FORGOING TREATMENT  

This is one of the most difficult decisions any physician must face.  When is the time to turn off the machines and let nature take itís course?  What to do when the physician and the family disagree?  Now, with HIPAA just around the corner, what to do if the patient refuses to sign this or other treatment consents.  

As I stated in my April 2001 newsletter on consent, the patient is the master of his/her body.  This basic law of consent was first enunciated by Justice Cardozo in Schloendorff v Socíy of New York Hosp.  who stated that "every human being of adult years has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patientís consent commits an assault for which he is liable in damages."   This was followed by the Nuremberg Trials after World War II.  Here, some of the war crimes were the human experimentation without patient consent. 

Who Can Decide?  

The easy answer is every competent person has the ability to accept or decline therapy, including life sustaining therapy. This premise has been approved by the courts in every state and by the US Supreme Court. California has the case of Cobbs v. Grant for the right of informed consent and Bouvia v Superior Court for the right to forgo artificial nutrition and hydration.   The US Supreme Court in Cruzan v Director, Missouri Depart. Of Health stated that the state has the final say regarding the regulation of forgoing life sustaining measures. The main decision in this case was Missouri ís right to insist on the clear and convincing evidence standard over the preponderance of evidence standard for those making life forgoing decisions for another.  

In all states, an individual who is an adult and able to ascertain the nature of their disease, participate in the decision and communicate the decision is a competent individual and one who can make their own decision to accept or forgo any medical decisions, including those regarding their own life support. The decision of competency is up to the physician after consultation with family and/or an ethics committee. Just because the patient does not agree with the physician or family does not make him/her incompetent.  

The problem is when the individual is not capable of giving or withholding their own consent.  If the patient has a living will or a durable power of attorney for health care the problem can be solved rather easily.  All states have their own rules defining these documents.  Basically, a living will is a document in which the patient has laid out what they want done is specified situations.  The problem is that it is usually a different situation not addressed by the living will that occurs. This nullifies the will per se but does allow it to be used for help in determining what the patientís wishes would have been in the current situation.  A durable power of attorney for health care gives another named person the power to decide a medical issue for the patient using their best estimate of what the patient would have wanted if the patient could have decided.  In other words, the named person stands in the shoes of the patient. California law does not allow a surrogate to consent to placement into a mental health facility, convulsive treatment, psychosurgery, sterilization or abortion.  One should look in the Probate Code for the statutory law.  California also recognizes other stateís Durable Power documents if it is valid in that state.  

When the patient is not competent to decide and there is no living will or durable power of attorney the issue is much thornier.  The physician must decide, many times with the help of the Ethics Committee, who best speaks for the patient.  If the family and/or the significant other are in agreement this usually suffices.  If there is conflict as to the decision, many times the decision as to who the decision maker will be is made by a Court after a hearing.  The Court may appoint a family member or an outside person as conservator. This conservator will take precedence over family members or significant others.  The surrogate must follow the State law and use either the preponderance of the evidence or the clear and convincing evidence standard as enunciated by the State. California follows the preponderance of evidence rule. The surrogate should also take into account the specific facts and circumstances of the incident.  These may override the patientís wishes.   

Physician Requirements  

The physicianís main duty is to discuss the possibilities prior to the time of emergency and to give informed consent.  The physician must explain to the competent patient or the patientís representative the treatments available, the pros and cons of each and what is the potential of success.  This includes the withdrawal of or giving only supportive care.  One should tell the patient or representative about discomfort and what the physician can do to relieve that discomfort.  It is imperative for the physician to realize that it is the patient and not the physician that makes decisions.  If the physician does not agree with the forgoing or withdrawal of treatment, they should help the patient to be transferred to a facility or to a physician that will agree with the patient or surrogate decision.  If the facility or physician has a policy of not agreeing to the withdrawal of life support or nutrition, this must be told up-front and allow the patient to go to a different facility or physician.  As yet there has been no law in California regarding who must pay for either the non-consented to care or the transfer, if necessary.  Under the Natural Death Act, physicians who do not transfer the patient are liable for professional discipline and not criminal actions.  

A physician who is withdrawing or withholding life sustaining measures should document in the medical record the diagnosis, prognosis including the ability or inability of the patient to ever regain mental function, the notification of the patient or surrogate of the informed consent process, the patientís or surrogateís consent and the clear orders to not do certain medical procedures.  The physician should also follow any facility (hospital or long-term care) procedures.  

