Act 169 finally makes available for Pennsylvanians all three approaches to end-of-life decision making that were sanctioned by the United States Supreme Court in Cruzan. (See the Section titled "Developments in the Law" above.) The Act includes the following specific subchapters:

Health Care Representatives to be appointed under the Act when there is no agent named by the principal who is able and willing to serve, who may also exercise substituted judgment and use the best interest standards on behalf of the individual.

Effect on Prior Law. Act 169 does not supplant or preempt prior statutory and case law dealing with health-care decision making. In fact, Act 169 explicitly states that nothing in it is meant to affect or supersede the holdings of the Pennsylvania Supreme Court in Fiori, which is cited directly in the statute.

As a result of this non-exclusive approach, the underlying principles of self-determination, substituted judgment, and best interest standard remain important concepts in the drafting of advance directives and in any discussion of their terms.

Effect on Prior Advance Directives. Act 169 does not limit the validity of a living will or health care power of attorney executed prior to its effective date, January 29, 2007.

Effect on Advance Directives Executed Outside Pennsylvania. A living will or health care power of attorney that was executed in another state or jurisdiction which is in conformity with the laws of that state or jurisdiction will be considered valid in Pennsylvania, except to the extent that such living will would direct procedures that are inconsistent with Pennsylvania law, or such health care power of attorney would allow a health care agent to make a health care decision that would be inconsistent with Pennsylvania law.

Pregnancy. Act 169 places special limitations on the right of self-determination if the individual is pregnant. Life-sustaining treatment, nutrition, and hydration must be provided to a pregnant woman who is incompetent and has an end-stage medical condition or who is permanently unconscious unless, to a reasonable degree of medical certainty as certified on the pregnant woman's medical record by the pregnant woman's attending physician and an obstetrician who has examined the pregnant woman, life-sustaining treatment, nutrition and hydration:

This rule applies notwithstanding the existence of a living will, a health care decision by a health care representative or health care agent or any other direction to the contrary.

Protection of Health Care Providers from Liability. Act 169 contains broad protections for health care providers in complying with the terms of Act, in an apparent effort to encourage their compliance with both the individual patient’s own advance directives and the directions given by health care agents and representatives. For example:

Health care providers can assume that an advance directive presented to them was valid when made and has not been amended or revoked, unless they have reason to believe otherwise.

Health care providers are not liable when they initiate, continue, withhold, or withdraw medical treatment from an incompetent patient if they believe in good faith that they are acting in accordance with the terms of the patient's living will or the directions of a duly authorized health care agent or representative.

 

 

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Martin J. Hagan is licensed to practice law in the Commonwealth of Pennsylvania. This website is intended solely for informational use and is not intended to solicit clients. Likewise, any information contained in or obtained from this web site is for informational purposes only and is not intended to be used as legal advice.

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Last Updated: 03/05/10