“Its Medically Indicated” v. “It’s the Patient’s Choice”
Law and Ethics at the End-of-Life
2012 SJPHS Grady Conference
September 21, 2012
Presented by:
Laura Miron Napiewocki
Hall, Render, Killian, Heath & Lyman, PLLC
Autonomy
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Autonomy is the capability for self-determination.
Autonomy implies that one should be free from
coercion in deciding to act or forgo action.
In the practice of healthcare, a person’s autonomy is
exercised through:
 the process of Informed Consent
 the right to accept or refuse treatment
 the creation of advance directives
 the appointment of surrogate decision-makers
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Informed Consent
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Elements of Information
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Consent
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Nature of Procedure
Risks, Common or Severe
Benefits
Alternative Medical Treatment Options
Understanding/Comprehension
Voluntary
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Process of Informed Consent
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Documentation
Process of Deliberation
Shared Decision-making
Communication of news, information about
disease, and its management.
Physicians have a direct responsibility,
regardless of barriers (e.g. insurance)
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Right to Refuse Treatment
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Patient has the right to make an informed
decision to receive, continue, or refuse
medical treatment.
Patient may choose to withhold or withdraw
treatment at any time.
Patient may also choose palliative care
treatment (including hospice care & pain
management).
© Hall Render Killian Heath & Lyman,
PLLC, 2012
When Patient Lacks
Decision-Making Capacity
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© Hall Render Killian Heath & Lyman,
PLLC, 2012
Competency v. Capacity
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Competence – legal determination made by the court.
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Capacity – medical determination made by the physician.
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If a person is adjudged incompetent, he is legally not capable of
making health decisions or other decisions.
Court will appoint guardian(s) to act on behalf of the incompetent
person (also known as a “ward”).
Capacity requires the ability to:
 Comprehend
 Deliberate
 Communicate
Capacity may wax and wane; should reassess capacity for each
significant health decision.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Determining Capacity
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Existence of mental illness, mental handicap, or
dementia does not automatically render a patient
incapable of making medical decisions.
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Patient’s who are unable to give informed consent
may still be capable of designating a surrogate, and
may still benefit from discussion regarding treatment
plans.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
If there is Uncertainty…
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Determine if the patient has been adjudged
incompetent and, if so, contact guardian for health
care decision-making.
If patient has not been adjudged incompetent or you
do not know, order a psychiatric consult or consult
with another physician or licensed psychologist.
If the psych consult indicates that the patient has
capacity, patient may make health care decisions.
If the psych consult indicates that patient lacks
decision-making capacity, identify existence of
surrogates and/or advance directives, if any.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Advance Directives
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Allows patients to document their preferences
for medical treatment (or non-treatment)
while they are still competent.
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Directives can help guide decision-makers in
the event that a patient later becomes
incapacitated.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Terminology of Advance
Directives
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The following may all be considered an Advance
Directive:
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Instructional Statement
Living Will (not legally recognized in MI)
Durable Power of Attorney for Health Care
Values History
Personal letter
Medical Directive
Advance care planning is the process of discussion,
documentation, and implementation of the advance
directive.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Common Issues with
Advanced Directives
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Very few individuals have completed an
advance directive.
Individuals are unable to foresee future
medical circumstances.
Difficult for surrogate decision-maker to
understand the wishes of the patient
Inability of physician to locate or access
patient’s advanced directive
Instructions are vague, confusing, or even
“medically impossible” to achieve.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Do-Not-Resuscitate Orders
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Michigan DNR Procedure Act
Setting outside of a hospital, a nursing home, or a
mental health facility owned or operated by the
department of community health
Executed by a patient or patient advocate (if patient
lacks decision-making capacity)
© Hall Render Killian Heath & Lyman,
PLLC, 2012
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A properly executed DNR must be:
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Dated and signed by the patient / patient advocate
Executed voluntarily
Witnessed by declarant, patient’s attending physician,
and 2 additional witnesses (one of whom is not a
family member)
The DNR order should remain in possession of
the patient and should be accessible within his
or her place of residence.
The DNR may be revoked at any time by patient
or patient advocate.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
POLST Paradigm
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Originated in Oregon after various reports that
patients’ documented decisions for end-of-life
treatments were not being carried out
Advantages over other Advanced Care Planning
Techniques:
 Easily portable between health care settings
 Puts a greater emphasis on conversations
between patients and health care providers
 Patient’s preferences are recorded as written
medical orders that are easily understood and
implemented
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Surrogate Decision-Makers
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Standards for Surrogate decision-making
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Substituted Judgment – making decisions based on
patient’s preferences / values, if known
Best Interests – If patient’s preferences are not known,
surrogate must act in patient’s best interests.
(“Reasonable person” standard)
Health care providers have a duty to evaluate and /
or question surrogate’s decisions.
Health care providers should consider declining to
follow surrogate’s instructions if not consistent with
patient’s preferences or best interests.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Types of Surrogate Health
Care Decision-Makers in
Michigan
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© Hall Render Killian Heath & Lyman,
PLLC, 2012
Guardians of Incapacitated Adults
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Who Initiates: Individual or Interested person
How Initiated: Petition to court; appointment by will or other writing
When Initiated: Court appointment; or, if by will, when appointed
guardian files acceptance in court where will containing appointment is
probated.
