Chapter 34. Medical-Legal Concepts: Advance Directives and Surrogate Decision Making

Advance directives, such as living wills, health care powers of attorney, do-not-resuscitate orders, and mental health care directives, are written legal documents that offer patients the opportunity to reflect upon and provide direction for their future medical care. They are important and useful tools to facilitate discussions between patients, family members, and physicians about end-of-life care choices, and they provide guidance and legal protection in those situations when a patient is no longer capable of declaring her care preferences and critical and difficult treatment decisions need to be made. Following an advance directive facilitates making end-of-life care decisions at the patient's bedside rather than through contentious court proceedings. More importantly, advance directives are legal mechanisms that reinforce the fundamental professional and moral responsibility of health care providers and institutions to promote and protect patient autonomy, welfare, and dignity.

This chapter offers an introduction to advance directives, examining the general structure of the various types of advance directives, when they may be triggered, what clinical circumstances and decisions they may cover, as well as the relative strengths and weaknesses of the different advance directive instruments. Every state has laws describing the types of advance directives available in its jurisdiction, the processes by which such documents may be created and triggered, how and where they can be employed, and the legal protections afforded to care providers and health care facilities that carry out care decisions when guided by such documents. These laws may be supplemented by policies and procedures adopted by your local hospital or health care facility to direct the use of advance directives in your particular setting. Given the unique idiosyncrasies found from state law to state law and facility policy to facility policy, the reader should note that not all varieties of advance directive instruments may be available in your particular locale, and the processes used to carry out a particular advance directive may diverge from what is described in this chapter.

The 1960s and 1970s saw a movement toward greater patient participation in health care that resulted in new ways to ensure shared decision making between patients and their physicians. During this time, dramatic medical and technological advances underscored the importance of recognizing and incorporating the goals and values of all patients, while ethicists, the courts, and others came to a consensus that a decisionally capable patient has the right to accept or refuse any type of medical care. However, many persons feared a loss of control may occur if they became incapacitated and unable to make their own medical decisions. As a result, patients and potential patients became increasingly aware of the need to make provisions for their own future medical treatment.

Patient Self-Determination Act

In 1990, the U.S. Supreme Court heard the case of Nancy Cruzan, a 33-year-old woman diagnosed in a persistent vegetative state after a car accident in 1983. In the case of Cruzan v. Commissioner, Missouri Department of Health, 497 U.S. 261 (1990), Nancy's parents sought to have the feeding tube removed and allow Nancy to die. The Court found that decisionally capable patients have the right to refuse life-sustaining therapies, including nutrition and hydration. However, the Court also indicated that states could require third parties acting on behalf of patients who are no longer decisionally capable to submit evidence of the patient's wishes before granting a request to withdraw life-sustaining treatment.

Partly in response to the Cruzan decision, Congress passed the Patient Self-Determination Act in 1990. This law attempts to make it clear patients have the right to make decisions regarding their medical care. This includes the right to accept or refuse treatment and the right to complete an advance directive as evidence of their wishes. The law requires any health care provider participating in Medicare or Medicaid to provide all persons over the age of 18 with written information regarding the patient's right to accept or refuse treatment and right to complete an advance directive. Providers include hospitals, nursing homes, home health care providers, hospices, and health maintenance organizations, but not outpatient-service providers or emergency medical personnel. The Patient Self-Determination Act also requires health care providers to document whether patients have advance directives, establish policies to implement advance directives, and educate their staff and the community about advance directives. Patients should also be informed that having an advance directive is not required to receive medical care.

Uniform Health Care Decisions Act

After the Cruzan decision, significant changes occurred in state laws across the United States regarding health care decision making. While every state passed legislation authorizing the use of at least one form of advance directive, there was very little uniformity between the laws. By 1993, state laws regarding health care decision making were often fragmented, incomplete, and sometimes inconsistent. Statutes in one state frequently conflicted both with other statutes from the same state, and with statutes from other states. With this confusion in mind, the Uniform Health Care Decisions Act (UHCDA) was drafted in 1993. Under the UHCDA, any adult or emancipated minor may execute or provide an “advance health-care directive,” which refers to either a “power of attorney for health care” or other “individual instruction.” If an individual fails to execute a power of attorney for health care or if the agent is not available, the UHCDA authorizes health care decisions to be made by a “surrogate” to be selected from a priority list. The Act also recognizes an individual's authority to define the scope of any instruction or agency as broadly or as narrowly as the individual chooses.

