Planning Ahead for Planning Ahead for Incapacity:Incapacity:

Health Care Decision-makingHealth Care Decision-making

Charles P. SabatinoCharles P. SabatinoCommission on Law and AgingCommission on Law and Aging

American Bar AssociationAmerican Bar AssociationDecember 2008December 2008

These slides are available at:These slides are available at:

http://www.abanet.org/aging/cle/home.shtmlhttp://www.abanet.org/aging/cle/home.shtml

I.I. Legal Background Legal Background A. IntroductionA. IntroductionB. Sources of the Right to Consent to or RefuseB. Sources of the Right to Consent to or Refuse Medical Treatment Medical Treatment C. Limits On The Right To Refuse Treatment? C. Limits On The Right To Refuse Treatment? D. Is There A Right To Demand Particular D. Is There A Right To Demand Particular Treatments? Treatments? E. Informed Consent.E. Informed Consent.F. Determining CapacityF. Determining CapacityG. Decision-making StandardsG. Decision-making StandardsH. Advance Directive LegislationH. Advance Directive Legislation

P. 1-22P. 1-22

Key HCDM CasesKey HCDM CasesSupreme CourtSupreme Court

Cruzan v. Director, Mo. Dept. of HealthCruzan v. Director, Mo. Dept. of Health (1990)(1990) • Recognized Liberty Interest in refusing med Recognized Liberty Interest in refusing med treatmenttreatment• Nutrition & Hydration not different from any otherNutrition & Hydration not different from any other treatmenttreatment• Considerable leeway allowed for procedural Considerable leeway allowed for procedural safeguards, safeguards, e.g., MO’s “clear & convincing” standard.e.g., MO’s “clear & convincing” standard.

Washington v. Gluksberg & Vacco v. Quill Washington v. Gluksberg & Vacco v. Quill (1997)(1997)• No constitutional right to assistance in committing No constitutional right to assistance in committing suicide.suicide.

P. 11P. 11

P. 5-7P. 5-7

Key HCDM CasesKey HCDM CasesDistrict of ColumbiaDistrict of Columbia

In re A.C.,In re A.C., 573 A.2d 1235, 1249 (D.C. 573 A.2d 1235, 1249 (D.C. 1990)1990) In exercising substituted judgment, court In exercising substituted judgment, court must:must:

• Determine as best it can what choice Determine as best it can what choice that individual, if competent, would make that individual, if competent, would make with respect to medical procedures.with respect to medical procedures.

• Consider totality of evidence, taking Consider totality of evidence, taking into account patient's past decisions re into account patient's past decisions re medical treatment and evidence medical treatment and evidence concerning patient's value systems, goals concerning patient's value systems, goals and desiresand desires

• Give greatest weight to previously Give greatest weight to previously expressed wishes.expressed wishes.

Citation on P. 7Citation on P. 7

Substitute Consent in D.C. Substitute Consent in D.C. Health Care Decisions ActHealth Care Decisions Act

D.C. Code § 21-2210 D.C. Code § 21-2210 (b) A decision to grant, refuse or (b) A decision to grant, refuse or withdraw consent made pursuant to withdraw consent made pursuant to subsection (a) of this section shall be based subsection (a) of this section shall be based on the on the known wishesknown wishes of the patient or, if the of the patient or, if the wishes of the patient are unknown and wishes of the patient are unknown and cannot be ascertained, on a good faith belief cannot be ascertained, on a good faith belief as to the as to the best interestsbest interests of the patient. of the patient.

App 2, DC 8App 2, DC 8

Substitute Consent in Substitute Consent in

Md. Health Care Decisions Md. Health Care Decisions ActAct App 2, MD 11App 2, MD 11§ 5-605(c)§ 5-605(c)

(2) In determining the wishes of the patient, a surrogate shall consider the (2) In determining the wishes of the patient, a surrogate shall consider the patient's:patient's:

(i) Current (i) Current diagnosis and prognosisdiagnosis and prognosis with and without the treatment at with and without the treatment at issue;issue;

(ii) (ii) Expressed preferencesExpressed preferences regarding the provision of, or the regarding the provision of, or the withholding or withdrawal of, the specific treatment at issue or of withholding or withdrawal of, the specific treatment at issue or of similar treatments;similar treatments;

(iii) Relevant religious and moral (iii) Relevant religious and moral beliefsbeliefs and personal and personal valuesvalues;;

(iv) (iv) Behavior, attitudes, and past conductBehavior, attitudes, and past conduct with respect to the with respect to the treatment at issue and medical treatment generally;treatment at issue and medical treatment generally;

(v) (v) ReactionsReactions to the provision of, or the withholding or withdrawal of, to the provision of, or the withholding or withdrawal of, a similar treatment for another individual; anda similar treatment for another individual; and

(vi) Expressed concerns about the (vi) Expressed concerns about the effect on the familyeffect on the family or intimate or intimate friends of the patient if a treatment were provided, withheld, or friends of the patient if a treatment were provided, withheld, or withdrawn.withdrawn.

