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What You Should Know About Advance Directives
East Tennessee Medical News – October 2008
By Connie S. Ditto and Ian Hennessey
What is an Advanced Directive?
An advanced directive is a document or an instruction by a patient that provides guidance for health care providers concerning patient’s wishes in the event that individual is no longer capable of making his or her own decisions. Tennessee law currently provides for several different types of advanced directives, including an advance care plan (previously known as a living will), and an appointment of a health care agent (previously known as a medical power of attorney, or a power of attorney for health care). A living will provides instructions for care at the end of life. Alternatively, a power of attorney for health care names an agent for the patient if the patient should be incapacitated. A do-not-resuscitate order (DNR) is now collapsed into the physician orders for scope of treatment form (POST), and is not a true advanced directive, but is instead a physician’s order. Additionally, Tennessee law allows a patient to appoint a surrogate, either orally or in writing, to make decisions for the patient.
How Do I Know if an Advanced Directive is Valid?
Under Tennessee law, the advance care plan and the appointment of a health care agent must meet certain statutory written requirements. Tennessee law protects health care providers and institutions who comply in good faith with the standard of care who either follow or refuse to follow (due to a belief that the person lacked the authority) from civil and criminal liability as well as discipline for unprofessional conduct. Further, a patient can appoint a surrogate orally, and health care providers have the right to require a purported surrogate to provide written documentation under oath that the individual is in fact the patient’s surrogate.
When Do I Consult with my Patient’s Health Care Agent?
Unless the advanced directive provides otherwise, in order for the health care agent to make decisions, the supervising physician must first certify in writing that the patient lacks the capacity to make decisions. In making this determination of capacity, the physician is legally allowed to consult with others at the physician’s discretion. Then, the physician may consult with the agent regarding the patient’s health care decisions.
What if My Patient Does Not Have An Advanced Directive?
If the patient does not have capacity to make decisions, and the patient has either not appointed an agent and does not have a guardian, or the patient’s agent or guardian is not reasonably available, then the physician MUST appoint a surrogate decision maker. The physician-appointed surrogate is generally able to make all decisions regarding the patient’s care, with a few statutorily-created exceptions.
What Are the Requirements to Serve as A Surrogate?
Under Tennessee law, the requirements for a surrogate are: (a) an adult, (b) who has exhibited care and concern for the patient; (c) who is familiar with the patient’s values; (d) who is reasonably available; (e) and who is willing to serve.
Does the Physician-Appointed Surrogate Have to Be A Relative?
No. Tennessee law requires the physician to choose the best qualified surrogate in consideration of the purported surrogates: (1) ability to make decisions in accordance with the patient’s wishes or in the best interest of the patient; (2) regularity of contact with the patient prior to and during the incapacitating illness; (3) demonstrated care and concern for the patient; (4) availability to visit the patient; (5) availability to meet in person with the patient’s health care providers in order to fully participate in the decision-making process.
Therefore, the physician uses his or her discretion to appoint an appropriate surrogate for the patient. The law does, however; provide some guidance to physicians. Specifically, the physician may (but is not required to) give consideration to individuals in the following order: (1) the patient’s spouse (unless legally separated); (2) the patient’s adult children; (3) the patient’s adult siblings; (4) any other adult relative of the patient; (5) any other adult who otherwise satisfies the criteria (a)-(e) above.
What If I Cannot Find A Surrogate?
In the rare event that there is not a reasonably available guardian, agent, or a surrogate, Tennessee law allows for the treating physician to make decisions concerning the patient’s health care so long as the physician either: (1) obtains the approval of the health care institution’s ethics mechanism, or (2) obtains concurrence from a second physician. The second physician must not be directly involved in the patient’s care, or serve as either the designated physician’s superior or subordinate as related to the physician’s decision-making ability, influence, or responsibility.Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice. |
