What you can do to honor patient directives
October 1, 1996 6 minutes read
What you can do to honor patient directives
"Wrongful life" poses an uncharted legal threat to many hospitals, but it is a rapidly growing area of patient litigation, experts say. Here are seven areas where you can help make a difference in your facility:
1. Learn the law.
One of the biggest problems with honoring advance directives is ignorance of the law, says Anna Moretti, JD, a lawyer for the New York-based Choice in Dying, a group that invented the first living will. Risk managers can serve their facility well by learning the controlling law.1
Be aware that the law of advance directives is controlled by two primary sources: the federal Patient Self Determination Act (PSDA) and state laws. The PSDA requires hospitals to inform patients upon admission of their right to refuse treatment if they are near death. The PSDA, however, works in conjunction with state law. As a result, hospital employees often do not know what patients’ rights actually are.
Nail down the legal facts
"It has been my personal experience that I have been in a facility, and I am told the wrong law," Moretti says. "There is a lot of misinformation and rumors. The law on the books is different than the law in the hospital."
2. Educate staff continually.
"This is not something that a one-time inservice will do well," warns Faye Rozovsky, JD, MPH, DASHRM, director of risk management and legal affairs for AIG Healthcare Management Services in Wynnewood, PA. "It will take frequent and recurrent education. You also may find situations such as in the emergency department where you have independent contractors and rapid staff changes who need constant education."
Risk managers also should make sure that all medical staff receive education and training on advance directives, Moretti says. "There is no reason that only nurses should be exposed to it. Make the physicians go through it."
Since physicians often have privileges at several facilities, Moretti says hospital-specific training takes on added importance. Additionally, if hospital policy allows physicians to invoke a conscience clause to excuse themselves from honoring patient directives, it is important for them to understand patient rights and know hospital procedure for transferring patients to another facility or provider that will carry out the advance directives. Conscience clauses allow individual providers to avoid honoring advances directive on moral or spiritual grounds.
3. Educate patients and families.
Adding to the confusion surrounding advance directives is a public with heightened awareness of its rights yet ignorance of the actual law. Most patients believe they can control the course of their treatment and refuse care at any time. Under the law of most states, however, advance directives only become effective when a patient is terminal or unconscious.
Many patients wrongly believe that having a living will means they will not be given CPR if they have a heart attack but are conscious. They need to be told that a living will is not applicable to refusing treatment in this sort of situation. This confusion often is the source of lawsuits, says Sue Dill, RN, JD, director of risk management for the Ohio Hospital Association (OHA) in Columbus.
4. Transfer the PSDA responsibility out of admitting.
The PSDA requires hospitals to advise patients of their rights under the law upon admission. Most hospitals saddle their admissions departments with responsibility for compliance, which is problematic, Moretti says, because admitting nurses are not trained enough, and patients often are too anxious about their hospital stay to take in the information. Like other facilities, Mt. Sinai uses pamphlets tailored to Florida law to explain patient rights. "The pamphlet does a good job of explaining complicated issues, but the problem with a pamphlet is that you cannot ask questions," says Charles Baggett, ARM, FASHRM, director of risk management for Mount Sinai Medical Center in Miami Beach.
Dedicated staff cuts confusion
"The obvious answer is to create a new department [for the task of complying with the PSDA]," suggests Baggett, "but that means more full-time employees and a bigger payroll."
Still, he believes that having a dedicated staff would eliminate much of the confusion surrounding advance directives, from the hospital’s and patient’s perspectives.
5. Have a procedure to collect or draft advance directives.
Most risk managers say one of the biggest problems they face with advance directives is that patients do not bring them to the hospital. Baggett advises his staff to tell patients they can have a friend or family member deliver their directives to the hospital, or they can create new ones, which will supercede the pre-existing ones.
In its 1996 hospital manual, The Joint Commission on the Accreditation of Healthcare Organizations in Oakbrook Terrace, IL, added a new requirement stating that in the absence of the actual advance directive, the document’s substance must be documented in the patient’s chart. This standard was fraught with legal risk, Dill believes, because of the likelihood of confusion about the substance and questions about the legality of such documentation.
Now the Joint Commission has released an interpretative statement to supplement the standard.2 According to the Joint Commission’s statement, the standard embodies four principles:
• Patients have the right to express their wishes regarding treatment at any point in the care process.
• The hospital is responsible for documenting patients’ wishes and ensuring their physicians are aware of them.
• Documentation in patients’ medical records can be done through the insertion of existing directives or newly completed ones.
• Documentation must include the patient’s description of the content of the directives or of the patient’s wishes, irrespective of the existence of a formal directive.
While state law, legal precedent, and hospital policy may influence how patients’ wishes are carried out, the hospital protects their right to make those wishes known and have them documented. This new interpretation still allows for a hospital to document the substance of an absent advanced directive in the patient’s chart.
Dill remains cautious about this practice. She has advised OHA members either to make arrangements for patients to bring their advance directives to the hospital or to have them redrafted.
The OHA created a form, which has been distributed to all members, that patients can use on admission to draft an advance directive.
6. Be aware of gimmicks.
Several companies are now marketing bracelets, cards, and other items that either document advance directives or alert medical personnel to their existence. Some states are even considering allowing individuals to record their directives with local governmental entities, much like a deed to a house.
Baggett says risk managers should keep abreast of these new products and procedures and educate their staffs about them. "I am concerned about them because I do not know if [our emergency room] will find them," he says. "It could be a real disaster if they do not."
7. Have good documentation procedures.
Just asking for an advance directive or allowing a patient to complete a new one will not keep a hospital out of trouble. They must be followed when they are applicable. "Show a good paper trail. Show that you have made a good faith effort to get it and to comply with it," Rozovsky advises. "It is not enough to satisfy the law only by asking for an advance directive. . . . State law kicks in when someone has not done what they are supposed to do. That’s where the problem is."
Spread info unitwide
Another common problem is interdepartmental communication. It is not enough for the nurses on the patient’s ward to know that a patient has a living will in the chart. Every unit the patient may come in contact with must know about the directive as well, Baggett says.
At Mount Sinai, Baggett has begun placing stickers on the front of patient charts to alert all personnel of the existence of advance directives. The stickers are similar to those used for patients’ drug allergies.
"It is a similar problem to allergies in patients," Baggett says. "We are keeping it simple and using a system that is already in place here." Baggett notes that when using stickers to alert personnel of advance directives, it is of paramount importance to make the patient name and date of admission clear on the sticker.
References
1. New York Times p. A1, June 6, 1996
2. JCAHO Interpretation #AMH96-R1.1.2.4; effective July 1, 1996.
[Editor’s note: Choice in Dying offers a toll-free information and assistance line. The organization receives more than 3,000 calls per month from individuals, lawyers, risk managers, physicians, and others with questions about advance directives.
Choice in Dying does not assume any advocacy positions on euthanasia, physician assisted suicide or other issues. The toll free number is (800) 989-WILL.]
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