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Legal and Ethical Issues in Termination or Refusal of Care
Kim C. Stanger
(BSU Ch. 12, 4/8/15)
This presentation is similar to any other legal education materials designed to provide general information on pertinent legal topics. The statements made as part of the presentation are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the speaker. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of law to your activities, you should seek the advice of your legal counsel.
Right to Consent /Refuse Care• “Every human being of adult
years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages.” Justice Cordozo, Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914)
Right to Consent /Refuse Care
• Do we allow persons to do whatever they want with their own body?
Right to Consent/Refuse Care
• Individual Rights • Societal Concerns
Georgetown College, Inc. (DC Cir. 1964)
• Facts: Mrs. Jones came to ER. Mr. and Mrs. Jones refused blood transfusion because of their religious faith. Attorneys sought a court order authorizing transfusion.
• Held: Court ordered treatment. Why?
Consent /Refuse Care• Idaho “recognizes the
established common law and the fundamental right of [competent] persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn….” (IC 39-4509)
Consent /Refuse Care• “Any person who comprehends the need for, the
nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf. (IC 39-4503)
• "Consent to care" includes refusal to consent to care and/or withdrawal of care. (IC 39-4502(7))
“Against Medical Advice”
• Provider should give sufficient info to allow patient to make informed refusal.
• Document in chart:– Patient’s competency.– Explanation of risks and benefits.– Practitioner’s attempt to obtain patient’s
informed consent.– Patient’s signature confirming voluntary
decision.– Witnesses.
• Attempt to obtain patient’s signed refusal.
Consent /Refuse Care• Consent for health care to any person who is not
then capable of giving such consent or who is a minor may be given or refused by:– Court appointed guardian.– Person named in living will and durable power of
attorney.– Spouse.– Adult child.– Parent.– Delegation of parental authority per IC 15-5-104.– Relative.– Any other competent person representing himself
or herself to be responsible for health care.(IC 39-4504(1))
Surrogates Refuse Care
• Child neglect = “without proper … medical or other care … necessary for his well-being because of the conduct or omission of his parents, guardian or other custodian or their neglect or refusal to provide them.” (IC 16-1602(25))
• Vulnerable adult neglect = “failure of a caretaker to provide … medical care reasonably necessary to sustain the life and health of a vulnerable adult…” (IC 39-5302(8))
• Providers must report suspected neglect. (IC 16-1605; 39-5303)
Surrogates Refuse Care• Parents or guardians may decline treatment
based on religious beliefs.– Idaho does not “require the granting of
permission for or on behalf of any patient who is not able to act for himself by his parent, spouse or guardian in violation of the religious beliefs of the patient or the patient’s parent or spouse.” (IC 39-4501(3))
– “No child whose parent or guardian chooses for such child treatment by prayers through spiritual means alone in lieu of medical treatment shall be deemed for that reason alone to be neglected or lack parental care necessary for his health and well-being.” (IC 16-1602(25))
Surrogates Refuse Care
• “The right to practice religion freely does not include the right to expose the community or the child to … ill-health or death... Parents may be free to become martyrs themselves. But it does not follow they are free … to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”
(Prince v. Massachusetts, 328 U.S. 158 (1944))
Surrogates Refuse Care
• Court may order treatment despite surrogate’s refusal.– For children: IC 16-1627 creates process
for obtaining expedited authority to provide emergency care.
– For adults: ?• Dept. of Health & Welfare may step
in, assume custody, and order necessary care.
Mueller v. Auker (9th Cir. 2009)• Facts: In 2002, Ms. Mueller took 5-
year old son Tague to St. Luke’s emergency room. ER physician recommended spinal tap to rule out meningitis, but Ms. Mueller refused. ER physician called DHW to report child neglect. DHW and police responded, and authorized care. Spinal tap was negative for meningitis.
• Muellers sued DHW, City of Boise, St. Luke’s, and physicians under numerous claims.
Consent / Refuse Care
• “Health care … shall be withdrawn and denied in accordance with a valid directive” from:–a competent patient, –a patient's health care directive, or –by a patient's surrogate decision
maker.(IC 39-4514(3))• Exception: developmentally disabled
person.
Advance Directives
Advance Directives• Competent adult patients “have the
fundamental right to control the decisions relating to their rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn.” (IC 39-4509)
• Competent adult may express their directives through:– Direct instructions by competent patient.• Be sure to document same.
– Advance directives executed in case the patient becomes incompetent or unable to communicate.