Substitute Consent in Substitute Consent in

Va. Health Care Decisions Va. Health Care Decisions ActAct

App 2, VA 5App 2, VA 5§ 54.1-2986§ 54.1-2986

Any person authorized to consent to the providing, Any person authorized to consent to the providing, withholding or withdrawing of treatment … shall (i) prior to withholding or withdrawing of treatment … shall (i) prior to giving consent, make a good faith effort to ascertain the giving consent, make a good faith effort to ascertain the risks and benefits of and alternatives to the treatment and risks and benefits of and alternatives to the treatment and the religious beliefs and basic values of the patient receiving the religious beliefs and basic values of the patient receiving treatment, and … (ii) base his decision on the patient's treatment, and … (ii) base his decision on the patient's religious beliefs and basic valuesreligious beliefs and basic values and any and any preferences preferences previously expressedpreviously expressed by the patient regarding such by the patient regarding such treatment to the extent they are known, and if unknown or treatment to the extent they are known, and if unknown or unclear, on the patient's unclear, on the patient's best interestsbest interests..

Federal Law:Federal Law:

PSDA PSDA (1990): Hospitals, NHs, HHAs and HMOs in (1990): Hospitals, NHs, HHAs and HMOs in Medicare or Medicaid must:Medicare or Medicaid must:

1. Give 1. Give allall adults at admission written info about: adults at admission written info about:(1) patient hcdm rights, and (2) their policies re hcdm.(1) patient hcdm rights, and (2) their policies re hcdm.

2.2. Ask you if you have AD and document.Ask you if you have AD and document.

3. Educate staff & community on ADs.3. Educate staff & community on ADs.

4. Prohibition: Can't discriminate based on ADs.4. Prohibition: Can't discriminate based on ADs. Military AD (10 U.S.C.A. § 1044c) is “exempt from any

requirement of form, substance, formality, or recording that is provided for advance medical directives under the laws of a State”

P. 9-10P. 9-10

DC-MD-VA ComparisonDC-MD-VA ComparisonChart in Chart in Appendix 1Appendix 1

A.-E. Key Statutes for DC/MD/VAA.-E. Key Statutes for DC/MD/VA

A. Advance Directive LawA. Advance Directive Law• Living WillLiving Will:: D.C. Code Ann. §§ 7-621 to -630; D.C. Code Ann. §§ 7-621 to -630;• Durable Power of Attorney for Health Durable Power of Attorney for Health

Care:Care: D.C. Code §§ 21‑2201 to ‑2213D.C. Code §§ 21‑2201 to ‑2213

B. Default Surrogate provisionB. Default Surrogate provisionD.C. Code § 21‑2210D.C. Code § 21‑2210

C. Mental Health Adv. Directive Law: C. Mental Health Adv. Directive Law: NoneNone

D. EMS-DNR LawD. EMS-DNR LawD.C. Code §7-651.01 to §7-651.17, enacted 2001D.C. Code §7-651.01 to §7-651.17, enacted 2001

EMS protocol (App. 3) – Problems with implementation!EMS protocol (App. 3) – Problems with implementation!

E.E. Anatomical Gifts: Anatomical Gifts: D.C. Code D.C. Code § § 7-15201.01 to .117-15201.01 to .11

Key StatutesKey StatutesDistrict of ColumbiaDistrict of Columbia

App 1, p. 1App 1, p. 1

A. Advance Directive Law A. Advance Directive Law Declaration or Advance Directive:Declaration or Advance Directive:Md. Health‑Gen. Code §§ 5‑60l to ‑626Md. Health‑Gen. Code §§ 5‑60l to ‑626

B. Default Surrogate provisionB. Default Surrogate provision Md.Health - Gen. Code § 5‑605Md.Health - Gen. Code § 5‑605

C. Mental Health Adv. Directive Law: C. Mental Health Adv. Directive Law: Md. Health-Gen. Code Md. Health-Gen. Code § § 5-602.1 (enacted 2001)5-602.1 (enacted 2001)

D. EMS-DNR LawD. EMS-DNR Law Md. Health-General Code §§5-601, 5-608, 5-617Md. Health-General Code §§5-601, 5-608, 5-617D-1 POLST: “D-1 POLST: “Instructions on Current Life-SustainingInstructions on Current Life-SustainingTreatment Options” (formerly Pt. Plan of Care).Treatment Options” (formerly Pt. Plan of Care).

