Critical Care Plus: California End-of-Life Changes Won’t End the Debate
January 1, 2001 9 minutes read
Critical Care Plus
California End-of-Life Changes Won’t End the Debate
Is AB 891 a Step in the Right Direction or a Lawyer’s Dream?’
By Julie Crawshaw
California often serves as a harbinger of future changes in the rest of the country. when the California Legislature recently enacted Assembly Bill 891, it ostensibly changed the face of health care end-of-life decisions made by a patient or surrogate decision-maker. Yet opinion in the critical care community is divided on just how much change the new law will actually affect.
"Bottom line? It makes some things simpler but I don’t think it’s going to make a lot of difference in practice," says David Hess, MD, FACCM. "My perception of the new law is that it cleared up some inconsistencies in the old law, but I don’t see it as plowing great new ground."
Hess, who practices at three intensive care units in Bakersfield, Calif, says that the living wills AB 891 replaces covered situations that never applied to critical care anyway. "They set out very specific conditions under which the patient did not want to be treated, such as for a condition with a survival expectancy of fewer than six months," Hess says. "The problems faced in critical care are far too fluid for that, often changing on an hourly basis."
Hess points out that a patient with a terminal disease and fewer than six months to live isn’t—appropriately, at least—going to die in an ICU. "They deserve dignity and comfort care, not ventilators and compressors," he says.
The other document previously available to patients in California was the durable power of attorney for health care, which designated a surrogate decision-maker to act for the incapacitated patient. "Within that, there could be some components that would provide guidance about what the patient would want the spokesperson to do given a certain set of circumstances," Hess says. "It worked reasonably well because at least the physician had someone to discuss alternatives with."
However, if the surrogate and patient had not discussed the patient’s wishes in great detail, the surrogate was left without guidance. "Informed consent, durable powers, and living wills are all pieces of paper," Hess says. "If they’re filled out without appropriate conversation and communication, they’re useless."
Both Former Methods Now Repealed
AB 891 repeals both the previous statutory scheme for a durable power of attorney for health care (DPAHC) and the Natural Death Act. The act removes the Natural Death Act requirements that a patient be diagnosed as terminal or permanently unconscious by two physicians in order for his or her Natural Death Act Declaration to be effective. However, the two-physician rule still applies if the patient executed a Natural Death Act Declaration executed prior to July 1, 2000.
State legislators considered AB 891’s new definition of "health care decision" a significant statutory change because it explicitly includes all categories of surrogates who may decide to withhold or withdraw life-sustaining treatment, including conservators and court-appointed designees. However, Hess says that as a practical matter, physicians could never get court-appointed people to make any decisions anyway. "In the county I live in, it takes an act of God to get one appointed in the first place," he says.
One change Hess does find important is that under the new law, patients functioning at full competence may choose to appoint a surrogate for health care decisions they do not wish to make. Unless patients were incapacitated, physicians, for instance, might have to go to a very alert 90-year-old woman who wanted her daughter to make the decisions and insist that she do so herself.
"Now if she doesn’t want to know all the horrible things that can happen we can talk to the daughter instead," he says. Hess also sees the ability the new law gives patients to appoint a conservator for a specific hospitalization as a major improvement.
Under AB 891, a surrogate decision-maker may:
• Select and discharge health care providers and in-stitutions;
• Approve or disapprove of diagnostic tests, surgical procedures, programs of medication;
• Direct to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
AB 891 also:
• Outlines the duties of health care providers regarding advance directives and surrogate decision-makers and establishes immunity for good faith actions taken in connection with various health care decisions;
• Expands the definition of health care decisions to explicitly include decisions to withhold or withdraw life-sustaining treatment;
• Permits an adult with capacity to make health care decisions by giving an "individual health care instruction" either orally or on a written basis, and to designate a surrogate decision-maker for a particular course of illness or treatment;
• Creates uniform standards of decision making for all types of surrogate decision-makers using the patient’s previously expressed wishes (either oral or written), or, in the absence of previously expressed wishes, the patient’s best interests.
Preamble Declares Patient Rights
In the preamble to AB 891, the California Legislature declares the right of all adults to control decisions relat-ing to health care, including decisions to withdraw or withhold life-sustaining treatment. It declares explicitly that a court is "not the proper forum in which to make health care decisions . . ."
Under the new law, a patient is presumed to have capacity to make health care decisions, to give or revoke an advance health care directive, or to designate or disqualify a surrogate. AB 891 defines the term "capacity" as a patient’s ability to understand the nature and consequences of proposed health care, including its significant benefits, risks, and alternatives, and to make and communicate a decision.
The patient’s primary care physician decides whether a patient has capacity. Neither a psychiatric consultation nor court intervention is required. AB 891 requires the physician who determines capacity to document that de-termination in the patient’s record.
As before, a health care provider may presume that a written advance health care directive or a similar instrument executed in another state or in this state is valid.
Is AB 891 a Lawyer’s Dream?
K. Dean Gubler, DO, MPH, FCCM, FACCM, a board-certified intensivist who practices in California, doesn’t think many people would argue with the intent of the new law in terms of giving patients the right to choose the degree and extent of their therapy. But he says that AB 891 makes a complicated issue even more so. "I don’t think it simplifies anything," Gubler says. "In fact, I think it puts the practitioner at greater risk for litigation."
