Transcript Death Dying and Decision-Revised 9.15.2016

Meyer Capel, A Professional Corporation
306 West Church Street  Champaign, Illinois 61820
217-352-1800 main  217-819-4384  direct 217-352-1083 fax
[email protected]  www.meyercapel.com
I.
Significant Cases
KAREN ANN QUINLAN
In Re: Karen Ann Quinlan, 70 NJ 10, 355 A.2d 647. 79
A.L.R.3d 205 (1976): The New Jersey Supreme Court
NANCY CRUZAN
Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497
U.S. 261, 110 S. Ct. 2841, 111 L.Ed. 2d 224 (1990)
TERRY SCHIAVO
In re Guardianship of Terri Schiavo, 780 So. 2d 176 (Fla.
Dist. Ct. App. 2d Dist., 2001)
2
The Illinois Experience
RUDY LINARES
DOROTHY LONGEWAY
In re Estate of Longeway, 133 Ill. 2d 33, 139 Ill. Dec. 780,
549 N.E.2d 292 (1989)
SIDNEY GREENSPAN
In re Estate of Greenspan, 137 Ill. 2d 1, 146 Ill. Dec. 860,
668 N.E.ed 1194 (1990)
3
Withholding/Withdrawing Life-Sustaining Treatment
Generally, it is the right of a competent adult to refuse
unwanted medical treatment, even if the decision will result
in the individual’s death.
This right emanates from
common law principles of individual autonomy and selfdetermination that underlie the consensual nature of the
physician-patient relationship.
4
II. Illinois Advance Directives
Under Illinois law, a competent adult may execute the following Advance Directives:
1.
2.
3.
4.
Living Will;
Power of Attorney for Health Care;
Mental Health Treatment Preference Declaration; and,
Do-Not-Resuscitate Orders.
In the absence of an Advance Directive, health care decisions
for an incompetent individual may be made only by a courtappointed guardian or a health care surrogate under the
Health Care Surrogate Act. 755 ILCS 40/1 et seq.
5
A. Living Will Act (755 ILCS 35/1 et seq.)
Legislative Purpose
The legislature finds that persons have the fundamental
right to control the decisions relating to the rendering of
their own medical care, including the decision to have
death delaying procedures withheld or withdrawn in
instances of a terminal condition.
In order that the rights of patients may be respected even
after they are no longer able to participate actively in
decisions about themselves, the legislature hereby declares
that the laws of this State shall recognize the right of a
person to make a written declaration instructing his or her
physician to withhold or withdraw death delaying procedures in the event of a terminal condition. (755 ILCS 35/1)
6
A. Living Will Act (755 ILCS 35/1 et seq.)
Legislative Purpose (Continued)
In re C.A., App. 1 Dist.1992, 177 Ill.Dec. 797,236 Ill.App.3d
594, 607, appeal denied 183 Ill.Dec. 20, 148 Ill.2d 642, 610
N.E.2d 1264 provides an analysis of the Legislative Purpose
behind the Living Will Act: “’Living will’” allows person to
execute document that expresses his or her desire not to be
kept alive through artificial or extraordinary means if in
future he or she suffers terminal condition.”
7
A. Living Will Act (755 ILCS 35/1 et seq.) continued
Salient Definitions
“Death delaying procedure” as defined in the Living Will Act
means any medical procedure or intervention which, when
applied to a qualified patient, in the judgment of the attending physician would serve only to postpone the moment of
death.
In appropriate circumstances, such procedures
include, but are not limited to, assisted ventilation, artificial
kidney treatments, intravenous feeding or medication, blood
transfusions, tube feeding and other procedures of greater or
lesser magnitude that serve only to delay death. However,
this Act does not affect the responsibility of the attending
physician or other health care provider to provide treatment
for a patient's comfort care or alleviation of pain. Nutrition
and hydration shall not be withdrawn or withheld from a
qualified patient if the withdrawal or withholding would result
in death solely from dehydration or starvation rather than
from the existing terminal condition. (755 ILCS 35/2(d))
8
A. Living Will Act (755 ILCS 35/1 et seq.) continued
“Qualified patient” as defined in the Living Will Act means a
patient who has executed a declaration in accordance with
this Act and who has been diagnosed and verified in writing
to be afflicted with a terminal condition by his or her
attending physician who has personally examined the
patient. A qualified patient has the right to make decisions
regarding death delaying procedures as long as he or she is
able to do so. (755 ILCS 35/2(g))
In re Estate of Greenspan, 137 Ill.2d 1, 15-16 (1990),
discusses death-delaying procedures considered under the
Living Will Act.
