Legal considerations
If you’re involved in end-of-life care, you’ll be better able to act as an advocate for your patient and his family if you have a working knowledge of the legal considerations involved in this process. They stem largely from the Patient Self-Determination Act that was passed as part of the Omnibus Budget Reconciliation Act of 1990 and took effect in December of 1991. This Act requires health care providers to inform patients of their right to make their own health care decisions. The Act was intended to increase a patient’s control over his own medical treatment decisions.
Informed decision-making
All health care agencies that receive Medicare or Medicaid funds are now required to provide written information to adults regarding their right to make medical decisions. Patients also must be given information regarding their right to formulate advance directives such as a living will and durable power of attorney for health care. The patient must be made aware of his right to decide about these issues when admitted to a hospital or skilled nursing facility, enrolled into a health maintenance organization, first receiving care from a hospice, or before receiving services from a home health agency. Legally, however, a health care agency cannot require a patient to sign an advance directive.
It’s the responsibility of nurses to facilitate informed decision-making for patients making choices about end-of-life care. Your role in education, research, patient care, and advocacy plays a central part in the implementation of the Patient Self-Determination Act as end-of-life care begins. Make sure you understand the laws of the state in which you practice. It’s your responsibility to make sure that your patient’s advance directives are current and accurately reflect his choices. Promoting the self-determination of patients
regarding end-of-life decisions as well as acting as a patient advocate includes evaluating changes in the patient’s perspective and current state of health. The nurse’s responsibilities include facilitating informed decision making, a process that includes but isn’t limited to advance directives.
regarding end-of-life decisions as well as acting as a patient advocate includes evaluating changes in the patient’s perspective and current state of health. The nurse’s responsibilities include facilitating informed decision making, a process that includes but isn’t limited to advance directives.
Advantages of advance directives
Peace of mind for the patient that his wishes will be carried out even if he can’t communicate
Clear directions for family and significant others about the patient’s wishes
Clear directions for health care providers about the patient’s wishes
Prevention of family arguments and increased stress at an emotionally difficult time
Advance directives
Advance directives are a significant part of the requirements of the Patient Self-Determination Act. They include the living will, the durable power of attorney for health care, and the directive for organ donation. These are legal documents completed by competent adults that specify their choices regarding medical treatments if they become incapacitated. These documents also allow the patient to name someone to make choices for him if he can’t make decisions on his own. These documents provide both legal and emotional advantages. (See Advantages of advance directives.)
The American Nurses Association recommends that several questions regarding advance directives be included as part of the admission process into any type of health care setting:
Do you have basic information about advance directives, including living wills and durable power of attorney?
Would you like to complete an advance directive?
If you already have an advance directive, may I have a copy of the document?
Have you discussed your end-of-life choices with your family and health care team?
Patients need to be informed that they can prepare their own advance directives, although state-specific documents should be used and witnessed. (See Preparing an advance directive, page 36.) Each state has its own witnessing requirement, with most requiring two adult witnesses. Some require a notary. Witnesses function to verify the patient’s identity, make sure he wasn’t coerced into signing, and confirm that he appeared to understand
the process. Witnesses don’t need to know the contents of the document they witness.
the process. Witnesses don’t need to know the contents of the document they witness.
Preparing an advance directive
Before your patient prepares an advance directive, suggest that he carry out these preliminary steps:
Obtain information about the types of life-sustaining treatments available.
If you are currently physically ill, obtain information regarding the expected progress of your disease.
Discuss with your physician the expectations of your treatments and the risks of undergoing those treatments.
Make sure your family and significant others are familiar with your value system and spiritual beliefs.
Decide which treatments you would or would not want to receive.
Document the types of treatments you would and would not like to receive if you can no longer communicate your wishes.
Prepare several copies of the document and give one to your physician, your attorney, and your chosen surrogates. Keep a copy on hand for emergencies or future health care providers.
Requirements for who can witness an advance directive vary from state to state. In some states, the witness can’t be related by blood or marriage, can’t benefit from the patient’s estate, and can’t be a physician or employee of a health care facility in which the patient is being treated.
An advance directive remains in effect until it is revoked by the patient and can only be invalidated by completing a new advance directive. Therefore, an advance directive should be reviewed periodically to determine that it still reflects the patient’s wishes.
Once the patient understands the importance of implementing advance directives, discuss the various types of these documents in detail.
Living will
A living will describes the treatments a patient does and doesn’t want if he becomes incapacitated and has no chance of recovery. It usually authorizes the physician to either withhold or stop life-sustaining measures such as artificial ventilation, hydration, and nutrition. Your role in implementing a living will is to inform the patient of his options.
This is a crucial role. In 1997, only 15%of Americans had completed a living will. If a patient fails to complete a living will and then becomes unable to express his wishes regarding health care decisions, the medical staff may use their own discretion in deciding what type of medical care is most needed and most appropriate. They may ask for consent from a close relative, such as a spouse or adult child. However, these may not be the people most familiar with the patient’s wishes, and personal and legal battles may ensue if family members and significant others disagree about the patient’s wishes.
Assure the patient that a living will doesn’t go into effect unless the patient can’t make decisions for himself. Also, explain that it can be changed as needed, although states vary in their specifications regarding whether written or verbal notification is needed to change a living will. Assess and document the patient’s mental competence to make health care decisions.
Legal immunity is provided to caregivers who comply with an appropriately prepared living will. There are situations, however, when a health care provider is permitted to reject a health care directive made either by a patient or the agent acting on his behalf. This can occur if:
the decision is objectionable to the conscience of the health care provider (See Inappropriate intubation, pages 38 and 39.)
the decision violates a facility policy based on reasons of conscience, as in the case of a hospital operated by a religious organization
the decision would perpetuate medically ineffective health care, or the care given would violate the generally acceptable health care standards then in use by the health care provider or the facility.
LIFESPAN A patient’s health care directives may be ignored completely in the case of pregnancy. If a patient is of childbearing age while completing a living will, she should explicitly state what she wants if that health care directive must go into effect while she is pregnant. Whether physicians will honor her directive will depend on the age of her fetus, the risks to mother and fetus, and the policies of the health care facility. During the second and third trimesters, the patient is likely to be given all medical care possible in an attempt to save both mother and fetus.Usually, a living will is implemented either in terminal illness or permanent disability. The health care directive becomes effective when:
the patient is close to death from a terminal condition or is judged to be permanently comatose
the patient can’t communicate his own wishes for his medical care — orally, in writing, or through gestures
the health care staff in attendance are notified of the patient’s written instructions regarding his medical care.
The living will can prevent treatment from being implemented that will only extend life without restoring a comparable quality of life. The type, severity, and permanence or irreversibility of the disability need to be defined
as specifically as possible. If specific treatments are to be withheld when the patient can no longer speak for himself, the treatments should be described specifically.
as specifically as possible. If specific treatments are to be withheld when the patient can no longer speak for himself, the treatments should be described specifically.
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