THE RULES FOR MAKING MEDICAL DECISIONS ABOUT

LIFE-PROLONGING TREATMENTS

WHEN A PATIENT IS INCAPACITATED

A number of steps should be taken when a decision must be made about medical treatment for a patient who may not be competent to do so himself or herself. State law must be examined along with any documents signed by the patient.

Step 1: Does the patient have the capacity to make decisions for himself or herself? It takes only one physician to conclude whether or not a patient can make decisions.

Step 2: What is the patient’s medical condition?

Is the patient in one of the following medical conditions? If so, a living will may take effect and obligate the physician to withhold or withdraw treatment.

• The terminal stage of an irreversibly fatal illness, disease or condition.

• A persistent vegetative state or irreversible coma.

• The final stages of dementia or other progressive illness.

• Another condition that is described in the patient’s living will.

How many doctors are needed to conclude that the patient is in this condition? In most states and in most cases, the answer is two. Tennessee law is not explicit, and prudence suggests more than one physician give an opinion.

Must one of them be in a medical specialty such as neurology? No.

Step 3: Who is authorized to make decisions for the patient?

• If no advance directive exists: Decisions may be made by a person who is given authority under state law. This person is usually called a surrogate. In Tennessee, the rules pertaining to hospitals state that:

1. The hospital should identify, after consultation with the family or responsible party, the name of the representative who will be responsible, along with the treating physician, for making health care decisions.

2. The patient’s representative shall be a competent adult most likely to know the patient’s current wishes. A member of the following classes of the patient’s family who is reasonably available, may act as representative (in no particular order of priority, with the designation of representative depending on the extent of the patient’s relationship with that person or persons):

• The spouse,

• An adult child,

• A parent,

• An adult brother or sister, or

• An adult friend or other relative who has exhibited special care and concern for the patient and who is familiar with the patient’s personal values.

3. If none of those individuals are reasonably available, the patient’s treating physician may make health care decisions for the patient after the physician consults with and obtains the recommendations of the hospital’s ethics committee. If this is not possible, the treating physician may make these decisions after consulting with a second physician who concurs with the physician’s decision.

• Under a living will: The only decision to be made is whether the patient is in a medical condition identified in the living will. If he or she is in such a condition, then life support must be withdrawn or withheld. This decision is by the treating physician, and no family member has a say in it. This result is not what most families expect. But that is what the document says. It is a prior written instruction to the world from the incapacitated person: “When I am in the medical condition described in this living will, treatment must be stopped, regardless of what my family and friends may want.”

• Under a health care power of attorney: The health care representative makes decisions unless and until a living will takes effect and overrides the power of attorney. If the patient has a power of attorney and a living will, both documents must be examined to see whether they are consistent and how they interact. Usually, there is only one document, and the health care representative may act at any time after the patient becomes incapacitated.

• Under an advance directive: Decisions are made by the health care representative at some times, the treating physician at others, or the health care representative at all times. It depends on what the document says.

• If a guardian (sometimes called a conservator) has been appointed by a court: He or she may make medical decisions unless and until a living will takes effect.

Step 4: If there is a class of decision-makers, is a unanimous vote required? In states such as Tennessee, the rules pertaining to hospitals (which are the only ones to examine under present law) any member of the class may act. As you might imagine, this can be problematic when family members disagree. In other states, a majority of the members of the class -- such as children -- rules. If there is a tie, the entire class is disqualified, as are all lower classes, such as brothers and sisters. This means that a court must appoint a guardian to make a decision.

Step 5: What may be decided? The decision-maker usually has almost unlimited authority. Exceptions may occur when …

• The patient reaches a medical state that triggers a legal document – usually a living will and sometimes an advance directive -- containing the patient’s own instructions.

• A living will requires, prohibits, or encourages use of a specific treatment such as feeding tubes.

• A health care power of attorney or advance directive contains specific limits imposed by the patient or state law.

• A health care power of attorney or advance directive permits the health care representative to decide when, but not whether, life support is to be withdrawn.

Step 6: By what legal standard should decisions be made? The answer may be one of several but is USUALLY: What would the patient want? Tennessee's rules for hospitals put the matter this way:

Health care decisions must be in accord with the patient’s individual health care instructions, if any, and other wishes to the extent known to the representative. If the patient’s wishes are not known, decisions are to be made in accord with the representative’s determination of the patient’s best interests in light of the personal values and beliefs of the patient to the extent they are known.

Step 7: How much evidence is needed to make a decision? The answer can vary from state to state. The preferable rule is that a preponderance of the evidence, not “clear and convincing” evidence, leads to a particular decision.

Step 8: Is a written and reasoned decision needed? In cases where disharmony exists among family members, it is reasonable for a physician, hospital, or family member to ask for a statement in writing of the reason why the decision-maker has opted for the giving or withholding of treatments.

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