Consent For "Non-Competent" Parties - approvedwritershub.com

The Law of Healthcare Administrat ion390

that conducts research involving human subjects must seek competent legal advice and adhere to special laws and regulations, which are beyond the scope of this text.25

Consent of a Spouse or Relative

Marriage or blood relationship alone does not entitle someone to consent to treatment on the patient’s behalf.26 Although information may be shared with family members in many cases, a spouse’s or relative’s consent to treat the patient is rarely sought. (The sharing of protected health information with persons involved in a patient’s care raises numerous legal issues. See the section on the Health Insurance Portability and Accountability Act in chapter 9 for a detailed discussion of this topic.)

In a few special circumstances, however, a spouse’s consent may be required, even if the patient is competent. Artificial insemination and sur- rogate motherhood are two such cases. The state statutes regulating these procedures often require that both the husband and wife consent voluntarily to artificial insemination involving a third party donor. Similarly, if a married woman agrees to be a surrogate mother, her husband must consent that he acknowledges he is not the father of the child to countermand the usual pre- sumption that a married man is the father of a child born to his wife.

On the other hand, if the patient’s health and welfare are at risk, the spouse’s consent need not be obtained, even if reproductive capacity will be affected adversely. An Oklahoma case held that the husband, who had not consented to his wife’s hysterectomy, had no cause of action for loss of consortium.27 The wife’s right to health is supreme, and her decision alone— based on the professional advice of her physician—overrules her husband’s wishes.

If the patient is not competent to consent and has not appointed an agent to act on his behalf, state law usually provides for a hierarchy of indi-

viduals who may make healthcare decisions for him (see Legal Decision Point). Florida law, for example, provides that the follow- ing persons in the patient’s life—and in this order of priority—may consent for the incompetent patient:

1. Judicially appointed guardian 2. Spouse

Legal Brief

Federal standards for human research are adminis- tered by the US Department of Health and Human Services Office for Human Research Protections (see http://www.hhs.gov/ohrp).

Legal Decision Point

What are your home state’s standards for the hierarchy of individuals who may consent for an incompetent patient? Perform some research in advance of class discussion.

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

EBSCO Publishing : eBook Academic Collection (EBSCOhost) – printed on 1/24/2019 8:36 PM via TRIDENT UNIVERSITY AN: 1839055 ; Showalter, J. Stuart.; The Law of Healthcare Administration Account: s3642728

http://www.hhs.gov/ohrp

Chapter 11: Consent for Treatment and Withholding Consent 391

3. Adult child or, if more than one, a majority of the adult children 4. Parent 5. Adult sibling or, if more than one, a majority of the adult siblings 6. Adult relative who has care and concern for the patient 7. Close friend28

Withholding and discontinuing lifesaving treatment are discussed later in this chapter.

Life-or-Death Decisions A Competent Adult’s Refusal to Consent Recall that an emergency normally eliminates the need to obtain consent. Because preservation of life and prevention of permanent impairment are basic values in our society, when a patient is incapable of expressing consent and the healthcare surrogate is unavailable, the law presumes that consent would be given.

The legal situation is different when a competent adult patient refuses to consent to medical or surgical treatment. A patient’s refusal to consent must be honored, even if death will likely result, unless a compelling state interest (such as when minor children would suffer as a result) overrides the patient’s refusal. In other words, the personal right of self-determination normally trumps society’s interest in preserving life. A provider would incur civil and possibly criminal liability for rendering treatment in the face of a competent patient’s refusal. There are several leading cases to this effect.29

Moreover, the common-law right to refuse medical care—expressed while competent and proven by clear and convincing evidence—must be honored even if the patient later becomes incompetent. On such facts, a court should not order continuation of treatment, and the substituted judg- ment doctrine (discussed later) would not apply.30

“Assisted Death” Statutes The right to die does not normally encompass affirmative steps to end the patient’s life. “Active euthanasia” (aka “assisted suicide” or “assisted death”) is considered homicide in most states, but there has long been pressure to change the traditional rule.

For more than a century there has been debate about whether to allow physicians to assist terminally ill persons in ending their lives.31 The debate is complicated by various moral and ethical considerations, by the fact that physicians have surreptitiously assisted with euthanasia on occasion over the years, by recollections of the eugenics movement of the early 20th century (see discussion of Buck v. Bell in chapter 14), and by the public notoriety of

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion392

Doctor Jack Kevorkian in the 1990s (see Legal Brief).

Notwithstanding the highly intense emotions that surround the issue, laws enabling physicians to assist patients has- tening their own deaths were passed by voters in Oregon and Washington in 2004 and 2008, respectively. The California leg- islature passed a similar bill in 2015, and it was signed into law by the governor.32

Assisted suicide is legal in Montana per a court ruling, and legislation is being considered in several other states.

The legality of aiding a person to die has reached the US Supreme Court on at least three occasions. In two 1997 cases the court ruled unani-

mously that there is no constitutional right to have assistance in carrying out suicide and, therefore, that the states have the right to prohibit it if they wish.33 In 2006 the Court ruled that the federal govern- ment could not enforce the Controlled Substances Act against physicians who pre- scribe drugs for assisted suicide if the phy- sician’s actions comply with state law, thus implicitly ruling that states may also permit the practice if they choose to do so.34

The existing assisted death statutes are intended only for competent, termi- nally ill adults who are expected to have less than six months to live. Procedural safeguards are written into the laws—for example, requiring a second physician to concur in the opinion that the patient is competent—and patients are allowed to change their minds (see Legal Brief).

Nevertheless, many commentators express concerns about the laws. They raise questions about unscrupulous relatives who wish to hasten the patient’s demise, about the specter of “doctor shopping” to find physicians who will agree with the patient’s decision, and about the vulner- ability of poor people and undocumented immigrants. There are even questions

Legal Brief

Dr. Kevorkian was convicted of murder after record- ing himself actively killing a patient via lethal injection and allowing the recording to be shown on 60 Minutes. Excerpts of the 60 Minutes inter- view and related videos can be found on YouTube.

Legal Brief

At least four states—California, Montana, Oregon, and Vermont—allow physician-assisted suicide under certain limited conditions. For example, the Washington statute requires, among other things, that the patient

• be a competent adult; • be terminally ill with less than six months’ time

to live; • make a voluntary request; • be informed of all other options, including

palliative and hospice care; • obtain two independent persons to witness the

request; and • wait a certain period to receive lethal

medications.

