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.
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
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.
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.
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.
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
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
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.
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
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
As I hope everyone knows,
HIPAA is the law of the land. HIPAA
has in the privacy section that by
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
Please utilize my free
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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
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.