Advance directives empower individuals to make their goals, values, and treatment preferences known before a loss of decisional capacity may occur. The term advance directives refers to oral or written instructions about a person's medical care that provide guidance regarding medical treatment to health care professionals if and when the patient becomes unconscious or otherwise unable to make his or her own decisions. All 50 states, either through statute or case law, have provisions for honoring advance directives. Despite this, different jurisdictions utilize different standards, terminology, and limitations of authority. Physicians should become familiar with the local requirements for completing and honoring a legal advance directive.

The legal requirements for a valid advance directive vary from state to state, but in general any adult or emancipated minor with decisional capacity can execute an advance directive. In some rare instances an advance directive may have an expiration date, however in general an advance directive remains in effect until such time as the patient revokes it. Different states have different requirements for validly revoking an advance directive, but most recognize a decisionally capable person may revoke an advance directive at any time simply by making the intention to revoke clear to a lawyer or health care provider, either verbally or in writing.

Because of the additional effort required to complete a written directive, the written directive is generally held to have more power than oral statements; however, this should be evaluated on a case-by-case basis. Because not every medical situation can be anticipated, in some situations oral statements provoked by the situation of others or even a television program may be more directly relevant to the situation at hand.

Nonconforming Documents

While many state statutes contain standard or recommended language for advance directives, people are introduced to advance directives from a variety of sources, including financial planners, senior organizations, national agencies, and religious organizations, not to mention the Internet. Most state statutes explicitly acknowledge that versions of advance directives that do not contain the recommended statutory language, as well as some oral statements, may also be valid. Such nonconforming directives cannot be dismissed just because they do not contain the language recommended by statute. Evaluating directives that do not conform to the recommended language found in state statutes requires physicians to determine, with the assistance of the ethics committee or legal counsel if necessary, whether a nonconforming directive meets the state's standard of reliability. In other words, is it clear that the patient intended to document his or her wishes with the intention that such documentation would be relied upon and followed by the health care team? Such seriousness of purpose can be demonstrated by a variety of means including if the document contains the patient's signature, if the document is witnessed, if the document was presented to the physician by the patient as an advance directive, or if the patient discussed the document with family members as evidence of the patient's wishes.

Advance Care Planning

When advance directives first came into existence, they were viewed as legal documents offering legal protection from unwanted treatment at the end of life. As the practice of medicine has become more patient centered, a greater focus has emerged on ensuring all medical decisions are not only clinically sound, but also based on the patient's personal goals for care. Advance directives are best thought of as the result and documentation of a patient-centered process aimed at extending the rights of patients to guide their medical care, even through periods when they are no longer able to directly participate in decisions about their own care.

Optimally, before completing an advance directive, individuals will have the opportunity to have a structured discussion with their physician or other clinician about their health care wishes and goals. Ideally, these conversations are held before the patient becomes ill, even though physicians cannot discuss with specificity every scenario that may occur. Advance directives may simply contain general preferences, or they may contain specific instructions about particular treatments. Those that contain only general preferences can be less helpful in guiding care than those with specific instructions because general preferences can require more interpretation in light of the current medical evidence. For example, a patient's statement “I don't want to live hooked up to machines,” may mean the patient's does not want CPR, or it may mean the patient wants all aggressive therapies until such time as those therapies fail to restore the patient to an acceptable quality of life. A comprehensive process of advance care planning includes a discussion of possible or likely scenarios based on the patient's unique medical situation, a discussion of the patient's values and goals, documentation of the patient's values and goals, and a way to ensure that this information is available to present and future care providers. The advance directive as a document provides a legally recognized way to record this discussion.

Although state statutes vary, there are three basic types of advance directives: instructional, such as living wills; proxy, such as a power of attorney for health care; and combination directives, which provide both instructions for care and name a proxy to make decisions.

Instructional Advance Directives

Instructional directives provide consent or refusal for specific treatments that may need to be utilized when the patient is unable to make the decision, traditionally at the end of life (Table 34-1).

