Health Care Decisions Act allows an adult (or an emancipated minor) who has decision-making capacity to deal with future health care issues by any of the following three methods:
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written instructions called a living will; a written appointment of an agent to make health care decisions called a proxy directive or durable power of attorney for health care; and an oral statement to a physician |
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Summary of Maryland Health Care Decisions ActMaryland Attorney Generals Office J. Joseph Curran, Jr. Attorney General ( As Amended Through 2006 )
The Health Care Decisions Act does not affect the doctrine of informed consent, which applies to treatment issues in the current clinical context. A patient with capacity has the right to decide these issues, including whether life-sustaining procedures should be used, whatever condition he or she is in.
II. Definition of Medical Conditions Specified in the Act Terminal Condition: An incurable condition that makes death imminent. The term imminent is not defined, so the determination is left to reasonable medical judgment.Persistent Vegetative State: An irreversible loss of consciousness, despite reflexive nerve and muscle activity. End-Stage Condition: An advanced, progressive, irreversible condition caused by injury, disease, or illness: (1) that has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and (2) for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective. The Act allows an adult (or an emancipated minor) who has decision-making capacity to deal with future health care issues by any of the following three methods:
Forms: Individuals may prepare documents worded as they choose. The Act includes an optional advance directive form, allowing individuals to appoint a health care agent; specify whether or not they want life-sustaining procedures if they are in a terminal condition, persistent vegetative state, or end-stage condition; or both. The form allows individuals, if they wish, to make a different decision regarding the provision, withholding, or withdrawal of artificial nutrition and hydration than other interventions. Implementing Instructions: If an advance directive does not name a health care agent but does instruct that life-sustaining procedures be withheld or withdrawn in the event of a terminal or end-stage condition or persistent vegetative state, the advance directive may be implemented only if the patients attending physician and a consulting physician certify, to a reasonable degree of medical certainty, that the patient is in one of these three conditions. Authority of Agent: A health care agents authority is defined by the individual creating the advance directive. Unless the advance directive provides otherwise, a health care agent has authority to decide about life-sustaining procedures and, unlike a surrogate decision maker, may decide to forgo life-sustaining procedures even if the patient has not been certified to be in one of the Acts three specified conditions. Unless the advance directive provides otherwise, an agent is to make a decision that is consistent with the patients wishes or, if those wishes are unknown or unclear, that is in the patients best interests. If the individual has given unambiguous instructions about life-sustaining procedures in the same or another legally valid advance directive that are intended to be followed strictly, the agent is obliged to carry out those instructions. Pregnancy: The optional statutory form has space for a woman to say whether pregnancy would have any effect on her decision about life-sustaining procedures. Organ Donation: The Act includes an optional form called After My Death that may be used to donate organs or tissue, to donate ones body for medical research, and to indicate desired funeral arrangements. If a patient has not picked a health care agent and is no longer able to make health care decisions personally, as determined by two physicians, a surrogate has authority to make these decisions. Surrogates are listed in priority order; individuals in a particular class may be consulted only if all individuals in the next higher class are unavailable: (1) a guardian of the person, if one has been appointed; (2) the patients spouse; (3) an adult child of the patient; (4) a parent of the patient; (5) an adult brother or sister of the patient; or (6) a friend or other relative of the patient who briefly describes, in an affidavit, enough regular contact with the patient so as to make the surrogate familiar with the patients activities, health, and personal beliefs. Disputes Among Surrogates of Same Class: A health care provider must refer these disputes to a patient care advisory committee (often called an ethics committee). The patients physician may follow the recommendation of the committee without risking liability for suits based on lack of consent or authorization. Standards for Surrogates: A surrogate is to make a decision that is consistent with the patients wishes or, if those wishes are unknown or unclear, that is in the patients best interests. The Act includes factors for the surrogate to consider in determining the patients wishes. It also includes a definition of best interest. Surrogates and Life-Sustaining Treatment: The Act authorizes a surrogate to consent to the withholding or withdrawal of life-sustaining procedures if the patients attending physician and a consulting physician certify, to a reasonable degree of medical certainty, that the patient has a terminal or end-stage condition or is in a persistent vegetative state. A surrogate may not consider a patients pre-existing, long-term mental or physical disability in making a decision to withhold or withdrawal life-sustaining procedures. A surrogate who is a guardian usually must obtain the courts permission to authorize the withholding or withdrawal of life-sustaining procedures. V. Patient's Plan of Care Form Long-term care facilities are to offer each new resident (or in case of incapacity, whoever is making health care decisions for the resident) the opportunity to state preferences about currently relevant end-of-life issues on a Patients Plan of Care form. Offering the form is optional in other health care facilities. The form is neither a new advance directive nor a physicians order, but rather documentation of a care planning discussion. More information about the Patients Plan of Care form is available on the Attorney Generals web site. A health care provider who believes that an instruction to withhold or withdraw life-sustaining procedures from a patient is inconsistent with generally accepted standards of patient care must bring the matter to a facilitys patient care advisory committee or file a petition in court.Family members and qualified surrogates may file suit to enjoin allegedly unlawful actions. These cases are to be given expedited consideration by the courts. A person loses immunity for decisions involving life-sustaining procedures if the person did not comply with the Maryland Health Care Decisions Act in good faith. Mercy killing, euthanasia, and assisted suicide are not authorized under any circumstances. Criminal penalties are provided for destruction, concealment, or forgery of an advance directive document. VII. Medically Ineffective Treatment and Transfers Physicians Authority: A physician need not provide treatment that the physician believes to be medically ineffective or ethically inappropriate. Medically ineffective treatment is defined as treatment that, as certified by the attending and a consulting physician to a reasonable degree of medical certainty, will neither prevent or reduce the deterioration of the health of an individual nor prevent the impending death of an individual.Transfers: If a health care provider intends not to comply with the instruction of a surrogate or agent, the provider must inform the person giving the instruction of that decision and inform the person that he or she may request a transfer to another health care provider. Pending the transfer, a health care provider must comply with a request for treatment made by a competent patient, surrogate, or agent if failure to comply would result in the death of the patient. The Maryland Institute for Emergency Medical Services Systems has developed a palliative care protocol for use by emergency services personnel and makes a special form available for physicians to record outpatient DNR orders. Only this specific order form, a copy of it, or an approved bracelet or necklace, will be acknowledged by emergency services personnel. Other health care professionals may withhold or withdraw treatment when they see an EMS/DNR order or bracelet. Health care providers who take actions based on the Act are immune from claims that the actions were unauthorized. Health care agents and surrogates who follow the Act when they authorize the withholding or withdrawal of life-sustaining procedures are immune from liability. X. Additional Information The text of the Health Care Decisions Act, additional explanatory material about it, an advance directive form and related materials, the Patients Plan of Care form and related regulations and explanatory guides, a handbook for health care agents and surrogates, and numerous legal opinions and advice letters may be found on the Attorney Generals web site. The home page is: www.oag.state.md.us. From there, click on Health Policy.by Assistant Attorney General Jack Schwartz Director, Health Policy Development Maryland Attorney Generals Office
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