It is a rapidly growing trend for hospitals to employ an ethicist.   This person’s responsibility, among other things, is to handle the hospital’s compliance with local law as it relates to Durable Powers of Attorney for Health Care and Health Care Directives.  They are also responsible for the compliance with local law if those documents do not exist.  If you don’t prepare your own documents the state in which you reside will have in place a law that stipulates what should be done in lieu of you not having these documents.  I would strongly encourage all financial and estate planning advisory professionals to have a conversation with the ethicist at each of the hospitals that operate within the area they serve.  And I would encourage you to ask your financial and estate planning advisors whether or not they have had that conversation.  I will share with you now the conversation I had.  This will be in a question and answer format.

Once all of the documents (health care power of attorney and directive) are in place what do you suggest I do with them?  Copies should be given to and retained by your primary care physician, your local hospital and by your family members – especially those who are involved or think they should be involved.  It would be prudent to also have a discussion with all those who might be involved.  In other words, don’t just hand it to them and say, “read it” but go over it with them in person.  It is also important to revisit the documents from time to time (especially before any surgical or medical procedure that carries with it the risk of loss of life or disability) so that if things have changed they can be redrafted to reflect those changes.

Under local law who has authority to make health care decision for me if I can’t and I haven’t prepared a legally enforceable power of attorney or health care directive?  Under our local law the order of responsibility and authority is the Guardian, Spouse/Registered Domestic Partner (this does not include co-habitation partners or common law relationships), Adult Children (some states permit majority consent and other require unanimous consent), Parents, Siblings.  This order can and does vary from state to state.

When entering the hospital what should the patient and family members do to insure compliance with the patient’s wishes?  They should be sure that the hospital has a copy and is aware of the fact they have a copy of the health care power of attorney and directive.  The Patient Self Determination Act (a federal law) requires the hospital to make an inquiry of the patient as to the existence or not of a health care power of attorney and/or directive.  It is very important that the family present at the hospital be of one mind and in agreement with the patient’s wishes.  Or at the minimum willing to honor those wishes even if they don’t agree with them. 

What happens if one or more of the family members present are not in agreement with the patient’s wishes and unwilling to honor them?  If the family does not support a patient’s wishes or is in disagreement with each other, the interdisciplinary team, which includes the ethicist, caring for the patient will usually meet with the family, review the patient’s diagnosis, current status and prognosis and answer their questions and try to help them come to a consensus.  If this is not successful, they will also ask for an ethics consult.  The ethicist or consult team will work with the family and caregivers to come to a consensus.  This is almost always successful; if not, it is very rare for a physician to go against a family’s wishes.  They may, however, ask the family to find another physician to assume care of the patient but they won’t abandon the patient.

What, if anything, can override the health care power of attorney and/or directive?  If a family member or loved one disagrees with the choices the patient has made they can go to court and petition for Guardianship of the patient so that they can be named the decision maker; this rarely occurs.  Can state laws or hospital rules override them?  If a patient has completed the documents for the state they reside in and receive care in; this should not be an issue.  If they have a document from one state and received care in another (snowbirds for instance) state; it could be possible that there is not reciprocity and part of the document many not be honored, i.e. feeding tubes may be considered as part of what one is refusing when one refuses aggressive care, however, there are states that require tube feeding refusal to be documented separately in order for it to be valid.  Is there a lag time before executed documents become effective?  The documents are valid as soon as they are signed.  They do not “go into effect” unless certain physiologic conditions are met on the patient’s part as listed in the documents.  For a Health Care Directive to be effective a person has to have an irreversible injury or illness that is likely to cause their death, i.e. “terminally ill” which is generally defined as 6 months or less to live.  You could sign the documents prior to surgery, get a poor prognosis because of what they find in surgery, and have the documents go into effect after the surgery.  Can hospital rules override them?  Yes, if a patient has a request in the documents that is in conflict with a hospitals conscience clause or is illegal in that state, they can refuse to participate, i.e. for a Catholic hospital, Physicians Assisted Suicide even if permitted by state law – OR and WA currently.  Can a doctor override them?  Yes, a physician or healthcare provider always has the right to refuse to participate in care they are personally ethically opposed to; i.e. Physician Assisted Suicide.  The can inform the patient/family and transfer care of the patient to another provider.

How, in practice, is compliance insured by the hospital?  At our hospital (specific practices will vary from hospital to hospital) patients are asked when they are admitted if they have an Health Care Directive and are given information about them if they don’t have one, but are interested.  Copies of the documents are kept in the patients chart and it is noted in the electronic medical record that the patient has an advance directive.  Staff is aware of the documents should they need to be invoked.  (My personal experience with this hospital – especially in the emergency room – that this procedure is not followed.  It is important that you – the patient – take the initiative in the regard.)

Does every hospital and/or state have some sort of “futile care” rules?  Texas is the only state with laws specific to futile care.  Some hospitals have policies/guidelines regarding “non-beneficial treatment” that outline the process medical staff can utilize when a family or patient are demanding continued aggressive medical treatment that is no longer of medical benefit to the patient.  Generally, in this situation, physicians will get additional opinions regarding the benefit of continued aggressive treatment for the patient, meet with the family and team and involve ethics as well and see if they can’t help the family to realize that it’s time to embrace comfort care for the patient.  (You might want to go on the internet and put the words “futile care” in your search engine.  You might be surprise and/or worried about what you will read.)

What impact do the Oregon & Washington “right to die” laws have on the health care power of attorney and directive as well as on hospital procedures?  (I asked this question because I live in WA and it is likely more such laws will be passed in other states over time.) Washington and Oregon have laws regarding physician assisted suicide (PAS).  Only the competent patient can request PAS and can carry out ingestion of the medication; thus, the health care power of attorney and directive are not involved in any way.