(See IC 39-4510)
Patient Self-Determination Act• Hospitals, nursing facilities, HHAs, FQHCs, RHCs,
hospices, and personal care nursing supervisors must:– Provide written info to patients regarding right to
make decisions concerning their care and execute advance directives.
– Document in prominent place in medical record whether patient has executed advance directive.
– Not condition care or discriminate based on advance directive.
– Ensure compliance with state law regarding advance directive.
– Educate staff and community regarding advance directives.
• Must provide info at time of admission.(42 USC 1395cc(f); 42 CFR 489.102)
Advance Directives• Living Will• Durable Power of Attorney• Physician’s Order for Scope of
Treatment (“POST”)• Do Not Resuscitate (“DNR”)• Mental Health Care Directives• Others?
Advance Directives• “’Directive,’ ‘advance directive’ or ‘health
care directive’ means a document that substantially meets the requirements of [IC 39-4510, or is a "Physician Orders for Scope of Treatment" (POST) form or is another document which represents a competent person's authentic expression of such person's wishes concerning his or her health care.”
(IC 39-4502(8)).
Living Will and DPOA • Sometimes combined in single document
executed by patient.• Living will allows patient to direct whether
and what type of artificial life-sustaining measures the patient should receive if the patient is incompetent.
• Durable power of attorney (“DPOA”) allows patient to appoint someone to make health care decisions for the patient if the patient is incompetent or unable to communicate wishes.
• Form is located at IC 39-4510 or http://www.ag.idaho.gov/livingWills/LivingWill_DurablePowerOfAttorney.pdf.
www.ag.idaho.gov/livingWills/livingWills_index.html
Living Will• Applies only if patient:– Unable to communicate instructions;– Is not pregnant; and – Either:• Has incurable injury, disease, illness or
condition and a medical doctor certifies:–Condition is terminal, and–Artificial life-sustaining procedures would
only artificially prolong patient’s life, and–Death is imminent whether or not life-
sustaining procedures utilized.• Is in persistent vegetative state.
(IC 39-4510)
Living Will• Limited to decisions regarding artificial
life-sustaining procedures, e.g., –Provide procedures.–Withhold or withdraw all or certain
life-sustaining procedures.–Hydration and nutrition.(IC 39-4510)
• Must be supported by physician order.
Durable Power of Attorney for Healthcare (“DPOA”)
• Different than general power of attorney.• Applies only if – Patient incompetent or unable to communicate
treatment wishes.– Patient need NOT be terminal.
• Authority– Limited to authority granted in DPOA.• Broad authority granted unless DPOA
includes limits.• Patient may limit authority.
– Decisions must be consistent with patient’s known desires, including living will.
(IC 39-4510)
Durable Power of Attorney• Cannot serve as agents:–Treating provider–Non-relative employee of treating
provider–Operator of community care facility–Non-relative employee of
community care facility• Designation of spouse revoked by
divorce.(IC 39-4510)
Physician Order for Scope of Treatment (“POST”)
POST• Form developed by DHW.• Standing order for CPR and artificial life-
sustaining care signed by:– Physician, PA, or advanced practice
professional nurse (“APPN”),– Patient or surrogate decision-maker,
provided that surrogate cannot contradict the patient’s last known expressed wishes or directions.
(IC 39-4512A)• Designed to replace DNR.
POST• Provider shall comply with POST if:
– Presented with proper POST form; or– Patient wearing proper POST ID tag.
• Proper POST form is valid DNR in all Idaho facilities.– The POST transfers with the patient.– Cannot require additional docs to effect patient’s
wishes.• POST remains effective until revoked or new orders
issued by the physician or midlevel.• Copy is as good as original.(IC 39-4512B, 4514(9))• Must honor POST form even if physician does not have
privileges at facility.
POST• Provider may disregard POST if:– Believe in good faith that POST has been
revoked;– To avoid oral or physical confrontation; or– If so ordered by attending physician.
(IC 39-4513(5))
Idaho Health Care Directive Registry
• Patient may register advance directive in the Idaho Health Care Directive Registry at www.sos.idaho.gov/general/hcdr.htm.
• Providers may, but are not required to, check registry.
www.sos.idaho.gov/general/hcdr.htm
Declaration for Mental Health Treatment
• Competent adult may declare his or her directives for certain types of mental health treatment and designate agent to make mental health decisions.– Similar to living will/DPOA.
