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Factors To Consider In End-Of-Life Decision-Making

Advances in medical science and technology are rapidly escalating, creating the possibility to, among other things, procreate absent sexual intercourse, as well as to prolong life almost indefinitely. It is the latter subject that this Article explores.

Physicians and other healthcare providers are often faced with complex decisions about whether to terminate life-prolonging treatments, such as artificial nutrition and hydration, in certain limited situations. Although the legal system provides a seemingly straightforward approach to resolving end-of-life decisions, in practice, the clinical setting sometimes presents healthcare providers with questions that are anything but straightforward and, rarely, solely legal matters. Rather, such questions and decisions must be made in the face of vague, abstract, complex, and somewhat confusing legal rules, divergent principles of bioethics, ethical codes for healthcare practitioners, religious beliefs of patients, sensitive feelings of spouse and family members, instructions from patients in legal documents (presumably legally valid), and/or healthcare providers and/or hospital ethics committees speculating what a patient’s wishes would be in the situation presented to the clinical team. Hospitals that religious organizations own and control implicate religion as a major factor in end-of-life clinical decision making.

One would presume that if the patient has close family members, they could agree on whether to cease life-prolonging treatment. However, several of the most well-known cases involving end-of-life decision making involve disputes among various family members, who vehemently disagree on which course of action the clinical team should take, often leading to expensive, protracted litigation and ill feelings among family members. Such extreme adversarial measures can be avoided if patients plan, through the use of, among other things, living wills and healthcare advance directives, prior to losing the capacity to make these sacrosanct decisions themselves. Therefore, advance healthcare directives permit patients to exercise “anticipatory” autonomy to provide “informed consent” regarding important healthcare decisions.

Before proceeding further, it should be noted that end-of-life decision-making, as discussed herein, refers to situations in which a patient executes a legal document, while the patient has “decisional capacity” to make and communicate healthcare decisions, stating their preferences regarding medical treatment in very well-defined situations in a Kentucky Living Will, naming a surrogate decision maker in the Living Will or in an advance healthcare directive for physical and/or mental health. The type of end-of-life decision-making addressed herein must be distinguished from what is commonly referred to as “physician-assisted suicide,” which is illegal in Kentucky.

Briefly, Kentucky provides for two types of advance directives; (1) a Living Will, and (2) a healthcare surrogate or durable power of attorney for healthcare. A Living Will states the wishes of a patient lacking “decisional capacity” regarding life-prolonging treatment and artificially provided nutrition and hydration if the patient is near death or permanently unconscious. However, a Living Will also permits a patient to designate one or more healthcare surrogates to make decisions, limited in scope, according to the provisions in the Living Will. Because, among other concerns, a Living Will provides a designated healthcare surrogate limited authority, patients should execute an advance directive separate from the Living Will to give a surrogate broader powers, including the power to make decisions in situations that do not involve end-of-life. Kentucky also permits patients to execute advance healthcare directives for mental health decisions.

On March 12, 2015, Kentucky provided new statutory authority granting patients at the end-of-life more control regarding their final care through the use of a Medical Order For Scope of Treatment (“MOST”) form, which the Kentucky Board of Medical Licensures issued in September, 2015. The Board stated that the MOST form is intended for patients who have an advanced chronic, progressive illness, with a life expectancy of less than one year. The Board also provided guidance to physicians concerning the use of MOST forms which can be found at http://kbml.ky.gov/board/Documents/MOST%20Form.pdf.

It is extremely vital that all persons involved understand that advance directives become operative only if and when the patient loses “decisional capacity,” which means the ability to formulate and communicate a health care decision. Finally, it is also important for patients and/or their attorneys to widely distribute advance directives to family members, physicians, hospitals, and other healthcare providers. Statutorily, Kentucky mandates that the patient or their responsible party notify the patient’s attending physician and health care facility where the patient is being treated of the existence of any advance directives, and the attending physician must promptly include a copy of the advance directive(s) in the patient’s medical records.Absent possession of an advance directive to the contrary, healthcare providers must provide all life-sustaining treatment to a patient lacking the ability to make their own decisions. The Kentucky Revised Statutes provide forms for Living Will Directives, and MOST’s, which if substantially followed, are presumed to be legally valid.

All healthcare providers involved in end-of-life clinical settings should become thoroughly familiar with these forms. Although Kentucky and federal law provide many other rules concerning advance directives, such matters are well beyond the scope of this Article.

About the Author
Bobby E. Reynolds has been an attorney in Kentucky for several years. He practices law in Nicholasville, Kentucky, having previously clerked for a Judge on the United States Court of Appeals and having obtained an LL.M in taxation from the University of Florida College of Law Graduate Tax Program. Mr. Reynolds also teaches continuing legal education to attorneys in Kentucky.

Email: bobby@summitcrt.com
Phone: 859-270-6193

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