Patients' Rights to Self-Determination and Medical Care

Anyone who is at least 19 years old and who is mentally capable of understanding a lay description of medical procedures and able to appreciate the consequences of his or her own decisions has the right to decide whether medical procedures or treatment will be provided to them. This right applies whether these procedures are lifesaving emergency treatments, life-sustaining treatments, or the provision of food and liquids by artificial means. Because issues surrounding a patient's right to self-determination necessarily involve matters of life and death, the Alabama Supreme Court imposes a "clear and convincing" standard of proof in cases of this nature. The written documents may include advance healthcare directives, living wills, durable powers of attorney, healthcare proxies, and other written expressions of the patient's wishes regarding their healthcare. An advance directive for healthcare is a writing executed in accordance with Alabama law, and may include a living will, the appointment of a healthcare proxy, or both. A living will permits patients to express his or her wishes in advance about certain medical treatments. It only takes effect if the patient later becomes unable to express his wishes about medical treatments at the time they are offered. If the living will is properly completed, it may be honored by physicians, nurses, hospitals, nursing homes, and home health agencies. Although healthcare providers may object to withholding artificially provided food and liquids, they may not administer treatment that the patient specifically does not want. Such a facility's option in that case is to transfer the patient to another facility where the patient's wishes will be honored without objection. The author has experienced numerous occasions where the patient did not correctly comply with the Alabama statute. The most frequently recurring problem is the requirement that a living will be signed in the presence of two or more witnesses. The witnesses must be at least 19 years old, and neither of them can be the person who signed the directive on behalf of and at the direction of the declarant; appointed as the healthcare proxy; related to the declarant by blood, adoption, or marriage; entitled to any portion of the estate of the declarant according to Alabama's intestate laws of succession or under any will of the declarant; or directly financially responsible for the declarant's medical care. Oftentimes, a living will is executed while the patient is an inpatient in the hospital and visited by members of his family who are disqualified from acting as witnesses. In such cases, the author recommends using members of the clergy to sign as witnesses. Another issue that occasionally arises is at what time does an advanced healthcare directive become effective. The document does not become effective until the attending physician determines that the declarant is no longer able to understand, appreciate, and direct his medical treatment and two physicians, one of whom shall be the attending physician, and one of whom shall be qualified and experienced in making such diagnosis, have personally examined the declarant and have diagnosed and documented in the medical record that the declarant has either a terminal illness or injury or is in a state of permanent unconsciousness. If the patient is not competent at the time of the rendering of medical treatment to make a determination of whether to receive treatment or refuse it a properly executed living will or proxy designation is presumed to be valid. A healthcare provider may presume in the absence of actual notice to the contrary that an individual who executed an advance directive for healthcare was competent at the time it was executed. The fact of an individual's having executed an advance healthcare directive cannot be considered as an indication of a declarant's mental incompetency. Additionally, advanced age of itself shall not be a bar to a determination of competency. Many times a patient presents to a healthcare provider without having executed any form of advanced healthcare directive and is no longer competent to execute one. An appointment of a surrogate may apply when no advance directive for healthcare has been made, if no duly appointed healthcare proxy is reasonably available, or if a valid advance directive for healthcare fails to address a particular circumstance. A surrogate, in consultation with the attending physician, may, subject to several provisions of Alabama Code §22-8A-6, determine whether to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration. The Alabama surrogate regulations impose numerous required elements in order for a surrogate to be effective. If properly executed a surrogate may, in consultation with the attending physician, make decisions permitted that conform as closely as possible to what the patient would have done or intended under the circumstances, taking into account any evidence of the patient's religious, spiritual, personal, philosophical, and moral beliefs and ethics, to the extent these are known to the surrogate. Where possible, the surrogate must consider how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment or artificially provided nutrition and hydration against the burdens and benefits to the patient of that treatment; except, that any decision by a surrogate regarding the withdrawal or withholding of artificially provided nutrition and hydration from a person who is permanently unconscious shall only be made upon clear and convincing evidence of the patient's desires. The decision to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration by the surrogate must be made in good faith and without consideration of the financial benefit or burden that will accrue to the surrogate or the healthcare provider as a result of the decision. A healthcare provider who provides, withholds, or withdraws life-sustaining treatment or artificially provided nutrition and hydration from a patient upon the instructions of a surrogate who has certified and attested that he is qualified as a surrogate is not subject to civil or criminal liability or be found to have committed an act of unprofessional conduct for providing, withdrawing, or withholding the life-sustaining treatment or artificially provided nutrition and hydration. Additionally, the healthcare provider is under no duty to investigate the truthfulness of the information certified and attested to by the surrogate. Jim Hoover is a member of Burr & Forman LLP's Health Law Practice Group and exclusively represents healthcare providers in regulatory and litigation matters.