In Depth: Medical/Legal Issues (Advance Directives)

Consumer/Patient Complaints about Physicians

Texas law allows you to get information about your physician. The Texas State Board of Medical Examiners is required to create a public database of all physicians licensed in Texas. They gather data annually, including information about any disciplinary action against the physician in the prior 10 years, data on the final resolution taken by the board on medical malpractice claims (if they are otherwise open to the public), and information on any formal complaint against the physician on file with the board. The information can be valuable when you select a new physician. Access the Board’s Website.

Confidentiality: HIPAA and State Laws

The Health Insurance Portability and Accountability Act (HIPAA) has been on the books since 1996. However, the federal government only got around to issuing regulations in April 2003 as standards for enforcing the law.
HIPAA’s goal is to “provide patients with access to their medical records and more control over how their personal health information is used and disclosed.” HIPAA forbids your doctor from discussing your private medical information with an unauthorized person. The law automatically allows your Agent in a Medical Power of Attorney (or anyone else closely involved in your medical decision-making) to obtain your medical information – but restricts them by denying disclosure at any time that you (the patient) are still capable of making your own decisions.
Consider specifically authorizing disclosure to the agent of otherwise confidential medical information under HIPAA even while the patient has full capacity to make decisions. A standard Medical Power of Attorney, without modification, should be legally adequate to authorize disclosure of confidential medical information to the agent after the patient is incapacitated. My conservative advice is that your agent, a person you have chosen and you trust, should have access to medical information as soon as your agent desires that access. That way, your agent will not be relegated to the sidelines. Your agent can get into the game early, so all decisions can then be well informed and made without undue time pressure.
To give that authority to your Agent you must either 1) modify the standard Medical Power of Attorney with a new provision that grants access to medical information even if the other powers of your Agent have not yet been invoked, or 2) create a separate HIPAA authorization that grants that authority, but is not restricted to one doctor or to one event.

Texas Advance Directives Act

The Advance Directives Act was passed by the Texas Legislature and signed by the Governor on June 19, 1999. It took effect on September 1, 1999. It has been modified slightly since then in a few minor ways.

The Act replaced three prior laws, and in doing so coordinated and updated their provisions. They are the Texas Natural Death Act from 1977, the Texas Medical Power of Attorney Act from 1989, and the Out of Hospital Do-Not-Resuscitate Act from 1993.

(c) 2014 Paul Premack

Your medical choices will influence whether you are in the storm or in the sunshine. (c) 2014 Paul Premack (storm at sunset, Davis County, TX)

The Natural Death Act allowed a competent individual to direct his or her health care provider to withhold life sustaining procedures. It was stringent in its requirements, but since it predated the Medical Power of Attorney Act, the two laws had room for conflict.

The Advance Directives Act can still be broken down into three major parts, matching the laws that are replaced.

Institutional Policies

The Advance Directive Act includes a new requirement that any health care provider must develop and maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to provide or withhold in accordance with an advance directive.

The term “health care provider” is broadly defined to include any hospital, licensed nursing facilities, home and community support services agencies, personal care facilities and special care facilities. Note that this does not require your individual physician to develop a policy. Still, most physicians must accept institutional policies of the health care facilities in which they practice – so you can ask the facility to see its policy to learn its position.

You need not even ask. The Act requires the facility to provide you a written notice of its written policies either when you (1)  are admitted to receive services from the facility; or (2)  begin receiving care from the facility (whichever is sooner). If you are not competent at that time, the facility must give the notice to your representative, in the following order of preference:

(a)  your court appointed guardian;

(b) the person responsible for your health care decisions (under your Advance Directives);

(c) your spouse;

(d) one of your adult children;

(e) your parent (if you are so lucky); or

(f)  the person admitting you to the facility.

The facility must do a “diligent search” to locate the preferred representative. (The statute does not define “diligent,” but typically this means a search that is persistent, attentive and untiring.) If they still cannot locate a representative, the facility is not required to provide the notice. But if you recover your competence, they must then give you the notice.

Directives to Physicians, Family or Surrogate

The new Act recognizes that your doctor is not the only person who needs to receive your instructions. It therefore calls your written instructions a “Directive to Physicians, Family or Surrogate.”

The Act also makes it clear that not every person chooses to have a Directive. By law, your physician, health facility, health care provider, insurer, or health care service plan may not require you to sign an Advance Directive.

