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Advance Directives

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DeVry | HSM320 A.RETA Application Paper Advance Directives- Kevin Bean | Devry University- Andrea Reta, Prof. | | Kevin Bean | 12/15/2014 |

This paper concerns the ethical basis for advance directives, or “Living Wills”; the value of these advance directives to the patients, their families; and the authorities that these advance directives give the above mentioned interested parties. |

Contents Application Paper on Advance Directives 3 Abstract of Application Paper 3 Advance Health Care Directives 3 The Natural Death Acts 3 Legal Precedents for Advance Directives 3 Advance Health Care Directives: 4 California’s Advance Directive Law 4 The Natural Death Acts 5 Inception and Legal Basis 5 Current situation of N.D.A.s 5 Value of Advance Directives to Patient, Family, and Caregiver 6 Value to Author or Patient 6 Health Care Facility 6 Are Advance Directives Really Effective? 7 Living Will Example 8 References 13

Application Paper on Advance Directives Abstract of Application Paper

This paper will examine the short history of Advance Directives in California, the other states that have added A.D.s, and what the legal basis and historical basis for these acts are.
Previous to the Advance Directives, very similar laws are Natural Death Acts. In this report I will review some of the similarities, and differences between the A.D.s and the N.D.A.s. In the 1970s, with the modernization of health care facilities, some patients, especially sick or elderly, would disagree with standards of care of hospitals they receive when they are afflicted by Alzheimer’s, or Trauma, or Comas. In those cases and others, families and caregivers, hospitals, or doctors will often disagree on the reasonable, standard, and proper care or time to remove or halt care. Sometimes it is the cost of care. After this paper reviews A.D.s and N.D.As, i will write about the value of A.D.s; look at the authority A.D.s give to those involved. Then if possible, I will look at some reports about advance directive effectiveness.
Advance Health Care Directives
This is the California version of the basic advance directive, used by patients to direct caregivers as to their chosen methods of care when faced by situations that they can’t communicate verbally their desires. These directives also can designate another to direct health caring decisions, under durable power of attorney.
The Natural Death Acts
These laws spread from state to state starting in Washington during the Karen Quinlan case of a comatose female patient, where the family and the caregivers had different decisions about the care to be used.
Legal Precedents for Advance Directives
According to the Encyclopedia of Death and Dying. Natural Death Acts, “The first law concerning a right to refuse life sustaining technology was passed in California in 1976. Other similar laws were passed after the California Acts from 1976 to 1980, until by 2000 all states had their own Natural Death Acts.”

Advance Health Care Directives:
California’s Advance Directive Law

Advance Health Directives, are similar to the “living wills”, in that a person, before they even have a health issue but in preparation for them, can either fill out a legal document, the advance directive, to specify the choices that will be made by the health care facility if they cannot communicate verbally their wishes; or it can allow them to designate a person to make those choices for them. The latter is a durable power of attorney; but in the latter case, it will not be the patient’s wishes, but the choices of the person designated (one who is trusted!) The Advance Health Care Directives, such as California’s law, replaced the Natural Death Acts that were previously the law from the 1970’s.
California’s Advance Directives are not yet reflected on the National or completely enacted by other states in the U.S. Many states have Natural Death Acts, left over from legislation enacted in the 1970s to 1980s. The Patient Self- Determination Act, a national congressional act passed in 1990 and enacted in 1991, does compel hospitals and health care facilities that receive government assistance payments to accept advance directives, but private physicians are yet exempt from these in many states.

The Natural Death Acts
Inception and Legal Basis

Under the Summary and Guidelines for the CALIFORNIA NATURAL DEATH ACT,” to use an advance directive you must be adult (18) and the declaration requires the conditions that the patient’s physician must see the declaration, that the patient specified must be diagnosed in a terminal condition, and the patient can’t make decisions about what health care should be administered. The hospital must: place the declaration is the patient’s records; or inform the patient that they cannot comply, and immediately transfer care to a physician or facility that can comply with the Act. Lastly, comfort and care must never be withdrawn, even if treatment is withdrawn under the Natural Death Act.”
The Natural Death Acts are a bit different from Advance Health Care Directives, as the above quote illustrates. A person, not a patient, can fill out the advance directive; and the person doesn’t have to be in a terminal condition. The Natural Death Act was used when the situation would arise; the A.D. specifies by legal document what to do if the situation arose; in a type of “insurance” for future possible medical issues.

