Medical Treatment Decision-Making [Adult and Pediatric] (Power of Attorney, Living Wills, Surrogate Decision-Maker, Guardians, and Developmentally Disabled Adult Patients)

Purpose

  1. To preserve for each adult patient the presumption of decisional capacity to make medical decisions on his own behalf, unless such presumption is reasonably questioned and superseded with this policy.
  2. To recognize the authority of appropriate surrogate decision-makers to make medical treatment decisions on behalf of patients lacking decisional capacity or incompetent patients
  3. To identify the circumstances under which P/SLMC may seek the appointment of a legal guardian to provide informed consent to or refusal of medical treatment on behalf of a patient when medical personnel question such patient's decisional capacity or competence and no other appropriate surrogate decisionmaker has been identified pursuant to this policy.
  4. To clarify process of providing involuntary medical care and/or medical treatment(s).

Scope

All patients, their families and guardians, receiving care at Presbyterian/St. Luke's Medical Center (P/SLMC) and Rocky Mountain Hospital for Children at P/SLMC

Definitions

  1. Durable Power of Attorney for Healthcare Decisions: A written document in which a patient names someone else (the "agent" or "surrogate") to make healthcare decisions in the event the patient becomes unable to make decisions him/herself. This document may also include instructions about specific healthcare choices.
  2. Living Will: A written document which may be executed by an adult that directs that life-sustaining procedures be withheld or withdrawn if, at some future time, the individual is in a terminal condition and either unconscious or otherwise incompetent to make medical decisions.
  3. Advance Directives: Written or verbal statements made by the patient indicating treatment wishes in the event the inpatient becomes incapacitated. Advance Directives are never acted upon as long as the patient can speak for him/herself. Advance Directives may include living wills, MOST, Five-Wishes, durable powers of attorney that specifically address healthcare decisions, and Cardio-Pulmonary Resuscitation (CPR) Directives
  4. Decisional Capacity: The ability to provide informed consent to or refusal of medical treatment.
  5. Emergency: The presence of acute symptoms of such severity that the absence of immediate medical attention could reasonably be expected to result in:
    1. placing an individual's health in serious jeopardy,
    2. serious impairment to bodily functions,
    3. Serious dysfunction of any bodily organ or part.

Policy

  1. Generally, an adult patient (18 years of age or older) is presumed to be legally and solely competent to consent to or refuse medical treatment on his/her own behalf unless:
    1. A court has determined that the patient is developmentally disabled and incapable of exercising his legal right to consent to or refuse medical treatment
    2. A court has determined that the patient is incompetent, and appointed a guardian to make medical treatment decisions on the patient's behalf.
  2. A mental health hold cannot be used for the purpose of detaining a patient for involuntary medical care and/or medical treatment(s) or forcing involuntary medical care and/or treatment(s). See P/SLMC Policy - 72-Hour Mental Health Hold and Treatment Implementation and Policy - Informed Consent to and Refusal of Medical Treatment.
  3. A patient who appears to lack decisional capacity due to an emergency medical condition is presumed to consent to treatments necessary to stabilize the patient's medical status unless the patient presents with a CPR Directive (P/SLMC Policy- DNR/CPR Directive/Supportive Care) or other Advance Directive (P/ SLMC Policy - Advance Directives) that directs emergency care be withheld.
  4. A patient who makes an apparently unreasonable treatment choice does not necessarily lack decisional capacity regarding medical treatment. The attending physician can make the determination that a patient lacks decisional capacity in non-emergency situations if:
    1. The patient appears incapable of understanding the nature and purposes of the informed consent process.
    2. The patient appears unable to understand, in lay terms, his/her medical condition, the type of treatment alternatives proposed, and the risks and benefits involved in treatment.
  5. A surrogate decision-maker who has been properly appointed by the courts or the patient is authorized to make medical treatment decisions on behalf of the patient as follows:
    1. A person appointed by a court to supervise the needs of a developmentally disabled patient may make decisions that are authorized by the court's order. The authority of an appointed surrogate decision-maker will not include the authority to consent to any sterilization or organ removal procedure for a developmentally disabled patient unless a court has specifically approved such a procedure.
    2. A guardian appointed by a court to make medical treatment decisions on behalf of an incompetent person may make those decisions that are authorized by the court's order appointing the guardian.
    3. A person who has been appointed as proxy/agent under a medical Durable Power of Attorney by a patient may make healthcare decisions authorized by the patient.
    4. The authority of an appointed surrogate decision-maker will not override any medical treatment decision in a Living Will, any limitations set forth in the Durable Power of Attorney under which the surrogate decision-maker was appointed, or any limitations set forth in the court order appointing a guardian.
  6. If the attending physician has determined that the patient lacks decisional capacity and a surrogate decision-maker has not been appointed by the courts or the patient, the physician may rely on the patient's family or interested parties to provide informed consent to or refusal of medical treatment.
  7. If no surrogate decision-maker can be found for the patient who is determined to lack decisional capacity, the attending physician will consult with the Ethics and Human Values Committee, request an ethics committee consult, or consult with a member of senior management regarding provision of further medical care (See P/SLMC Policy- Accessing the Ethics and Human Values Committee).
  8. If any interested party, surrogate decision-maker, family, guardian, healthcare team member, or the patient's attending physician, believe the patient may have re-gained the capacity to provide informed consent, the attending physician will reexamine the patient to determine the patient's decisional capacity.
  9. The attending physician may carry out the patient's medical directives in accordance with the terms of the patient's Living Will after the physician has complied with the process required by the Colorado Medical Treatment Decisions Act.