Definitions

“Artificial nutrition and hydration” means providing nutrients or fluids by a tube inserted in a vein, under the skin, or in the stomach.

“Competent” means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.

“Irreversible condition” means a condition, injury, or illness:

(A)  that may be treated but is never cured or eliminated;

(B)  that leaves a person unable to care for or make decisions for the person’s own self; and

(C)  that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.

“Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.

“Terminal condition” means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care. A patient who has been admitted to a hospice program is presumed to have a terminal condition.

Better than the Prior Law

The Advance Directives Act liberalizes the situations under which you can avoid artificial life support. Under it, life support can be withheld or withdrawn if you have a terminal condition that is expected to cause your death within six months. The old law required death to be “imminent” or due shortly. This allows you, as a patient, to avoid life support at an earlier date and gives you more control over the final months of life.

The Advance Directives Act also authorizes you to avoid artificial life support if you have an “irreversible condition” from which you are expected to die. There is no time limit imposed by the Advance Directives Act when your condition is irreversible. Theoretically, this could be used to remove life support from a comatose patient, even if life support could have maintained the vital signs for years.

The Directive also states (in a manner similar to the old law) that if your condition is terminal and death is imminent, it is your desire to not have artificial life support.

You are not legally required to throw away your old Directive. It is still valid after September 1, 1999. On the other hand, you old Directive will continue to follow the old law – you will not receive the benefits of the Advance Directives Act unless you sign a new, updated Directive.

Under the 1977 law and the 1999 law, the desire of a competent patient at the moment always supersedes a written directive.

It is important to note that the Advance Directives Act allows your “Directive to Physicians” to impose any conditions and restrictions that you may individually desire. While there is a special form defined in the law, there is no requirement that the form be used. However, at a minimum a Directive must be signed by you, must indicate your city, county and state of residence, and must be witnessed as the law requires.

The 1977 law was extremely particular when it came to witnesses. It required two witnesses, and both had to not be related to Declarant by blood or marriage, not be entitled to any inheritance from Declarant, not be the attending physician or his/her employee, not be an employee of a health care facility in which the Declarant is a patient if the employee is providing direct patient care to the Declarant or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility, and not be a person who has a claim against the estate. That’s a high standard!

The 1999 law has lower the standard somewhat. Now, one witness must not be a person designated to make a treatment decision for the patient, not be related to the patient by blood or marriage, not be entitled to any part of the estate, not be the attending physician or an employee of the attending physician, not be an employee of a health care facility in which the patient is being cared for if the employee is involved in providing direct patient care to the Declarant or is an officer, director, partner, or business office employee of a health care facility or of any parent organization of the health care facility, and not be a person who has a claim against the estate. Yes, that was the same list of requirements, but it applies now to only one of the witnesses.

The second witness must simply be a competent adult. Thus, the second witness can be a relative, an heir, a doctor or health care provider, etc… This will no doubt make it much easier to sign a Directive under many circumstances.

A Directive does not need to be notarized to be legally effective.

Even if your Directive is properly witnessed, it cannot require any thing forbidden by law. For instance, the law requires that a Directive be suspended if the patient is pregnant. You cannot override this by saying differently in your directive. The law requires that your physician certify in writing that your condition is either terminal or irreversible. You cannot set a lower standard, by for instance, stating that you want life support withdrawn if your condition is simply “serious.”

The old “living will” forms (which are still too easily found) are thus unacceptable under the Advance Directives Act. “Living wills” are not witnessed properly, and ask for life support to be withheld if there is “no reasonable chance of recovery.” Please avoid “living will” forms.

Cruzan v. Director, Missouri Department of Health

Nancy Cruzan was injured in a 1983 auto accident; when found, she had no respiration or heartbeat, but they were restored. She was intubated with the family’s permission. She did not have a Directive to Physicians or living will, or any evidence of her wishes to be removed from life support that satisfied the requirements of state law.

Her parents eventually asked the local probate court for authority to remove the tubes, and permission was granted. Missouri appealed the decision, claiming a “state interest” in preserving her life. The Missouri Supreme Court refused to remove the tubes.

The U.S. Supreme Court heard argument in December 1989. Their decision (5-4) was issued in June, 1990.

The Court has adopted the government’s position that the state has an interest in preserving life, but that a citizen is protected by the “due process” requirements. The Court states that we have a “liberty right” to refuse medical treatment, but that to exercise this liberty right, we must use the proper procedures. Without the proper procedures, the State’s right to preserve life takes precedence.