In Montana, a state supreme court decision held that assisted suicide is not against public policy and that physicians may be shielded from prosecution if they indirectly aid in the deaths of “terminally ill, mentally competent adult patients” by prescribing a lethal dose of medication which the patients then self-administer. The decision falls short of establishing physician-assisted sui- cide as a right, and it seems to turn on the ques- tion of how direct the physician’s participation is beyond merely prescribing the medication.85

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 393

about what to list as the immediate cause of death on death certificates and whether life insurance policies with suicide exclusion clauses would be pay- able. (The California law specifically states that insurance coverage may not be denied because of the individual’s decision to end his own life.)

Disability rights organizations and some religious groups have mounted strong opposition, but opinion polls tend to show that a majority of voters favor such laws. As one might imagine, this decades-old debate is likely to continue for years to come.

Incompetence Incompetence (non compos mentis) is a legal status, not a medical diagnosis, but this determination is best made on the basis of a physician’s professional judgment. The test is whether patients are capable of understanding their condition, the medical advice they have been given, and the consequences of refusing to consent.

Irrationality does not necessarily indicate incompetence. In one famous case, a 72-year-old man with extensive gangrene in both legs faced death within three weeks unless he agreed to have them amputated; with surgery, his chances of recovery were good. When he decided against sur- gery, the hospital petitioned the court for a determination of incompetence, appointment of a guardian, and permission to amputate and give other neces- sary treatment. The hospital argued that the man’s refusal was “an aberration from normal behavior” and that the refusal amounted to suicide. However, the court decided that even though the decision might seem irrational, the man was competent. The extensive surgery was unacceptable to him, and his right to privacy outweighed the state’s interest in preserving his life.35

A patient’s right to choose or to refuse treatment is based on com- mon law, the right of self-determination on which the doctrine of informed consent is grounded, and the right to privacy first enunciated in abortion decisions. (Statutory provisions are discussed later in this chapter.) This right is not unfettered, and the state is said to have four interests that may override the individual’s freedom to decide:

1. Preservation of life 2. Protection of innocent third parties 3. Preservation of the ethical integrity of the medical profession 4. Prevention of suicide

The interest most often asserted in overriding a patient’s objections and ordering treatment is the protection of third parties—usually minor children or a fetus. For example, in In re Application of the President and Directors of Georgetown College, Inc., despite a woman’s refusal on religious grounds, the court ordered her to receive a blood transfusion for the sake of

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion394

her seven-month-old child.36 The survival of dependent children, however, is not always sufficient to override the patient’s right of refusal. In another case, the court did not order a transfusion to save the life of a 34-year-old Jeho- vah’s Witness, even though he had two young children. The judge was con- vinced that adequate provision had been made for the children’s welfare.37

The state has sometimes been said to have an interest in “maintaining the ethical integrity of the medical profession.”38 This argument asserts that physicians should not be forced to give (or withhold) treatment against their medical judgment or to assist in suicide because doing so will expose them to possible criminal charges or malpractice suits. This alleged state interest, however, is no longer persuasive.39 Instead, the courts and legislatures have attempted to provide legal protection for physicians who agree to carry out their patients’ wishes. For example, according to the Natural Death Act (passed by a number of states), healthcare providers who comply with the law are immune from criminal prosecution or civil liability.

Courts have recognized that in some instances, withholding or with- drawing life-sustaining treatment is consistent with medical ethics:

It is perfectly apparent . . . that humane decisions against resuscitative or mainte-

nance therapy are frequently a recognized de facto response in the medical world

to the irreversible, terminal, pain-ridden patient, especially with familial consent.

. . . Physicians distinguish between curing the ill and comforting and easing the

dying. . . . Many of them have refused to inflict an undesired prolongation of the

process of dying on a patient in irreversible condition when it is clear that such

“therapy” offers neither human nor humane benefit.40

Many courts have held that, in itself, society’s interest in preserving life is not sufficient to prevent a competent adult from making her own deci- sions about treatment—at least if no third persons might be affected.41 The less hopeful the patient’s condition and the more intrusive the therapy, the weaker the state’s interest in preserving life. Even when the prognosis for recovery is good, the patient’s right is usually upheld.42

Because most courts have determined that forgoing medical treatment is not the equivalent of suicide but rather a decision to permit nature to take its course, the fourth interest of the state—prevention of suicide—is usually not persuasive in cases involving termination of treatment. However, the line between actively taking life—suicide or euthanasia—and letting nature take its course is not always clear. For example, an 85-year-old resident of a nursing home was suffering from multiple ailments and deteriorating health. Although the resident (a former college president) did not have a terminal illness, he was discouraged about his future and decided to hasten his death by fasting. A court found that the man was competent and had the right to

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 395

refuse food and that the nursing home was neither obligated nor authorized to force-feed him. The man was permitted to die of starvation.43

By contrast, a 26-year-old woman who had been severely disabled by cerebral palsy since birth checked herself into the psychiatric unit of a hospital and demanded that she not be fed but given only medication to relieve her pain. Her intent was to starve herself to death. When the hospital sought to force-feed her, she petitioned the court for an injunction to prevent the hospital from doing so, asserting her constitutional right to privacy. The court refused to issue an injunction, finding that the patient was not ter- minally ill and that society had no duty to help her end her life. The court found that the state’s interests in preserving life, maintaining the integrity of the medical profession, and protecting third parties outweighed her right of self-determination because other patients might be adversely affected if they knew the hospital was helping a patient to die.44

Three years later, this woman’s health had so deteriorated that she was in constant pain and was hospitalized because she was unable to care for herself. After her physicians determined that she was not obtaining suf- ficient nutrition through spoon-feeding, a nasogastric tube was inserted despite her objections. A trial court denied the patient’s request to have the tube removed but was overruled by the appellate court, which held that the patient, who was still mentally competent, had a constitutional right of pri- vacy that included the right to refuse medical treatment. The court further ruled that the decision to refuse the tube feedings was not equivalent to suicide and that the patient’s motives were irrelevant.45

Consent Issues for Incompetent Adults

A patient may be unable to grant consent by reason of incompetence or other disability. A duly appointed guardian or healthcare surrogate can give valid consent based on the patient’s known wishes. This concept is relatively simple, but its application becomes complicated when the individual has never been competent to express his intent.46 Treatment decisions for these patients involve three questions that have troubled the courts and caregivers for decades:

1. Who should make the decision? 2. What standards should apply? 3. What procedures should be followed?

The first landmark case dealing with these types of consent issues was In re Quinlan.47 In 1975, 22-year-old Karen Quinlan sustained severe brain

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion396

damage, perhaps as a result of consuming alcohol or drugs. She was comatose and on a respirator and remained for several months in a persistent vegetative state (see Legal Brief). When the hopelessness of the situation eventually became apparent, Karen’s parents asked that her life support system be disconnected. Her physicians and the hospital refused, and her father filed suit to be appointed his daughter’s guardian and to have the court authorize the withdrawal of the respirator. (The expression “pull the plug” is sometimes used in these cases, but it hardly does jus- tice to the legal, medical, and emotional issues involved.)

