an advanced care directive legally binding if a patient receives health care in another state (e.g.. California, Louisiana)?

Discussion for case #3

1. What is the Patient Self-Determination Act (PSDA)?
   This is a federal law approved in 1991 stipulating that health care providers must give each consumer (patient) information about the right to make choices about their health care. Providers are required to give information about making health care decisions in advance (advance directives) and information about legal choices in making decisions about health care under state law. Legally, we have to know this AND tell our patients about it. Patients must also be asked with every hospital or nursing home admission if they would like to make an advanced care directive or DNAR request. While the PSDA is a federal law, advance directives are covered by state laws and the specifics vary from state to state.

2. What is an advanced directive in the state of Washington?
   How must the directives be documented legally?An advanced directive is a set of instructions written to a health care provider before the need for treatment. It anticipates the time that an illness or accident may happen in the future that would make it impossible to consent to medical treatment at the time it is needed. These are some of the kinds of advanced directives in Washington:

   • Living will/Health Care Directive - signed/written document that enables the patient to tell their doctor what they do or do not want if they are diagnosed with a terminal condition or are permanently unconscious. However, a patient may NOT choose to prolong the process of dying from an incurable and irreversible condition. It must be signed and dated in the presence of two witnesses who must also sign. The witnesses may NOT be: related by blood or marriage, entitled to inherit anything, debtors, the doctor or doctor's employees, or an employee of the health care facility where they are a patient or resident.

   • Durable Power of Attorney for Health Care - a signed/written document stating who the patient would want to make health care decisions for them if they are not able to make them on their own. There is NO witness or notary required (the law only requires a witness if the DPOA will also be used for financial matters). By the way, a patient's doctor cannot be their DPOA.

   • Code/No Code or Do Not Resuscitate (DNAR) - this does NOT have to be signed by the patient. It is used to document the patient's choice.

   • Anatomical Gifts - tissue donation may be done as a written statement witnessed by two people, or documented on the back of the drivers license. Without a witnessed document, however, the next of kin must specify donation at the time of death.

3. In the state of Washington, how are legal decisions made if the patient is unable to give informed consent?
   If a patient is unable to give consent for a treatment, the law identifies the surrogate decision-maker in the specific order from the following list:

   1. Guardian with health care authority; if none then

   2. The durable power of attorney for health care; if none then

   3. The spouse; if none then

   4. Adult children (all are considered equally); if none then

   5. Parents; if none then

   6. Adult siblings; if none, a guardian as appointed by the state. The consenting group member(s) must try to do what the patient would want done, or if they do not know, what they think is in the patients best interest. If there is more than one person in a group (for example, several children) they must all agree. If an agreement cannot be reached, it may be necessary to ask the court to appoint a guardian.

4. What if the patient's physician disagrees with the patients wishes as stated in an advance directive?
   If the patient refuses consent, and is found to have the capacity to choose, that is their legal right. Washington state law says that the health care provider must give their written policy on how they will handle Advance Directives to the patient if asked. Health care providers are able to have policies against carrying out a patients wishes based on moral, religious or ethical concerns, but they must tell the patient in advance and give them the opportunity to change providers, or attach a written plan to the AD so that the patients wishes ARE carried out.

5. Is an advanced care directive legally binding if a patient receives health care in another state (e.g. California, Idaho)?
   Not necessarily. Advanced care directives, DPOA, organ donation, DNAR are all regulated by state governments and the laws vary widely. If the patient spends a substantial amount of time in another state, they should document their wishes legally in that state as well.

References

• AMA Policy Finder. Current opinions of the Council on Ethical and Judicial Affairs. E-2.225: Optimal Use of Orders Not to Intervene and Advance Directives. Can be found at: www.ama-assn.org.

  • This web site gives the AMA's current stand on advance directives.

• Emanuel LL, von Gunten CF, Ferris FD. The Education for Physicians on End-of-life Care (EPEC) Curriculum, The Robert Woods Johnson Foundation, 1999. Plenary 2: Legal Issues.

  • This excellent handbook for physicians is brief and describes some pearls and pitfalls and issues such as decision making capacity. The info here must be taken in context with individual state laws.

• Publication No. HCFA 02175, 199U.S. Department of Health and Human Services. Health Care Financing Administration.

  • This document defines and outlines in lay terms Advanced Directives, DPOA, DNAR, and logistics of obtaining paperwork. It also lists the number for the Emergency Medical Service (they issue official/state specific DNAR cards for pts to have if the paramedics come knocking), Office of the Attorney General (determines advanced directive laws for each state), and Insurance Counseling Program in each state. 

  • For Washington

    • EMS 1-360-705-6745

    • O of AG 1-360-753-6200

    • ICP 1800-397-4422.

• www.nwjustice.org

  • This site is prepared and maintained by Columbia Legal Services and Northwest Justice Project. It also has lay person directions to obtain DPOA and living will as well as sample documents which patients can print out and sign (obtaining the needed co-signatures, etc.)