Practitioners should be aware of the variety of institutional policies and procedures that all hospitals have in place to address end-of-life care issues. This section will briefly review the most pertinent of these policies. These policies vary from state to state, and they may also vary within a given hospital, especially if the hospital is sponsored by a religious organization.
There are two types of advance directives—durable power of attorney and living wills. Durable power of attorney for health care is the easiest to interpret. It gives an individual the power to act as a decision maker for the patient. The most commonly used durable power of attorney directives are between spouses, or between parents and an adult child. A living will directs treatment in accordance with a patient’s personal preferences. Living wills have been criticized as being inadequate because it is not possible to anticipate all of the potential end-of-life scenarios,7
just as it is not possible to predict when death will occur.
There are three other policies that should be well understood by practitioners: (i) do-not-resuscitate orders, (ii) withholding or withdrawing life-prolonging procedures, and (iii) brain death. Brain death policies are usually written according to specific guidelines that are designated by state legislators. The policies address the conditions that constitute brain death, and what procedures must have been performed for brain death to be diagnosed. Once the diagnosis is made, the patient should be pronounced promptly, and the family should be informed immediately. Occasionally, conflicts arise due to a poor understanding of the issues surrounding the diagnosis of brain death. Once the diagnosis has been made, families should not be told that continuation of life-prolonging procedures remains an option. A do-not-resuscitate order implies that the patient has a terminal condition caused by injury, disease, or illness; that there is no reasonable probability of recovery; and that, without treatment, the condition can be expected to cause death. Usually, these conditions must be documented in the chart by the attending physician and by one additional consulting physician. A life-prolonging procedure is a mechanical or other artificial means of restoring, sustaining, or supplanting a spontaneous vital function. When applied to a patient in a terminal condition, life-prolonging procedures serve only to prolong the process of dying. For both do-not-resuscitate orders and for withholding or withdrawing life-prolonging treatment, a note should be placed in the chart that documents the discussions that the attending physician had with the patient and the family.
Do-not-resuscitate orders must be written by a licensed physician. Ideally, they specify precisely what the order implies. For example, the orders may specify that intubations and chest compressions are not to be performed. Issuing do-not-resuscitate orders may be complicated in patients who require a palliative procedure. Under these conditions, the implications of the do-not-resuscitate order must be clarified for the patient and caregivers, as well as the surgical and anesthesiology team, if applicable. The decision may be made to remove the do-not-resuscitate order during the procedure, and to reinstate it once the patient is awake.
Most institutions have separate versions of these policies for pediatric patients. The policies identify the decision maker, and they are appropriately modified for the population. For example, the diagnosis of brain death in a newborn or young child requires a different diagnosis, and different diagnostic considerations compared with older patients. In the pediatric population, the diagnosis of brain death is much more difficult to verify with standard testing.
For the patient who is not competent to make a decision, most states have proxy lists that identify, in order, the persons or entities that are responsible for making end-of-life decisions for the patient. The list for the State of Florida is in Table 1
. Surrogate decision makers fall under the legal standard of substituted judgment, and therefore they must comply with durable power of attorney or other advanced directives. When these documents are not available, the “best interest” standard should be followed, in which the designated decision maker makes a decision that he or she believes is in the best interest of the patient.
TABLE 1 WHO IS THE DECISION MAKER?
Patient-appointed surrogate (when decisional capacity is impaired)
Court appointed guardian
Adult child or majority
Adult sibling or majority
Close friend of the patient
Licensed clinical social worker (LCSW) not employed by the provider
Florida Statute 765 – Health Care Advance Directives
A brief mention should be made of the concept of medical futility. It is difficult, if not impossible, to codify a definition of medical futility into a policy. As with art, people know what they mean when they use the term medical futility. However, since individuals’ definitions will vary widely, it is probably best to use the term in concert with the patient’s identified preferences. For one individual it may be a 10% chance of success and for another 1%. The concept is an ever-changing target as medicine advances. Today’s futility is tomorrow’s standard of care, literally.
As with other areas of health care ethics, there are a number of myths associated with the making of end-of-life decisions. Meisel et al.8
discussed the legal myths versus the realities of end-of-life issues (see Table 2
). As with all legal issues, practitioners should review policies annually to ensure that they are aware of any changes in state laws.
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