Requirements: Petition containing specific facts about individual's
condition and recent conduct; notice to interested parties; hearing; order
Powers: Guardian has those powers and duties specifically enumerated
by court order that are necessary as means of providing continuing care
to individual.
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NOTE: If individual properly executed patient advocate designation before
becoming legally incapacitated, then guardian does not have power of making
medical or mental health treatment decisions
Surrogacy Effective: Upon issuance of court order
Duration: Determined by court order; stated in order
Termination: Upon death of guardian or ward, incapacity of guardian;
order of resignation or removal by court.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Guardians of Developmentally Disabled Adults
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Who Initiates: Interested person or entity; individual
How Initiated: Petition to court
When Initiated: After court determines that individual lacks the ability to
do some or all of the tasks necessary to care of him/herself or estate.
Requirements: Petition to court accompanied by report or evaluations;
notice to person & interested parties; hearing ; order.
Powers:
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Surrogacy Effective:
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Plenary Guardians possess the legal rights and powers of a full guardian of the person.
Partial Guardians possess those powers and duties specifically enumerated by court order.
Plenary: Upon issuance of court order, even when patient appears to have capacity
Partial: Upon issuance of court order, only when patient lacks decision-making capacity
Does not extend to extraordinary procedures unless previously ordered by court.
Duration: As stated in court order
Termination: Discharge or modification order by the court; death of ward
or guardian; incapacity of guardian
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Michigan OAG Opinion
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In 2000, the Michigan Office of the Attorney General
determined that a Guardian of a Developmentally
Disabled Adult does not have the authority…
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to sign a designation of a patient advocate on behalf of the
ward under the Patient Advocate Act;
to sign a do-not-resuscitate order on behalf of ward under the
Michigan Do-Not-Resuscitate Procedure Act
when the ward has been determined by the court to
not be of sound mind.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Durable Power of Attorney
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Who Initiates: Patient
How Initiated: Patient executes document
When Initiated: While patient has decision-making capacity
Requirements: Written document signed by patient; signed and
accepted by person granted durable power of attorney; witnesses
Powers: Those stated in the document
 NOTE: must specifically state that person granted durable POA
has the power to make health-care decisions on behalf of the
individual!
Surrogacy Effective: Only during such times when the patient lacks
decision-making capacity
Duration: When revoked by patient or as stated in the document.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Patient Advocate
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Who Initiates: Patient
How Initiated: Patient executes document
When Initiated: While patient has decision-making capacity
Requirements: Written document signed by patient; executed in
presence of at least 2 witnesses; statement that authority only granted
when patient lacks capacity; signed by patient and 2 witnesses.
Powers:
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Powers concerning care, custody, and medical or mental health treatment decisions
May make decision to withhold /withdraw treatment that would allow the patient to die if
patient has expressed in clear and convincing manner that patient advocated is
authorized to make such a decision
Surrogacy Effective: During times when patient lacks decision-making
capacity.
Duration: Until revoked, or as stated in document.
Termination: When revoked, or if patient advocate does not accept,
becomes incapacitated, resigns, or is removed.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Default Surrogates
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In the event that an individual has not appointed a guardian, or
the guardian is unavailable, Michigan law recognizes the
following individuals as default surrogates:
 Parent or legal guardian of a patient who is a minor
 Members of the immediate family, or the next of kin
A default surrogate may participate in health-care decisionmaking and may receive health care information on behalf of
the patient when the patient lacks decision-making capacity.
No priority is given among default surrogates -- can lead to
issues if there is an indecision among family members.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Other Legal and Ethical
Dilemmas at the End-of-Life
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© Hall Render Killian Heath & Lyman,
PLLC, 2012
Medical Futility
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Futile for what goal?
 (as defined by patient /surrogate with physician)
Objective determination of ineffectiveness for goal
 Rather than subjective opinion of treatment worth
or patient’s continued life
 Consider a second opinion
Use of ethics consultation/committees
Transfer of Care option
© Hall Render Killian Heath & Lyman,
PLLC, 2012
“Right to Die”
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Medical technology has made it possible for
individuals to delay death indefinitely.
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The “right-to-die” movement is supported by
those who believe that delaying an inevitable
death through technological means is cruel,
undignified and even inhumane.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
“Right to Die” (Cont’d.)
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Cruzan v. Missouri Director of
Health (U.S. 1990)
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Supreme Court decision establishing that
competent patients have the constitutional right to
forego aggressive technological interventions.
Court also upheld Missouri statute requiring “clear
and convincing evidence” of individual’s desires to
withhold or withdraw life-sustaining treatment
when individual lacks capacity.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Physician-Assisted Suicide
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US Supreme Ct (1997) – no constitutional
right to assisted suicide. States free to
develop their own laws.
MI: felony for a person to assist an
individual in committing suicide.
However, MI law recognizes that the
withdrawal or withholding of medical
treatment is not considered “assisting in
suicide,” even if the effect of withdrawal is
death for the individual.
© Hall Render Killian Heath & Lyman,
PLLC, 2012
Questions?
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© Hall Render Killian Heath & Lyman,
PLLC, 2012