E. Anatomical Gifts:E. Anatomical Gifts: Est. & Est. & Trusts Code § 4-501 to 4-Trusts Code § 4-501 to 4-

512512

Key StatutesKey StatutesMarylandMaryland

App 1, p. 1App 1, p. 1

A. Advance Directive LawA. Advance Directive Law Va. Code Ann. §§ 54.1‑2981 to –2993 Va. Code Ann. §§ 54.1‑2981 to –2993

B. Default Surrogate provisionB. Default Surrogate provision Va. Code Ann. § 54.1‑2986 Va. Code Ann. § 54.1‑2986

C. Mental Health Adv. Directive Law:C. Mental Health Adv. Directive Law: None None

D. EMS-DNR LawD. EMS-DNR Law Va. Code Ann. §§54.1‑2987.1, -2988, -2989, and Va. Code Ann. §§54.1‑2987.1, -2988, -2989, and ––2982. 2982. Regs: 12VAC5-65-10 to –110Regs: 12VAC5-65-10 to –110

E.E. Anatomical gifts:Anatomical gifts: Va. Code §§32.1-289 to 297.1 Va. Code §§32.1-289 to 297.1

Key StatutesKey StatutesVirginiaVirginia

App 1, p. 1App 1, p. 1

DC-MD-VA ComparisonDC-MD-VA ComparisonChart in Chart in Appendix 1Appendix 1

F.F. Required FormalitiesRequired Formalities

G. G. Oral DirectivesOral Directives

H. H. Prohibited AgentsProhibited Agents

I. I. Limits on Agent’s PowerLimits on Agent’s Power

J. J. Post-Mortem Authority of Post-Mortem Authority of PrincipalPrincipal

K. K. Determination of IncapacityDetermination of Incapacity

DC-MD-VA ComparisonDC-MD-VA ComparisonChart in Chart in Appendix 1Appendix 1

L.L. Medical PreconditionsMedical Preconditions

M. M. Default Surrogate ConsentDefault Surrogate Consent

N.N. Restrictions on Default Surrogate’s Restrictions on Default Surrogate’s

AuthorityAuthority

O.O. Dispute Resolution among Dispute Resolution among SurrogatesSurrogates

P.P. Standard for Surrogate D-MStandard for Surrogate D-M

Q.Q. Authority of Agent vs. GuardianAuthority of Agent vs. Guardian

DC-MD-VA ComparisonDC-MD-VA Comparison Chart in Chart in Appendix 1Appendix 1

R. Non-complianceR. Non-compliance• DC (7-627(b) re Declaration)DC (7-627(b) re Declaration) Must Must

“effect transfer…to another physician who “effect transfer…to another physician who will honor the declaration….” Failure to do will honor the declaration….” Failure to do so constitutes unprofessional conduct.so constitutes unprofessional conduct.

• MD (5-613)MD (5-613) Must inform person and Must inform person and “make every reasonable effort to transfer “make every reasonable effort to transfer the patient….”the patient….”

• VA (54.1-2987)VA (54.1-2987) Must “make a reasonable Must “make a reasonable effort to transfer the patient….”effort to transfer the patient….”

DC-MD-VA ComparisonDC-MD-VA Comparison Chart in Chart in Appendix 1Appendix 1

S. Official Advance Directive RegistryS. Official Advance Directive Registry• DCDC –None –None• MdMd. Health‑Gen. Code Ann. . Health‑Gen. Code Ann.

§§5-619 to 5-626 (enacted in 2006) §§5-619 to 5-626 (enacted in 2006) • Va.Va. Code Ann. § 54.1-2994 (enacted in 2008) Code Ann. § 54.1-2994 (enacted in 2008)

Regulations pending.Regulations pending.

