PROCESS OF DECISION-MAKING

 

 

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PROCESS OF DECISION-MAKING BY HEALTH CARE AGENTS

AND REPRESENTATIVES UNDER ACT 169

 

Process for Decision-Making.

bulletAct 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.

 

bulletAdhering 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.

 

bulletStage One: Information Gathering

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.

 

 

bulletStage Two: Carrying Out Express Instructions

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.

 

 

bulletStage 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.

 

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.

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Copyright © 2008 Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated: 05/28/08