All parties stipulated that Karen was incompetent and that she was not dead by either the classical medical definition of death (cessation of circula- tion and respiration) or the definition of brain death (permanent cessation of all brain functions, including those of the brain stem; see Legal Brief). At the time, New Jersey did not have a statutory definition of death, and there were no judicial decisions on the concept of brain death, although Karen would not have met the criteria for death—no matter how it would have been measured.

The trial court denied Mr. Quinlan’s requests for guardianship and termination of the respirator.48 On appeal, the New Jersey Supreme Court held that Mr. Quinlan was entitled to be appointed guardian of his daughter, could select a physician of his choice to care for her, and could participate with this physician and the hospital’s medical ethics committee in a decision to withdraw the respirator. The legal basis for the decision was the patient’s right of privacy, which gave her (through her guardian) the right to decline treatment.

The court went on to rule that when a patient is incompetent and cannot express her wishes, the guardian may use the substituted judgment doctrine—that is, the guardian must determine what the patient herself would decide under the

Legal Brief

Persistent vegetative state (PVS) is a condition in which the patient is alive and appears to be awake but has no detectable awareness. It is a permanent organic brain syndrome resulting from prolonged anoxia (lack of oxygen to the brain) and character- ized by the absence of higher mental functions such as thought, reason, and emotion. The PVS patient is incapable of performing voluntary acts and responds only reflexively to external stimuli. There is some controversy about whether the con- dition is reversible, but no case of recovery from PVS has been documented.

Legal Brief

Physicians have no legal or ethical duty to treat a dead body. Seemingly obvious, this rule becomes relevant when determining the point at which a person is dead and life support systems may be disconnected. The common law defined death as the “cessation of life,” which is not a particularly helpful standard. Until the 1970s, death meant the cessation of respiration and circulation. With the use of mechanical respirators and other devices, however, respiration and circulation can often be continued indefinitely. For this reason, most states have adopted brain death—the complete cessa- tion of all functions of the entire brain, including the brain stem—as the legal standard for diagnos- ing death.

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 397

circumstances, not necessarily what the guardian thinks is in the patient’s best interests or what the guardian would want for himself. To guard against possible abuse, the court required the guardian and the attending physicians to consult with a hospital ethics committee, which would review the medical evidence and render an opinion about the probability that the patient would emerge from her chronic vegetative state.

In summary, the court held that if Mr. Quinlan, the attending physi- cians, and the hospital’s ethics committee concurred, Karen’s life support system could be withdrawn without incurring civil or criminal liability, the fear of which was the reason for the physicians’ refusal. Having received the judicial imprimatur they were seeking and the ethics committee’s approval, the physicians weaned Karen from the respirator; however, she unexpect- edly continued to breathe on her own. For the next nine years, she received antibiotics to ward off infection and was fed a high-calorie diet through a nasogastric tube. She died in 1985.

Other courts have followed Quinlan and adopted the substituted judgment standard. Superintendent of Belchertown State School v. Saikewicz applied it in the case of a 67-year-old man (Saikewicz) who had always been profoundly mentally retarded (he had an IQ of 10 and a mental age of less than 3). He was suffering from an acute form of leukemia for which che- motherapy was the indicated treatment. The state institution where he lived petitioned the court for appointment of a personal guardian and of a guard- ian ad litem (for the litigation) to decide what treatment he should receive.

His illness was incurable, and without chemotherapy he would die a relatively painless death within weeks or months. With chemotherapy, he had a 30 to 40 percent chance of remission (abatement of symptoms), but if remission occurred it would last for only 2–13 months. The chemotherapy would not cure the illness and was expected to cause serious and painful side effects. The guardian ad litem thought that withholding treatment would be in the patient’s best interests; he stated:

If [Saikewicz] is treated with toxic drugs he will be involuntarily immersed in a

state of painful suffering, the reason for which he will never understand. Patients

who request treatment know the risks involved and can appreciate the painful side

effects when [those side effects] arrive. They know the reason for the pain and their

hope makes it tolerable.49

The probate judge weighed the factors for and against chemotherapy and concluded that treatment should be withheld. Weighing in favor of treat- ment were the facts that most people would elect chemotherapy and that chemotherapy would offer the patient a chance for a longer life. Weighing against treatment were the patient’s age, the probable side effects, the slim

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion398

chance of remission versus the certainty that the treatment would cause suf- fering, the patient’s inability to cooperate with those administering the treat- ment, and the patient’s quality of life if the treatment was successful.

Adopting the Quinlan standard, the appellate court approved of the probate judge’s decision, convinced that it “was based on a regard for [Saike- wicz’s] actual interests and preferences” and was supported by the facts of the case. However, the court rejected any analysis that would equate quality of life with the value of a life. It interpreted the judge’s reference to “qual- ity of life” “as a reference to the continuing state of pain and disorientation precipitated by the chemotherapy treatment.”50

Cases involving people who, like Saikewicz, have never been compe- tent and have never been able to express their intentions demonstrate that the substituted judgment doctrine is pure fiction. Surrogate decision makers cannot possibly know what such a patient’s “actual interests and preferences” would be. The guardians may be well intentioned and may actually make decisions in the patient’s best interests, but any such decisions are subjective and—consciously or not—are based on the values, biases, and experiences of the proxy decision makers (see Legal Brief).

In the years immediately following Quinlan, numerous cases addressed the questions of who could make decisions for incompetent patients and whether the courts must be involved in all cases. The Quinlan court believed that routine involvement by the courts would be “impossibly cumbersome,” and most other courts have agreed. Of course, when the patient has no fam- ily or guardian, or when family members disagree about what action to take, the courts are proper forums for resolving the matter. The courts have also become involved when the views of the family members conflict with those of the healthcare providers. One such case, Cruzan v. Director, Missouri Depart- ment of Health,51 was the occasion for the US Supreme Court’s first—and, to date, only—decision regarding termination of medical treatment for incom- petent patients.