II. Why ADs Have Not II. Why ADs Have Not Worked as Well as Worked as Well as

HopedHopedA great idea but:A great idea but:

• Most people don’t do. Most people don’t do. • When they do, a standard form doesn’t provide When they do, a standard form doesn’t provide

much guidance. much guidance. • When they name an agent, they seldom explain When they name an agent, they seldom explain

their wishes to agent.their wishes to agent.• Even if they do, health care providers usually Even if they do, health care providers usually

don’t know about the directive. don’t know about the directive. • Even if providers know directive exists, it isn’t Even if providers know directive exists, it isn’t

in medical record.in medical record.• Even if in the record, it isn’t consulted.Even if in the record, it isn’t consulted.

P. 22P. 22

What ADs What ADs Can’tCan’t Do Do

1.1. Can’t provide cookbook directions.Can’t provide cookbook directions.2.2. Can’t change fact that dying is Can’t change fact that dying is

complicated.complicated.3.3. Can’t eliminate personal ambivalence.Can’t eliminate personal ambivalence.4.4. Can’t be a substitute for Discussion.Can’t be a substitute for Discussion.5.5. Can’t control health care providers.Can’t control health care providers.

P. 23-24P. 23-24

What ADs What ADs CanCan Do Do1.1. CAN be an important part of a CAN be an important part of a

developmental process of advance developmental process of advance planningplanning – Especially with respect to appointing/informing a Especially with respect to appointing/informing a

health care agent.health care agent.

2. CAN help you stop and think and DISCUSS2. CAN help you stop and think and DISCUSS. . – Discussion doesn’t need to be about specific medical Discussion doesn’t need to be about specific medical

decisions, but rather about VALUES & PRIORITIES: decisions, but rather about VALUES & PRIORITIES: What’s important to you in living? What conditions of What’s important to you in living? What conditions of living may outweigh the value of continued life?living may outweigh the value of continued life?

3. CAN empower and give DIRECTION if 3. CAN empower and give DIRECTION if reflective of the patient’s voicereflective of the patient’s voice. . – Specific instructions are relevant to foreseeable Specific instructions are relevant to foreseeable

decisions – as in a care plan, but need not be in AD.decisions – as in a care plan, but need not be in AD.

P. 24P. 24

III. More Effective Advance III. More Effective Advance PlanningPlanning

1. Emphasize the process, not the transaction.1. Emphasize the process, not the transaction.2. Understand your client’s perceptions and 2. Understand your client’s perceptions and

fearsfears3. Understand your role as Lawyer.3. Understand your role as Lawyer.4. Engage your client. Offer a workbook 4. Engage your client. Offer a workbook

approach, e.g., see approach, e.g., see Lawyer’s (& Consumer’s) Lawyer’s (& Consumer’s) Tool Kit for Health Care Advance PlanningTool Kit for Health Care Advance Planning (www.abanet.org/aging)(www.abanet.org/aging)

5. Give priority to appointment of Proxy.5. Give priority to appointment of Proxy.6. Stress periodic review of one’s wishes.6. Stress periodic review of one’s wishes.7. Have you done your own advance planning?

P. 24-25P. 24-25

Drafting IssuesDrafting Issues

1.1. Statutory Differences DC/MD/VAStatutory Differences DC/MD/VASee Chart in APPENDIX 1See Chart in APPENDIX 1

2.2. Selecting an AgentSelecting an Agent• Who’s prohibited?Who’s prohibited?

• DC - HC provider (person or organization)DC - HC provider (person or organization)• MD - Owner, operator or employee of a HC facility MD - Owner, operator or employee of a HC facility

providing care to X, unless family or close friendproviding care to X, unless family or close friend• VA – None specifiedVA – None specified

• Criteria – Criteria – Tool KitTool Kit for Advance Health Care Planningfor Advance Health Care Planning• Co-Agents?Co-Agents?• What is your duty to consultation/education? What is your duty to consultation/education?

See See Making Medical Decisions for Someone Else: A Making Medical Decisions for Someone Else: A Maryland HandbookMaryland Handbook and and Tool KitTool Kit

P. 26P. 26

App 1. HApp 1. H

1.1. Meets the legal criteria in your state for acting as agent or Meets the legal criteria in your state for acting as agent or proxy or representative? proxy or representative?

