Legal considerations for palliative care in surgical practice.

issues. The question is whether the patient has the ability to understand her choices of the moment and to be reasonably consistent in reflecting her preferences. A person who is not fully able to understand all the risks and potential outcomes of surgery or a complex illness may well be competent to decide that she wants no more aggressive care, or that she wants “everything done.” A person does not have to be able to speak; a documented nod of the head will do. It is also important to keep in mind that capacity may vary from day to day and a person who once has appeared to lack capacity may well recover it as she improves. Administration of opioid analgesic or anxiolytic does not affect the patient’s compeReceived April 30, 2003; Accepted May 1, 2003. From The Pain Law Initiative, Washington, DC and Tufts University School of Medicine, Springfield, MA. Correspondence address: K Francis Lee, MD, Department of Surgery, Baystate Medical Center, Tufts University School of Medicine, 759 Chestnut St, Springfield, MA 01199. 323 © 2003 by the American College of Surgeons ISSN 1072-7515/03/$21.00 Published by Elsevier Inc. doi:10.1016/S1072-7515(03)00537-4 tency as long as the above criteria are satisfied. In fact, it may be argued that opioid analgesia administered to a patient in severe pain will improve her capacity for medical decision making, vis-à-vis a patient who remains untreated. Who decides for the incompetent patient? Mom was Dad’s health-care power of attorney and he never got around to choosing one of us kids. The advance directive sought aggressive care because he wanted to be there for Mom. But that was before Mom died and he became so confused and lonely. I can’t believe he would want to remain intubated now. Advance directives (living wills) State legislatures created advance directives because of the inability of the common law to deal with selfdetermination in the interval between incapacity and death. They are not effective until the patient lacks capacity, and they most commonly come into play only if a patient is terminally ill. It is up to the attending physician, often with concurrence of another physician, to determine that the patient is in the condition that triggers any advance directive requirement. Although advance directives are based on the Uniform Health Care Decisions Act and are virtually identical in major concepts and rights, they vary somewhat from state to state, and a physician must know her own state’s rules. Outof-state advance directives are honored everywhere whether or not they conform to the law in the state in which the patient is located, unless they obligate a health-care provider to take an action that would be illegal in the state in which he must take action. This is a rare occurrence. Every state has a form for an advance directive, but use of the form is not mandatory; there are no magic words. The critical requirements are that the patient must be competent when he signs and that it is witnessed as required by state law. Hospitals funded by Medicare/ Medicaid must offer an advance directive form to every patient at admission. They rarely, however, follow through with assistance or advice. Studies have shown that even with active intervention, patients avoid signing a directive. The most effective intervention occurs when the attending physician recommends an advance directive. This does not require a physician to frighten a patient. He may state, for example, “We have to provide these forms, but too many patients ignore them. I think it’s important to have the form and it’s easier to do it now when you aren’t actually up against those decisions.” Bear in mind that the advance directive serves the physician when important decisions must be made and there is no surrogate in sight. It also reduces the stress in families who have to make end-of-life decisions. All states provide immunity for physicians who withdraw support and move to palliative care under the terms of an advance directive. They also are determinative when relatives may not be able to agree on a decision. Advance directives allow a patient to direct for herself the full range of treatment options from “comfort care only” to “I want everything done.” This does not require a physician to act in the face of medical futility, but would strongly confirm that any futility decision should be made with careful consultation only. State forms tend to be quite specific, with checkboxes for particular decisions, but they also provide space for more general statements of desires or further explanation. An advance directive can be revoked by the patient orally, or by signing a different advance directive. It is important to understand that state laws expressly provide that the patient does not have to be competent to revoke. This appears counterintuitive in light of the insistence on formalities of signing the original advance directive, but it accurately reflects the overall goal of respecting patient autonomy at the end of life. An oral revocation must be communicated directly to a healthcare provider in some states. In most, however, the decision can be received through a lay person and then communicated to the health-care provider. The provider then has a legal obligation to reflect the change in the patient’s records. The change is not legally binding with a healthcare provider who is not aware of it until the records are updated. Health-care power of attorney Health-care power of attorney is a simple and direct instrument that allows a physician to rely on the decisions of the surrogate decision maker when the patient lacks capacity. In most states, the surrogate has all the powers a competent patient would have to authorize or refuse care. In a few states, a surrogate may not direct that artificial feeding and hydration be discontinued unless the patient has included such a decision in an advance directive or has left other “clear and convincing” 324 Baluss and Lee Legal Considerations for Palliative Care J Am Coll Surg