If the physician has qualms about what is right they should enlist the help of the facilityís ethics committee.  Although this body has no legal authority it can offer guidance in a particular circumstance.  There are other times when the physician should go to the administration for permission to contact the hospitalís attorney.  An example of this is a Jehovahís Witness child who needs a blood transfusion.  The attorney will make an emergency appeal to the Court for the child to be made a temporary ward of the state in order to save the childís life. This is not true for an adult.  The Courts have always sided with the adult patient in this case.  

 The new California Health Care Decisions Law (DCLA) states that the physician is not to be held liable either criminally or civilly for using reasonable judgment and good faith in following a valid DCLA.  If a patient has a DCLA it should be presumed to be valid unless the physician has significant reservations as to the competency of the individual when the DCLA was originally signed.  The physician should then seek legal help.  The physician should check the document to make sure it was signed, witnessed or notarized.  The DCLA is valid only if the patient is not competent since if competent the patient would be the one making the decisions.  The document may be revoked either orally or in writing and communicated in some manner to the treating physician or the patientís agent. If the patient has a previously executed living will or durable power of attorney it is as legal as the new DCLA.  

If a patient or the representative requests treatment that the physician believes is futile they should not have to provide it.  Having said this I caution physicians to make use of second opinions or ethics committees for the definition of futile prior to absolute refusal.  I also caution physicians to make use of their own or the hospitalís attorney to discuss the liability regarding ADA or EMTALA. If the patient is brain dead the physician and/or hospital does not need to continue the ventilator.  They should allow the family to obtain a second opinion and if there is a legitimate difference of medical opinion the court should be involved.  

Do Not Resuscitate  

Do Not Resuscitate (DNR) orders are different.  This applies to only to not doing medical treatment in the case of a cardio-pulmonary event. The DNR orders also are patient controlled. They can not be ordered unless permission from the patient or the surrogate has been given. The exception here is when it is obviously futile to perform cardiopulmonary resuscitation.  The physician may write a DNR order and inform the patient or surrogate.  If they do not agree they may obtain a second opinion or change physicians.  The issue with DNR is when a patientís desire for a DNR should be ignored.  There is a split of opinion among ethicists regarding this.  Some say the physician should always follow the patientís wishes while others look at each individual case and the potential futility of resuscitation.  The best way to solve this dilemma, as with most, is to have a talk with the patient or surrogate well in advance of any problem, such as during an outpatient office visit prior to hospitalization.   

If a patient has a DNR on the chart and needs surgery should the order carry over?  The situation in surgery is different.  The patient is usually already intubated and all necessary equipment and personnel are immediately available.  Again, the best way to handle the situation is to discuss prior to the surgery what to do if a code happens. After successful surgery, the reason for the DNR may no longer be present.  A new discussion regarding the order should be performed by the physician.   

Pre-hospital DNR requests are becoming more frequent.  The law allows freedom from liability if a pre-hospital DNR form is followed either pre-hospital by EMTs or in the hospital or long term facility.  There is also a presumption that a patient executed DNR is valid.  

A final comment on physician assisted suicide.  This means the prescribing of medication that if taken by the patient will result in death.   This is not legal in any state except Oregon .  As of this date the United States Attorney General has decided that if any physician prescribes drugs for this purpose they will lose their narcotic license.  This position was challenged by Oregon and there is currently an injunction against the Attorney Generalís edict.  

HIPAA  

As I hope everyone knows, HIPAA is the law of the land.  HIPAA has in the privacy section that by April 14, 2003 , a policy must be in place and a special consent form must be given and signed by patients in any medical facility including offices that utilizes electronic transfer of any patient information. Unless there is an exception to the rule such as an emergency or inability of the patient to understand this must be signed prior to treatment.  If the patient refuses and there are not other laws superceding, such as EMTALA, the physician has the right not to treat the patient and can not use the patientís information for payment from a third party.  This consent is for the use of the patientís personal health information for any treatment, payment or healthcare operation issues.  

Final Thoughts  

This has been an overview of the law of consent in the withholding or withdrawing of treatment with a paragraph on HIPAA thrown in.  I hope you have found it interesting and thought provoking and I will be happy to answer any questions you have regarding this issue.  I am also available for any medical staff independent counsel when there is an actual or perceived conflict of interest between the medical staff and any hospital paid attorney.  I also do peer review legal work including judicial review officer as well as medical business issues.  

Please utilize my free website www.medicalaw.net for all the latest in medical news, law, and legislation including this and past newsletters. It changes about every two weeks. By signing up you will get an E-mail reminder about the changes.  

If you remember nothing else, remember the words of the Los Angeles Dodger captain and potential pulmonologist Maury Wills when he led the team in warm-up and said those immortal words, ďOkay, everyone, now inhaleÖ.and then dehale!Ē

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DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.