The New Advance Directive Law (Act 169) went into effect in January 2007. The Act uses the term advance health care directives to cover a living will, a health care power of attorney, or a combination document that incorporates features of both.
The Pennsylvania Medical Society has summarized Act 169 (www.pamedsoc.org) in order to assist physicians and other healthcare workers better understand the changes that have been incorporated in this Act. Major components of Act 169 provides for health care decisions to be made for an adult incompetent patient through:
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Instructions from the patient in a living will,
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Directions from a health care power of attorney, or
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Directions from a close family member or other health care representative designated by the patient or authorized by default under the law.
What’s new in this law? The living will provision largely mirrors existing statutory law. The health care power of attorney and health care representative provisions are new.
In the past physicians relied on health care agents and close family to make decision for incompetent patients. Generally the consensus was that this was authorized under prior judicial decisions, a surrogate appointment in the prior living will law, or the general power of attorney statute.
These standards and procedures however, were not clearly defined. Because of this physicians at times were faced with the dilemma of either ignoring patient autonomy or risking adverse legal ramifications. The Act provides explicit statutory authority, which brings both clarity and protection for patients and physicians.
Only adults in sound mind may make an advance health care directive. An advance health care directive must be:
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In writing that is dated and signed (by signature or mark) by the patient or if the patient is unable to sign, by an individual acting at the patient’s direction, and
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Witnessed by two individuals who are at least 18 years of age.
An individual who signs for the patient may not also be a witness. Health care providers and their agents, including physicians and their office staff, may not sign an advance health care directive on behalf of a patient that they are treating.
Physicians must document in the patient’s medical record when they determine the patient is incompetent, and when they determine that a patient is permanently unconscious or in an end-stage condition. These determinations are important because they impact whether a living will is operational and may affect the authority of a health care agent or health care representative.
A health care power of attorney may give a health care agent authority as broad as the patient would have if competent. In contrast to living will, health care agents are not restricted to end-of-life decisions making.
Act 169 does not impose a requirement that the patient be permanently unconscious or have an end-stage medical condition for a health care agent to direct the withholding or withdrawing of health care necessary to preserve the patient’s life.
In general, a health care representative may make health care decisions for an incompetent adult patient who has no controlling living will, health care agent, or guardian of the person.
Unless a patient designated otherwise, the patient’s health care representative will be determined by a statutory list that generally gives priority in the following order:
As in the case of a health care agent, a health care representative generally may direct health care providers to provide, continue, withhold, or withdraw all forms of medical care, with limited restrictions in the case of pregnant women and disabled patients.
In contrast to a health care agent, a health care representative may direct the withholding or withdrawal of care necessary to preserve life only when the patient is permanently unconscious or has an end-stage medical condition.
*Crozer-Keystone Health System has revised the Advance Directives and Healthcare Decision Making Policy to address the changes imposed by Pennsylvania Act 169. In an attempt to help explain the process of Advance Directives and Making Health Care Decisions a power point program was created and will be made available to you by the Risk Management Department.
**Education is critical to ensure everyone understands this policy. We will be available to present this sensitive issue to your department.
Please contact:
Joan Meighan, 610-284-8156 (12-8156)
Director, Risk Management, Delaware County Memorial Hospital and Taylor Hospital
Nancy Young, 610-447-2995 (15-2995)
Director, Risk Management, Crozer-Chester Medical Center, Springfield Hospital and Community Hospital