The case revolves around Nancy Cruzan, a young woman who lay in PVS at a state hospital as a result of the injuries she suffered in an automobile acci- dent. Although she could breathe without assistance, she had to receive nutrition and hydration through artificial means. Realiz- ing over time that she would never regain her mental faculties, her parents asked officials at the hospital to remove her feed- ing tube and allow her to die. When the hospital refused, the parents filed suit to compel termination of the treatment. At trial, evidence was presented that Nancy

Legal Brief

The viewpoint that guardians’ decisions are influenced by their own beliefs was recognized in another New Jersey case, Matter of Conroy, decided the year Karen Quinlan died (1985). The court stated that determining the patients’ wishes is impossible and that it is “naïve to pretend that the right to self-determination serves as the basis for substituted decision-making.”86

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 399

had “expressed thoughts at age twenty-five in somewhat serious conversa- tions with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least ‘half-way normally.’”52 On the basis of this evidence, the trial court ordered in favor of the parents.

The state appealed, and the Missouri Supreme Court reversed the trial court’s findings. Although it recognized the right to refuse treatment on the basis of the common-law doctrine of informed consent, the Missouri Supreme Court held that the state had a strong public policy favoring life over death and that evidence of an individual’s wishes regarding termination of treatment must be “clear and convincing.” The court found that Nancy’s “somewhat serious conversation” was not sufficient to meet this standard. On certiorari, the Missouri Supreme Court’s decision was affirmed on nar- row grounds, with the US Supreme Court holding that nothing in the US Constitution “prohibits Missouri from choosing the rule of decision which it did.” The opinion reads, in part, as follows:

The choice between life and death is a deeply personal decision of obvious and

overwhelming finality. We believe Missouri may legitimately seek to safeguard the

personal element of this choice through the imposition of heightened evidentiary

requirements. It cannot be disputed that the Due Process Clause protects an inter-

est in life as well as interest in refusing life-sustaining medical treatment. Not all

incompetent patients will have loved ones available to serve as surrogate decision

makers. And even where family members are present, “[t]here will, of course, be

some unfortunate situations in which family members will not act to protect a

patient.” A State is entitled to guard against potential abuses in such situations.

Similarly, a State is entitled to consider that a judicial proceeding to make a deter-

mination regarding an incompetent’s wishes may very well not be an adversarial

one, with the added guarantee of accurate fact finding that the adversary process

brings with it. Finally, we think a State may properly decline to make judgments

about the “quality” of life that a particular individual may enjoy, and simply assert

an unqualified interest in the preservation of human life to be weighed against the

constitutionally protected interests of the individual.

In our view, Missouri has permissibly sought to advance these interests

through the adoption of a “clear and convincing” standard of proof to govern such

proceedings.53

Following this decision, Cruzan returned to the trial court, where the judge—after hearing additional testimony—ruled that the evidence was clear and convincing and thus Nancy’s artificial nutrition and hydration could be withdrawn. The state’s attorney general declined to appeal, the treatment was terminated, and Nancy died in a matter of days (see Law in Action on next page).

No other state has a clear-and-convincing standard of proof, and thankfully most of these difficult, heartrending decisions today are made by

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion400

physicians and family members without judicial intervention. One notable excep- tion is the tragic, much publicized, and highly politicized case of Terri Schiavo.

Terri, a 26-year-old woman from St. Petersburg, Florida, suffered a cardiac arrest of undetermined cause on February 25, 1990. Emergency personnel took her to a local hospital, where she was venti- lated and given a tracheotomy but never regained consciousness. A PVS patient, she survived on nutrition provided through a feeding tube, received continuous nursing home care, and had no reasonable likeli- hood of recovery.

In 1998, Terri’s husband and guardian Michael petitioned to be allowed to terminate her life support procedures, but her parents opposed this decision. Years of contentious litigation followed, including 13 Florida appellate court deci- sions and five orders by the US Supreme

Court (each of which denied certiorari). On October 15, 2003, the feed- ing tube was removed, but six days later the Florida legislature passed what came to be known as “Terri’s Law”—a single-purpose, politically motivated statute intended to permit Governor Jeb Bush to order reinsertion of the feeding tube. Amid considerable media and public interest, the tube was sub- sequently reinserted. After more legal maneuvering (Terri’s parents opposed her husband’s decisions at every turn), the Florida Supreme Court unani- mously held Terri’s Law to be unconstitutional.

The case returned to the lower courts for more procedural squabbling, more efforts by conservative Republicans and others to overturn the judicial decision, and even an attempt by Congress to hold hearings and thus delay the outcome (see Legal Brief). In the end, the trial court’s order to discontinue artificial nutrition and hydration stood, and on March 31, 2005— more than 15 years after she collapsed into unconsciousness—Terri died. Thus concluded one of the longest, saddest, and most contentious right-to-die cases ever.

Law in Action

Nancy Cruzan’s artificial feeding was discontinued in mid-December 1990. Fifteen members of Opera- tion Rescue (an antieuthanasia group), including a nurse, appeared at the hospital to reinsert the feeding tube, but they were arrested. Nancy died on December 26, 1990, more than seven years after her auto accident.

The Cruzan family’s chief antagonist through- out the ordeal was Missouri Attorney General William L. Webster. He was nominated to run for governor in 1992, but his campaign was marked by allegations of corruption and he lost the elec- tion. The following year, Webster pleaded guilty to embezzlement charges stemming from his han- dling of a workers’ compensation fund while he was attorney general. He was sentenced to two years in prison.

Nancy’s father, depressed and apparently overwhelmed by grief, took his own life in 1996.

Legal Brief

The Florida Supreme Court’s decision is provided at some length in The Court Decides: Bush v. Schi- avo at the end of this chapter, not only because it ended the legal phase of this family’s long mis- fortune but also because of the insights it offers on the separation of powers in the US system of government.

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 401

Consent Issues for Minors

As previously noted, an emergency involves an immediate threat to life or health that would cause permanent injury or death if treatment were delayed, so express consent is not necessary. The medical advisability of treatment in itself does not create an emergency if a delay to obtain consent would not permanently harm the patient. When the patient is a minor, physicians and hospital staff should normally make a reasonable effort to reach the parents (or the person standing in a parental relationship) if they have an opportunity to do so. If they decide to treat the minor without the parents’ consent, the medical emergency should be documented and supported by professional consultation.

Though more than a century old, the case of Luka v. Lowrie is most illustrative of a situation involving consent for treatment of a minor.54 A 15-year-old Michigan boy was hit by a train, and his left foot was “mangled and crushed.” He was taken to a hospital and within a few minutes lapsed into unconsciousness. Five physicians examined him and decided that to save his life they would have to amputate his foot. Dr. Lowrie, one of the defendants, inquired about the parents’ or other relatives’ whereabouts. On learning that no one was available, and seeing the emergent nature of the situation, “the foot was amputated and the patient recovered.”