Living Wills

Living wills are the most common instructional directive. A living will directs physicians to withhold or withdraw life-sustaining measures and to provide only comfort care if the patient has a terminal illness and life-sustaining measures are prolonging the dying process without a chance for recovery. The living will thus addresses only a small subset of medical situations and critics cite the typically vague language and difficulty physicians have predicting with certainty when a patient is at the end of life as primary reasons that the document has fallen out of favor in terms of utility. Nevertheless, the document can be helpful as a starting point for further discussion, and it serves as evidence of a patient's values, specifically that there are certain outcomes the patient would not wish to pursue. The living will is also a useful document for persons who do not have a designated agent or proxy since it speaks directly to the physician and does not require the consent of a designated agent or proxy in order for the physician to take action.

Some jurisdictions have placed restrictions on how the living will may be invoked. For example, Illinois and Missouri do not permit the withdrawal of artificial nutrition and hydration if the withdrawal would be the proximate cause of death (rather than the patient's terminal condition). Most states also have provisions invalidating the document if the patient is pregnant, and some states dictate that the power granted to a designated agent such as a power of attorney for health care takes precedence over the power provided in the living will. Physicians should refer to the specific statutes in their state for guidance.

As the first widely known advance directive, the living will is the most well known and physicians should be aware that many patients refer to all advance directives by the name “living will,” and others may confuse the living will with a last will and testament. Care should be taken to verify the exact type of directive(s) the patient may have.

Do-Not-Resuscitate Orders

Do-not-resuscitate (DNR) orders have become increasingly common in the care of the dying patient. The decision whether to resuscitate a patient who suffers a cardiac or respiratory arrest involves consideration not only of the potential clinical outcomes, but also the patient's preferences regarding the intervention and if the likely outcome is one that would be desired by the patient. In order to streamline care from the inpatient to outpatient setting, a majority of states now have legislation permitting the use of out-of-hospital DNR orders. These DNR orders are physician orders that direct health care professionals across all emergency, living, or health care settings to withhold or withdraw (if treatment has already begun in absence of the form) specific types of life-sustaining treatment, such as CPR or defibrillation, in the event of a respiratory or cardiac arrest.

Physician's Orders for Life-Sustaining Treatment (POLST)

POLST stands for physician's orders for life-sustaining treatment, and the POLST form has been adopted by several states. (Some states such as New York use the acronym MOLST for medical orders for life-sustaining treatment.) POLST addresses the desire some persons may have, particularly those persons who are experiencing a chronic or life-limiting illness, to avoid unwanted emergency medical care like CPR or a transfer to the hospital. POLST takes advance directives a step further by not only documenting a patient's treatment preferences, but also providing emergency and other medical personnel with clear physician orders to follow in the case of an emergency. Depending on the state, the POLST form has three or four sections outlining the patient's desire to have or refuse CPR, whether the patient would like to be taken to a hospital, and the types of medical interventions desired by the patient, including the provision of comfort care, antibiotics, or artificially administered nutrition. In those states that have adopted the POLST paradigm, the orders are valid in all emergency, living, and health care settings. If a patient presents the POLST document in a state that has not adopted the POLST paradigm, the document should be interpreted as strong and reliable evidence of the patient's known wishes regarding treatment.

Other Types of Instructional Directives

Other types of instructional directives allow individuals to refuse specific therapies, such as blood transfusion or dialysis, for persons who have specific desires to refuse those types of therapy. For example, many Jehovah's Witnesses do want blood or blood products administered under any circumstances, even though death may be an outcome of the refusal. The instructional directive provides evidence of the patient's wishes, and many will specifically release the physician from any liability for following the directive.

Proxy Advance Directives

Proxy advance directives such as the power of attorney for health care allow a patient to appoint another person over the age of 18 to make health care decisions in circumstances when the patient is unable to make those decisions for himself or herself. The proxy advance directive is not limited to end-of-life decisions and is therefore a more useful document for the vast number of decisions that can be encountered throughout the lifespan. The only requirement before the instrument takes effect is the patient must lack decisional capacity regarding the decision at hand. Physicians should note that because decisional capacity is decision specific, a patient may have the capacity to make some decisions, but require assistance to make other types of decisions.

