Understanding Advanced Directives for Health Care

Legal principles of common law provide adults with the constitutional right of self-determination. Although most health care professionals recognize “life, liberty and the pursuit of happiness,” many are unclear how these rights apply to their patients. For some, personal feelings or closely held beliefs make this subject an uncomfortable one to deal with.

Who Has the Right to Make Decisions about Patient Care?

An adult patient’s right to acquire, continue or terminate health care can be viewed from the perspective of contract law. Simply put, adult patients have the right to:

• enter into a contract to receive health care;
• be fully informed and to participate in decision-making; and
• terminate the contract (fire the practitioner).

Such reality is simple in most cases. However, things can become difficult when the patient being cared for loses the ability to meaningfully participate in the decision-making process.

Based on most contracts, if the patient becomes unable to provide input, the decision-making power falls upon the practitioner. The patient’s state-of-mind does not change the practitioner’s duty to provide proper health care unless otherwise indicated in the contract.

The difficulties typically arise when family members, friends and others who are close with the patient do not agree with the decisions made by the empowered care-provider. Many seemingly out-of-control situations can emerge when both sides begin acting in ways that can be construed as not being in the patient’s best interest.

Living Wills Are Helpful but Are Not Always Enough

To provide some structure and ease confusion in these matters, the living will has emerged. This document directly instructs the practitioner whether or not to undertake certain actions or procedures in the event that the patient is unable to provide guidance.

Unfortunately, because many living wills provide the practitioner with “if in your opinion” decision-making power, disagreements can still occur. This can sometimes lead practitioners and family-members to the court room. Is there a way to avoid this problem? Yes—through durable power of attorney.

The Benefit of Appointing Durable Power of Attorney

Most states have enacted statutes that enable competent adults to establish a “durable power of attorney for health care” assignment. Simply put, adults of sound mind and reason are legally empowered to assign another competent adult the legal authority to act on their behalf if they should become incapable of doing so themselves.

This means the assigned agent may legally be shown the patient’s medical records, can discuss the patient’s condition with the care provider, can offer direction for care, and, if necessary, can terminate the contract (i.e. fire the practitioner; transfer the patient to another facility, etc.).

Does this mean that someone with power of attorney can mandate improper care? Not at all. If an agent directs that inappropriate care be administered, practitioners ethically should refuse, just as they would have had the patient themself made the requests. The agent may then make the decision to terminate the contract, and in such case, the practitioner no longer has a duty to provide care to the patient. 

This, of course, is a very black-and-white version of what might occur. Real-life situations can be a lot more complicated, so extreme care needs to be exercised when handling the details.

Use the Tools at Your Disposal to Avoid Conflict

The best way to avoid a future conflict is to have a meeting with the patient and the prospective agent prior to the time when the agent may be required to make decisions. This allows all parties to voice their thoughts and intensions. Waiting until after the patient becomes incapable of participation to have this discussion frequently makes things far more difficult for both the agent and the professional tasked with providing care.

Most states have enacted legislation that creates other alternatives. It is therefore in the best interest of all health care professionals to know what laws and administrative procedures are in place in the states in which they are licensed to practice.

Health care professionals have a duty to provide their patients with proper care, which may include surrogate medical decision-making. When in doubt, it is always wise to seek the counsel of a licensed attorney who is knowledgeable in these matters.