Legislative basis of advance care planning
See: (US Department of Health and Human Services, Ref: S&C 13-17 NH, September 27, 2012)
The legal basis for the use of a living will or advance directive in health care today is based on a citizen ’s right of self-determination and the federal Patient Self-Determination Act (effective December 1, 1991).
SEC. 4206. MEDICARE PROVIDER AGREEMENTS ASSURING THE IMPLEMENTATION OF A PATIENT'S RIGHT TO PARTICIPATE IN AND DIRECT HEALTH CARE DECISIONS AFFECTING THE PATIENT.
(A) to provide written information to each such individual concerning”
(i) an individual's rights under State law (whether statutory
or as recognized by the courts of the State) to make
decisions concerning such medical care, including the right
to accept or refuse medical or surgical treatment and the
right to formulate advance directives… and
"(ii) the written policies of the provider or organization
respecting the implementation of such rights;
"(B) to document in the individual's medical record whether
or not the individual has executed an advance directive;
"(C) not to condition the provision of care or otherwise
discriminate against an individual based on whether or not the
individual has executed an advance directive…
All states have adopted statutes that essentially apply the federal mandate to their jurisdictions. Here, for example, are selected provisions in the State of Washington statute:
Directive to withhold or withdraw life-sustaining treatment
(1) Any adult person may execute a directive directing the withholding or withdrawal of life-sustaining treatment in a terminal condition or permanent unconscious condition. The directive shall be signed by the declarer in the presence of two witnesses not related to the declarer by blood or marriage and who would not be entitled to any portion of the estate of the declarer upon declarer's decease under any will of the declarer or codicil thereto then existing or, at the time of the directive, by operation of law then existing. In addition, a witness to a directive shall not be the attending physician, an employee of the attending physician or a health facility in which the declarer is a patient, or any person who has a claim against any portion of the estate of the declarer upon declarer's decease at the time of the execution of the directive. The directive, or a copy thereof, shall be made part of the patient's medical records retained by the attending physician, a copy of which shall be forwarded by the custodian of the records to the health facility when the withholding or withdrawal of life-support treatment is contemplated. The directive may be in the following form, but in addition may include other specific directions:
The right of an individual to direct his or her own medical treatment, including withholding or withdrawing life-sustaining treatment, is grounded in common law (judge-made law), constitutional law, statutory law (law made by legislatures) and regulatory mandates governing care provided by facilities.
For a summary analysis of constitutional and statutory law regarding the “right to die.” [Thomas, K.R. (Updated September 19, 2005). The Right to Die: Constitutional and Statutory Analysis. Congressional Research Service Report for Congress, 907-244A.
Several landmark legal decisions have established an enduring judicial precedence for the legal principles of advance directives and the right to accept or refuse or withhold treatment. The F155 Interpretive Guidance Endnotes refer to:
1) Quinlan. (1976). 70 N.J. 10, 355 A.2d 647.
2) Bartling v. Superior Court. (1984). Dec 27:209:220-7. (http://www.ncbi.nlm.nih.gov/pubmed/11648164)
3) Cruzan v. Director, Missouri Department of Health. (1990). 497 U.S. 261.
For additional information regarding standards of professional practice and the implementation of patient rights:
Atmore, C. & Naksook, C. (2007). Respecting Patient Choices –Literature Review. Prepared by Health Issues Centre for the Respecting Patient Choices Project, Austin Health, La Trobe University, VIC, Australia.
Emanuel, L.L., von Gunten, C.F., Ferris, F.D. (1991). Education for Physicians at the End of Life (EPEC) Participant’s Handbook --Plenary 2, Legal Issues. Robert Wood Johnson Foundation.