New Uses for Advance Directives in Health Care

(And Other 2009 Changes in Virginia’s Health Care Decisions Act)

Richard J. Bonnie

University of Virginia

October 22, 2009

Outline

• Brief review of innovations in law governing health care decision-making over last 30 years

• Overview of recent changes in Virginia’s Health Care Decisions Act

Two Traditional Models for Decision-making after Incapacity

• Advance Directive – exercise of “precedent autonomy” (e.g., wills; contracts and trusts for long-term care)

• Surrogate decision-making -“best interests” (e.g., guardianship – with judicial oversight)

Innovations in healthcare decisions #1 (“extending precedent autonomy”)

• Durable powers of attorney (departure from traditional “agency model” in financial affairs) – VA statute in 1954

• “Living will” statutes to resolve end-of-life treatment dilemmas (Virginia did this in 1983)

• Note evolution of modern health care decisions acts: (1) proxy directives and (2) instructional directives

• Autonomy-driven model is elegant solution to the growing challenge of deciding when to stop

• It has powerful moral force and helps move decisions back to the bedside rather than the courtroom

• Propelled by Congress in Patient Self-Determination Act in 1990 after Cruzan

Innovations in health care decisions #2 (“default surrogates”)

• The problem – most people don’t have ADs

• Traditional practices (medical decision-making and family consent) lacked strong legal foundation and were often ethically problematic

• Guardianship is costly and cumbersome

Innovation in health care decisions #2 (“default surrogates”)

• The answer: statutory default list of surrogates, together with substituted judgment/best interests instruction (Virginia did this in 1992)

• Profound change – even more so than ADs• Without moral grounding in autonomy, it

embraces medical-family decision-making as alternative to guardianship or direct judicial decision-making

• [Digression] Note parallel history of surrogate decision-making for people with intellectual disabilities and severe and chronic mental illness

Next Steps in Advance Directives

• Bolster efforts to facilitate advance planning and agent-designation even when people are uncertain about specific end-of-life preferences

• Facilitate instructional directives in contexts other than end-of-life care

Facilitate use of advance directives for health care decisions other than end-of-life

• Advance directives for mental health care can foster genuine empowerment : 24 states have “PAD” statutes

• Other main context is advance planning by patients and families in case of decline in cognitive capacity

• Commission on Mental Health Law Reform opposed stand-alone “PAD” statute and appointed Task Force to draft HCDA amendments to facilitate instructional directives for all health care, not only life-prolonging treatment

Overview of Revised HCDA: Innovations in Advance Directives

• Advance authorization for research participation (as approved by IRB)

• Advance authorization for nursing home /long-term care placement

• Advance authorization for psychiatric hospitalization (as a non-judicial process)

• “Ulysses clauses” – authorizing facility admission and treatment even over later “incompetent” protest

Overview of Revised HCDA: Strengthen Capacity Determinations

• Presumption of capacity• Capacity determinations are functional and should not be

based on diagnosis alone• Encourage more specific and particularized capacity

determinations• Require that second assessment (always required) be by

physician not involved in patient’s treatment (unless unavailable)

• Require provider to notify patient and apparent surrogate• Permit restoration of patient’s decision-making

prerogative by single examiner

Overview of Revised HCDA: Non-Judicial Options Are Now Available for Surrogates in 2 Situations

• Admission to mental health facilities: Guardians may now authorize 10-day admission to mental health facilities if patient lacks decisional capacity and such authority has been conferred in guardianship order

• Treatment over “incompetent protest” is allowed (even if not specifically authorized by an AD) if approved by facility ethics committee

Unfinished Business

• Allow designation of non-relative surrogates (after appropriate inquiry)

• To be re-introduced in 2010

Summing Up

• 2009 Revision of HCDA takes next steps to improve law and practice in health care decision-making for patients with decisional incapacity– Use ADs to help empower patients to guide health care outside

context of end-of-life care– Strengthen and extend procedures for non-judicial capacity

determinations and designation of surrogates

• Two Important Practice Implications– Provide more opportunities for discussions about advance health

care planning in clinical settings – Help improve practice in capacity assessment and default

decision-making