Current situation of N.D.A.s

In 1986 thirty six states had Natural Death Acts, in 2000 most all states. The U.S. Government enacted the Patient Self-Determination Act in 1990, which took effect in late 1991.

Value of Advance Directives to Patient, Family, and Caregiver
“Biomedical developments of the past 20 years have made death more a matter of deliberate decision. For almost any life threatening condition, some form of intervention can now delay the moment of death. Once within the province of fate, death is now a matter of human choice. This development has profound ethical and legal implications. Medical technology often renders patients less able to communicate or direct the course of their treatment.” (Thomas Schimke, 1986)
Value to Author or Patient
The advance directive gives the person, or patient, as it may be, the authority to legally direct that their wishes as to standard of care be carried out by the health care facility. This is not always popular with the physician, attending physician, or health care facility. The facility may have other ideas about prolonging life or withdrawing treatment in cases where death or mortality is concerned.
Health Care Facility
The concerns of the modern health care facility run into issues about the agenda of the management; this might be to maximize profits and minimize expenses, or to provide award winning care at top dollar. Of course there are laws that govern health care, but individual decisions about treatment can involve all members of the staff: doctors, nurses, and administrators. The Advance Care Directive tells the staff what care the patient wants, and also requires that they provide the care or release the patient to another caregiver. The A.D. might have benefits, in that the family might want to prolong care at any expense; if the hospital followed a patient’s A.D. to terminate support they would be following the law, while reducing their potential costs.

Are Advance Directives Really Effective?
The U.S. Congress didn’t go far enough with the Patient Self-Determination Act. According to Wikipedia, 2014:
“…because the 1991 PSDA does not apply to individual physicians, private clinics and practices, most of whom are incorporated for-profit organizations, the problem of cruel over treatment for profit of the elderly on Medicare/Medicaid was not controlled to the extent that the Congress hoped would be possible when the states would implement the goals of the 1991 PSDA in state laws. (Recently, in 2012, the newspapers have revealed that The United States Department of Health and Human Services and the Department of Justice have cooperated to prosecute over treatment of patients under the federal false claims act.)”
So to conclude, private physicians can still talk patients (i.e. elderly and infirm, Alzheimer’s, etc.) into excessive or “over-treatment” to inflate their private profit. Some states like California have the Advance Directive Acts to allow people, when in sound mind, to direct what their treatment should be when they are not in sound mind. I discussed this issue with a physician just two weeks ago, in Walnut Creek. He did not wish to be quoted, but emphasized that the Advance Directive is just a legal document that can be lost, misplaced, or coerced (under stresses of a certain time period). He said in effect that sometimes the situation demands more than thoughts about what the patient wants. The best treatments should be discussed and understood between doctors and their patients, or doctors and the wishes of the family including the patient. I thought that was a smart way to look at Advance Directives.