2.2. Would be willing to speak on your behalf.Would be willing to speak on your behalf.3.3. Would be able to act on your wishes and separate his/her Would be able to act on your wishes and separate his/her

own feelings from yours.own feelings from yours.4.4. Lives close by or could travel to be at your side if needed.Lives close by or could travel to be at your side if needed.5.5. Knows you well and understands what’s important to you.Knows you well and understands what’s important to you.6.6. Could handle the responsibility.Could handle the responsibility.7.7. Will talk with you now about sensitive issues and will listen to Will talk with you now about sensitive issues and will listen to

your wishes.your wishes.8.8. Will likely be available long into the future.Will likely be available long into the future.9.9. Would be able to handle conflicting opinions between family Would be able to handle conflicting opinions between family

members, friends, and medical personnel.members, friends, and medical personnel.10.10. Can be a strong advocate in the face of an unresponsive Can be a strong advocate in the face of an unresponsive

doctor or institution.doctor or institution.

The ideal health care proxy…The ideal health care proxy…Text from Text from Tool Tool KitKit

Drafting IssuesDrafting Issues

3. Agent’s Scope of 3. Agent’s Scope of Authority/DiscretionAuthority/Discretion• Be aware of statutory limits & post Be aware of statutory limits & post

mortem authority (VA)mortem authority (VA)• Be explicitBe explicit• Maximum discretion? Do you want Maximum discretion? Do you want

agent to be able to override written agent to be able to override written instructions, if any?instructions, if any?

P. 26-27P. 26-27

Drafting IssuesDrafting Issues

Often overlooked– Authority to . . .Often overlooked– Authority to . . .• Make anatomical gifts, autopsy, disposition of Make anatomical gifts, autopsy, disposition of

remainsremains• Contract for, hire, fire health care & support Contract for, hire, fire health care & support

personnel personnel • Direct care even if Pregnancy -- Direct care even if Pregnancy -- DC/MD/VA permissiveDC/MD/VA permissive• Change domicile. Change domicile. • Execute releases & waivers (the “carrot”)Execute releases & waivers (the “carrot”)• Institute legal action (the “stick”).Institute legal action (the “stick”).• Consent to Consent to experimental treatment experimental treatment • Delegate d-m during absence Delegate d-m during absence • Care for petsCare for pets• Determine Visitation (especially important in Determine Visitation (especially important in

Virginia)Virginia)• Make mental health decisions Make mental health decisions (MD; be aware of (MD; be aware of § §

5‑602.1)5‑602.1)

P. 27-28P. 27-28

Drafting IssuesDrafting Issues

4. Effective Date: 4. Effective Date: immediate or springing?immediate or springing?• DC & MD – either. VA - springingDC & MD – either. VA - springing

5. Determining D-M Capacity5. Determining D-M Capacity• DCDC -- 2 physicians, one must be psychiatrist -- 2 physicians, one must be psychiatrist

One must examine w/in 1 day preceding cert. One must examine w/in 1 day preceding cert. • MD MD – 2 physicians – 2 physicians unless otherwise specifiedunless otherwise specified

One must examine w/in 1 day preceding cert.One must examine w/in 1 day preceding cert.

If can’t communicate or unconscious, only 1 If can’t communicate or unconscious, only 1 required.required.

PVS confirmed by a neurologist, neurosurgeon, or PVS confirmed by a neurologist, neurosurgeon, or otherother

physician w/ expertise in cognitive functioning.physician w/ expertise in cognitive functioning. • VAVA - 1 physician + either 2nd physician or licensed - 1 physician + either 2nd physician or licensed

clinicalclinical

psychologist after personal examination.psychologist after personal examination.

Recert. required every 180 days. Recert. required every 180 days.

P. 28P. 28

P. 28 + App 1. KP. 28 + App 1. K

Drafting IssuesDrafting Issues

6. Specific Instructions: 6. Specific Instructions: pros & conspros & consIf you do include specific instructions…If you do include specific instructions…•People change their minds.People change their minds.•Recent medical history is importantRecent medical history is important•Focus on quality of life. What does that Focus on quality of life. What does that

mean? Benefits & burdens are subjective.mean? Benefits & burdens are subjective.•Never say neverNever say never•Consider “values history”Consider “values history”•What’s a benefit? What’s a burden?What’s a benefit? What’s a burden?•A secondary illnesses can complicate A secondary illnesses can complicate

mattersmatters

P. 28-29P. 28-29

..

..