The Cruzan decision has underscored the fact that a Texas Directive to Physicians is a valid and enforceable method for refusing artificial life support. It also underscored the fact that the only way to refuse such life support is by adhering to the standards established by state law; this means that “living wills” are not usable in Texas or any state where they are not supported by state statute.

Non-written Directive

The directive may be made either in writing or orally. To be made orally, it must be spoken in the presence of the attending physician and two witnesses (just like a written Directive) and must be recorded as part of the Declarant’s medical records. The 1999 Advance Directives Act no longer requires the two witnesses to sign the medical records, but their names must be placed into the records.

Oral directives are not recommended. The process is unreliable, and should be used only in the most dire of circumstances.

Agent to Decide

You can make a Directive to Physicians that names an Agent to decide whether life support should be withheld or not. This person should be the same individual you select as Agent in your Medical Power of Attorney (thus avoiding any confusion or conflict between the two documents.) If you name an agent, then the agent can decide on your behalf if you have become incompetent.

The typical Directive does not name an Agent. It simply states your instructions: “do not put me on life support.”

Never Made a Directive?

If a patient has not made a directive and is incompetent or otherwise mentally or physically incapable of communication:

the attending physician and legal guardian or Agent under a Medical Power of Attorney may make a treatment decision to withhold or withdraw life sustaining procedures.

This is a huge expansion of the powers given to an Agent under a Medical Power of Attorney. Under the 1977 law, only a court appointed guardian could authorize removal of life support systems. Even if you had appointed an Agent in an old “Medical Power of Attorney,” the Agent could not approve removal of life support. The 1999 Advance Directives Act, by consolidating these statutes, allows them to interact much more reliably. As such, anyone who fails to sign a Directive, but who does sign a Medical Power of Attorney, has full benefit under the 1999 law.

If there is no legal guardian and no Agent under a Medical Power of Attorney then the doctor and one person from the following list may decide to withhold treatment. The list, in order of priority, is: 1) the patient’s spouse, 2) the patient’s reasonably available adult children, 3) the patient’s parents, and 4) the patient’s nearest living relative.

A treatment decision made under this provision must be documented in the patient’s medical record and signed by the attending physician. Further, if the patient does not have a legal guardian or Agent, and a person above is not available, a treatment decision must be concurred in by another physician who is not involved in the treatment of the patient, or who represents the facility’s ethics committee. This means that two doctors can withhold life support if no family or guardian is available.

The 1999 Act is a subtle yet meaningful improvement over the 1977 law in this area. The 1977 law did not, for instance, recognize the Agent appointed in a Medical Power of Attorney. The 1977 law also required that two family members be located – which opened the door for a family argument over life support. And the 1977 law provided no dispute resolution process.

The 1999 Advance Directives Act requires any relative who desires to challenge a decision to withhold life support to file for temporary guardianship in the local probate court. This takes advantage of a long-standing and well understood legal process instead of inventing something new.

Revocation

A Directive can be revoked at any time. It does not matter what the patient’s mental state or competence is. Revocation can be accomplished by:

  • Canceling, defacing, obliterating, burning, tearing, or otherwise destroying the written declaration (which may be done by the Declarant or by a person in the Declarant’s presence and by the Declarant’s directions). It is a Class A misdemeanor to conceal or damage the directive of another person without the Declarant’s consent.
  • Stating in a writing signed by the Declarant, or in an oral statement from the Declarant that the declaration is revoked. An oral or written revocation is effective only if the physician is notified personally or by mail. The Physician must record the time and day when he received the written or oral revocation and must write the word “void” on each page of the directive in the medical records.

If the caregiver knows the directive has been revoked, the caregiver is liable under civil or criminal law for withdrawing support anyway. If there is a directive but the caregiver doesn’t know it exists, the caregiver is not liable under civil or criminal law for failure to withhold care. If anyone falsifies or forges a directive for another person and care is subsequently withdrawn from that person, who dies, the forger may be prosecuted for criminal homicide.

Compliance/Liability

The physician must comply with the Directive unless “the physician believes that the Directive does not reflect the present desire of the patient”.

When the Act is followed, the physician or health care facility which causes the withholding or withdrawal of all life sustaining procedures is not subject to civil liability unless he/she/it is negligent.

No health professional, including nurses, who act under the directions of a physician are subject to civil liability unless they are negligent.

The physician or other health care professional is not guilty of any criminal act or unprofessional conduct by following the law, unless he or she acted negligently.

