The Patient Self Determination Act became effective December 1991. This law requires that all hospitals receiving Medicare or Medicaid funding provide information to all adult patients upon admission about advanced directives and to ask whether the patient has an advanced directive. In accordance with Federal and State regulations, patients should receive information regarding advanced directives if they do not present with this information at admission. Advanced directives can be used from admission to admission; however, they should be reviewed with the patient at each admission to verify accuracy. If the patient is incompetent at the time of admission, the information should be provided to the surrogate or proxy. If the patient is temporarily incapacitated, the information should be provided when decisional capacity returns. A patient’s right to make decisions about his/her care is true even after the patient is no longer able to communicate those decisions directly. Advance directives can protect people in extreme conditions. These people may be unable to communicate due to a condition such as irreversible brain damage or brain disease that affects the ability to think as well as communicate.
Advanced directives can limit life-prolonging measures when there is little or no chance of recovery. For example, advanced directives may enable patients to make their feelings known about cardiopulmonary resuscitation (CPR), intravenous (IV) therapy, feeding tubes, ventilators and dialysis. Advanced directives can address pain relief – either requesting or refusing it.
An advanced directive is a legal document that allows a patient to participate in future healthcare decisions. There are two forms of advanced directives:
- Living Will – a patient documents his/her wishes for future treatment in the event of terminal illness. A living will goes into effect when a patient develops a terminal condition that makes it impossible to communicate health care decisions directly. They are called living wills because they take effect while a patient is still alive.
- Durable Power of Attorney for Health Care – in this document, the patient appoints a representative to make health care decisions. The power of attorney goes into effect when the patient loses the ability to communicate his/her own decisions. The patient names a person called a proxy to make decisions.
An additional tool for participating in future health care decisions is the do-not-resuscitate (DNR) order. A DNR order states that a patient does not want CPR if he/she goes into cardiac or respiratory arrest. A patient may request a DNR order; however, only a physician can approve and give the order.
Healthcare personnel play a critical role in protecting patient rights related to advance directives. Healthcare personnel must empower patients to complete advanced directives. They must offer information about advanced directives to all adult patients in a language/manner they can understand, and they must help patients who wish to complete an advance directive. Healthcare personnel must respect the decisions in a patient’s advanced directive. Patients frequently have concerns about advance directives, and the information presented to them must lay out what advance directives are, how they will benefit the patient, and that the patient does not relinquish control over their healthcare as soon as they sign an advance directive. All patients need to understand that advance directives give them autonomy over their healthcare and their end-of-life choices. A copy of the directive goes in the patient’s chart. If a copy is not available, the important points of the directive are documented in the medical record. Healthcare providers must follow the directive after it has taken effect.
An advanced directive takes effect only after the patient is no longer able to communicate directly. Until that time, the patient’s direct communication is the only thing that matters. A competent patient may change his/her advanced directive at any time. If a patient wishes to change a directive, the healthcare provider must make it possible. Patient care must NEVER be based on whether the patient has an advanced directive and the decisions in the directive. All patients need to be treated fairly and equally, regardless of advanced directives.
When a patient loses the ability to communicate directly, often he/she does not have an advanced directive. In this situation, treatment wishes should still be respected as much as possible. Florida State Status 765.401 provides for the appointment of health care representatives. To make decisions about the patient’s treatment, the representative should talk to the physician in charge of the patient’s care and consider what the patient would want. The hierarchy of health care decision makers for a patient without an advance directive depends upon state law.
Power of attorney means one person authorizes another person to act on one’s behalf. Some important points regarding a power of attorney include signatures of the principal party, two adult witnesses, and the notary public. It may be used immediately. A power of attorney does not need to be filed in court except for real estate transactions. The power of attorney is in effect until revoked by the principal, participant’s death, or revoked by the court. A power of attorney may have more than one agent – all agents must concur when making decisions. There are several types of power of attorney.
- General: an agent acts on behalf of the person in a variety of situations.
- Limited: limited to a specific transaction.
- Health care: to make decisions when incapacitated
- Springing: in effect at some future time – illness, disability of principal.
- Durable: all of the above can be made “durable” by adding text – enables the agent to act when the principal is incompetent and physically unable to make decisions.
A health care surrogate is any competent adult expressly designated in writing by a patient to make health care decisions on his or her behalf when incapacitated. This surrogate has no authority to act until the primary care physician determines that the principal lacks the capacity to make informed health care decisions. A proxy is a competent adult, who has not been expressly designated to make health care decisions for an incapacitated individual but who is authorized to make health care decisions. A health care proxy is appointed by the hospital when there is no power of attorney or surrogate, and health care decisions need to be made. Potential representatives for an incapacitated patient may include:
- Adult child
- Domestic partner
- Brother or sister
- Close friend