Drafting IssuesDrafting Issues

Other instructions:Other instructions:• Anatomical Gifts (Agent can make in VA)Anatomical Gifts (Agent can make in VA)• Pain ControlPain Control• Engage principal to greatest extent possibleEngage principal to greatest extent possible• Nominate GuardianNominate Guardian• Perhaps designate primary physicianPerhaps designate primary physician• Eliminate unwanted surrogates Eliminate unwanted surrogates

(troublemakers)(troublemakers)• Carrots and sticksCarrots and sticks• PregnancyPregnancy• PetsPets• Personal/environmental/emotional. Personal/environmental/emotional.

See See Five WishesFive Wishes at at www.agingwithdignity.orgwww.agingwithdignity.org

P. 30-31P. 30-31

www.agingwithdignity.orgwww.agingwithdignity.org

Drafting IssuesDrafting Issues

Post-execution LogisticsPost-execution Logistics• An invisible AD =An invisible AD = no AD no AD• Still haven’t talked to physician?Still haven’t talked to physician?• Wallet cardWallet card• AD registriesAD registries

– Maryland S.B. 236, enacted 2006Maryland S.B. 236, enacted 2006– Va. Code § 54.1-2994, enacted 2008Va. Code § 54.1-2994, enacted 2008– USLivingWillRegistry.comUSLivingWillRegistry.com– Docubank.comDocubank.com– Full Circle Registry: protectedlivingwill.comFull Circle Registry: protectedlivingwill.com– NationalLivingWills.comNationalLivingWills.com– America Living Will Registry: ALWRAmerica Living Will Registry: ALWR.com.com

• Provide a framework for reviewProvide a framework for review

P. 31P. 31

Drafting IssuesDrafting Issues

My advice for when to review AD…My advice for when to review AD…

When any of the 5 D’s occur:When any of the 5 D’s occur:1.1. You reach a new You reach a new DECADEDECADE2.2. You experience a You experience a DEATHDEATH of family or friend of family or friend3.3. You You DIVORCEDIVORCE4.4. You receive a new You receive a new DIAGNOSISDIAGNOSIS5.5. You have a significant You have a significant DECLINEDECLINE in your in your

condition as measured by Activities of Daily condition as measured by Activities of Daily Living (ADLs)Living (ADLs)

P. 32P. 32

IV. HIPAA IssuesIV. HIPAA Issues

Access to protected health Access to protected health information by…information by…

• Agent under health care DPA ?Agent under health care DPA ?

• Putative agent under springing power ?Putative agent under springing power ?

• Close family member ?Close family member ?

P. 32-34P. 32-34

See:See:www.hhs.gov/ocr/hipaawww.hhs.gov/ocr/hipaa

IV. POLST – Beyond ADsIV. POLST – Beyond ADsP. 30-32P. 30-32

• Last 30 years: standardizing patient Last 30 years: standardizing patient communications –communications –

statutory advance directivesstatutory advance directives• Tipping Point: Tipping Point: POLSTPOLST Paradigm – Paradigm –

standardizing standardizing physicians EOL orders. Focus on here and physicians EOL orders. Focus on here and

now.now.• Oregon’s Oregon’s Physicians Orders for Life-Physicians Orders for Life-

Sustaining Sustaining TreatmentTreatment – requires: – requires:

1.1. Doc to find out patient’s wishes re: CPR, Doc to find out patient’s wishes re: CPR, care goals (comfort vs. treatment), care goals (comfort vs. treatment), antibiotics, N&H.antibiotics, N&H.

2.2. Translate into doctors orders on visually Translate into doctors orders on visually distinct (bright pink) med file cover sheet.distinct (bright pink) med file cover sheet.

3.3. All providers ensure form travels with All providers ensure form travels with patient.patient.

Only MD has a version: Only MD has a version: LST Options FormLST Options Form

See updated form at:http://www.oag.state.md.us/Healthpol/PPOC.htm

Out of Hospital DNR OrdersOut of Hospital DNR OrdersDistrict of ColumbiaDistrict of Columbia

• AD is not enough to avoid CPRAD is not enough to avoid CPR• Emergency Medical Services Non-Emergency Medical Services Non-

Resuscitation Procedures Act of 2000Resuscitation Procedures Act of 2000 DC Act 13-486, approved November 29, 2000DC Act 13-486, approved November 29, 2000

Establishes a “Comfort Care Order” which Establishes a “Comfort Care Order” which “authorizes EMS personnel to withhold “authorizes EMS personnel to withhold cardiopulmonary resuscitation from a person if cardiopulmonary resuscitation from a person if the person experiences cardiac or respiratory the person experiences cardiac or respiratory arrest as the result of a specified medical or arrest as the result of a specified medical or terminal condition and to administer comfort terminal condition and to administer comfort care.”care.”