In the subsequent malpractice suit, the patient claimed “that his foot should not have been amputated at all, and particularly that it should not have been amputated without first obtaining his consent or the consent of his parents, who went to the hospital as soon as possible after learning of the accident.”55

The trial court heard testimony from the plaintiff ’s experts, who testi- fied that it was possible the foot might have been saved without amputation. On cross-examination, however, they all agreed “that the proper course for a surgeon to pursue . . . is to consult with another or others, and then exercise the best judgment and skill of which he is capable.”56 Because Dr. Lowrie had consulted amid the emergency with four “house surgeons”—all of whom agreed with his opinion that immediate amputation was necessary—the trial court directed a verdict for the defendants, and the Supreme Court of Michi- gan affirmed:

The fact that surgeons are called upon daily, in all our large cities, to operate

instantly in emergency cases in order that life may be preserved, should be con-

sidered. Many small children are injured upon the streets in large cities. To hold

that a surgeon must wait until perhaps he may be able to secure the consent of

the parents before giving to the injured one the benefit of his skill and learning, to

the end that life may be preserved, would, we believe, result in the loss of many

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion402

lives which might otherwise be saved. It is not to be presumed that competent

surgeons will wantonly operate, nor that they will fail to obtain the consent of

parents to operations where such consent may be reasonably obtained in view of

the exigency. Their work, however, is highly humane and very largely charitable

in character, and no rule should be announced which would tend in the slightest

degree to deprive sufferers of the benefit of their services.57

Age of Majority Proper consent for the treatment of minors in cases of nonemergency requires that physicians and hospital personnel first determine the age of majority in their jurisdiction. Under early common law, the age of majority was 21 years but in most states is now 18. (Majority is reached the day before the patient’s birth- day.) In many jurisdictions, married persons are considered adults—regardless of age—and parents who are minors may consent to the treatment of their chil- dren. The statutory and case law of each jurisdiction must be consulted to deter- mine the age and circumstances necessary to have legal permission to consent. Hospitals should have clear policies outlining the age of majority for their states.

Emancipated Minors Most states have statutes that provide for the emancipation of minors from the “disability of age.” California, for example, provides the following:

A person under the age of 18 years is an emancipated minor if any of the following

conditions is satisfied:

(a) The person has entered into a valid marriage, whether or not the marriage

has been dissolved.

(b) The person is on active duty with the armed forces of the United States.

provision of the California Family Code].58

California also has a provision specifically allowing minors to consent to their own medical or dental care if they are aged 15 or older, are living apart from their parents, and are managing their own financial affairs.59

Mature Minors A common-law doctrine at work in a few states allows mature minors to con- sent to medical procedures on their own initiative. For example, the Supreme Court of Tennessee adopted the “mature minor exception” to the parental consent requirement in the case of a patient who was nearly 18 years old at the time she sought treatment. The court wrote as follows:

Whether a minor has the capacity to consent to medical treatment depends

upon the age, ability, experience, education, training, and degree of maturity or

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 403

judgment obtained by the minor, as well as upon the conduct and demeanor of

the minor at the time of the incident involved. Moreover, the totality of the circum-

stances, the nature of the treatment and its risks or probable consequences, and

the minor’s ability to appreciate the risks and consequences are to be considered.

Guided by the presumptions in the Rule of Sevens, these are questions of fact for

the jury to decide.

In our opinion, adoption of the mature minor exception to the general com-

mon law rule [requiring parental consent] would be wholly consistent with the

existing statutory and tort law in this State as part of “the normal course of the

growth and development of the law.” Accordingly, we hold that the mature minor

exception is part of the common law of Tennessee. Its application is a question of

fact for the jury to determine whether the minor has the capacity to consent to and

appreciate the nature, the risks, and the consequences of the medical treatment

involved.60

The basis for the common-law rule that a parent’s consent is necessary is the belief that minors are incapable, by reason of their youth, of under- standing the nature and consequences of their own acts and must therefore be protected from the folly of their decisions. In terms of intelligence and insight, however, there is nothing magical about age 18 or 21—or 57, for that matter. Research reveals no judicial decisions that hold a physician or a hospital liable for treatment of a mature minor without the parents’ consent when the treatment was beneficial. Thus, public policy and common sense permit mature minors—depending on the circumstances—to consent to some health services.

Physicians and hospitals should encourage minors to involve their parents in medical decision making, but necessary medical treatment should never be withheld from a mature and knowledgeable minor solely because parental consent has not been obtained. Damages for failure to treat might be far greater than damages for treatment without consent. Accordingly, providers of medical care should develop guidelines for the treatment of minors based on local law, recognized standards of clinical care, and common sense. State- ments of professional associations may be helpful in drafting these policy guidelines (see Legal Brief).

Infants and Young Minors In situations involving young minors, parental consent is clearly necessary (except in emergencies), and occasionally the ques- tion arises whether both parents must

Legal Brief

The American Medical Association’s Code of Medi- cal Ethics, Opinion 5.055, “Confidential Care for Minors,” states in part that “where the law does not require otherwise, physicians should permit a competent minor to consent to medical care and should not notify parents without the patient’s consent. Depending on the seriousness of the decision, competence may be evaluated by physi- cians for most minors.”

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion404

consent. Normally, the consent of either parent is sufficient, but if the parents are divorced or voluntarily separated, the consent of the custodial parent is preferred. Individuals who have temporary custody of a minor child, whether a relative or not, are not by that fact alone authorized to give consent. Baby- sitters, therefore, have no authority to consent unless given specific authority by the minor’s parent. When they are to be away from their children for a significant length of time, prudent parents notify their regular caregivers and give the temporary custodians written authorization. Some states have stat- utes addressing this situation.

Refusal of Consent for Treatment of Minors If the parent or guardian consents to treatment but a mature minor refuses, the physician and the hospital should not proceed; if mature minors are capable of giving consent, they are also capable of refusing and should be treated as adults. If the tables are turned—the mature minor consents, but the parents refuse—the minor’s wishes should still trump the parents’. In both situations, an effort should first be made to resolve the conflict. (Disre- garding the interests of a nonpatient involves less legal risk than disregarding the interests of a patient, especially if the treatment is relatively routine.)