The person appointed by a power of attorney for health care is called a power of attorney or an “agent.” Because a power of attorney has been directly appointed by the patient, a power of attorney typically has broad authority to make the same kinds of decisions as the patient unless that authority has been limited by the patient or by statute. Thus, in most states, a power of attorney can accept or refuse any type of treatment. Because the power of attorney can execute a broad range of power, health care professionals and others should ensure the appointment of a power of attorney is executed without coercion or duress. Some states require the power of attorney to accept the agency in writing, while others restrict agency to a single individual in order to minimize the chances that disagreement or differences of opinion between two or more agents stall medical decisions. Physicians should refer to the specific statutes in their state for guidance.

Combination Advance Directives

There is a growing trend in advance directives toward allowing persons to combine instructions regarding treatment preferences with appointing a decision maker to make proxy decisions. Many state forms now allow persons completing an instructional form to also specify or appoint a power of attorney at the same time. It is important to note that while many combination forms grant the proxy decision maker broad powers of decision making, the document may also contain a limitations or exclusions section that limits the types of decisions that the proxy decision maker can make on behalf of the patient.

Psychiatric Advance Directives

Psychiatric advance directives allow persons with mental illnesses to engage in advance planning with their physicians regarding potential future care. Persons with mental illnesses retain the right to refuse treatment, as long as they do not pose a serious risk of harm to themselves or others. However, during an acute episode of psychiatric illness an individual may become unable to make or communicate decisions about treatment. A psychiatric advance directive allows currently competent patients who may experience an acute episode of psychiatric illness in the future, to agree in advance to treatment they may refuse later when ill. Unlike many other types of advance directives that focus on empowering the patient to refuse unwanted interventions, psychiatric advance directives are generally “optin” documents where the patient may preconsent to inpatient hospitalization, medication, or other helpful treatment modalities. In addition to offering a clear written statement of an individual's treatment preferences, the psychiatric advance directive can also be used to assign decision-making authority to another person while the individual is incapacitated. Correctly executed and implemented directives not only promote individual autonomy and empowerment, they can eliminate the need for court involvement and assist in recovery by communicating to the physician and others the types of treatments that have or have not worked for the person in the past.

“Five Wishes”

“Five wishes” is a combination advance directive introduced in 1996 that has become popular because of its easy-to-read language. It introduces the subjects of a living will, power of attorney, comfort care, spirituality, and other personal matters such as forgiveness and memorial plans in the form of five distinct but overlapping “wishes.” The first two wishes—”the person I want to make care decisions for me when I can't” and “the kind of medical treatment I want or don't want”—are intended to serve as legal documentation fulfilling the requirements of many states' living will and power of attorney statutes.

Today's health care providers, and physicians in particular, have the simultaneous responsibility of respecting patients' autonomous choices while protecting from harm those patients who are incapable of making an authentic or informed decision. For patients with variable or fluctuating capacity, circumstances may arise where the patient is capable of being involved in some, but not all, decisions. The minimum standard for decisional capacity is directly related to the risk involved in the decision. Thus, a patient may legitimately consent to a low-risk procedure such as a blood draw or CT scan, but need assistance with more complex decisions such as whether to have surgery. The presumption is that a coherent care plan should be established around the patient's known wishes whenever possible.

Informed Consent

Informed consent is, with rare exceptions, required before treatment can be provided to a patient. In order for consent to be valid, it must be given voluntarily in light of accurate and relevant information—in a language intelligible to the recipient—regarding the risks, benefits, and alternatives of the proposed interventions. In addition to providing information that the average reasonable person might desire, it is important that patients receive sufficient information within the priorities that have the most meaning for them. For instance, some religious belief systems require or preclude certain forms of medical treatment. Other patients may want to know how incapacitated they may be after a surgery, or how long they must wait before driving. Valid consent also requires the person giving consent to have sufficient decisional capacity to make the decision at hand.

Decisional Capacity

There are relatively few guidelines informing physicians and others when to conduct and document an explicit assessment of an individual's decisional capacity. However, assessments of decisional capacity should be ongoing and not restricted to instances where the patient disagrees with a physician's recommendation for treatment. Assessment and documentation may be warranted whenever the individual consents to complex or high-risk interventions, when the patient makes choices that do not appear prudent or when the decision is outside the patient's norms, or when the patient has marked cognitive deficits or other risk factors for impaired decisional capacity. Although some complex situations may call for a specialized assessment by a psychiatrist or ethicist, most capacity assessments can be completed by any physician responsible for obtaining consent to treat the patient.

