End-of-Life Decisions

1
End-of-Life Decisions

• Patient has right to accept or refuse medical
  treatment
• Even if the treatment is life-sustaining
• Includes all treatments, whether ventilator,
  dialysis, antibiotics, or artificial nutrition
  and hydration
• Regardless of patients diagnosis and prognosis
• Reflects concerns with self-determination and
  private decision-making (not the kinds of
  decisions governments should make)

2
End-of-Life Decisions

• Right to have treatment withheld or withdrawn
  survives a patients loss of mental capacity
• Reassurance for competent persons
• Encourages trust in the health-care system
• Preserves private decision-making
• Protects patient from suffering and indignity

3
Substitute Decisionmaking

• Look to prior instructions from patient (e.g.,
  advance directive, oral statements, pattern of
  practice, religious or other moral views)
• Follow prior instructions if they give clear and
  convincing evidence of the patients
  preferences.

4
Substitute Decisionmaking

• Evidence of the patients wishes is clear and
  convincing when it is sufficient to persuade the
  trier of fact that the patient had a firm and
  settled commitment to decline treatment.
• OConnor, 531 N.E.2d 607, 613 (N.Y. 1988)

5
Clear and Convincing Evidence

• Some states look only at specific evidence,
  others (including IN) look at full range of
  evidence.
• Some states find that patients prior statements
  amount to clear and convincing evidence while
  other states would find the same evidence to be
  insufficient.

6
Clear and Convincing Evidence Absent

• Decide on the basis of the patients previously
  expressed wishes or values (IN, VA)
• Decide on the basis of the patients best
  interests (AZ, MN)
• Vary the standard depending on the patients
  prognosis (CA, MD, MI, NJ, NY, PA, WI)

7
Indianas Living Will Statute

• The attending physician shall . . . certify . . .
  that a person is a qualified patient if . . .
• The attending physician has diagnosed the patient
  as having a terminal condition. . . .
• Ind. Stat. Ann. 16-36-4-13

8
Indianas Living Will Statute

• Terminal condition means a condition . . . from
  which . . .
• there can be no recovery and
• death will occur from the terminal condition
  within a short period of time without the
  provision of life prolonging procedures.
• Ind. Stat. Ann. 16-36-4-5

9
Indianas Living Will Statute

• The living will declaration of a person diagnosed
  as pregnant by the attending physician has no
  effect during the persons pregnancy
• Ind. Stat. Ann. 16-36-4-8(d)

10
Indianas Living Will Declaration

• If at any time my attending physician certifies .
  . . that (1) I have an incurable . . . illness,
  (2) my death will occur within a short time and
  (3) the use of life prolonging procedures would
  serve only to prolong the dying process, I direct
  that such procedures be withheld or withdrawn . .
  . .
• Ind. Stat. Ann. 16-36-4-10

11
Indianas Living Will Declaration

• ____I wish to receive artificially supplied
  nutrition and hydration, even if the effort to
  sustain life is futile and excessively burdensome
  to me.
• ____I do not wish to receive artificially
  supplied nutrition and hydration, if the effort
  to sustain life is futile or excessively
  burdensome to me.
• ____I leave the decision about artificially
  supplied nutrition and hydration to my health
  care proxy.
• Ind. Stat. Ann. 16-36-4-10

12
Indianas Living Will Statute

• A declaration must be substantially in the form
  set forth in either the living will declaration
  or the life prolonging procedures declaration,
  but the declaration may include additional,
  specific directions
• The invalidity of any additional, specific
  directions does not affect the validity of the
  declaration
• Ind. Stat. Ann. 16-36-4-9

13
Indianas Living Will Statute

• This chapter does not impair or supersede any
  legal right or legal responsibility that any
  person may have to effect the withholding or
  withdrawal of life prolonging procedures in any
  lawful manner
• Ind. Stat. Ann. 16-36-4-17(e)

14
Indianas Life Prolonging Procedures Declaration

• If at any time I have an incurable . . .
  illness determined to be a terminal condition I
  request the use of life prolonging procedures
  that would extend my life
• This includes appropriate nutrition and
  hydration. . . .
• Ind. Stat. Ann. 16-36-4-11

15
Indianas Living Will Statute

• A living will declaration . . . shall be given
  great weight by the physician in determining the
  intent of the patient. . . .
• Ind. Stat. Ann. 16-36-4-8(f)
• A life prolonging procedures will declaration . .
  . does require the physician to use life
  prolonging procedures as requested
• Ind. Stat. Ann. 16-36-4-8(g)

16
Indianas Living Will Statute

• An attending physician who refuses to use,
  withhold, or withdraw life prolonging procedures
  from a qualified patient shall transfer the
  qualified patient to another physician who will
  honor the patients living will declaration . . .
  
