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October 01, 2013

ABA provides legal perspective on advance care planning

A federal workgroup turned to the ABA last month for the legal perspective on advance care planning (ACP) during a Sept. 23 virtual hearing.

 “The ABA has strongly promoted the value of ACP and the use of advance health care directives by all adults since the mid-1980s,” Charles P. Sabatino, director of the ABA Commission on Law and Aging, told the Certification and Adoption Workgroup of the Health Information Technology Committee. The committee will be making recommendations to the National Coordinator for Health Information Technology in the Department of Health and Human Services regarding adoption of certified electronic health records.

Sabatino based his testimony on the experiences the ABA commission has had over the past 25 years tracking state developments in health decisions laws.

Tools that play a role in ACP include advance directives and medical notes written or dictated by a physician that reflect a discussion with a patient regarding goals of care, treatment preference and related decisions. Advance directives are legally recognized documents that appoint a health care agent or proxy or provide instructions or guidance about critical medical decisions relating to life support and palliative care. In at least 15 states, medical notes that are properly witnessed constitute a formal advance directive.

Another form of documenting is a protocol commonly called Physician Orders for Life Sustaining Treatment (POLST), a clinical process in use or development in a majority of states that is designed to facilitate communication between health care professionals and patients with advanced illnesses.  The result is a set of visible, portable medical orders that is applicable in all settings and across care transitions, is reviewable, and respects the patient’s goals for care in regard to the use of cardiopulmonary resuscitation, breathing machines and other interventions.

In his statement, Sabatino pointed out that that the appointment of a health care agent or proxy improves the decision-making process because it clarifies who should be directly involved in the decisions at the time they need to be made and allows the decision-maker to weigh all the facts and options in real time. He emphasized, however, that merely having an appointed agent does not necessarily mean that the agent is well-informed about the patient’s goals and wishes or engaged effectively in decision-making on behalf of the patient.

“The process that does clearly make a difference,” he said, “is the level of advance care planning communication that takes place during a course of treatment.”

Discussing the issues that an electronic environment raises for advance directives, Sabatino stressed the importance of keeping advance care plans up to date and to ensuring that a plan is continued from one venue to another. The timeliness of POLST forms is even more important when a patient’s condition changes during a serious progressive illness, he said.

Asked about legal concerns, Sabatino noted that a legal issue of informed consent arises because an advance directive is typically done well in advance of a particular medical decision and cannot be expected to meet the standard of informed consent.  The obligations of authorized surrogate decision-makers and health care providers in most states is generally defined as following a standard of substituted judgment – deciding what the individual would have decided to the extent that can be determined and what is in the best interest of the patient.

He explained that there is no accepted or proposed floor established in state practice with respect to advance directives, but some broad benchmarks are emerging for states to be endorsed by the National POLST Task Force. This includes that the program is established statewide and there is widespread POLST accessibility, use and portability.

Sabatino provided the workgroup with the text of the 10 ABA policies adopted by the House of Delegates that address patient self-determination in health care. He pointed out that the two most recent policies urge widespread support of protocols such as POLST and support for strengthening the Patient Self Determination Act, which was originally enacted in 1990 to require health care institutions to provide information about advance health care directives to adult patients.

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