Procedure

  1. Lack of Decisional Capacity in an Emergency Medical Situation:
    1. In the case of a medical emergency, the attending physician will make a notation in the medical record which describes the medical basis for the patient's lack of decisional capacity and the nature of the emergency which requires medical treatment without formal consent. The notation will also contain the information that would have been provided to the patient (if the patient had decisional capacity) in the course of obtaining informed consent.
    2. Upon making and documenting the determination that a patient lacks decisional capacity due to an emergency medical condition, the attending physician may perform treatments necessary to stabilize patient's medical status.
    3. As soon as possible, the attending physician will begin the process of identifying an appropriate surrogate decision-maker for the patient.
  2. Documentation of Appointed Surrogate Decision-Makers: Place a copy of any documentation of court determination of disability, appointment of guardian, Durable Power of Attorney for Healthcare Decisions, Living Will, or CPR Directive on the patient's chart.
    1. A copy of the document granting the authority to the surrogate decision-maker, the type and substance of the document will be noted in the medical record and will be honored. Healthcare personnel will make every attempt to get a copy of such document on the chart.
    2. P/SLMC will not act as the custodian of any original document that evidences the authority of a surrogate decision-maker.
  3. Identification and Recognition of Surrogate Decision-Makers: Physicians and healthcare providers will assist in the identification of appropriate surrogate decision-makers for a patient who lacks decisional capacity, including appointed proxies/agents, family members, compassionate friends, or guardian.
    1. The attending physician documents in the patient's medical record the cause, nature, and projected duration of the patient's lack of capacity to provide consent.
    2. If a surrogate decision-maker has not been appointed by the courts or the patient:
      1. The attending physician or designated personnel makes and documents efforts to locate as many of the patient's relatives (spouse/life partner/domestic partner, parents, adult children, siblings, adult grandchildren), or interested parties as possible, inform all such persons who are located of the patient's lack of capacity to provide informed consent and the need for such persons to reach consensus about who will act as the patient's surrogate decision-maker
      2. The persons identified above agree upon a surrogate decision-maker who has a close relationship with the patient and is likely to be informed of the patient's wishes regarding medical treatment.
      3. The healthcare team makes the assistance of the Ethics and Human Values Committee and Pastoral Care available to the family members/friends involved in this process.
    3. If no surrogate decision-maker can be found, then the attending physician will:
      1. Document in the patient's medical record the cause, nature, and projected duration of the patients lack of capacity to provide consent,
      2. Document in the patient's medical record the efforts made to secure a surrogate decision-maker and the inability to find a family member or other interested party to serve in this capacity, and
      3. Contact the Ethics and Human Values Committee, request an ethics committee consult, or consult with a member of senior management regarding provision of further medical care or discontinuation of medical care.
    4. The physician provides the surrogate decision-maker with information that would be provided to the patient if the patient had the decisional capacity to participate in the process of informed consent to or refusal of medical treatment.
    5. Document the informed consent to or refusal of medical treatment made by a surrogate decisionmaker on behalf of a patient who lacks decisional capacity or is developmentally disabled.
  4. Discontinuation of Artificial Nourishment or Hydration by a Surrogate Decision-Maker: If a selected surrogate decision-maker seeks to discontinue artificial nourishment or hydration for the patient:
    1. The attending physician and a physician trained in neurology will certify in the patient's medical record that the provision of artificial nourishment or hydration would merely prolong the act of dying and is unlikely to restore the patient's independent neurological function before entering any medical order authorizing such refusal.
    2. If the attending physician and the consulting physician cannot, consistent with reasonable medical practice, make a sure certification; the attending physician will consult with P/SLMC's Ethics and Human Values Committee request an ethics committee consult, or consult with a member of senior management regarding provision of further medical care or discontinuation of medical care.
  5. Determination Whether a Patient has Regained Decisional Capacity: If any interested party, surrogate decision-maker, family, guardian, healthcare team member, or the patient's attending physician believe the patient may have regained the capacity to give informed consent:
    1. The attending physician will re-examine the patient to determine decisional capacity.
    2. The attending physician will note in the patient's medical record all factors bearing on the patient's current capacity to provide informed consent, and the likely duration of such capacity, or lack of capacity.
    3. If the attending physician determines that the patient has regained, for a significant expected duration, the capacity to provide informed consent, then the attending physician will so notify the patient, the selected surrogate decision-maker, any person who requested a review of the patient's capacity, and the healthcare team.

References

  1. Colorado Law § 13-20-401, et seq.
  2. P/SLMC Policy - Informed Consent To, or Refusal Of, Medical Treatment
  3. P/SLMC Policy - Advance Directives
  4. P/SLMC Policy - DNR/CPR Directive/Supportive Care
  5. P/SLMC Policy - Implementation of a 72 hour Mental Health Hold
  6. P/SLMC Policy - Accessing the Ethics and Human Values Committee
  7. Medical Orders for Scope of Treatment (MOST), www.coloradoadvancedirectives.com