Noncompliance/Liability

If a physician, health care facility, or health care professional has no knowledge of a Directive, there is no civilly or criminally liable for failing to act in accordance with the directive.

If a physician, or a health professional acting under the direction of a physician, is aware of a Directive, and refuses to comply with its terms, that professional is subject to review and disciplinary action by the appropriate licensing board unless the review process below is used. If the professional refuses to use the review process, he/she may temporarily provide life-sustaining treatment until a reasonable opportunity has been afforded for transfer of the patient to another physician or health care facility willing to comply with the Directive. The professional may also be subject to suit for malpractice.

Review Procedure:

The physician’s refusal to disconnect life support shall be reviewed by an ethics or medical committee. (The physician may not be a member of that committee.) The patient continues to receive life-sustaining treatment during the review. Hospice programs are excluded from this process.

The patient (if competent) or his Agent must be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient’s Directive (unless the time period is waived by mutual agreement). There will be strong motivation to waive this 48 hour delay, in hopes of “getting on with it.” Further, the patient or his Agent is entitled to attend the meeting and  receive a written explanation of the decision reached during the review process.

If any party — the attending physician, the patient, or patient’s Agent disagrees with the decision reached, the physician must make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive.

If the patient is requesting life-sustaining treatment that the attending physician and the review process have decided is inappropriate treatment, the patient shall be given available life-sustaining treatment for no more than 10 days pending transfer. The patient is responsible for any costs of transfer. The 10 days can be extended by order of the appropriate district or county court – but only if the court finds that there is strong evidence a suitable facility can be found during the time extension.

Not Suicide

Allowing a person to die naturally under the Advance Directives Act is not the same as allowing a suicide. The law does not allow or condone any affirmative or deliberate act to end a life. Its focus is on permitting the natural process of dying.

Medical Power of Attorney

In a Medical Power of Attorney, the PRINCIPAL appoints an AGENT to make health care decisions. Under Texas Law, the Agent may be anyone except:

  • The principal’s “Health Care Provider” or his employee UNLESS that provider happens to be the principal’s relative, or
  • The principal’s “Residential Care Provider” or his employee UNLESS that provider happens to be the principal’s relative..

The principal must make the document in writing, before two witnesses or a notary. Since the 1999 Act has coordinated the prior laws, the witnessing requirements are identical to those set out above for a Directive to Physicians. Under prior law, the requirements were almost alike, but had minor variations.

Old law require that before the principal signs, the witnesses had to examine the principal’s state of mind, and to hear the principal declare that he knows what he is doing. Under the 1999 Act, it is enough that the principal and witnesses are all competent adults (and that one witness be independent as required by law).

The written power of attorney must be delivered to the Agent before it can be used. However, there is no requirement that the original be used, and in fact a photocopy is often accepted for all purposes.

A lengthy disclosure form must be read and signed by the principal before the principal signs the power of attorney. The 1999 Act gives an exact quote of the disclosure statement, and also provides a form for the Medical Power of Attorney. Interestingly, neither the disclosure statement nor the form follow the law’s requirement that the disclosure statement be signed. This is problematic, because the law says the form’s wording must be used without substantial changes. If changing the form to include a second signature is a “substantial change,” then the Power of Attorney will be invalid. If not changing the form omits the required second signature, then the Power of Attorney will be invalid, too. The only hope is to interpret adding the second signature as an “insubstantial change.”

By the way, if the principal is physically unable to sign, someone may sign for the principal at the principal’s direction and in the principal’s presence.

Decisions

The agent can make any medical decision the principal could make himself, but ONLY IF the Doctor certifies in writing that the principal is not competent.

When making a decision, the Agent must do what he thinks the principal would have wanted, including consideration of the principal’s religious leanings. If unknown, the agent can decide based on the principal’s best interest.

Even though the principal may be incompetent, the Doctor has to make a reasonable effort to inform the principal of the health care decision, and the principal can veto the decision. The principal’s agent cannot place the principal into an inpatient mental health facility, cannot authorize convulsive or psycho-surgical treatment, cannot authorize abortion, and cannot withhold comfort care. The term “comfort care” was, under former law, undefined. However, the 1999 Act makes it clear that “comfort care” is pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain. Further, pain management is not, by definition, a “life sustaining treatment. As such, the requirement that the agent grant comfort care is not equivalent to a requirement that the agent provide artificial life support. And since artificial life support includes artificial feeding and hydration, comfort care does not include artificial feeding and hydration.