9
A. Living Will Act (755 ILCS 35/1 et seq.) continued
“Terminal condition” as defined in the Living Will Act
means an incurable and irreversible condition which is such
that death is imminent and the application of death
delaying procedures serves only to prolong the dying
process. (755 ILCS 35/2(f))
In Re Estate of Longeway, 133 Ill.2d 33, 47 (1989)
articulates and applies the “terminal condition” standard.
10
B. Powers of Attorney for Health Care Law
(“PAHCL”)(755 ILCS 45/4-1 et seq.)
Legislative Purpose
The General Assembly recognizes the right of the individual
to control all aspects of his or her personal care and medical
treatment, including the right to decline medical treatment
or to direct that it be withdrawn, even if death ensues. The
right of the individual to decide about personal care overrides the obligation of the physician and other health care
providers to render care or to preserve life and health.
11
B. Powers of Attorney for Health Care Law
(“PAHCL”)(755 ILCS 45/4-1 et seq.) continued
Legislative Purpose continued
However, if the individual becomes disabled, her or his right
to control treatment may be denied unless the individual,
as principal, can delegate the decision making power to a
trusted agent and be sure that the agent’s power to make
personal and health care decisions for the principal will be
effective to the same extent as though made by the
principal.
12
B. Powers of Attorney for Health Care Law
(“PAHCL”)(755 ILCS 45/4-1 et seq.) continued
Salient Definitions
“Health care” as defined in the PAHCL means any care,
treatment, service or procedure to maintain, diagnose, treat
or provide for the patient's physical or mental health or
personal care. (755 ILCS 45/4-4 (b))
“Health Care Agent” – “Means an individual at least 18
years old designated by the principal to make health care
decisions of any type, including, but not limited to,
anatomical gift, autopsy, or disposition of remains for and
on behalf of the individual. A health care agent is a personal
representative under state and federal law. The health care
agent has the authority of a personal representative under
both state and federal law unless restricted specifically by
the health care agency. 755 ILCS 45/4-4(e-5) (Section added
by P.A. 98-1113, § 5, eff. Jan. 1, 2015).
13
B. Powers of Attorney for Health Care Law
(“PAHCL”)(755 ILCS 45/4-1 et seq.) continued
Salient Definitions continued
Health Care Agent can admit the principal to an assistedliving facility. Fiala v. Bickford Senior Living Group, LLC,
App. 2 Dist.2015, 392 Ill.Dec. 80, 32 N.E.3d 80.
“Health care provider” or “provider” as defined in the
PAHCL means the attending physician and any other person
administering health care to the patient at the time of
reference who is licensed, certified, or otherwise authorized
or permitted by law to administer health care in the
ordinary course of business or the practice of a profession,
including any person employed by or acting for any such
authorized person. (755 ILCS 45/4-4 (d))
14
B. Powers of Attorney for Health Care Law
(“PAHCL”)(755 ILCS 45/4-1 et seq.) continued
Salient Definitions continued
P.A. 98-1113, § 5, eff. Jan. 1, 2015 amended Section (d) to
include the term “health care professional.” The section
now reads: “’Health care provider’, ‘health care
professional’, or ‘provider’ means the attending physician
and any other person administering health care to the
patient at the time of reference who is licensed, certified, or
otherwise authorized or permitted by law to administer
health care in the ordinary course of business or the
practice of a profession, including any person employed by
or acting for any such authorized person.”
15
C. Mental Health Treatment Preference Declaration Act
(755 ILCS 43/1 et seq.)
The designated mental health care decisions concern three
types of treatment: (1) electroconvulsive treatment; (2)
psychotropic medication; and (3) short-term admission to a
mental health facility (up to 17 days). 755 ILCS 43/5(7).
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D. Do Not Resuscitate Orders/Advance Directive Forms
(755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c))
Sec. 65. Do-not-resuscitate Advance Directive forms.
The Department of Public Health Uniform DNR Advance
Directive or a copy of that Advance Directive shall be
honored. (Section 3.57 of the Act) If the Department Uniform
DNR Advance Directive is reproduced, it is recommended that
brightly colored paper be used. Systems shall also have a
policy in place concerning recognition of other DNR Advance
Directives. The information required on the Department
Uniform DNR Advance Directive includes, but is not limited
to, the following items:
1) Name of the patient,
2)Name and signature of attending physician,
3) Effective date,
17
D. Do Not Resuscitate Orders/Advance Directive Forms
(755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c))
continued
Sec. 65. Do-not-resuscitate Advance Directive forms.
continued
4) The words “Do Not Resuscitate”,
5) Evidence of consent:
(a) signature of patient; or
(b) signature of legal guardian; or
(c) signature of durable power of attorney for health care
agent; or
(d) signature of surrogate decision-maker.
