Act 169 of 2006, which provides a framework for making healthcare decisions on behalf of incompetent adult patients through advance health directives, went into effect on January 29, 2007. The Act allows physicians to initiate, continue, withdraw or withhold medical care based upon instructions contained in a patient’s living will, out-of-hospital do-not-resuscitate order, or by following the directions from a health care agent or health care representative.
Although the living will and out-of-hospital do-not-resuscitate order provisions largely follow existing statutory law, the Act attempts to clearly define the applicable standards and procedures that should be implemented when healthcare decisions for an incompetent adult patient are made by agents appointed through a health care power of attorney or by a health care representative.
An advance healthcare directive is a living will, a health care power of attorney, or a document that combines the features of both a living will and a health care power of attorney. A health care agent is appointed by the patient through a health care power of attorney. A health care representative can be designated by the patient or is authorized to act by default under the law. If a health care representative must be designated through default, the Act prioritizes the list of individuals to be considered. However, a patient of sound mind may modify the default designations or disqualify certain individuals. Additionally, upon petition, a judge may disqualify eligible individuals from being appointed a patient’s health care representative.
For an advance healthcare directive to be valid, it must be made by an adult patient who is of sound mind. It must also be in the form of a written document signed by the patient and two witnesses over 18-years-old. If the patient is unable to sign, the advance directive can be signed by another individual at the patient’s direction; however, neither health care providers nor their agents, including office staff, may sign on behalf of a patient whom they are treating. An exception to the requirement that the advance healthcare directive be in writing applies to the designation of a health care representative. In addition to appointment through a written document, a patient may also appoint a health care representative by personally informing the healthcare provider of the designation. Although a written advance healthcare directive need not be notarized to be valid in Pennsylvania, other states may require notarization. Additionally, advance directives executed under the prior law remain valid and advance directives executed in other states are recognized in Pennsylvania as long as the directions from the health care agent or representative are consistent with Pennsylvania law.
A patient can also change or revoke an advance directive. Changes can only be made if the patient is of sound mind and the changes are executed as stated above. A patient can also revoke an advance directive, but the requirements are different depending on whether the advance directive is a living will or a health care power of attorney. A patient may revoke a living will at any time and in any manner and does not need to be of sound mind to do so. The revocation of a living will is effective immediately upon communication to the health care provider by the patient or by a witness to the revocation. However, for a patient to revoke a health care power of attorney, he or she must be of sound mind and the revocation must be in writing or through personal communication by the patient to the health care provider.
When presented with an advance health directive, the health care provider is required to place a copy of the advance health care directive in the patient’s medical record and to also document any amendments or revocations that take place. If the individual claiming authority to make health care decisions on behalf of the incompetent adult patient is a health care representative, the healthcare provider can require the healthcare representative to produce a written declaration establishing the individual’s authority.
The authority granted to an health care agent or representative under an advance directive depends on the type of directive at issue. A living will is only operative if the patient becomes incompetent and is permanently unconscious or is diagnosed with an end-stage medical condition. However, the authority of a health care agent can be more broad and is defined by the language of the health care power of attorney, which may include all care and not just end of life decisions. Some limited restrictions to the health care agents authority apply in situations involving pregnant women and disabled patients. A health care representative holds authority similar to that of a health care agent except that the direction to withhold or withdraw life-sustaining treatment can only be made if the patient is permanently unconscious or has an end-stage medical condition. Furthermore, a patient of sound mind can countermand or reverse any decision made by a health care agent or representative by informing the health care provider. And a patient, regardless of mental capacity, may countermand the decision to withhold or withdraw life-sustaining treatment by personally informing the health care provider.
Under the Act, a physician must determine whether a patient is incompetent. If the patient is found to be incompetent, or conversely regained competence, it must be documented in the patient’s medical records and, to the extent possible, the patient and patient’s health care agent or representative must be notified. Additionally, a physician must also determine whether a patient is permanently unconscious or have an end-stage medical condition. Again, such a finding must be documented in the patient’s medical records and, to the extent possible, the patient and patient’s health care agent or representative must be notified. Although the Act does not require that the above determination be confirmed through a second opinion, a patient’s advance directive may require such confirmation before becoming effective.
In the event a patient’s advance health care directive becomes effective, the Act defines the obligations a health care agent or representative. The agent or representative’s first duty is to collect information regarding diagnosis and treatment options. Health care decisions for the incompetent adult patient are then made following a prescribed criteria. First, the oral or verbal instructions made by the patient while competent are to be followed. If no such instructions were made or apply, the agent or representative should make any health care decisions based on the patient’s preferences and values, which include religious and moral beliefs. Lastly, the health care decisions made on behalf of the incompetent adult patient should take into account the best interests of the patient.
Although the Act provides that a health care provider must generally comply with the decisions of a health care agent or representative, it also addresses situations where the health care provider has religious or moral objections to the health care decision made by the health care agent or representative or has concerns regarding providing medically inappropriate care. The Act also provides guidance regarding various other issues that may arise when a health care agent or representative must make health care decision on behalf of an incompetent patient such as privacy issues, rules regarding documentation of discussions, disclosures and consents between the health care agent or representative and the health care provider, and special rules regarding artificial nutrition and hydration.