Advance Health Care Directives: A Handbook for Professionals

Transcription

1 CHAPTER 1 Five Counterintuitive Precepts Table of Contents 1.01 Introduction 1.02 Directives? Who Cares? 1.03 Directives Breed Conflict 1.04 Directives Are Vulnerable to Failure o Conflicting Philosophies and Value Judgments o Physicians and Agents May Be Disinclined to Honor Directives o Directives Lack Permanence o Poorly Drawn or Ambiguous Directives o Absence of Good Footprints 1.10 Directives Are Rights without Remedies 1.11 Directives Won't Work in Most Emergency Situations 1.12 Conclusion CHAPTER 2 What Are Advance Health Care Directives? 2.01 Introduction 2.02 Durable Power of Attorney (or Proxy) for Health Care 2.03 Ancillary or Limited Use Directives o Living Wills o Declarations of Preferences for Mental Health Treatments o Durable Power of Attorney for Property; Trusts o Organ Donation o Oral Expressions o Nomination of Guardian 2.10 Some Comments - and Cautions - about Durable Powers of Attorney o Controlling Implementation o Selecting an Agent o Keeping Direct Control o Indicating the Existence of Directives o Updating Directives Regularly 2.16 Diversions 2.17 Conclusion

2 CHAPTER 3 The Ethics of Advance Health Care Directives 3.01 Introduction 3.02 Negotiating the Straits o Advance Directives o Substituted Judgment o Best Interests 3.06 The Lighthouses o Respect for Autonomy o Nonmaleficence o Beneficence o Justice 3.11 Professional Ethics o Lawyers o Health Care Professionals o Allied Professionals 3.15 Institutional Ethics Committees 3.16 Conclusion CHAPTER 4 Competence and Incompetence 4.01 Introduction 4.02 Check Applicable Statute 4.03 The American Bar Association Position 4.04 When in Doubt, Include a Medical Assessment o The Medical Examination 4.06 The Lawyer - Client Interview 4.07 Some Comments - and Cautions - about Lay Observations of Competence o Avoid Snap Judgments o Competence Is Essentially a Threshold Concept o Capacity on Occasion (Episodic Lucidity) o Be "Decision-Neutral" o Strange? So What? o Refusal to be Evaluated o Temporary Incapacity o Dementia o Psychiatric Disorders o A Special Note about Depression 4.18 Legal Standards of Capacity 4.19 Incapacity as the Effectuating Event 4.20 Conclusion

3 CHAPTER 5 Client Issues 5.01 Introduction 5.02 Summary of Literature o Individuals Most Likely to Complete Directives o Why People Don't Have Advance Directives o A Need for Discussion o Ethnic Trends o Increasing Interest in Directives 5.08 Common Misconceptions o "I'm in Good Health, I Don't Need a Directive." o "They're All 'Pull-the-Plug' Documents. I Don't Want That." o "I Want Everything Possible Done for Me. Directives Won't Permit That." o "Directives Are Permanent. I Won't Be Able to Change My Mind." o "With Directives, I Lose the Right to Decide for Myself." o "Directives Are Just Arbitrary Checklists. They're Not at All Responsive to What I Want." o "I Don't Need Directives. My Family Knows What I Want." 5.16 Barriers to Acceptance o Society's Conflicted Views on Life and Death o Cultural or Religious Beliefs o Reluctance to Rely on "Elastic Clauses" o Ceding Autonomy o Opinions and Feelings of Others o Foreclosure of Medical Advances by Directives o Procrastination and Fear 5.24 Barriers to Implementation o Failure of PSDA Protocols o Cost o Meeting with Professional Advisors o Obtaining Forms o Complexity of Documents/Readability o Lag Times in Drafting o Delays in Meeting with Family o Formalities of Execution o Failures in Communication 5.34 Critique of Case Study 5.35 Conclusion

4 CHAPTER 6 The Perspective of Family and Friends 6.01 Introduction 6.02 The Role of Immediate Family o The Role of Extended Family and Friends 6.04 Literature Review o Family Members as Decision-Makers o Validity of Decisions o 6.07 Common Misconceptions 6.08 Barriers to Acceptance 6.09 Barriers to Implementation 6.10 Critique of Case Study 6.11 Conclusion CHAPTER 7 The Attorney Perspective 7.01 Introduction 7.02 The Genesis of Advance Health Care Directives 7.03 The Lawyer's Role o Initiating Discussion o Drafting a Checklist o Moving it Forward o Issues of Capacity o Comments - and Cautions - About Durable Powers of Attorney o Causes of Action if Directives Are not Honored 7.10 Critique of Case Study 7.11 Conclusion CHAPTER 8 The Health Care Provider Perspective 8.01 Introduction 8.02 The Patient - Physician Relationship 8.03 Review of Literature o Finding the Facts o Discussing the Issues o Executing the Directives o Improving Provider Participation 8.08 Common Professional Misconceptions 8.09 Barriers to Acceptance among Medical Professionals 8.10 Barriers to Implementation within the Medical Profession