18
D. Do Not Resuscitate Orders/Advance Directive Forms
(755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c))
continued
Revocation of a written DNR Advance Directive shall be made
only in one or more of the following ways:
1) The Advance Directive is physically destroyed by the
physician who signed the Advance Directive or by the person
who gave written consent to the Advance Directive; or
2) The Advance Directive is verbally rescinded by the
physician who signed the Advance Directive or by the person
who gave written consent to the Advance Directive and the
word “VOID” is written in large letters across the front of the
Advance Directive, and the Advance Directive is signed and
dated by the physician who signed the Advance Directive or
by the person who gave written consent to the Advance
Directive.
19
D. Do Not Resuscitate Orders/Advance Directive Forms
(755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c))
continued
Sec. 65. Do-not-resuscitate Advance Directive forms.
continued
755 ILCS 40/65 has amended the Health Care Surrogate Act
to remove reference to DNR forms and has instead included
language referencing POLST forms. POLST forms are
Physician Orders for Life-Sustaining Treatment.
20
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.)
Legislative Findings
The legislature recognizes that all persons have a
fundamental right to make decisions relating to their own
medical treatment, including the right to forgo lifesustaining treatment.
Lack of decisional capacity, alone, should not prevent
decisions to forgo life-sustaining treatment from being made
on behalf of persons who lack decisional capacity and have
no known applicable living will or power of attorney for
health care.
In re Larry B., 394 Ill.App.3d 470 (App. Ct. 5th Dist. 2009),
articulates that a competent person has the statutory right
to refuse all types of medical treatment.
21
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Legislative Findings continued
Uncertainty and lack of clarity in the law concerning the
making of private decisions concerning medical treatment
and to forgo life-sustaining treatment, without judicial
involvement, causes unnecessary emotional distress to the
individuals involved and unduly impedes upon the individual
right to forgo life-sustaining treatment.
The enactment of statutory guidelines for private decision
making will bring improved clarity and certainty to the
process for implementing decisions concerning medical
treatment and to forgo life-sustaining treatment and will
substantially reduce the associated emotional distress for
involved parties. (755 ILCS 40/5(a))
22
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
The HCSA Private Decision Making Process
The private decision-making process established under the
Health Care Surrogate Act consists of the following steps:
1. the patient must be found to lack decisional capacity;
and,
2. reasonable inquiry must be made about any existing
Advance Directives; and,
3. a surrogate decision-maker must be identified; and,
4. the medical record must be properly documented.
23
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Physician Documentation
In addition, for a surrogate to have authority to make lifesustaining treatment decisions, two physicians must
determine the patient suffers from a qualifying condition
and lacks decision-making capacity and document these
determinations in the patient’s medical record.
24
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Lack of Decisional Capacity
“Decisional capacity” as defined in the HCSA means the
ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or
forgoing life-sustaining treatment and the ability to reach
and communicate an informed decision in the matter as
determined by the attending physician.
25
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Reasonable Inquiry
A “reasonable inquiry” as defined by the HCSA includes, but
is not limited to, identifying a member of the patient’s
family or other health care agent by examining the patient’s
personal effects or medical records. If a family member or
other health care agent is identified, an attempt to contact
that person by telephone must be made within 24 hours
after a determination by the provider that the patient lacks
decisional capacity.
Such reasonable inquiry is not a violation of the patient
confidentiality.
26
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Reasonable Inquiry as to Availability of Rank Ordered
Surrogates
The potential surrogates are listed in the following order:
1.
2.
3.
4.
5.
6.
7.
8.
The patient’s guardian of the person;
The patient’s spouse;
Any adult son or daughter of the patient;
Either parent of the patient;
Any adult brother or sister of the patient;
Any adult grandchild of the patient;
A close friend of the patient;
The patient’s guardian of the estate;
27
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Reasonable Inquiry as to Availability of Rank Ordered
Surrogates continued
The attending physician or other health care provider must
reasonably inquire about the availability of a surrogate
under categories (1) through (4) prior to choosing any
surrogate in categories (5) through (8). Once identified, the
highest-priority person appointed as a surrogate may make
medical treatment decisions for the patient.
28
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Reasonable Inquiry as to Availability of Rank Ordered
Surrogates continued
“Surrogate decision maker” as defined by the HCSA means
an adult individual or individuals who (i) have decisional
capacity, (ii) are available upon reasonable inquiry, (iii) are
willing to make medical treatment decisions on behalf of a
patient who lacks decisional capacity, and (iv) are identified
by the attending physician in accordance with the
provisions of this Act as the person or persons who are to
make those decisions in accordance with the provisions of
this Act.
