End of Life Care: Medico legal Issues

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1 End of Life Care: Medico legal Issues Dr Sara Bird Manager, Medico legal and Advisory Services 1 Outline Advance care planning and advance care directives Substitute decision makers Futile care Access to deceased patients medical records Testamentary capacity 2 1

2 * 84 years of age COPD, IHD, chronic renal failure Widow, lives on her own, daughter lives nearby, estranged son. * The case study is fictitious 3 Definitions Advance care planning A process of planning for future health and personal care whereby the person s values, beliefs and preferences are made known so they can guide decision making at a future time when that person cannot make or communicate his or her decisions 4 2

3 Definitions Advance Care Directive (ACD) A means by which a competent adult can determine the medical treatment that he or she wants to accept or refuse in the future if decision making capacity is lost Generally a written document intended to apply to future periods of impaired decision making capacity Provides a legal means for a competent adult to record preferences for future health and personal care and/or to appoint a substitute decision maker ACD legislation in every state and territory, except NSW and Tasmania 5 Definitions Capacity All adults are presumed to have capacity Means having the ability to understand and appreciate information about one s own health condition and options for treatment, including no treatment make a free and voluntary decision regarding one s own health care, and communicate that decision Assessment of capacity is decision specific and should take into account the importance of the decision 6 3

4 Definitions Substitute decision maker (SDM) Persons appointed or authorised by law to make substitute decisions on behalf of a person who no longer has the capacity to make decisions about their medical care A SDM may be appointed by the person, appointed for (on behalf of) the person, or identified as the default decision maker by a Tribunal or Guardianship Act Substitute judgement what decision a person would have made if they were now able to make it Best interests what decision would best promote the person s interests 7 Doesn t want CPR, assisted ventilation, treatment for infections or renal disease if she loses capacity to make decisions You document in medical records and recommend the patient discusses her wishes with her children 8 4

5 Attends the practice with her daughter who asks you to witness an Enduring Power of Attorney (medical treatment) You receive a letter from the son s solicitor seeking a copy of his mother s medical records 9 Admitted to hospital with sepsis and exacerbation of renal failure Discharged to a nursing home Discharge summary states no further treatment available for deteriorating renal disease Patient no longer has capacity to make health decisions 10 5

6 Letter from son s solicitor patient must be provided with active treatment, including CPR and admission to hospital if her condition deteriorates Patient s daughter asks you to increase sedatives to decrease her mother s suffering 11 Definitions Futile Care Treatment that no longer provides a benefit to a patient or treatment where the burdens of treatment outweigh the benefits 12 6

7 You discuss the ongoing treatment plan with renal physician and document this plan Patient dies in the nursing home while you are on annual leave and one of your GP colleagues completes the death certificate Death certificate records Dementia no timeframe listed 13 You receive a letter from the son s solicitor demanding a copy of his mother s medical records 14 7

8 Access to deceased patients medical records Duty of confidentiality owed to deceased patients Bereavement disclosure at your discretion, unless you know patient would have objected (3.12 Code of Conduct) In the absence of any apparent dispute or inconsistency with the patient s wishes access to records should be given to executor of the estate, with certified copy of the will ACT and Victoria: request must be accompanied by grant of probate by court or court appointment of administrator If dispute over the will no access, unless subpoena or grant of probate 15 You receive a letter from the daughter s solicitor seeking a report about whether she had testamentary capacity when she made her will five years ago 16 8

9 Testamentary capacity Legal capacity to make a will Legal, not a medical term Required capacity will vary with nature of the estate complexity of the proposed will potential claimants involved 17 Summary An adult patient can refuse medical treatment contemporaneously, or through an ACD which operates when capacity is lost, even if this results in their death Advance care planning and/or an ACD assists where a patient lacks capacity decisions to withhold and withdraw lifesustaining medical treatment can be complex 18 9

10 Summary End of life decision making where a patient lacks capacity ACD Court appointed guardian enduring power of attorney/guardian substitute decision maker Doctors do not have to comply with requests for futile treatment clinically inappropriate treatment Testamentary capacity is a legal, not a medical test Seek advice if unsure how to proceed 19 Resources RACGP Practice guides and tools: Advance Care Planning Advance Care Planning Australia