Transcript Slide 3 Ethics: Health care Decision Making TNEEL-NE

Sarah E. Shannon, PhD, RN
Ethics: Health care Decision Making
The Legal & Ethical Basis in
Health Care Decision Making
• Nurses and other health care professionals
have a duty to be familiar with the laws that
relate to health care decision making.
• Most of these laws occur at the state level
rather than at the federal or local level.
• In this area, the law tends to closely mirror
the commonly held cultural and ethical beliefs
around health care decision making.
TNEEL-NE
Slide 2
Ethics: Health care Decision Making
The Law & Health Care
Decision Making
• Three main topics to
discuss:
– Informed consent
– Surrogates
– Advance directives
TNEEL-NE
Slide 3
Ethics: Health care Decision Making
Case: Clara
•
•
•
•
TNEEL-NE
Clara, 68-year-old
Lives alone
Loves to garden
Has rheumatoid arthritis and
hypertension, controlled with
medications.
Slide 4
Ethics: Health care Decision Making
Imagine that Tomorrow You are Faced
with a Major Health Care Decision
Who should be allowed
to make the final choice
about which treatment,
if any, you will have?
Clara’s Response
TNEEL-NE
Slide 5
Ethics: Health care Decision Making
Ethical Basis for Health Care
Decision Making
• Principle of Autonomy:
Respect for the right of
the individual to selfdetermination requires:
– Liberty: Independence from
controlling influences.
– Agency: Capacity for
intentional action.
TNEEL-NE
Slide 6
Ethics: Health care Decision Making
If You Were Faced with
a Serious Illness ...
What information would
you want to help you
make a decision about
what treatment to have?
Clara’s Response
TNEEL-NE
Slide 7
Ethics: Health care Decision Making
Ethical Elements of
Informed Consent
Person must be competent.
Relevant facts must be disclosed.
The person must understand what is
disclosed.
The decision must be voluntary
(rather than coerced or forced).
The person must give consent.
TNEEL-NE
Slide 8
Ethics: Health care Decision Making
Legal Basis for Informed Consent
Example: State Law
Content of informed consent discussion from
Washington State Law RCW 7.70.060
•
•
•
•
Proposed treatment;
Anticipated results from treatment;
Recognized possible alternative forms of treatment;
Serious possible risks, complications, and anticipated
benefits from proposed and alternative treatments including
non-treatment;
• Or a statement that the patient elects to not be informed.
TNEEL-NE
Slide 9
Ethics: Health care Decision Making
Legal Basis for Informed Consent
(Your State)
Content of informed consent discussion from
“Please enter your own state”
TNEEL-NE
Slide 10
Ethics: Health care Decision Making
Two Parts of Informed Consent:
Process Component
• Process Component
– The discussion: Based
on fidelity or the trust
that is the basis of the
relationship between the
health care provider and
the patient
TNEEL-NE
Slide 11
Ethics: Health care Decision Making
Two Parts of Informed Consent:
Product Component
• Product Component
– The evidence that the
discussion has taken place
(e.g., signed form versus
chart note versus verbal
versus implied by
cooperation).
– The type of evidence required
depends on institutional
policy usually based on a
perception of legal risk.
TNEEL-NE
Slide 12
Ethics: Health care Decision Making
If You Could Not Speak for
Yourself ...
Who would you want
to make health care
decisions for you?
Clara’s Response
TNEEL-NE
Slide 13
Ethics: Health care Decision Making
Order of Surrogacy for
Incapacitated Individuals: Example
Washington State Law RCW 7.70.065 (1)
specifies order of surrogates:
•
•
•
•
•
•
Court-appointed guardian
Durable Power of Attorney for Health Care
Spouse
Adult children of patient*
Parents of patient*
Adult brothers and sisters of patient*
* Must be unanimous decision
TNEEL-NE
Slide 14
Ethics: Health care Decision Making
Order of Surrogacy for
Incapacitated Individuals
“Insert your state code”
specifies order of surrogates:
TNEEL-NE
Slide 15
Ethics: Health care Decision Making
Ask Yourself ...
How would you want
your surrogate to make
health care decisions
for you?
On what basis?
Using what information?