29
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally
A qualifying condition is defined to mean the existence of
one or more of the following: (1) a terminal condition; (2)
permanent unconsciousness; or (3) an incurable or
irreversible condition, as determined by the attending
physician and another physician who has seen the patient.
30
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
1. Terminal Condition
A “terminal condition” is defined as “an illness or
injury for which there is no reasonable prospect of
cure or recovery, death is imminent, and the application of life-sustaining treatment would only prolong
the dying process”. This definition is quite similar to
the definition that appears in the Living Will Act.
31
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
1. Terminal Condition continued
“Imminent” (as in “death is imminent”) as defined in
the HCSA means a determination made by the attending physician according to accepted medical
standards that death will occur in a relatively short
period of time, even if life-sustaining treatment is
initiated or continued.
32
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
1. Terminal Condition continued
“Life-sustaining treatment” as defined in the HCSA
means any medical treatment, procedure, or intervention that, in the judgment of the attending
physician, when applied to a patient with a qualifying
condition, would not be effective to remove the
qualifying condition or would serve only to prolong
the dying process. Those procedures can include, but
are not limited to, assisted ventilation, renal dialysis,
surgical procedures, blood transfusions, and the
administration of drugs, antibiotics, and artificial
nutrition and hydration.
33
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
2. Permanent Unconsciousness
The second qualifying condition is “permanent
unconsciousness.” This term is defined as “a condition that, to a high degree of medical certainty, (1)
will last permanently, without improvement; (2) in
which thought, sensation, purposeful action, social
interaction, and awareness or self and environment
are absent; and (3) for which initiating or continuing
life-sustaining treatment, in light of the patient’s
medical condition, provides only minimal medical
benefit”.
34
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
3. Incurable or Irreversible Condition
The third qualifying condition is an “incurable or
irreversible condition.” This term is defined as an
illness or injury:
1. For which there is no reasonable prospect of cure
or recovery; and,
2. That ultimately will cause the patient’s death
even if life-sustaining treatment is initiated or
continued; and,
35
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Qualifying Conditions Generally continued
3. Incurable or Irreversible Condition continued
3. That imposes severe pain or otherwise imposes
an inhumane burden on the patient; and,
4. For which initiating or continuing life-sustaining
treatment, in light of the patient’s medical
condition, provides only minimal medical benefit.
An incurable or irreversible condition cannot be
described by referring to any one medical condition.
Moreover, all four of the above listed conditions must
be met for an illness to be viewed as incurable or
irreversible.
36
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
“Forgo life-sustaining treatment” as defined in the HCSA
means to withhold, withdraw, or terminate all or any portion
of life-sustaining treatment with knowledge that the
patient’s death is likely to result.
37
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
The “Substituted Judgment” Standard
The Act requires the surrogate to make medical treatment
and life-sustaining treatment decisions for adult patients
and conform as closely as possible to the decisions the
patient would have made. This “substituted judgment”
standard requires that the surrogate utilize the following
evidence when making these decisions:
1. The patient’s personal, philosophical, religious, and
moral beliefs.
38
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
The “Substituted Judgment” Standard continued
2. The patient’s ethical values relative to the purpose of
life, sickness, medical procedures, suffering, and
death.
3. How the patient would have weighed the burdens and
benefits of initiating or continuing treatment against
the burdens and benefits of that treatment.
4. Any unrevoked Living Will, Power of Attorney for
Health Care, Declaration for Mental Health Treatment
which is either technically deficient or not applicable
to the patient’s condition.
39
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
If Substituted Judgment is Unknowable, then “Best
Interests” Standard Applied
When the patient’s wishes cannot be determined (or the
patient is a minor), the surrogate must make decisions
believed to be in the “best interest of the patient”. This
must be done by weighing the burdens or benefits of
treatment against the burdens and benefits of that
treatment and shall take into account any other
information, including the views of family and friends, that
the surrogate decision-maker believes the patient would
have considered if able to do.
40
E. The Illinois Health Care Surrogate Act
(the “HCSA”) (755 ILCS 40/1 et seq.) continued
Health Care Providers Reliance on Surrogate
Conscience of Health Care Provider
Neonates
Life Insurance
Not Suicide or Murder
The HCSA and Organ Donation
41
INDEX OF APPENDICES
Illinois Department of Public Health
Living Will ……………….……………………………… Appendix 1-A
Illinois Department of Public Health
Statutory Short Form Power of Attorney
For Health Care ……….……………………………… Appendix 2-A
Illinois Department of Public Health
Declaration For Mental Health Treatment …… Appendix 3-A
Illinois Department of Public Health
Uniform Do-Not-Resuscitate (DNR)
Advance Directive …………….……………………… Appendix 4-A
42