It is important to note that because capacity may fluctuate over time, physicians may be dealing with a proxy decision maker for some aspects of treatment, and directly with the patient for other aspects. When reasonable, important decisions should wait until the patient regains decisional capacity (if expected), and decisions made by others should be reviewed with the patient if and when he or she regains capacity. The presumption is that patients can make their own decisions until they demonstrate otherwise. Therefore, each decision should be put before the patient and if the patient concretely demonstrates that he or she is unable to make the particular decision at hand, this should be carefully documented in the patient's medical record. Many jurisdictions also require documentation of the reason for the patient's incapacity and its expected duration.

Decisional capacity is functionally defined in light of a specific decision. As the risk of a proposed intervention increases, so too does the threshold standard for decisional capacity. For instance, the capacity needed to consent to routine labs would be lower than the capacity required for consent to open heart surgery. Grisso and Appelbaum have put forward the most frequently used model for assessing decisional capacity standards 1–4 in Table 34-2.

Some commentators have also indicated that under certain circumstances it may be prudent to add the fifth criterion, particularly if the decision being made by the patient represents a radical or abrupt change in treatment goals, or does not conform to what is known about the patient values or other decisions.

Competence and Decisional Capacity

Decisional capacity and competence are not synonymous. Competence is a legal designation that must be made by a court, whereas decisional capacity is determined by a physician or other clinician. Not all patients with a developmental, cognitive, or mental illness have impaired decisional capacity, even if they have been declared incompetent or have been appointed a guardian. On the contrary, there is significant variability in the decisional capacity among these patients. The examining clinician should evaluate each patient's capacity in light of the particular decision at hand.

Physicians respect a patient's autonomy by recognizing that the patient's right to accept or refuse treatment remains even after he or she loses decision-making capacity. Patients who have lost decisional capacity may continue to communicate through their advance directives, or through a power of attorney or surrogate who interprets what the patient would choose in a given situation.

When medical decisions need to be made for a patient who lacks decisional capacity, physicians should first inquire whether the patient has documented any wishes in a written advance directive such as a POLST form or a durable power of attorney for health care. Optimally, the patient will have documented preferences that directly relate to the proposed treatment. However, this rarely happens. More commonly, a third party is necessary to represent the patient's interests and interpret the patient's known wishes and values in light of the current medical situation. If the patient has designated a decision maker in an advance directive such as a power of attorney for health care, the designated agent should be relied upon to make decisions. If the patient does not have a power of attorney or some other document that directs care, such as a POLST form or living will (or those documents exist but do not apply to the situation at hand), a surrogate should be appointed.

Surrogate Decision Making in the Absence of Advance Directives

Many states have established protocols for identifying a legal third-party decision maker in the absence of a documented advance directive. This third-party decision maker may be called a proxy or a surrogate, depending on the state. Most patients have not completed an advance directive and there should be no presumption inferred from the fact that an advance directive has not been executed. The guiding principle in appointing any surrogate is to find the person, or group of persons, who best know the patient's values and health care goals. This person or persons should be able to effectively communicate with the health care team, and be willing to make choices the patient would most likely make if he or she could speak for himself or herself.

Where they exist, state statutes generally indicate the family of the patient should be responsible for making medical decisions. The order of priority for appointing a surrogate is usually listed by degree of legal or blood relationship, with a court-appointed legal guardian of the patient first, then a spouse or domestic partner (in jurisdictions that recognize this status), adult children of the patient, a parent of the patient, an adult sibling, other family members, and finally a close friend of the patient (Table 34-3). While “family” is generally recognized as a biological or legal relationship, most states have not specifically addressed more complicated relational ties such as when the patient has full siblings, half siblings, and step siblings who all consider themselves to be close relatives of the patient on the same level of the surrogate hierarchy. If more than one person has the same level of priority (such as several adult children), consensus is preferred, but many states allow for a majority decision when consensus cannot be reached. The disagreeing party then has the option of turning to the court to assist in resolving the dispute. In states that do not appoint surrogates by statute, case law may offer guidance, or the physician or ethics committee can nominate the decision maker according to the standards of the institution.