If the parent refuses to consent to treatment of a minor who is inca- pable of expressing consent, the situation poses greater practical, ethical, and legal difficulties, especially when serious consequences attend the decision. If the patient’s condition is too serious to delay treatment until a court order is obtained, the physician and the hospital should proceed with treatment despite parental objections. In situations in which life or health is at stake, humanitarian action to save life is preferable to inaction that may cause death (even if technically the parents may have a viable cause of action). In most of these situations, parents filing suit would be able to receive only small dam- ages, if any. Defense attorneys have a stronger argument if their client tried to save a life rather than stood by passively and watched a child suffer and die.

If clinical judgment favors treatment but the patient’s condition will not be seriously harmed by a delay, and if no parental consent is forthcoming, the physician or the hospital should seek a court order. The delay may not be long; it will depend on local procedure and on the working relations that the medical personnel and attorneys have developed with the court. Judges have been known to act quickly and at all hours when necessary.

Under the early common law, parents’ refusal to consent was not considered neglect and courts had little power to order medical care for a minor over the parents’ objections. All states now have statutes granting the appropriate court jurisdiction to protect the interests of dependent and neglected children. These protective statutes differ, but in general the state, a social agency, a hospital, a physician, and even relatives of a neglected child

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 405

may petition the court for an order to remove the child from the parents’ custody and assign a court-appointed guardian. Most of these statutes also require that suspected child neglect or abuse be reported to the appropriate authorities. Thus, the physician and hospital have an affirmative duty toward a child who needs medical care.

These statutes are a valid exercise of the state’s power to protect the general health and welfare of society. Hence, they are constitutional, even when their application conflicts with or violates the parents’ religious beliefs. In State v. Perricone,61 the New Jersey Supreme Court affirmed a trial court’s order that a blood transfusion be performed on an infant child whose par- ents were Jehovah’s Witnesses. With respect to the constitutional issue of the parents’ religious freedom, the court said that

the [First] Amendment embraces two concepts—freedom to believe and freedom

to act. The first is absolute, but, in the nature of things, the second cannot be. The

right to practice religion freely does not include the liberty to expose . . . a child

. . . to ill health or death. Parents may be free to become martyrs themselves. But

it does not follow they are free, in identical circumstances, to make martyrs of their

children before they have reached the age of full and legal discretion when they

can make that choice for themselves.62

Decisions in these types of cases turn on whether parental refusal to consent to medical care for a child fits the state’s definition of child neglect. Other factors include the medical condition of the child, whether an emer- gency is present, the probable outcome if treatment is withheld, the child’s age, whether the child’s wishes have been considered (even though he is a minor), and the basis for parental refusal. Even in states whose statutes do not explicitly consider refusal to consent as child neglect, most courts have readily found it to be so and have upheld orders for treatment. In Jefferson v. Griffin Spalding County Hospital Authority, statutory protection was even extended to an unborn child; overriding the religious objections of the preg- nant woman, the court transferred custody to the state, and a cesarean sec- tion was ordered to save the child’s life.63

Disabled Newborns Infants are in the same legal position as other immature minors: The parents are authorized to consent or withhold consent to treatment as long as they are competent to do so and their actions do not constitute neglect of their child. However, modern technology is keeping alive newborn infants who, just a few years ago, would not have survived because of low birth weight or severe birth defects. Decisions to administer or withhold treatment for these newborns can be extremely difficult. Whether a decision to withhold or

Co py ri gh t © 2 01 7.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion406

withdraw treatment constitutes neglect or is medically, ethically, and legally sound is not always clear. Furthermore, the same questions that arise for incompetent adults arise for infants: Who should make such decisions, and what standards should prevail?

If treatment is available that would clearly benefit an ill newborn—par- ticularly if such treatment is necessary to save the child’s life or prevent seri- ous, permanent consequences—those providing medical care should respond to the parents’ refusal in the manner suggested in the previous section. If time permits, a court order should be sought; if it does not, the child should be treated despite the parents’ objections. A third alternative is to render sufficient treatment to keep the child alive, pending judicial decisions about future treatment.

Infants with terminal illnesses or those in PVS have the same rights as incompetent adults with such conditions. Ordinarily, the parents or guardians may have treatment withheld or discontinued if further treatment would be clearly futile or inhumane. In re L.H.R. involved a terminally ill infant who was in PVS, and the court found that a life support system was prolonging the dying process rather than the infant’s life.64 The court ruled that the right of a terminally ill person to refuse treatment was not lost because of incompetence or youth. The parent or legal guardian could exercise the right on the child’s behalf after the attending physician’s diagnosis and prognosis were confirmed by two other physicians who had no interest in the outcome. The court did not require review by either an ethics committee or a court.65

Newborns with serious birth defects or extremely low birth weight raise more difficult issues. For example, the proposed treatment may be ben- eficial, even lifesaving, but will leave the infant with a disability. The disability might be caused by the treatment itself (e.g., blindness from the adminis- tration of oxygen), or it might result from an existing condition, such as Down syndrome or spina bifida. In other cases, the proposed therapy might be neither clearly beneficial nor clearly futile: The child might survive with therapy but has only a dim chance of living a long life and likely will suffer. In making these difficult decisions, parents or other surrogates must be fully informed of the medical alternatives and the prognosis, and all means must be used to ensure that such children are protected from decisions that are clearly contrary to their best interests.

The well-publicized case of Baby Doe focused national attention on the manner of deciding whether to treat seriously ill newborns.66 In 1982, a boy was born in Indiana with Down syndrome and a surgically correctable condition that prevented him from eating normally. His parents discussed his care with attending physicians and decided not to consent to the correc- tive surgery. Food and water were also to be withheld. Following a petition alleging neglect, a hearing was held within days. The probate court found that his parents were not neglectful but had made a reasonable choice among

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 407

acceptable medical alternatives. Before an attempted appeal could be pro- cessed, Baby Doe died. Thereafter, the parents’ decision was widely criticized as being against the best interests of the child.