App 3App 3

This form is a Comfort Care Order authorized by D.C. Act 13-486 , and is printed on security paper containing thewatermark throughout the front side: “District of Columbia Comfort Care Order”. Photocopies are not valid.

Comfort Care Order

FORM MUST BE FULLY COMPLETED TO BE VALID

PATIENT INFORMATION

Name (Printed):_____________________________________ Social Security No. ____-___-_____

Name of Authorized Decision-maker or Surrogate (if applicable):________________________________

Patient’s DOB:_____________ Gender: ____Male ____Female Hair Color:________________

Race/Ethnicity: ____Asian or Pacific Islander ____Black, non-Hispanic ____White, non-Hispanic____ American Indian ____Hispanic ____Other

If Hospice patient, name of Hospice: _______________________________________________________

Physician’s Certification and Order

? The Patient has the following terminal or chronic, life-limiting condition:_________________________________________________________________________________

? If the Patient’s heart or breathing stops as a result of the above life-limiting condition, I direct that the Patient receive allnecessary comfort care as listed on the back of this form. Cardiopulmonary resuscitation (CPR) and advanced life supportare inappropriate measures for this patient and are not to be used.

? I have explained to the Patient or authorized decision-maker or surrogate, if applicable, the effect of this Comfort CareOrder as explained on the back of this form, the medical alternatives to it, and the other forms of health care advancedirectives.

? I have also explained how this Order may be revoked, as described on the back of this form.

__________________________________________ _____________________________________Signature of Attending Physician Date

_________________________________ _____________________ _________________________Physician’s Name (printed) Physician’s License Number Physician’s Phone Number

Signature of (Check one): ¨ Patient ¨ Authorized Decision-Maker or SurrogateI consent to this Order.________________________________________________________________Form Copies:WHITE YELLOW BLUE PINKPatient’s Copy Patient’s medical record Physician submits to D.C. Dept. of EMS For ordering CCO Identification Bracelet

Bracelet Insert: ? ---------------------------------------------------------------------------------------------------------IMPORTANT: Physician must print theinformation on this bracelet insert clearly, tearoff and fold strip, insert in plastic bracelet, andaffix to patient’s wrist.

DISTRICT OF COLUMBIA COMFORT CARE ORDER # 00000000Pat. Name:___________________________________ Gender: M FPat. SSN:______________________ MD’s Phone:__________________MD Name:___________________________________________________Surrogate Decision Maker Name:

DCSealDraftDraft

Out of Hospital DNR OrdersOut of Hospital DNR OrdersMarylandMaryland

• Revised Maryland Medical Protocols for Revised Maryland Medical Protocols for EMSEMS Providers, effective January 1, 2005 Providers, effective January 1, 2005 which arewhich are available from the Maryland Institute available from the Maryland Institute forfor Emergency Medical Services Systems atEmergency Medical Services Systems at

• See App. 1 for web page.See App. 1 for web page.

App 3App 3

Out of Hospital DNR OrdersOut of Hospital DNR OrdersMarylandMaryland

The following The following areare acceptable for acceptable for implementing the EMS/DNR protocol:implementing the EMS/DNR protocol:(1) Original Maryland EMS/DNR Order (1) Original Maryland EMS/DNR Order FormForm(2) Copy of it.(2) Copy of it.(3) Other State EMS/DNR Order Form(3) Other State EMS/DNR Order Form(4) EMS/DNR Bracelet Insert(4) EMS/DNR Bracelet Insert(5) Medic Alert DNR Bracelet or Necklace(5) Medic Alert DNR Bracelet or Necklace(6) Oral DNR Order from EMS System (6) Oral DNR Order from EMS System MedicalMedical ConsultationConsultation(7) Oral DNR Order from on-site(7) Oral DNR Order from on-site physicianphysician