Guiding Standards

Two basic principles should guide treatment decisions for decisionally incapable patients: respecting and promoting the patient's autonomy, and fostering the patient's well-being. All surrogates and care providers have an obligation to follow the informed verbal or written wishes of the patient and to act in the person's best interests. They should also take into account the person's values and goals if those are known. Three legal and ethical standards have been established to guide such decisions: (1) The highest standard is a directly relevant autonomous directive where the patient's wishes in regard to the decision at hand are known, either through documentation or discussion. (2) The most common standard used is substituted judgment where the proxy decision maker is tasked with making the decision he or she believes the patient would have made in this situation based on what is known about the patient's wishes, personal values and preference, and goals. (3) In the best interest standard, the patient's wishes are unknown or have never been known (such as cases involving infants), and the proxy decision maker must weigh the risks and benefits of all of the alternatives and make a decision that achieves the greatest net benefit from the perspective of the patient.

Confidentiality and HIPAA

Although medical care has always included the need to keep patients' medical information confidential, the Health Insurance Portability and Accountability Act (HIPAA) has further specified and codified the responsibility of health care providers. In order to make effective decisions, proxy decision makers need information about the patient's medical history and care. HIPAA regulations recognize this and entitle duly documented proxy decision makers to the same medical information as the patient in regard to the decision at hand. However, physicians should disclose only that information needed by the proxy to make an informed choice regarding the decision at hand. If possible and/or when directed by the patient, physicians should avoid discussing highly personal information such as sexually transmitted diseases, HIV status, chemical dependency, mental illness, or any history of sexual or physical abuse, unless such information is absolutely necessary in order for the proxy to make appropriate and informed decisions.

Scope of Authority

The exact scope of a surrogate's decision-making authority varies by state. Patients may also document certain limits on the kinds of decisions that may be made by their surrogate. For example, some living wills state the surrogate decision maker cannot override specific instructions such as a request not to receive CPR. Some state laws also suggest the patient must assent to, or minimally not refuse, decisions made by the surrogate. This offers a layer of protection to those patients who may not reach the threshold for decisional capacity with respect to the decision at hand, but who are still aware of and engaged with what is happening to them. When there is disagreement between the patient and surrogate, and a clinically appropriate compromise that is acceptable to both parties cannot be found, it is advisable to contact the hospital's ethics committee.

Because the surrogate is often an individual whom the patient has not explicitly appointed to the role of decision maker, many states place restrictions on the types of end-of-life decisions that can be made by the surrogate. Broadly speaking, these restrictions may require the attending physician and one additional physician to document that the patient has a “qualifying condition,” such as a terminal illness or permanent unconsciousness, before honoring a request by the surrogate to withhold or withdraw life-sustaining treatment.

Generally, a proxy decision maker for a decisionally incapable patient may conduct routine medical affairs for the patient including consulting with the patient's health care providers, providing verbal or written consent for medical procedures, applying for public benefits such as Medicare or Medicaid, authorizing the release of information and clinical records needed for continued care, and authorizing the transfer of the patient to or from health care facilities. Care should be taken that such activities are warranted by the patient's clinical condition, do not conflict with the patient's known wishes, and that they are undertaken by the proxy only when it is not expected that the patient will be returned to a decisionally capable state in the time necessary to assure continuity of care.

Conflicts

Occasionally, situations arise in which a surrogate makes a decision or requests an intervention that conflicts with either the patient's advance directive or other instructions the patient provided to the care team while the patient was still decisionally capable. For instance, it is not uncommon for a patient's child to request CPR be provided even when the patient has specifically requested a DNR order. Plans and treatment goals previously established between the patient and the physician should not be changed without concrete evidence that those decisions were made due to factual, conceptual, or clinical error. The primary responsibility of the physician is to the patient, and decisions made after the patient loses decisional capacity should further the continued interests of the patient. Additionally, surrogates are morally and legally required to make decisions that conform as closely as possible to those the patient would choose for himself or herself. Physicians thus are not obligated to follow requests by surrogates that do not comply with the patient's known wishes. If the physician is unable to resolve the conflict, it may be helpful to involve a third party to help mediate the situation such as an ethics consultant or committee, or hospital legal counsel. If an ethically, legally, and clinically sound agreement cannot be reached, court review may be necessary.

