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PROCESS OF
DECISION-MAKING BY HEALTH CARE AGENTS
AND
REPRESENTATIVES UNDER ACT 169
Process for Decision-Making.
 | Act 169 lays out the decision-making process that
both the health care agent and health care representative should use in making
health care decisions. The agent or representative (referred to together below
as the "surrogate") is not required to follow these steps, but to better
ensure that their decisions will be respected and enforced, it is highly
recommended that they do so. |
| Adhering to the statute's decision-making process is particularly important as a safe harbor for the health care agent who is
choosing to forego life-sustaining treatment when the principal has not been
determined to be in an end-of-life medical condition or permanently unconscious. |
Stages of Decision-Making.
Under Act 169 the surrogate should make health care
decisions by employing a three-stage process that incorporates both the
substituted judgment and best interest standards.
| Stage One: Information Gathering
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The surrogate should gather information on the
principal's prognosis and acceptable medical alternatives regarding diagnosis,
treatments and supportive care. Consultation with doctors would be part of this
process.
In the case of surgical procedures for which informed
consent is required, the information should include the information required to
be disclosed under applicable law.
In the case of health care decisions regarding the
end of life of a individual with an end-stage medical condition, the information
should distinguish between:
Curative alternatives,
Palliative alternatives, and
Alternatives that will merely serve to prolong the
process of dying.
The information should also distinguish between:
The principal's end-stage medical condition, and
Any other concurrent disease, illness or physical,
mental, cognitive or intellectual condition that predated the principal's
end-stage medical condition.
| Stage Two: Carrying Out Express Instructions
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After consultation with health care providers and
consideration of the information obtained, the surrogate shall make health care
decisions in accordance with the surrogate’s understanding and interpretation of
the instructions given by the principal at a time when the principal had the
capacity to understand, make and communicate health care decisions.
Such instructions would include:
An advance health care directive made by the
principal, and
Any other clear written or verbal directions that
cover the situation presented.
| Stage Three: Carrying out
Implied Instructions |
In the absence of such instructions, the
surrogate should make health care decisions that conform to the surrogate’s
assessment of the principal's preferences and values, including religious
and moral beliefs.
If the surrogate does not know enough about the
principal's instructions, preferences, and values to decide accordingly, they
should take into account what they do know of the principal's instructions,
preferences and values, including religious and moral beliefs, and the
surrogate’s assessment of the principal's best interests, taking into
consideration the following goals and considerations:
The preservation of life.
The relief from suffering. The preservation or restoration of functioning,
taking into account any concurrent disease, illness or physical, mental,
cognitive or intellectual condition that may have predated the principal's
end-stage medical condition.
Presumption in Favor of Food and Water.
In the absence of a specific, written
authorization or direction by a principal to withhold or withdraw nutrition
and hydration administered by gastric tube or intravenously or by other
artificial or invasive means, a surrogate shall presume that the principal
would not want nutrition and hydration withheld or withdrawn.
Grounds for Overcoming Presumption.
The presumption may be overcome by previously clearly
expressed wishes of the principal to the contrary.
In the absence of such clearly expressed wishes, the
presumption may be overcome if the surrogate considers the values and
preferences of the principal and assesses the factors set forth in Stage Three above, and
from them determines that the principal would
not wish for artificial nutrition and hydration to be initiated or continued.
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DISCLAIMER
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.
IRS CIRCULAR 230 DISCLAIMER :
Pursuant to Treasury guidelines, any tax advice contained in this website
(or any link from it) does not constitute a formal opinion. Accordingly, any tax
advice contained in this website (or any link from it) is not intended or
written to be used, and cannot be used by any taxpayer, for the purpose of
avoiding penalties that may be asserted by the Internal Revenue Service. You should seek advice
based on your particular circumstances from an independent tax advisor.
Send mail to mhagan@haganlaw.net with
questions or comments about this web site.
Copyright © 2008 Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated:
05/28/08
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