Dallas Bar Association

Patient Wishes Illuminated Through Advance Directives

by Kimberly Wilson

The January 8, 2011, shootings near Tucson, Arizona, reminded many that the end of life can come sooner than expected. The events of that Saturday morning were likely followed by the struggles of family and friends of the deceased to determine the deceased’s wishes regarding funeral arrangements and other important decisions. Though each individual’s situation is unique, promoting end-of-life planning through dialogue and legal documentation can assist all involved in ensuring that the individual’s wishes are carried out in the final stages of life and beyond.

The Fourth Annual National Healthcare Decisions Day is April 16, 2011. This day seeks to educate the public and medical providers on the importance of advance care planning, and inspire and empower them to act. End-of-life planning includes preparation of advance directives, consideration of power of attorney documentation, financial planning and funeral and burial planning.

In Chapter 166 of the Health and Safety Code, Texas law provides for advance directives as an opportunity for patients to indicate treatment preferences for a time in the future when they become unable to make their wishes known. Such directives only apply if the patient is declared terminally or irreversibly ill and unable to particulate in decision-making. Advance directives can also be revoked at any time.

An advance directive may identify whether or not an individual wants available life-sustaining treatment when suffering from a terminal condition from which they are expected to die within six months and, in addition, may request specific treatments. The directive may also designate a person to make treatment decisions with the patient’s physician if the patient does not have a medical power of attorney. In Texas, as of September 2009, patients can sign advance directives electronically using approved digital signatures.

The Texas Hospital Association has identified advance directives and end-of-life care as key issues for Texas hospitals in the 2011 legislative session. Texas law currently includes a process based on American Medical Association guidelines to address disagreements between patient surrogate decision-makers and physicians about medical treatment near the end of life.

Health and Safety Code Section 166.046 provides the procedure governing when an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient. There have been legislative attempts to require “treatment until transfer,” which in some cases would provide for indefinite treatment. Many healthcare providers believe that the “treat until transfer” change would cause an identical outcome for every case and would also create a mandate superseding the patient’s rights, as well as the physician’s responsibility to the patient.

Currently, however, if a physician refuses to continue treatment based on a belief that it would be medically hopeless or futile, the hospital ethics committee reviews the decision and if the ethics committee agrees with the physician that treatment is futile, the family has 10 days to transfer the patient to another facility to continue treatment. The hospital has no statutory obligation to continue treatment after 10 days.

Advance directives provide an independent voice for the patient during the ethics-committee process. This makes it less likely that physicians, chaplains, administrators and lawyers, who may have never met the patient, will be making choices for the patient without an understanding of the patient’s wishes.

Yet the U.S. Agency for Healthcare Research and Quality noted in a 2003 article that less than 50 percent of the severely or terminally ill patients studied had an advance directive in their medical record. It is also important that healthcare providers know that an advance directive exists. 

The American Health Lawyers Association, a non-profit organization, distributed a DVD to members in 2009 titled “Loving Conversations.” The DVD contains vignettes which show mock family discussions about end of life planning. Watching all of the vignettes takes less than an hour and they are currently available to the public on YouTube. Additional resources regarding advance planning can be found at www.nhdd.org.

Kimberly Wilson is a partner at Hermes Sargent Bates LLP, and a Texas liaison for National Healthcare Decisions Day. She can be reached at Kimberly.Wilson@hsblaw.com.

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