Clara’s Response
TNEEL-NE
Slide 16
Ethics: Health care Decision Making
Standards for Surrogate
Decision Making
• Substituted Judgment:
– Making the choice the incapacitated
person would make if they were
able; acting on knowledge of what
that person would wish to have.
• Best Interests:
– Doing what is in the person’s best
interests.
TNEEL-NE
Slide 17
Ethics: Health care Decision Making
Skills Building Exercise
• How can a health care professional cue a
surrogate to use a substituted judgment
standard?
• Which response is better?
Response A:
“What do you want us to do for your aunt?
Response B:
“What do you think your aunt would have wanted if
she were able to speak for herself?”
TNEEL-NE
Slide 18
Ethics: Health care Decision Making
Think About This ...
How would your
surrogate know
what you wanted?
Clara’s Response
TNEEL-NE
Slide 19
Ethics: Health care Decision Making
Types of Evidence of Previous
Wishes: Written Evidence
• Written evidence:
– Advance Directives
(e.g., Living Will,
Directive to Physician,
or Refusal of Blood
Products).
– Other statements of
wishes such as
videotape, audio tape, or
personal letter.
TNEEL-NE
Slide 20
Ethics: Health care Decision Making
Types of Evidence of Previous
Wishes: Verbal Evidence
• Verbal evidence:
– Conversation with
family, friends, or
professionals regarding
one’s wishes.
TNEEL-NE
Slide 21
Ethics: Health care Decision Making
Types of Evidence of Previous
Wishes: Relational Evidence
• Relational evidence:
– Personal knowledge of a
individual;
– Knowing history of a
person’s choice, values,
and other relevant
information.
TNEEL-NE
Slide 22
Ethics: Health care Decision Making
Two Standards for Surrogates:
Best Interests Standard
• If no information exists about what a person
would have wanted, surrogates are obligated to
do what is in the patient’s best interests.
• Example: Washington State RCW 7.70.065 (3)
Before any person authorized to provide informed consent on
behalf of a patient not competent to consent exercises that
authority, the person must first determine in good faith that
patient, if competent, would consent to the proposed health care.
If such a determination cannot be made, the decision to consent
to the proposed health care may be made only after determining
that the proposed health care is in the patient's best interests.
TNEEL-NE
Slide 23
Ethics: Health care Decision Making
Review 1: Informed Consent
Laws & Surrogates
Competent Patients
• Informed Consent Laws legally protect the moral
right of competent patients to consent to or refuse
any and all recommended therapies, including lifesustaining therapies with several exceptions.
• These exceptions typically are based on public
health concerns such as involuntary treatment for
drug-resistant tuberculosis, mandated childhood
immunizations, etc.
TNEEL-NE
Slide 24
Ethics: Health care Decision Making
Review 2: Informed Consent
Laws & Surrogates
Incapacitated Patients
• Informed Consent Laws legally protect the moral
right of incapacitated patients to have a surrogate/s
consent to or refuse any and all recommended
therapies, including life-sustaining therapies.
• Surrogates are held to a higher standard. They are
not allowed to make unusual, eccentric, or poorly
reasoned choices for others without strong evidence
that the choice reflects the patient’s wishes.
TNEEL-NE
Slide 25
Ethics: Health care Decision Making
Advance Directives (ADs)
• Advance Directives are one way that individuals can
make their wishes for end-of-life treatment known in
advance of losing their mental capacity.
• ADs constitute written evidence
of a person’s wishes.
• ADs are more frequently
completed by white, middle to
upper-class individuals.
TNEEL-NE
Slide 26
Ethics: Health care Decision Making
Types of Advance Directives
• Specify treatment preferences (e.g., Living Will,
Directive to Physician, Medical Directives, etc.)
• Specify surrogate decision-maker
(e.g., Durable Power of Attorney
for Health Care, proxy directive)
• Specify both treatment preferences
and surrogate/s decision-maker/s.
TNEEL-NE
Slide 27
Ethics: Health care Decision Making
Procedural Issues for ADs
• Any competent adult can complete.
• An advance directive cannot be completed by
any one other than the individual to whom it
applies.
• Forms can be obtained from any primary health
care provider, hospital, nursing home or health
maintenance organization.
• Does not require a lawyer to complete.