Another notorious case involved Baby Jane Doe (see chapter 9).67 The infant was born in 1983 with spina bifida and other serious disorders. Surgery is the usual corrective treatment in such cases, but her parents—after lengthy consultation with neurological experts, nurses, religious counselors, and a social worker—chose to forgo surgery and adopt a more conservative course of treatment. When this decision was challenged in court, physicians testified during the hearing that the parents’ choice was “well within accepted medical standards.” The trial court opined that the child was being deprived of ade- quate medical care and that her life was in “imminent danger,” but an appel- late court reversed the decision. According to the higher court, the record contained no evidence supporting the lower court’s finding; instead, the two physicians who testified had agreed “that the parents’ choice of a course of conservative treatment, instead of surgery, was well within accepted medical standards and that there was no medical reason to disturb the parents’ deci- sion.” The appellate court concluded, “This not a case where an infant is being deprived of medical treatment to achieve a quick and supposedly mer- ciful death. Rather, it is a situation where the parents have chosen one course of appropriate medical treatment over another” (see Legal Decision Point).68

Cases such as these created a great deal of discussion and legislative activity for a number of years. For example, the federal Child Abuse Treatment and Prevention Act now provides that a state may receive federal grant money only after it establishes procedures and programs for responding to reports of medical neglect, including reports of withholding medically indicated treat- ment for disabled infants with life-threatening illnesses. The act defines with- holding as “the failure to respond to the infant’s life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medica- tion) which, in the treating physician’s (or physicians’) reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions.”69 Exceptions are allowed if the infant is irreversibly comatose and if the treatment would merely delay death; would not correct all of the life-threatening conditions or would otherwise do nothing to help save the child’s life; or would be futile and, under the circumstances, inhu- mane.70 Various states have also passed laws covering medical treatment for newborns and other children.

Decisions concerning treatment for seriously ill newborns are clearly no longer

Legal Decision Point

The Baby Jane Doe case was decided in large part on the basis of medical opinion that the parents’ decision to refuse treatment was medically accept- able. Are such decisions ones for medical experts to make? What other disciplines are relevant? What makes a decision “medically acceptable”? Is a medically acceptable decision necessarily a mor- ally acceptable one?

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion408

immune from public scrutiny. Hospitals, physicians, and parents have posi- tive duties to act in a child’s best interests. In the past, hospitals or physicians could look the other way if a parent refused consent for necessary care; today, the law imposes a duty to act. As in the case of incompetent adults, hospitals must consult with their attorneys to ascertain the applicable state and federal laws and develop procedures for complying with those laws.

Legislation and Protocols on End-of-Life Issues Brain Death As medical science advanced in the 1960s and 1970s, decisions at the end of life presented some vexing legal and ethical questions. One of the first was how to define death, given that respirators are able to keep a body “alive” even after the brain ceases to function. Legislatures responded by adopting some version of the Uniform Determination of Death Act (UDDA), which provides that “an individual who has sustained either (1) irreversible cessa- tion of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determina- tion of death must be made in accordance with accepted medical standards.”71

“Uniform” laws are model statutes proposed by the Uniform Law Commission for adoption by state legislatures. The UDDA definition has now been adopted in one form or another in virtually every state, either by statute, regulation, or judicial decision.

Advance Directives Next came cases such as Quinlan and Cruzan, in which the patient was clearly alive but was in a persistent coma (or even a state of seeming wakeful- ness) but subsisted on artificial means of life support. Legislatures enacted “natural death” acts and “living will” statutes aimed at allowing terminally ill patients to die with dignity. These laws’ approaches to the issue and the types of cases they cover vary from state to state, but they offer guidance and some measure of protection to those who face troubling end-of-life situations.

California was the first to pass such a statute. It provided that com- petent adults could execute a directive—commonly called a living will—to instruct their physician to withhold or withdraw certain life-sustaining proce- dures in the event of a terminal illness. The law was intended to be a model on which other states could base their own statutes, but soon the courts discovered that the lawmakers had not anticipated the many difficult situa- tions that the living will documents did not address. For example, because the California statute contemplated only terminal illness, living wills provided no succor for individuals such as Karen Quinlan or Nancy Cruzan, whose conditions were not terminal but for whom medical technology was not therapeutic. Living wills also did not assist persons who failed to sign them.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 409

To remedy some of the shortcomings of the living will laws, many states developed durable power of attorney (DPOA) statutes allowing indi- viduals to designate a proxy who will make healthcare decisions for them if they become incompetent (see Legal Brief). The proxy’s decisions are as valid as the decisions the patient would have made had she been competent. On behalf of the patient, and applying the substituted judgment doctrine discussed earlier, a proxy can consent to or refuse treatments as though the patient were doing so herself. Physicians who rely in good faith on the deci- sions of the proxy are provided immunity from civil and criminal liability and professional disciplinary action.72

The DPOA laws resolved some of the shortcomings of living wills, but they still required people to take affirmative action to sign the DPOA document and varied from state to state. In the early 1990s, a statutory framework called the Uniform Health-Care Decisions Act (UHCDA) was proposed by the National Conference of Commissioners on Uniform State Laws and backed by the American Bar Association. Adopted by a number of states, this model statute

• affirms an individual’s right to decline life-sustaining treatment; • lets the principal designate an agent to make decisions the principal

would make if he were competent; • is flexible enough to allow the principal to give instructions as broadly

or as narrowly as she may choose; • permits designated surrogates, family members, or close friends to

make decisions if no agent or guardian has been appointed; • allows states to replace their various pieces of legislation with one

statute; • provides an easily understood model form to simplify the directive

process; • requires healthcare providers to comply with the patient’s or agent’s

instructions; and • lays out a dispute resolution

process to be used in the event of disagreements.

A sample UHCDA-model advance direc- tive form is shown in appendix 11.1.

Death with Dignity Laws In addition to living wills and durable powers of attorney as tools to assist in end-of-life situations, six states now allow

Legal Brief

A regular power of attorney gives an agent the authority to act on behalf of a principal, but it ceases to be effective in the event of the principal’s death or disability. A durable power of attorney (either for financial or healthcare affairs) is effec- tive as long as the principal is alive, even if she is incapacitated.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion410

physicians to aid competent, terminally ill patients to end their own lives (see Legal Brief). Oregon’s statute was the first of such laws, and it serves as a model for others.73

Under the Oregon law, a compe- tent adult resident of the state who has been diagnosed with a terminal illness that will lead to death within six months may request a licensed physician (doctor of medicine or doctor of osteopathy) to prescribe medications to end life. If certain

procedural safeguards are met—such as a second physician confirming that the patient meets statutory criteria—the individual may self-administer the medications (usually barbiturates). According to the state’s department of health, in the 17 years since the law was enacted, 1,545 people have been provided with prescriptions written for life-ending medications and 991 patients have died from ingesting them.74

The Oregon law was opposed by “right to life” groups, conservative members of Congress, and the George W. Bush administration. The issue went to court in 2001 after Attorney General John Ashcroft attempted to investigate and prosecute physicians who prescribed controlled drugs to help terminally ill patients die. The statute was upheld by the trial court, which ruled that the US Department of Justice lacked authority to overturn a state law. The Ninth Circuit agreed, and the case then headed to the US Supreme Court.