5 o Professional Education o Available Time o Opportunities for Patient Education o Questions about Capacity o Cultural/Ethnic/Spiritual Barriers o Conflicts o Weaknesses of the Patient Self-Determination Act o Difficulty Determining Prognosis o Limited Use of Protocols for Providers o Poor Footprints 8.21 Legal Issues 8.22 Countermanding or Overriding Patient Directives or Instructions of Agents 8.23 Tailoring Clinical Situations to Directives 8.24 The Ever - Changing Continuum of Health Care Directives CHAPTER 9 Involvement of Clergy or Spiritual Advisors 9.01 Introduction 9.02 The Benefits of a Multidisciplinary Approach o Religious/Spiritual Leaders and End-of-Life Issues 9.04 Religious and Spiritual Precepts about Advance Directives o Buddhism o American Baptist o The Church of Christ, Scientist (Christian Science) o Jehovah's Witnesses o Evangelical Lutheran o The Lutheran Church - Missouri Synod o Roman Catholic o United Church of Christ o Hinduism o Islam o Church of the Brethren o United Methodist Church o Presbyterian Church (U.S.A.) o Mennonites o Navajo o Judaism o Unitarian Universalist Association o Eastern Orthodox o Latter - Day Saints o Anglican Church o Seventh-day Adventists

6 9.26 Barriers to Acceptance 9.27 Barriers to Implementation 9.28 Accommodation of Faith 9.29 Critique of Case Study 9.30 Conclusion CHAPTER 10 Alternatives in the Absence of Directives Introduction Diversions o Informal Practice o Surrogacy Statutes o "Do Not Resuscitate" (DNR) Protocols o Guardianship o Proceedings o Limitations o Avoiding Guardianship o Health Care Ethics Committees o A Word about Euthanasia or "Mercy Killing" or "Assisted Suicide" Conclusion CHAPTER 11 Special Circumstances Introduction o Anencephalic Infants o Anatomical Donation o Autopsy o Cord Blood o Cryonics o Defective, Inoperative, or Stale Directives o Divorce or Dissolution or Annulment of Marriage; Termination of Domestic Partnership o Domestic Partners/Companions o Embryos, Ova, and Sperm o Expressions by Decisionally Incapacitated o Guardianship and Conservatorship and Directives o Foreign Nationals o Health Care Providers Serving as Agents or Proxies o International Travel o Military Personnel on Active Duty o Minors

7 o No Agent or Proxy or Surrogate o Organ Donation o Out of State Travel or Relocation o Pregnancy o Prisoners o Revocation of Directives o Spiritual or Religious or Philosophical Imperatives Conclusion CHAPTER 12 The Future of Advance Health Care Directives Introduction o Questions to Ask o Ethical Issues o The Future of Directives Better Methods of Implementation o Details, Details o Palliative Care and Hospices o Quality Improvement o Ethics Consultants o Legislation, Regulation, and Other Oversight o Saturation Marketing o Technology Better Education o Educating the Public o Educating Professionals Shifting Attitudes Dilemmas o Forum Shopping o Utilization One Last Look Conclusion Appendices (Available on CD-ROM also) Appendix A: Federal Statutes: (i) The Patient Self-Determination Act (ii) Military Advance Medical Directive 1 Appendix B: Glossary Appendix C: Uniform Health-Care Decisions Act

8 Appendix D: Values History Form Packets Appendix E: Spanish Language Directives Appendix F: Religious Directives (i) Jewish Law Halachic Forms (ii) Catholic Directives (a) Health Care Proxy (b) Advance Medical Directive Appendix G: Mental Health Directives: (i) Oklahoma (ii) Advance Directives for Mental Health Care (Not on CD-ROM) Appendix H: Uniform Anatomical Gift Act (As Enacted by North Dakota) Appendix I: The Oregon Death With Dignity Act Appendix J: Statutory Citations (by State, with Analysis) (i) Health Care Power of Attorney and Combined Advance Directive Legislation (ii) Surrogate Consent in the Absence of an Advance Directive (iii) Health Care Surrogate Decision-Making Legislation (iv) Health-Care Decisions Statutes Citations Appendix K: Consumer Education (How to Make a Community Presentation on Advance Directives) Appendix L: Internet Resources Appendix M: Selected Bibliography Appendix N: Sample Wallet Cards Appendix O: Sample Letter from Lawyer to Client Upon Execution of Advance Health Care Directives Appendix P: Sample Instructions to My Agent About My Advance Health Care Directives ABA Copyright Statement ABA Privacy Statement