App 3App 3

Out of Hospital DNR OrdersOut of Hospital DNR OrdersMarylandMaryland

The following are The following are notnot acceptable for acceptable for implementing the EMS/DNR protocol:implementing the EMS/DNR protocol:(1) Advance directives without an EMS/DNR (1) Advance directives without an EMS/DNR OrderOrder(2) Facility specific DNR orders(2) Facility specific DNR orders(3) Notes in medical records(3) Notes in medical records(4) Prescription pad orders(4) Prescription pad orders(5) DNR stickers(5) DNR stickers(6) An oral request from someone other than (6) An oral request from someone other than a a

physicianphysician

App 3App 3

Out of Hospital DNR OrdersOut of Hospital DNR OrdersVirginiaVirginia

Virginia Durable Do Not Resuscitate Virginia Durable Do Not Resuscitate (DNR) Order(DNR) Order 12 VAC 5-65-10 to –110 12 VAC 5-65-10 to –110

Unique document printed on distinctive paper by Unique document printed on distinctive paper by the Virginia DoH. The form has 3 sections: the Virginia DoH. The form has 3 sections: Physician’s Order, Patient's Signature, & Physician’s Order, Patient's Signature, & Signature of Designated Agent or Other Signature of Designated Agent or Other Authorized Decision MakerAuthorized Decision Maker

Other DNR OrdersOther DNR OrdersQualified EMS personnel can recognize Qualified EMS personnel can recognize only only • In a licensed health care facility.In a licensed health care facility.

• when transporting a patient from one health when transporting a patient from one health care care facility to anotherfacility to another

App 3App 3

SummarySummaryProcess-Oriented Advance PlanningProcess-Oriented Advance Planning

• Don’t do one-stop ADDon’t do one-stop AD• Your client probably can’t pay you Your client probably can’t pay you

enough to go through the process in enough to go through the process in depth, so give the client the tools to depth, so give the client the tools to do the important part.do the important part.

• Give priority to the power of attorneyGive priority to the power of attorney• Use Workbook approach: Value Use Workbook approach: Value

worksheet/Thought-provoking exercisesworksheet/Thought-provoking exercises• Look at different model ADsLook at different model ADs• Stress that client has to talk to proxy & Stress that client has to talk to proxy &

doctordoctor• Help educate the agent/proxyHelp educate the agent/proxy

• Periodic review – the 5 D’s.Periodic review – the 5 D’s.

ResourcesResourcesAdvance Directive FormsAdvance Directive Forms

• Five Wishes Advance DirectiveFive Wishes Advance Directive. . Published by Aging with Dignity. Published by Aging with Dignity.

• A Guide to Living Wills and Health Care A Guide to Living Wills and Health Care ProxiesProxies by Harvard Medical School by Harvard Medical School . .

• Ethical Wills: Putting Your Values on PaperEthical Wills: Putting Your Values on Paperby Barry K. Baines (Perseus Publishing, 2001)by Barry K. Baines (Perseus Publishing, 2001)

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ResourcesResources• Lawyer’s (or Consumer’s) Tool Kit for Lawyer’s (or Consumer’s) Tool Kit for

Advance Health Care PlanningAdvance Health Care Planning ABA Commission on Legal Problems of the Elderly ABA Commission on Legal Problems of the Elderly

(2000). (2000). www.abanet.org/aging www.abanet.org/aging

• Making Medical Decisions for Someone Else: Making Medical Decisions for Someone Else: A Maryland HandbookA Maryland Handbook

• Handbook for Mortals: Guidance for People Handbook for Mortals: Guidance for People Facing Serious IllnessFacing Serious Illness, by Joanne Lynn, MD, and , by Joanne Lynn, MD, and Joan Harrold, MD (NY: Oxford University Press, Joan Harrold, MD (NY: Oxford University Press, 1999). 1999).

• Hard Choices for Loving People:Hard Choices for Loving People: CPR, CPR, Artificial Feeding, Comfort Measures Only Artificial Feeding, Comfort Measures Only and the Elderly Patientand the Elderly Patient, by Hank Dunn . , by Hank Dunn .

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Final ThoughtFinal Thought

Circumstances change but the Circumstances change but the question remains the same as in question remains the same as in 1982:1982:

““How to foster a relationship How to foster a relationship between patients and between patients and professionals characterized by professionals characterized by mutual participation and respect, mutual participation and respect, and by shared decision-making”and by shared decision-making”

- - President’s Cmsn for the Study of Ethical President’s Cmsn for the Study of Ethical ProblemsProblems

in Medicine & Biomedical & Behavioral in Medicine & Biomedical & Behavioral ResearchResearch