Chapter 5.A.3 (or 3.A.3) The Incompetent Patient
This page has notes for Jobes; Deciding for the Incompetent Patient, Note 3, Note 4 and Note 5; Advance Planning, Notes 1 and 2, Note 4, Note 6, and a new Note; Interpreting and Drafting Advance Directives, Problem 2; Young Children and Adolescents, Note 1; and Severely Disabled Newborns, Note 1.
As mentioned in the text, this case arose when Ms. Jobes' nursing home refused the request of her family to have her feeding tube withdrawn. After Ms. Jobes' husband sought judicial authorization, the trial court appointed a guardian ad litem for Ms. Jobes, and the guardian supported the family's request. The nursing home sought appointment of a "life advocate" for Ms. Jobes, but the trial court denied that request. The Public Advocate intervened as a party in oppositon to the family. After a seven-day trial, the court approved the removal of the feeding tube but held that the nursing home could refuse to participate in the removal and could require transfer of Ms. Jobes to another facility before discontinuation of feeding. When the court entered its judgment, it stayed relief pending final determination on appeal. Ms. Jobes' husband and the nursing home appealed directly to the New Jersey Supreme Court.
Deciding for the Incompetent Patient, Note 3
In 2010, the New York legislature finally replaced the O’Connor standard with an approach much like that of New Jersey. Under the Family Health Care Decisions Act, family members or close friends may refuse life-sustaining treatment for patients who are terminally ill or permanently unconscious. In addition, for patients who have an incurable condition, family members or close friends may refuse life-sustaining treatment that is inhumane or extraordinarily burdensome. N.Y. Pub. Health Law 2994-d. The legislative language comes largely from the recommendations of The New York State Task Force on Life and the Law's report, "When Others Must Choose: Deciding for Patients Without Capacity" (1992 and 1993 Supplement).
There is some ambiguity in the text of the new law. For patients who are terminally ill or permanently unconscious, treatment may be withdrawn when it imposes an "extraordinary burden," which sounds much like the standard for other patients of "extraordinarily burdensome" treatment. On the other hand, the structure of the statute suggests a lower threshold than for patients who are neither terminally ill nor permanently unconscious. Moreover, the legislative history indicates that the requirement of an extraordinary burden for terminally ill or permanently unconscious patients should not be read strictly. According to the Sponsor's Memo, the term "extraordinary" replaced the term "excessive" (which was used in The New York State Task Force on Life and Law report) not to change the meaning of the statute but to follow the wording used in Surrogate's Court Procedure Act § 1750-b.
Deciding for the Incompetent Patient, Note 4
For another decision like Martin and Spahn, see In re D.L.H., 2 A.3d 505 (Pa. 2010) (interpreting Pennsylvania’s health care representative statute to require the provision of life-preserving treatment for incompetent patients who are neither terminally ill nor permanently unconscious and who have not appointed a health care agent).
There has been increasing attention to "minimally conscious patients" and the appropriate standards for withdrawal of treatment. The Conroy-Wendland-Martin approach would apply strict standards to such patients. For more discussion, see Jeffrey B. Hammond, "The Minimally Conscious Person: A Case Study in Dignity and Personhood and the Standard of Review for Withdrawal of Treatment," 55 Wayne L. Rev. 821 (2009).
Deciding for the Incompetent Patient, Note 5
For an interesting case involving cardiovascular surgery on a prominent heart surgeon, with important questions about the influence of a patient's denial on decision-making capacity, the freedom of family members to override a patient's stated wishes, and the effect of a patient's fame on the care that the patient receives, see Lawrence K. Altman, "The Man on the Table Was 97, but He Devised the Surgery," N.Y. Times, December 25, 2006.
Advance Planning, Notes 1 and 2
In a Florida case, a court concluded that a living will takes priority over a durable power of attorney when the surrogate's decision would conflict with the wishes expressed in the living will. In In re Pinette, the trial court judge rejected a wife's effort to maintain life-sustaining treatment for her terminally ill husband. The husband, Harford Pinette, had executed a living will and a durable power of attorney on the same day, and he appointed his wife as his surrogate. In his living will, wrote the court, Mr. Pinette "directed that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong the process of dying, that he wanted to die naturally and receive medication only to alleviate pain." The decision is consistent with Florida statutory law, which states that a living will takes priority over a durable power of attorney "if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise." Fla. Stat. 709.08(3)(c)(3).
For a decision recognizing broad surrogate authority, see Stein v. County of Nassau, 642 F. Supp.2d 135 (E.D.N.Y. 2009), in which the court held that under New York’s health care proxy statute, surrogates have authority to make medical decisions in any setting, including the patient’s home, not just in hospitals. The court of appeals vacated the trial court's holding on the ground that the New York statute required the attending physician to certify in writing that the patient lacked decision making capacity, and no such certification had been made. Stein v. Barthelson, 419 Fed. Appx. 617 (2nd Cir. 2011).
Advance Planning, Note 4
In a recent study, researchers found close agreement between patient preferences and the care that they received when patients requested limited care but not when patients requested all care possible. Maria J. Silveira, Advance Directives and Outcomes of Surrogate Decision Making Before Death, 362 New Eng. J. Med. 1211 (2010). (Note that this study was based on interviews with patient proxies after the patient’s death.)
In response to the Oklahoma Attorney General's opinion, the Oklahoma legislature amended its statute to create a presumption that patients wish to have artificial nutrition and hydration provided unless they give contrary directions in an advance directive or leave other clear and convincing evidence of their wishes, their physician knows that the patient would not want these treatments, or it would be futile or inhumane to provide artificial nutrition and hydration. 63 Okla Stat. tit. 63, §§ 3080.3-3080.4.