On January 17, 2006, Justice Anthony Kennedy delivered the Supreme Court’s decision affirming the lower courts.75 In his opinion, Ken- nedy ruled that although the attorney general has rulemaking power under the Controlled Substances Act (CSA), “he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.”76 Kennedy added, “The authority claimed by the Attorney General is both beyond his expertise and incongruous with the statutory purposes and design [of the CSA].”77 Thus the court deferred to the state’s determination that use of controlled sub- stances to end life can be considered a legitimate medical purpose.

Despite other attempts in Congress to derail it, the Oregon Death with Dignity Act has been a stable part of Oregon law ever since the Supreme Court ruling. A study conducted in 2013 showed that is the act is supported by about 80 percent of Oregon voters.78

The California law, known as the End of Life Option Act,79 took effect on June 9, 2016. Like the Oregon law, the California statute was quickly

Legal Brief

At the time of publication, physician-assisted dying laws were in effect in Oregon (permitted since late 1997), Washington (2009), Vermont (2013), Cali- fornia (June 2016), and Colorado (by referendum, November 2016). In Montana, physician assistance in dying has been legal since 2009 under a ruling of the state supreme court.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Chapter 11: Consent for Treatment and Withholding Consent 411

challenged in court. The plaintiffs in the case—a number of physicians, the American Academy of Medical Ethics (doing business as the Christian Medical and Dental Society), and Life Legal Defense Foundation—sought an injunction against the law on various grounds, most especially because of a provision stating that actions taken under the law do not “constitute suicide, assisted suicide, homicide, or elder abuse.”80 At time of writing (September 2016), the case is pending but the motion for preliminary injunction has been denied. Irrespective of the ultimate outcome in the trial court, an appeal will certainly ensue. Stay tuned.

The National POLST Paradigm Another important development is a movement to adopt forms that convert patients’ preferences for end-of-life care into enforceable medical orders. Issued by a physician or other licensed practitioner, these portable orders are valid in multiple care settings, including acute care hospitals, long-term care facilities, and hospices. The Physician Orders for Life-Sustaining Treatment (POLST), called by various other names in different states, is an effort by the medical and legal communities to overcome the limitations of legal docu- ments such as living wills and advance directives.

Begun in Oregon and now used or being developed in a number of states,81 POLST is described on the National POLST Paradigm Task Force (NPPTF) website in these terms:

1. The POLST Form is a set of medical orders, similar to the do not resuscitate

(allow natural death) order. POLST is not an advance directive. POLST does

not substitute for naming a health care agent or durable power of attorney

for health care.

2. A POLST Paradigm Form is not for everyone. Only those who are seriously ill

or frail, or for whom their physicians would not be surprised if they died in

the next year, should have one.

3. The POLST Form is completed as a result of the process of informed, shared

decision-making. During the conversation, the patient discusses his or her

values, beliefs, and goals for care, and the health care professional presents

the patient’s diagnosis, prognosis, and treatment alternatives, including the

benefits and burdens of life-sustaining treatment. Together they reach an

informed decision about desired treatment, based on the person’s values,

beliefs and goals for care.

4. The POLST Form allows patients to have their religious values respected.

For example, the POLST Form allows Catholics to make decisions consistent

with the United States Conference of Catholic Bishops Ethical and Religious

Directives for Catholic Health Care Services, 5th ed. (2009) and ensures that

those decisions will be honored in an emergency and across care transitions.

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

The Law of Healthcare Administrat ion412

5. The POLST Form enables physicians to order treatments patients would

want and to direct that treatment that patients would not want, those they

consider “extraordinary” and excessively burdensome, shall not be provided.

6. The POLST Form requires that “ordinary” measures to improve the patient’s

comfort and food and fluid by mouth, as tolerated, are always provided.

7. The POLST Form is actionable and prevents initiation of unwanted,

disproportionately burdensome extraordinary treatment.

8. State law authorizes certain health care professionals to sign medical

orders; the POLST Form is signed by those health care professionals who are

accountable for the medical orders.

9. The POLST Paradigm requires health care professionals be trained to conduct

shared decision-making discussions with patients and families so that POLST

Forms are completed properly.

10. The POLST Form may be signed by the patient or designated decision-maker

. . . but it is not required in all states. The NPPTF encourages patient or

designated decision-maker signatures for all states seeking endorsement.

Informed, shared decision making is a key component of the POLST Paradigm

process.

11. The POLST Paradigm recognizes that allowing natural death to occur is not

the same as killing. POLST does not allow for active euthanasia or physician

assisted suicide.82

A sample POLST paradigm form is shown in appendix 11.2. Forms in other states are virtually identical. Depending on the wording of existing legislation, questions about the use of POLST forms may be encountered in some jurisdictions, but most states have either endorsed or are developing a POLST program and would be unlikely to prohibit use of the forms.

All healthcare providers should have procedures for handling end-of-life decisions for patients in accordance with the laws of their state and the patients’ or surrogates’ instructions. Licensed practitioners should discuss treatment options while the patient has capacity, especially if the illness is considered terminal. The practitioner can call the patient’s attention to options for end-of-life care, advance directives, and designation of a surrogate and can then issue enforceable medical orders consistent with the patient’s wishes. These orders, the relevant discussions and decisions, and copies of an advance directive, DPOA, POLST, or other such document must be included in the medical record.

Patient Self-Determination Act The Patient Self-Determination Act of 1991 (PSDA)83 is a federal law that requires facilities that receive federal funding to summarize the facility’s policies regarding advance directives, advise patients of their right to make

H ea lt h Ad mi ni st ra ti on P re ss . Al l

ri gh ts r es er ve d. M ay n ot b e re pr od uc ed i n an y fo rm w it ho ut p er mi ss io n fr om t he p ub li sh er , ex ce pt f ai r us es p er mi tt ed

un de r U. S. o r ap pl ic ab le c op yr ig ht l aw .

Consent For “Non-Competent” Parties

Do you need a similar assignment done for you from scratch? Order now!
Use Discount Code "Newclient" for a 15% Discount!

DISCLAIMER

PAYMENT METHODS

CONTACT US

E MAIL:

Archive

Do you need a similar assignment done for you from scratch? Order now! Use Discount Code "Newclient" for a 15% Discount!

Share this:

DISCLAIMER

PAYMENT METHODS

CONTACT US

E MAIL:

Archive

Do you need a similar assignment done for you from scratch? Order now!
Use Discount Code "Newclient" for a 15% Discount!