• Ind. Stat. Ann. 16-36-4-13(e)

17
Indianas Living Will Statute

• If the attending physician, after reasonable
  investigation, finds no other physician willing
  to honor the patients declaration, the attending
  physician may refuse to withhold or withdraw life
  prolonging procedures
• Ind. Stat. Ann. 16-36-4-13(f)

18
Indianas Power-of-Attorney Statute

• An attorney in fact who has the authority to
  consent to or refuse health care . . . may have
  health care withdrawn or withheld when it is not
  beneficial or when any benefit is outweighed by
  the demands of the treatment . . . .
• Ind. Stat. Ann. 30-5-5-17(a)

19
Indianas Power-of Attorney Statute

• To empower the attorney in fact to act, the
  following language must be included in an
  appointment under IC 16-36-1 in substantially the
  same form set forth below        I authorize my
  health care representative to make decisions in
  my best interest concerning withdrawal or
  withholding of health care. If at any time based
  on my previously expressed preferences and the
  diagnosis and prognosis my health care
  representative is satisfied that certain health
  care is not or would not be beneficial or that
  such health care is or would be excessively
  burdensome, then my health care representative
  may express my will that such health care be
  withheld or withdrawn . . . even if death may
  result.
• Ind. Stat. Ann. 30-5-5-17(a)        

20
Indianas Power-of Attorney Statute

• My health care representative must try to discuss
  this decision with me
• If I am unable to communicate, my health care
  representative may make such a decision for me,
  after consultation with my physician and other
  relevant health care givers
• To the extent appropriate, my health care
  representative may also discuss this decision
  with my family and others to the extent they are
  available
• Ind. Stat. Ann. 30-5-5-17(a)

21
Indianas Health Care Consent Act

• An individual . . . may appoint another
  individual as a representative to act for the
  appointor in matters affecting the appointor's
  health care
• An appointment and any amendment must meet the
  following conditions
• Be in writing.
• Be signed by the appointor or by a designee in
  the appointor's presence.
• Be witnessed by an adult other than the
  representative.
• Ind. Stat. Ann. 16-36-1-7

22
Indianas Health Care Consent Act

• The appointor may specify in the appointment
  appropriate terms and conditions, including an
  authorization to the representative to delegate
  the authority to consent to another
• The authority granted becomes effective according
  to the terms of the appointment
• The appointment does not commence until the
  appointor becomes incapable of consenting. The
  authority granted in the appointment is not
  effective if the appointor regains the capacity
  to consent
• Ind. Stat. Ann. 16-36-1-7

23
Indianas Health Care Consent Act

• When a surrogate decision-maker has not been
  appointed, health care consent may be given by
• a judicially appointed guardian of the person, or
  if no guardian
• a spouse, a parent, an adult child, or an adult
  sibling, or
• the individual's religious superior, if the
  individual is a member of a religious order
• Ind. Stat. Ann. 16-36-1-5

24
Out-of-Hospital DNR Statute

• Applies when the patient has either
• a terminal condition (as defined in the living
  will statute) or
• a medical condition such that, if the person were
  to suffer cardiac or pulmonary failure,
  resuscitation would be unsuccessful or within a
  short period the person would experience repeated
  cardiac or pulmonary failure resulting in death.
• Ind. Code 16-36-5-10

25
Out-of-Hospital DNR Statute

• Applies to locations other than acute care
  hospitals or other health facilities
• May be executed by the patient or the patients
  representative
• May be issued only the patients attending
  physician
• Emergency medical services commission instructed
  to develop a DNR bracelet or necklace
• Ind. Code 16-36-5