• Declaration becomes effective only if patient is determined to be incompetent by:– Court,– two physicians, one of whom is a psychiatrist, or– physician and a professional mental health
clinician.(IC 66-601)
Provider’s Denial of or Withdrawal from Treatment
Denial of Treatment• Health care necessary to sustain life or to provide
appropriate comfort for a patient other than assisted feeding or artificial nutrition and hydration may not be withdrawn or denied if its provision is directed by the patient or surrogate unless such care would be futile.– May deny requested care that is not necessary
to sustain life or provide appropriate comfort care.
– Must provide care that is necessary to sustain life unless:• Patient or surrogate agrees to withdrawal or
denial of care, or• Care is futile, i.e., death is imminent within
days or weeks regardless of care, or the denial of requested care would not cause or hasten death.
(IC 39-4514)
Denial of Treatment:Developmentally Disabled
• May withhold or withdraw artificial life-sustaining treatment if attending physician + another physician certify either:– (1) DD person has incurable, terminal
condition and artificial life-sustaining procedures would not result in the possibility of saving or significantly prolonging the life of the patient, and would only prolong death for a period of hours, days or weeks, and (2) Death is imminent whether or not life-sustaining procedures are used; or
– DD person is in persistent vegetative state which is irreversible and from which respondent will never regain consciousness.
(IC 66-405(7))
Denial of Treatment:Professional or Ethical Reasons
• “Any physician or other health care provider who for ethical or professional reasons is incapable or unwilling to conform to the desires of the person who may give consent to care for the patient under IC 39-4504, [may] withdraw without incurring any civil or criminal liability provided the physician or other health care provider, before withdrawal of his or her participation, makes a good faith effort to assist the person in obtaining the services of another physician or other health care provider who is willing to provide care for the person in accordance with the person's expressed or documented wishes.”
(IC 39-4513(2))
Freedom of Conscience Law• Subject to certain limits, health care professionals
not required to counsel, advise, perform, dispense, assist, or refer services if doing so violates his/her conscience:– Abortion– End of life treatment or care– Dispensing abortifacient drug– Research or treatment regarding human
embryonic stem cell
– Human embryo cloning• “Conscience” = religious, moral, ethical principles.(IC 18-611)
Federal Freedom of Conscience Rules
• Several federal statutes prohibit recipients of federal funds from:– Requiring physicians to perform
abortions or participate in research if doing so would be contrary to religious beliefs or moral convictions.
– Discriminating against physician based on performing or refusing to perform abortion, or participated or refused to participate in lawful research activity.
• OCR may investigate alleged violations. (45 CFR 88.2, as amended 2/23/11)
Provider’s Withdrawal:General Principles
• Patient or authorized surrogate has the right to consent to or refuse treatment. (See IC 39-4504)
• Generally may withhold or withdraw care if patient or authorized surrogate agrees. (See IC 39-4514(3))
• If practitioner disagrees with patient’s or surrogate’s consent, practitioner can generally withdraw from providing treatment, provided:– Cannot abandon the patient.– Subject to limits in Idaho statutes.• Consent Statute• Freedom of Conscience Statute
Euthanasia or Assisted Suicide
Euthanasia or Assisted Suicide
• There is a “distinction between letting a patient die and making that patient die.” Vacco v. Quill, 521 U.S. 702, 807 (1997)
• Currently, states may determine whether to allow physician assisted suicide.
Euthanasia or Assisted Suicide• Idaho’s consent statute “does not make
legal, and in no way condones, Euthanasia or Assisted Suicide, mercy killing, or assisted suicide or permit an affirmative or deliberate act or omission to end life, including any act or omission described in IC 18-4017, other than to allow the natural process of dying.”
(IC 39-4514(2))
Euthanasia or Assisted Suicide• “A person is guilty of a felony if such person, with
the purpose of assisting another person to commit or to attempt to commit suicide, knowingly and intentionally either: (a) Provides the physical means by which another person commits or attempts to commit suicide; or (b) Participates in a physical act by which another person commits or attempts to commit suicide.”
• Penalties – 5 years in prison– Loss of professional license
(IC 18-4017)
Questions?
Assignment• Write a memo (3 pages or less) concerning
whether Idaho should allow physician-assisted suicide (“PAS”). In your memo, address:– Whether PAS is consistent or conflicts with the values
expressed in Idaho’s existing general consent statute, IC 39-4501 to 39-4515;
– Competing individual and societal interests relating to PAS; and
– Possible consequences to the state if PAS were allowed in Idaho.
• Assume that your memo will be read by Idaho legislators and political commentators, so be professional.
