By Angie C. Smith
In the midst of this global pandemic, there have been stories about prioritizing patient care based on the patient’s ability to recover. The stories are heartbreaking and highlight the need for people to have important discussions regarding advance care planning before they get sick and are unable to direct their own care. Further, it is essential that the patient’s choice for end of life care be the driving force for withdrawing or withholding life-sustaining treatment. To ensure that occurs, healthcare practitioners need to be able to identify the documentation necessary to implement patient choice regarding end-of-life care. This article will examine the most common types of documentation that a healthcare practitioner can look for when implementing end-of-life care.
Advance Directive/Living Will
The most obvious documentation for expressing a patient’s wishes for end-of-life care is the Living Will or Advance Directive. Under Alabama Code § 22-8A-4, any competent adult may execute a living will directing the providing, withholding, or withdrawing of life-sustaining treatment. If a healthcare provider determines that a patient has a living will, the provider should confirm that it meets the following requirements:
- In writing;
- Signed by the person making the advance directive or in the person’s presence and at his direction;
- Dated; and
- Signed by two or more witnesses who are at least 19 years of age, neither of whom shall be the person who signed the advance directive on behalf of the person making the advance directive, appointed as the health care proxy in the advance directive, related to the declarant by blood, adoption, or marriage, entitled to any portion of the estate of the declarant, or directly financially responsible for declarant’s medical care.
Once a healthcare provider or facility confirms the living will meets the above requirements, it will then need to determine whether the advance directive is in effect. For the living will to take effect, the patient’s attending physician must make a determination that the patient is no longer able to understand, appreciate, and direct his or her medical treatment, and two physicians – one the attending physician and another physician – personally examine the patient and diagnose and document in the medical record that the individual has a terminal illness or injury or is in a state of permanent unconsciousness.
After determining the advance directive applies, next establish the patient’s wishes. Sounds easy enough but sometimes the forms can be incorrectly checked or the statement by the patient may be vague. If the patient used the form contained in Alabama’s statute, there are Yes or No questions that guide the provider. The form covers terminal illness and permanent unconsciousness and whether the patient wants life-sustaining treatment, defined as “drugs, machines, or medical procedures that would keep [the patient] alive but would not cure [the patient], or artificial food and hydration.”
Another important provision on Alabama’s form Advance Directive is the designation of a healthcare proxy. A health care proxy is a competent adult designated to make decisions regarding providing, withholding, or withdrawing life-sustaining treatment and artificial hydration and nutrition. If a health care proxy is designated, the advance directive form also provides instructions for the health care proxy. There are three options: (1) the health care proxy must follow the instructions on the form; (2) the health care proxy should follow instructions on the form and make any decisions not covered by the form; and (3) allows the health care proxy to make the final decision even if contradictory to what the patient requests.
Durable Power of Attorney
A durable power of attorney or health care durable power of attorney may also provide guidance to a healthcare provider in evaluating a patient’s end of life care. If a patient has a durable power of attorney that designates a health care proxy, a healthcare provider should ensure that the language in the power of attorney specifically allows the attorney-in-fact/agent to make health care decisions providing, withholding and withdrawing life-sustaining treatment. To say that the agent can make health care decisions alone is not sufficient to allow the agent to make decisions related to withdrawing life support or providing artificial hydration nutrition, as examples. Additionally, the durable power of attorney should be executed in the same way that an advance directive is executed. In other words, it must have two witness signatures who are not related by blood or marriage, not entitled to take under the patient’s estate and are not financially responsible for the patient’s healthcare.
If a patient does not have an advance directive or the advance directive does not apply to the circumstances or the patient does not have a healthcare proxy as described above, another option for making end of life decisions for a patient who is unable to make those decisions is a health care surrogate. Under Alabama law, an individual can act as a health care surrogate in consultation with the patient’s attending physician. If a family member wishes to make end-of-life decisions regarding withholding and withdrawing life-sustaining treatment, she must complete a certification and may determine whether to provide, withdraw or withhold life-sustaining treatment or artificially provided nutrition and hydration. The law dictates a hierarchy for choosing the appropriate person to serve as a surrogate as follows:
- a guardian where the order of guardianship authorizes the guardian to make decisions regarding withholding of life-sustaining treatment;
- the patient’s spouse, unless legally separated or party to a divorce proceeding;
- adult child;
- one of the patient’s parents;
- adult sibling;
- any one of the patient’s surviving adult relatives who are of the next closest degree of kinship; or
- if the patient has no known relatives and none can be found after reasonable inquiry, an ethics committee acting unanimously may make those decisions. Where an ethics committee is convened to make decisions regarding life-sustaining treatment, the health care provider is required to notify the Alabama Department of Human Resources.
The surrogate must certify under oath that she has contacted the persons in a class equal to or higher than the surrogate and that person has either consented or expressed no objection to the surrogate acting as a surrogate or to the decision. The certification should be included as part of the medical record. The form can be found here.
Portable Do Not Resuscitate Order
Although commonly used by health care providers in the state for years, it was not until 2016 that there was a reference in Alabama’s laws to “Do Not Resuscitate” orders, which allow health care providers to withhold cardiopulmonary resuscitation to a patient who is experiencing cardiac arrest. Since 2016, Alabama not only defines a DNR order but also allows for a Portable DNR to follow a patient from facility to facility. Upon admitting a patient to a facility, a health care provider should ask the patient or the patient’s family if a Portable DNR exists. There is a specific form that must be used and requires proper execution to be implemented. The form can be found here.
A properly executed Portable DNR requires the signature of one of the following: the patient; a representative of the health care provider based on instructions in an advance directive; a health care proxy or an agent under a health care POA, or a surrogate (discussed above). A physician must also sign the form, and it should be maintained in the patient’s medical record along with any supporting documentation, e.g. the advance directive or power of attorney. Once properly executed, it can be used by any health care provider.
Although this list may not be exhaustive, and certainly a verbal request related to end of life care should be honored, these are some of the most common forms of documentation that can assist healthcare providers in implementing the wishes of their patients.
Angie Cameron Smith is a partner at Burr & Forman, LLP practicing exclusively in the firm’s Health Care Industry Group.