Special Cases

Implied Consent

In health care, the principle of implied consent is sometimes colloquially referred to as “emergency consent” since it is most commonly invoked when the following conditions are met: (1) there is an emergency circumstance where the patient is unable to participate in the informed consent process (usually because the patient is unconscious), and there is no available evidence of the patient's wishes not to receive the therapy; (2) no other proxy decision maker is available to make decisions for the patient; and (3) the physician is compelled to immediately provide necessary treatment without which serious or irreversible harm to the patient's life or health may result. Thus, implied consent is presumed when a person needs help and cannot explicitly provide consent. Implied consent also refers to situations where the patient does not expressly state, either verbally or in writing that a procedure may be done, but his or her actions imply consent. A common example is when the patient extends an arm after being told that the physician wants to draw blood for laboratory analysis. Implied consent is legally accepted and provides a defense against claims of battery, but not against claims of negligence. Physicians should follow their institutions' documentation standards when relying on implied consent in the context of a medical emergency, and clearly identify why emergency treatment was necessary as well as the nature and immediacy of the threat.

Minors

The rights of minors to make decisions about their medical care have expanded over the past decade. While in general, a parent or legal guardian of a minor has to provide consent for treatment, some jurisdictions are granting older minors, especially those over the age of 16, broad leeway to make decisions about their medical treatment. Nearly all jurisdictions allow legally emancipated minors and minors who are pregnant or parents themselves to make medical decisions for their care and their own minor children. However, some states now have statutes or case law that allow mature minors to provide consent to procedures if they can demonstrate that they are mature enough to understand and appreciate the nature and consequences of a proposed medical procedure or treatment. Rather than reliance on an “all-or-none” phenomenon, the mature minor doctrine allows for individual assessment of the stability of the minor patient's value system along with their emotional and intellectual development. This approach recognizes that decisional capacity in a minor is a gradual process affected by personal characteristics and environment. The laws concerning the extent minors are allowed to make medical decisions for themselves vary from jurisdiction to jurisdiction, and most jurisdictions are reluctant to allow minors to refuse potentially life-sustaining treatment without involvement of the court. It is therefore advisable that each physician be familiar with the local statutes.

Artificial Nutrition and Hydration

Medical and legal issues abound when it comes to the use of artificial nutrition and hydration (ANH), particularly in the dying or permanently unconscious patient. The U.S. Supreme Court made it clear in its 1990 Cruzan decision that ANH is a medical treatment and a decisionally capable patient may refuse any and all types of medical treatment, including ANH and other types of life-sustaining treatment. Patients may also execute a specific instructional directive that references ANH and clearly communicates the patient's refusal of ANH. However, state laws are highly variable in regard to proxy decision-maker requests to withhold or withdraw ANH, and many living will laws expressly forbid the withholding or withdrawal of ANH as a means to shorten the dying process. Some states require “clear and convincing” evidence of the patient's wishes to forgo administration of ANH before a proxy request may be honored. Clear and convincing evidence would require either a written directive or evidence of a serious, reflective discussion with the patient on the subject. Other states have lesser evidentiary standards, and some include ANH within the parameters of life-sustaining treatment that may be terminated upon request of a proxy decision maker whenever the standards are met for withdrawal of life-sustaining treatment. Physicians should refer to the specific statutes in their state for guidance.

Physician-Assisted Suicide

The U.S. Supreme Court ruled in 1997 that states may maintain laws that prohibit or allow euthanasia and assisted suicide. A few states now allow terminally ill adult patients, who are decisionally capable and able to communicate their wishes, to end their lives through the voluntary self-administration of a lethal dose of medication prescribed by a licensed physician expressly for that purpose. In Oregon and Washington, the statutes are called the Death with Dignity Act. Patients must fulfill several requirements before receiving the medication, including initiating verbal and written requests, undergoing a second opinion consultation, receiving psychiatric intervention if the patient is perceived to be depressed, and undergoing a 15-day waiting period. This process is sometimes called “physician-assisted suicide” because patients self-administer the medication at a time of their choosing with the intention of ending their life. Because the patient actively takes steps to end his or her life, this is different than withholding or withdrawing medical treatment where barriers to the dying process are removed. This is also different than voluntary active euthanasia where the physician acts upon the voluntary request of a decisionally capable patient and the physician intentionally administers medications or other interventions to cause the patients death. In states that allow it, patients must request and self-administer the lethal medication. No state allows the medications to be administered or requested by a proxy decision maker, even where there is clear evidence of the patient's wishes.