Living Will Example
LIVINGWILL DECLARATION OF _Kevin Bean______________
To my family, doctors, hospitals, surgeons, medical care providers, and all others concerned with my care:
I, Kevin Bean_, being of sound mind and rational thought, willfully and voluntarily make this declaration to be followed if I become incompetent or incapacitated to the extent that I am unable to communicate my wishes, desires and preferences on my own.
This declaration reflects my firm, informed, and settled commitment to refuse life-sustaining medical care and treatment under the circumstances that are indicated below.
This declaration and the following directions are an expression of my legal right to refuse medical care and treatment. I expect and trust the above-mentioned parties to regard themselves as legally and morally bound to act in accordance with my wishes, desires, and preferences. The above-mentioned parties should therefore be free from any legal liabilities for having followed this declaration and the directions that it contains.
DIRECTIONS
1. I direct my attending physician or primary care physician to withhold or withdraw life-sustaining medical care and treatment that is serving only to prolong the process of my dying if I should be in an incurable or irreversible mental or physical condition with no reasonable medical expectation of recovery.
2. I direct that treatment be limited to measures which are designed to keep me comfortable and to relieve pain, including any pain which might occur from the withholding or withdrawing of life-sustaining medical care or treatment.
3. I direct that if I am in the condition described in item 1, above, it be remembered that I specifically do not want the following forms of medical care and treatment:
A. _____________________________________
B. _____________________________________
C. _____________________________________
D. _____________________________________
E. _____________________________________
F. _____________________________________
G. _____________________________________
H. _____________________________________
I. _____________________________________
J. _____________________________________
K. _____________________________________
4. I direct that if I am in the condition described in item 1, above, it be remembered that I specifically do want the following forms of medical care and treatment:
A. _____________________________________
B. _____________________________________
C. _____________________________________
D. _____________________________________
E. _____________________________________
F. _____________________________________
G. _____________________________________
H. _____________________________________
I. _____________________________________
J. _____________________________________
K. _____________________________________
5. I direct that if I am in the condition described in item 1, above, and if I also have the condition or conditions of
____________________, that I receive the following medical care and treatment:
This Living Will Declaration expresses my firm wishes, desires, and preferences and the fact that I may have executed a
Form specified by the law of the State of _____________, may not be used a limiting or contradicting this Living Will Declaration, which is an expression of both my common law and constitutional rights.
I make this Living Will Declaration the ____16 day of December, 2014__.
_______________________________________________
Declarant’s Signature
________________________________________________
________________________________________________
________________________________________________
Declarant’s Address
WITNESSSTATEMENTS
I declare that the person who signed or acknowledged this document is personally known to me, that he/she signed or acknowledged this Living Will Declaration in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence.
________________________________________________
Witnesses’ Signature
________________________________________________
Witnesses’ Printed Name
________________________________________________
________________________________________________
Witnesses’ Address
I declare that the person who signed or acknowledged this document is personally known to me, that he/she signed or acknowledged this Living Will Declaration in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence.
________________________________________________
Witnesses’ Signature
________________________________________________
Witnesses’ Printed Name
________________________________________________
________________________________________________
________________________________________________
Witnesses’ Address
NOTARIZATION
STATEOF _______________________, COUNTY OF ___________________
Subscribed and sworn to before me his ________ day of ________, 20_____.
_______________________________
Signature of Notary Public
My commission expires: ________________________________
NOTES ABOUT LIVING WILL DECLARATION FORM:
• Paragraphs one and two can be tailored to suit your own desires. For example, you could redraft paragraph one to state that you would like to have life-sustaining treatments for "x" number of days or weeks and then if no progress is made and there is no reasonable hope of recovery, you would like to have the life-sustaining treatments withdrawn. As for paragraph two, if you do not wish to receive pain medications you can state those wishes there.
• Paragraph three of the Declaration allows you to list all specific types of treatment you wish not to receive. If you do not have strong feelings about any particular types of treatment, you do not need to include this paragraph in your own living will. However, if you do have strong preferences, this is the place to list them.
Examples: Antibiotics, artificial feedings, hydration and fluids, blood transfusions, cardiac resuscitation, dialysis, intravenous lines, invasive tests, respiratory therapy, mechanical respirator y assistance, and surgery.
Note: For many people, taking away food and water from a dying person seems especially cruel because they may feel as though the person is starving or dehydrating to death. However, you have a right to make your specific wishes known on the subject. It is advisable, however, to be particularly clear on those issues so that there is no room for your loved ones to debate. In addition, they will likely feel less burdened by guilt if they are certain they are following your specific wishes not to be artificially fed or hydrated.
• Paragraph four is the converse of paragraph three and allows you to clearly state what care and treatment you would like to receive. In addition, if you have specific instructions for other types of care, you may wish to include them in this paragraph.
Examples: At-home or hospice care as the end approaches, feelings about religious practices or customs at a terminal stage (for instance, if you wish for a certain clergy member to be called and be present).
• Paragraph six allows you to essentially "change" your wishes should you also have another medical condition when you become incapacitated or incompetent.

References

1) Schimke: The Natural Death Act: Protection for the Right to Die, MONTANA LAW REVIEW
Published by The Scholarly Forum @ Montana Law, 1986
2) Encyclopedia of Death and Dying (deathreference.com), Natural Death Acts
3) Living will illustration: FindLaw, Learn about the law, online source: http://estate.findlaw.com/living-will/sample-living-will-form.html

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