Self-Determination

Advance care planning provides an opportunity for the patient to exercise the legal right to self-determination as affirmed by the United States Supreme Court in 1990. The Supreme Court established that patients maintain their right to self determination even when they are no longer able to direct their own health care, and that decisions for incompetent patients should be based on their previously stated wished.

The Patient Self-determination of 1991 requires that patients be informed of their right to accept or refuse medical treatment and be given the opportunity to specify their wishes in advance of need. Patients admitted to a health care facility of health care plan must also be asked if they have completed an advance directive.

Following Expressed Wishes

Physicians are obligated by Arizona law to follow the medical treatment decisions that are expressed by the patient, either verbally or in writing. If the patient lacks decision-making capacity, either permanently or temporarily, the physician must follow the medical treatment decisions that were made by the patient before he became incapacitated.

If a physician acts contrary to a patient's clear instruction and directive to withhold treatment, or contrary to the decision of the patient's authorized proxy, the physician risks the same liability he or she would face if the physician were to ignore a refusal of treatment by a fully competent patient. Treatment would constitute a battery.

If a physician objects to an Advance Directive or patient's expressed wishes based on reasons of conscience, state law permits the physician to refuse to honor it. However, the physician must provide assistance in transferring the patient to a provider that will comply with the directive.

Using Substituted Judgment

If an incapacitated patient's choices are unknown, the patient's representative will make choices about treatment decisions based on what he believes the incapacitated person would choose. The decision-maker will decide based on what he knows about the patient's values and preferences.

Using Good Faith to Decide Best Interests

If an incapacitated patient's representative does not know the decisions, preferences or values of that person as to medical treatment decisions, then the representative must decide in good faith what would be in the best interests of that person, considering relief from suffering, whether functioning will be preserved or restored, and the quality and extent of sustained life.

Hierarchy of Decision-makers

The constitutional right to privacy and liberty includes the right of an individual to make medical treatment decisions. When an individual becomes unable to make his own decisions, the following hierarchy of decision-makers is outlined in Arizona law:

1. Guardian
2. Health Care (Medical) Power of Attorney
3. Surrogate
   1. The patient's spouse, unless legally separated
   2. An adult child of the patient, or a majority of adult children
   3. A parent of the patient
   4. The patient's domestic partner if the patient is unmarried
   5. A brother or sister of the patent
   6. A close friend of the patient (an adult who has shown special concern for the patient, is familiar with the patient's desires and who is willing and able to become involved in the patient's health care, acting in the patient's best interests.)
   7. The patient's physician, when none of the above persons can be located. The physician may make health care decisions after consulting with the institutional ethics committee, or with a second physician if an ethics committee is unavailable.

Statutory Documents

A statutory document is designed to comply with state law and to provide some immunity for physicians who have followed the patient's wishes. The Health Care (Medical) Power of Attorney is a statutory document used to appoint a substitute decision maker for health care decisions in circumstances of incapacity. The Living Will is a statutory document specifying medical treatment choices in circumstances of incapacity and a terminal condition, persistent vegetative state or an irreversible coma.

Although of value in appointing a substitute decision-maker, there are inherent limitations in such statutory documents. As a guide to physicians and surrogate decision-makers, they cannot possibly describe every medical care situation or treatment decision. The Living Will document is further limited by the "terminal condition, persistent vegetative state or irreversible coma" clause; it cannot be invoked in a person with a progressive neurological disease who is not facing imminent death.

Click here to download a Health Care (Medical) Power of Attorney.

Advisory Documents

An advisory document is designed to reflect a patient's wishes through a description of his values, goal of treatment, and perspectives on quality of life. While still unable to address each possible medical decision, an advisory document can offer comfort to the surrogate decision-maker that the patient's values are being honored, and security to the physician that the substituted judgment standard will be accurately applied.

Click here to download a Health Care Directive.

Surrogate Decision-Makers

A substitute decision-maker, either one appointed by the court as a guardian, one appointed by the patient by a Health Care (Medical) Power of Attorney, or one assuming decision-making responsibility through the hierarchy of surrogacy defined in the law, can make most health care treatment decisions for an incapacitated patient. This individual, or individuals, may agree to or may refuse medical treatment including diagnostic, therapeutic and surgical procedures.

The removal of previously initiated artificial administration of food and fluids, by an intravenous or enteral route, is limited by Arizona law to an appointed decision-maker - either a guardian or a health care (medical) power of attorney. All other decisions to initiate or withdraw treatment can be made by a surrogate (non-appointed) decision-maker.

"Do not Resuscitate" does not mean "Do not Treat"

While it is true that most people use Advance Directives to avoid being kept alive against their wishes when death is near, it is a mistake to assume that the existence of an advance directive means, "Do not Treat."

Advance directives are also used to say that the individual wants all possible treatments within the range of generally accepted medical standards. What is said depends upon one's particular wishes and values. Even when an advance directive precludes cardio-pulmonary resuscitation (CPR), a physician must always assume that the patient would desire continuing pain control, comfort care and respect for one's dignity. Treatment decisions, such as administration of IV fluids, antibiotics, or ventilator support, should be guided by the patient's expressed wishes, or quality of life advisory documents, and should be made by the patient's surrogate decision-maker in collaboration with the patient's physician and medical care team.

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