• Can be rescinded at anytime for any reason.
TNEEL-NE
Slide 28
Ethics: Health care Decision Making
When Should an AD be
Consulted in Decision-making?
Two conditions must be met:
• Threshold Condition:
– The patient MUST have lost decision-making capacity
due to a condition that is not reversible.
• Terminal or other specified diagnosis:
– The patient must be in a condition that is specified under
state law such as terminal, persistent vegetative state,
irreversible coma, or as specified in the AD.
TNEEL-NE
Slide 29
Ethics: Health care Decision Making
What Therapies can be withheld
or Withdrawn Based on an AD?
• Any therapy.
• Life-sustaining therapy (including mechanical
ventilation, blood transfusions, dialysis,
antibiotics, etc.).
• Some states specifically include artificiallyprovided nutrition and hydration because this
has been the most problematic treatment to
withdraw.
TNEEL-NE
Slide 30
Ethics: Health care Decision Making
What Legal Protections are
offered by Natural Death Acts?
• Protection for health care
professionals from criminal,
civil, or professional (usually
licensure) sanctions.
• Protection for patients and/or
their families from
determining the death to be a
suicide, or being forced to go
“AMA” to leave the hospital.
TNEEL-NE
Natural Death Acts
Slide 31
Ethics: Health care Decision Making
Example: RCW 70.122.110
Washington State Natural Death Act
RCW 70.112.110
If a qualified patient capable of making health care decisions
indicates that he or she wishes to die at home, the patient shall
be discharged as soon as reasonably possible. The health care
provider or facility has an obligation to explain the medical
risks of an immediate discharge to the qualified patient. If the
provider or facility complies with the obligation to explain the
medical risks of an immediate discharge to a qualified patient,
there shall be no civil or criminal liability for claims arising from
such discharge.
TNEEL-NE
Slide 32
Ethics: Health care Decision Making
Example: RCW 70.122.051
Washington State Natural Death Act
RCW 70.112. 051
Any physician, health care provider acting under the direction
of a physician, or health facility and its personnel who
participate in good faith in the withholding or withdrawal of
life-sustaining treatment from a qualified patient in accordance
with the requirements of this chapter, shall be immune from
legal liability, including civil, criminal, or professional conduct
sanctions, unless otherwise negligent.
TNEEL-NE
Slide 33
Ethics: Health care Decision Making
Patient Self-Determination Act
(Federal Level)
• Specifies that all providers receiving Medicare or
•
•
•
•
•
Medicaid reimbursement must:
Develop written policies concerning ADs.
Ask all new patients if they have an AD and document
answer in patient's chart.
Provide written material about institutional policies and
patients’ rights under state law to prepare an AD.
Educate staff and the community about ADs.
Ensure that patients are not discriminated against on the
basis of whether or not they have an AD.
TNEEL-NE
Slide 34
Ethics: Health care Decision Making
Do-Not-Resuscitate (DNR)
Orders & Advance Directives
Distinctions
• An Advance Directive is a statement of a patient’s
preferences that may or may not include
resuscitation preferences.
• A DNR order is a physician’s order, not an AD.
• A DNR order specifies withholding CPR only and
should not be routinely interpreted to mean “comfort
care only.”
• The DNR order can be acted upon immediately by
any health care professional.
TNEEL-NE
Slide 35
Ethics: Health care Decision Making
The Relationship Between DNR
Orders & Advance Directives
• An AD may help a physician or others decide if a DNR order
•
•
•
•
is the "right" decision for a particular patient.
An AD is not necessary in order for a physician to write a
DNR order (with the exception of New York State).
A hospital-based DNR order should not require the patient's
or family's signature but does require the physician’s
signature.
An AD does require the patient's signature but does not
require the physician’s signature or participation.
A patient with an AD should not be assumed to be “no code”
patient!
TNEEL-NE
Slide 36
Ethics: Health care Decision Making
"Portable" or Community-based
DNR Orders
• Community-based DNR orders allow emergency
medical services to respond to emergency calls
but to not perform CPR should the patient arrest.
• Approximately half the
Stop
states in the US have
legislation allowing for outDNR
of-hospital no code orders
that can be honored by
“first responders” such as
EMS personnel.
TNEEL-NE
Slide 37