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Article of Interest

Advance Directives Provide Valuable Insight Regarding Patient Wishes
By:  Kimberly Wilson

The January 8, 2011 shootings near Tucson, Arizona reminded many that the end of life can come sooner than expected when 19 people were shot in a grocery store parking lot and six were killed. The events that Saturday morning were likely followed by the struggles of family and friends of the deceased to determine what was wanted in terms of funeral arrangements and other important decisions. Though each individual’s situation is unique, promoting end of life planning through dialogue and legal documentation can assist all involved in making certain that the individual’s wishes are carried out in the final stages of life and beyond.

The Fourth Annual National Healthcare Decisions Day is April 16, 2011. This day seeks to inspire, educate and empower the public and medical providers of the importance of advance care planning. End of life planning includes preparation of advance directives, consideration of power of attorney documentation, financial planning, and funeral and burial planning.

Texas law provides for advance directives as an opportunity for patients to indicate treatment preferences for a time in the future when they become unable to make their wishes known in Chapter 166 of the Health and Safety Code. Such directives only apply if the patient is declared terminally or irreversibly ill and unable to particulate in decision-making. Advance directives can also be revoked at any time.

In addition to identifying whether or not an individual wants available life-sustaining treatment when suffering from a terminal condition from which they are expected to die within six months, specific treatments can be noted to be wanted or not wanted in an advance directive. The directive may also designate a person to make treatment decisions with the patient’s physician if the patient does not have a medical power of attorney. In Texas, as of September 2009, patients can sign advance directives electronically using approved digital signatures.

The Texas Hospital Association has identified advance directives and end-of-life care as a key issue for Texas hospitals in the 2011 legislative session. Texas law currently includes a process based on American Medical Association guidelines to address disagreements between patient surrogate decision-makers and physicians about medical treatment near the end of life.

Health and Safety Code Section 166.046 provides the procedure for what occurs when an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient. For several legislative sessions, attempts have been made to require “treatment until transfer” which in some cases would provide for indefinite treatment. Many healthcare providers believe that the “treat until transfer” change would cause an identical outcome for every case and would also create a mandate superseding the patient’s rights as well as the physician’s responsibility to the patient.

Currently, if a physician refuses to continue treatment based on a belief that it would be medically hopeless or futile, this decision is reviewed by the hospital ethics committee and if the ethics committee agrees with the physician that treatment is futile, the family has ten days to transfer the patient to another facility to continue treatment. The hospital has no statutory obligation to continue treatment after ten days. Advance directives provide an independent voice for the patient during the ethics committee process, making it less likely that physicians, chaplains, administrators and lawyers who have never met the person at issue will be making choices for the patient without an understanding of the patient’s wishes.

The U.S. Agency for Healthcare Research and Quality noted in a 2003 article that less than 50 percent of the severely or terminally ill patients studied had an advance directive in their medical record. It is also important that in addition to having an advance directive in place, the existence of this directive is known by healthcare providers.

On January 5th, the White House announced that it was removing the portion of a 2011 Medicare regulation that would have allowed doctors to advise their Medicare patients on end-of-life care options in annual “wellness” visits. This does not prevent Medicare beneficiaries from having end-of-life care discussions with doctors.

The American Health Lawyers Association, a non-profit organization, distributed a DVD to members in 2009 titled “Loving Conversations.” The DVD contains vignettes which show mock family discussions about end of life planning. Watching all of the vignettes takes less than an hour and they are currently available to the public on YouTube. Additional resources regarding advance planning can be found at http://www.nhdd.org.

Kimberly Wilson, a partner at Hermes Sargent Bates LLP, handles healthcare matters for individual providers and various healthcare facilities. She is a Texas liaison for National Healthcare Decisions Day. She can be reached at Kimberly.Wilson@hsblaw.com

This article was originally published in the April issue of the Dallas Bar Association’s publication Headnotes and has been reprinted with the permission of the Dallas Bar Association.