Gubler says that expecting a patient surrogate to make what may well be life and death choices essentially puts the decision-maker in the position of practicing medicine without benefits of training and licensure. Also, the new law allows a health care provider to decline to implement a health care decision if the refusal is based on conscience or institutional policy and the provider transfers the patient. Gubler points out that this assumes that such a patient can be transferred. It does not clearly address the situation in which the patient cannot be moved. Gubler says that a physician who decides not to honor the wishes of the surrogate and attempts to disqualify him or herself from caring for the patient can be accused of abandonment.
"Unless transfer is of clear benefit to the patient, you can’t transfer them," he says. "Even if you can find another physician for the patient, you can still find yourself in trouble under COBRA law, which has mandatory federal penalties attached to it."
Gubler says that unless there is complete agreement between all parties, which is rarely the case with the critically ill, the physician can’t make a right decision. "What does that accomplish?" he asks. "People can wind up being kept alive against their own wishes. Patients who need aggressive therapy may not get it because one of the parties involved doesn’t understand it."
Both factors dictate a longer hospital stay and greater cost. "This is a mine field to have to walk through," Gubler says. "It’s very problematic."
Attorneys have advised that a decision to refuse care when a patient or surrogate demands it should be made only if the provider has strong, clear policies in place and substantial support for the proposition that the treatment demanded by the patient or surrogate is contrary to accepted health care standards. In that event, the health care provider must inform the patient and surrogate decision-maker of this refusal to provide care and must continue care until a transfer is accomplished.
Providers can also find themselves facing legal actions from aggrieved patients or their relatives, who now have incentive to sue based on the potential to recover damages and attorneys’ fees for violations of AB 891. The law imposes a new statutory penalty of $2500 or actual damages (whichever is greater) plus attorneys fees for intentional violation of AB 891. The attorneys’ fees provisions signal an intent of the Legislature to enforce AB 891.
How to Create Advance Directives
The new law creates a new type of advance health care directive defined as "a patient’s written or oral direction concerning a health care decision for the patient." A patient may give an instruction and designate a surrogate verbally, by informing his or her supervising health care provider, who then must enter it in the medical record. Such an oral designation is effective only during the course of the treatment or illness, or during the stay in a health care institution when the designation is made.
A valid individual health care instruction requires only a signature, date, and either notarization or the signatures of two witnesses. If the person who executes the directive resides in a skilled nursing facility at the time of executing the advance directive, an ombudsman must witness the document, even if it is notarized.
AB 891 imposes several important duties on health care providers with regard to health care decision making. Health care providers must:
• Communicate with patients about advance directives, including any revocation or modification of an advance directive;
• Enter advance directives, orally expressed wishes, and any revocation or modification into the medical record if they are available;
• Comply with advance directives and health care decisions made by a patient’s surrogate decision-maker or else transfer the patient’s care to another provider.
AB 891 also states that health care providers are not required to provide medically inappropriate care that is inconsistent with "generally accepted health care stan-dards." This provision engrafts medical malpractice standards on health care decision making. In the absence of patient or surrogate consent, providers should cau-tiously approach the issue of refusing to provide care they consider to be medically inappropriate.
The law says that providers and institutions acting in good faith and in accordance with generally accepted health standards are immune from civil or criminal liability or discipline for unprofessional conduct if they:
• Comply with a health care decision of a person that the health care provider or health care institution believes in good faith has authority to make that decision, including a decision to withhold or withdraw care;
• Decline to comply with the health care decision of a decision-maker based on a belief that the person lacks authority; and
• Comply with an advance health care directive on the assumption that the health care directive was valid when made and has not been revoked or terminated.
Law Provides Some Immunity from Criminal Prosecution
The new law also contains provisions granting immunity from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction or any other sanction based on a health care provider’s reliance on a request to forego resuscitative measures. That holds true:
• If the health care provider believes in good faith that the action or decision is consistent with a valid written document;
• And the health care provider has no knowledge that the action or decision would be inconsistent with the health care decision that the individual signing the request would have made on his or her own behalf.
A "Request to Forego Resuscitative Measures" may be in the form of a written document or prehospital "Do Not Resuscitate" form and may be evidenced by a so-called "DNR" Medallion. AB 891 makes the "Request to Forego Resuscitative Measures" effective in health care institutions, as well as outside of facilities.
AB 891 leaves several major issues unaddressed. For example, the health care community has long sought clarification of the legal order of surrogates: Who is the "closest available" relative or significant person to act as a substitute decision-maker when a patient is incapacitated but has no agent or conservator? Unfortunately, the new law does not answer this question. Health care providers must continue to follow their existing policies for selecting a surrogate. The law also fails to resolve an even more critical problem, namely how health care decisions may be made when there are no individuals "close" or "available" (or appropriate) to act as a surrogate.
On a practical, day-to-day basis, physicians will still simply have do the best they can in any given situation and hope it works out for the best. "There are lots of good stuff written in law that attempt to make us do the right thing," Hess says. The bottom line is that these decisions can’t be legislated. You do what you perceive to be the right thing, hopefully not in direct violation of those rules."
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