If a Guardian is appointed later, the Guardian takes over unless the Judge says otherwise. The principal can tell the Judge what the principal wants (in the Power of Attorney) and the principal’s wishes will be given great weight.

In a conflict between the principal’s Directive to Physicians and power of attorney, the one signed later in time has priority. It is undetermined whether the principal’s power of attorney can act like a “living will” to allow termination of life support even though the principal does not have a terminal condition. It might; the law, however, is contradictory and the safest course is to continue to rely on Directive to Physicians for termination of artificial life support.

The principal’s health care provider must follow the instructions of the principal’s Agent, unless they feel the instructions are contrary to the principal’s wishes, the law, or the power of attorney’s limiting statement. The providers are not liable (criminal or civil) for the result of a decision of the principal’s Agent, nor is the principal’s Agent liable if all decisions where undertaken in good faith.

DNR

Do Not Resuscitate Orders are used in hospital systems. They are more limited in scope than Directive to Physicians — good for 24-48 hours as a physician’s order. Must have patient’s or representative’s consent first. If DNR is in medical file and emergency event occurs (like Cardiac Arrest) the staff will not “resuscitate”. “Don’t bring me back” vs. “Don’t keep me here”.

Texas Out-of-Hospital DNR Law

Texas is following the lead of several other states in adopting the Out-of-Hospital DNR statute. It took effect in Texas on June 16, 1995, and was replaced by the Advance Directives Act on September 1, 1999. The new law made very few modifications to the DNR law, but the two main changes are significant:

1. The new law allows anyone to request an out of hospital DNR order from the physician. Formerly, only persons already diagnosed as having a terminal condition were allowed to make such a request.

2. The new law liberalizes the document requirements. Now, a photocopy of the signed DNR order is adequate when ambulance or emergency personnel arrive at the scene. Formerly, the original signed document had to be present.

The DNR law allows any patient to sign a form binding the medical providers to DNR status. If the patient cannot sign the form, his/her representative can sign — the agent under the Medical Power of Attorney, a Guardian or a qualified family member .

The Out-of-Hospital DNR authorizes the caregiver “not to initiate or continue” the following treatments:

  • cardiopulmonary resuscitation;
  • endotracheal intubation or other means of advanced airway management;
  • artificial ventilation;
  • defibrillation;
  • transcutaneous cardiac pacing;
  • the administration of cardiac resuscitation medications; and
  • other life-sustaining procedures specified by the board under Section 674.023(a).

The statute does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort or care or to alleviate pain or to provide water or nutrition. However, the patient’s representative can (under a valid Medical Power of Attorney) give instructions to withhold artificial nutrition and hydration.

If you have signed a Directive to Physicians, the law presumes that you want a DNR if you are incompetent and cannot express your own preference at that time. The doctor signs for the patient in this case.

If the patient is awake, aware and competent, then a non-written DNR can be issued. The statement must be made in the presence of the doctor and two qualified witnesses. The doctor and witnesses must sign the DNR form for the patient.

Non-Adult

For a minor, an Out-of-Hospital DNR can be authorized by the parents, the legal guardian or the managing conservator (a court appointed individual when the parents are divorced).

The verbal wishes of the patient, if competent, always supersede the written DNR. This applies even when the patient is a minor.

Also, if the patient is unable to communicate, then the attending physician, legal guardian, qualified relative, or agent of the person having a durable power of attorney for health care can authorize resuscitation.

ID Device

The Board of Health is selling DNR Identification Devices, i.e., bracelets and necklaces. By law, the device is adequate to withhold resuscitation, even if the DNR paperwork is not present.

When/if EMS is called to the scene, they can withhold resuscitation when a DNR is presented. However, EMS must:

verify the identity of the patient. As such, the caregiver should have some type of photo ID for the patient ready to show; and

verify that the paperwork is correct. It must be signed, dated, and all the blanks must be completed. If the paperwork is not correct, the technician EMS can ignore the DNR at that time.

Liability

A caregiver who complies with a DNR cannot be held civilly liable for that action. No lawsuit should result. Further, there is no criminal liability, there is no “unprofessional conduct,” and there is no violation of any licensing requirements.

A caregiver who refuses to comply with a DNR (or who does not know about its existence) is not liable under the civil or criminal laws. However, the patient’s representative must be informed, and the caregiver must allow a different caregiver to take over.

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