For a discussion of the barriers to patient self-determination that are created by advance directive statutes, see Lesley S. Castillo, et al., Lost in Translation: The Unintended Consequences of Advance Directive Law on Clinical Care, 154 Annals Intern. Med. 121 (2011).
Advance Planning, Note 6
In a case in which there was conflicting evidence regarding the patient's refusal or not of a blood transfusion, a New York trial court judge held that the patient could not allege malpractice to the extent that her claim rested on an allegation that her life was wrongfully prolonged. DiGeronimo v. Fuchs, 927 N.Y.S.2d 904 (N.Y. Sup. Ct. 2011).
Advance Planning, New Note
Physician Orders for Life-Sustaining Treatment. If treatment can be
withdrawn based on clear and convincing evidence of the patient’s wishes, does
it matter whether the wishes are documented by the patient or by someone else?
Physicians can create advance directives for their patients by documenting patient preferences in their medical records. While this option followed from principles of end-of-life law, states also have passed statues recognizing “physician orders for life-sustaining treatment” or POLST. POLST translate the general guidance that patients might provide in a living will into specific physician orders regarding treatment. Because POLST take the form of physician orders, they have the potential for being more effective than patient-written advance directives at carrying out the patient’s wishes. In particular, POLST address the problem of physicians overriding patient advance directives (discussed, supra, note 4). For further discussion, see Judy Citko, et al., The National POLST Paradigm Initiative, 2nd Edition #178, 14 J. Palliative Med. 241 (2011); Diane Meier & Larry Beresford, POLST Offers Next State in Honoring Patient Preferences, 12 J. Palliative Med. 291 (2009). (While POLST is the original name, states have chosen a variety of names, including Medical Order for Life-Sustaining Treatment (MOLST) and Physician Order Regarding Treatment (PORT). Alan Meisel & Kathy L. Cerminara, The Right to Die §1A.07[D] (3d ed. 2009 Supp.)).
Interpreting and Drafting Advance Directives, Problem 2
Problem 2 is an exercise designed to help you understand the human and emotional dimension of making decisions about life-sustaining treatment. You are required before the end of the semester to fill out this Health Care Power of Attorney form with a real person and write a 1 page, single spaced report about the reasoning behind the choices made and your impressions of the process.
Before having your health care agent sign any forms, you should discuss your beliefs and wishes with him or her. When instructing your health care agent about your wishes in the event you become incapacitated and they need to make health care decisions, we suggest you consider the following questions. We suggest no particular answers. Each person should answer these questions based on their own beliefs and convey those beliefs and wishes to their health health care agent. Any other wishes or desires that you feel your health care agent should know should also be given to them so that they can carry out their responsibilities as you would wish.
If, over time, your beliefs or attitudes in any area change, you should inform your health care agent. It is also wise to inform your health care agent of the status of your health when there are changes such as new diagnoses. In the event that you are informed of a terminal illness, this, as well as the ramifications of it, should be discussed with him or her. How well your health care agent performs depends on how well you have prepared them.
Young Children and Adolescents, Note 1
Replace the Phillip B. and Newmark standards with the following standard from California:
We conclude that a court making the decision of whether to withhold or withdraw life-sustaining medical treatment from a dependent child should consider the following factors: (1) the child's present levels of physical, sensory, emotional and cognitive functioning; (2) the quality of life, life expectancy and prognosis for recovery with and without treatment, including the futility of continued treatment; (3) the various treatment options, and the risks, side effects, and benefits of each; (4) the nature and degree of physical pain or suffering resulting from the medical condition; (5) whether the medical treatment being provided is causing or may cause pain, suffering, or serious complications; (6) the pain or suffering to the child if the medical treatment is withdrawn; (7) whether any particular treatment would be proportionate or disproportionate in terms of the benefits to be gained by the child versus the burdens caused to the child; (8) the likelihood that pain or suffering resulting from withholding or withdrawal of treatment could be avoided or minimized; (9) the degree of humiliation, dependence and loss of dignity resulting from the condition and treatment; (10) the opinions of the family, the reasons behind those opinions, and the reasons why the family either has no opinion or cannot agree on a course of treatment; (11) the motivations of the family in advocating a particular course of treatment; and (12) the child's preference, if it can be ascertained, for treatment. [In re Christopher I, 106 Cal. App. 4th 533, 551 (Ct. App. 2003) (followed by J.N. v. Superior Court, 156 Cal. App. 4th 523, 534 (Ct. App. 2007).]
Severely Disabled Newborns, Note 1
A decision by a Wisconsin court of appeals took a strict view of the Child Abuse Amendments. In a case involving a child born after 23 weeks of gestation who was given maximal life-prolonging treatment, the parents sued, claiming that they were not sufficiently informed of their child’s prognosis when they agreed to some of the life-saving measures. The court rejected the parents’ claim, concluding that under both the Amendments and Wisconsin end-of-life law, the parents did not have the right to refuse life-sustaining treatment for their infant. Montalvo v. Borkovec, 647 N.W.2d 413 (Wis. Ct. App. 2002). Still, it is not clear that there has been a substantial impact overall from the Child Abuse Amendments on clinical practice. Charity Scott, Baby Doe at Twenty-Five, 25 Ga. St. U. L. Rev. 801, 807-811 (2010). See also In re AMB, 640 N.W.2d 262 (Mich Ct. App. 2001) (finding the Child Abuse Amendments inapplicable for a newborn with heart defects incompatible with long-term survival).
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