Who Decides? Caring for Patients with Diminished Capacity

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Who Decides?
Caring for Patients with
Diminished Capacity
SENIOR LAW
RESOURCE CENTER
What every Oklahoma health care professional needs to
know about the legal and ethical issues of patient
incapacity and surrogate decisionmaking
Who Decides? Caring For Patients With Diminished Capacity was produced by the Senior Law Resource Center,
Inc. with support from the Hospice Foundation of Oklahoma Affiliated Fund, Inc.
The Senior Law Resource Center is a non-profit organization providing legal information and services to seniors and
caregivers in Oklahoma. The mission of the Senior Law Resource Center is to empower Oklahomans to age with
independence, dignity, and security.
The Hospice Foundation of Oklahoma Affiliated Fund, Inc., an endowment administered by the Oklahoma City Community Foundation, was founded in 1998 to support programs that train and educate persons providing physical,
emotional, social, and spiritual care to terminally ill persons and their loved ones, and to educate the public, patients,
and families concerning the death process.
Additional copies of this guide may be ordered from:
Senior Law Resource Center
P.O. Box 1408
Oklahoma City, OK 73106
(405) 528-0858
FAX (405) 601-2134
[email protected]
This guide can also be downloaded in PDF format from www.OklahomaSeniorLaw.org.
Users are encouraged to reproduce parts or all of this guide. However, copies of this guide may not be sold.
Printed in 2009
Table of Contents
Introduction & Overview ..................................................................................................... 3
Patients’ Rights & Incapacity .............................................................................................. 4
Treatment Presumptions & Exceptions ............................................................................. 6
Treatment Presumptions and Exceptions............................................................................ 6
Cardiopulmonary Resuscitation (CPR) .............................................................................. 6
Artificially Administered Nutrition and Hydration (ANH) ................................................... 7
Other Life-Sustaining Treatment ......................................................................................... 9
Non Life-Sustaining Treatment ..........................................................................................10
Disclosing Health Information ........................................................................................... 11
Patient Representatives & Legal Documents .................................................................. 12
Patient Representatives and Legal Documents ..................................................................12
Advance Directive for Health Care ....................................................................................12
Durable Power of Attorney ................................................................................................18
Do-Not-Resuscitate (DNR) Consent .................................................................................20
Guardianship ......................................................................................................................23
HIPAA Authorization .........................................................................................................25
Other Legal & Ethical Issues ............................................................................................ 27
Protection from Liability ....................................................................................................27
Legal Requirements............................................................................................................27
Ethical Issues .....................................................................................................................29
Appendices ........................................................................................................................... 31
Appendix A: Glossary of Key Terms ................................................................................31
Appendix B: Information Resources .................................................................................32
Appendix C: Relevant Law ................................................................................................34
Forms .................................................................................................................................... 37
Oklahoma Advance Directive for Health Care ...................................................................37
Oklahoma Do-Not-Resuscitate (DNR) Consent Form ......................................................41
Introduction & Overview
As the population ages, health care providers
will increasingly care for patients with diminished capacity. Whether or not patients have
planned in advance for incapacity, health care
professionals must be knowledgeable about
how to work with patient representatives and
what options are available when making
treatment decisions.
This guide addresses the legal and ethical
issues faced by health care professionals
caring for patients with diminished capacity.
When state law applies, the information
presented is specific to Oklahoma.
The first section provides information about
patients’ rights and incapacity. The second
part describes the legal presumptions about
medical treatment that apply when a patient
lacks capacity to give consent and the exceptions to these presumptions. The third section covers the different legal documents that
can be used to authorize and guide surrogate
decisionmakers. Finally, the fourth section
addresses other legal and ethical issues,
including protection from liability and requirements imposed on health care providers
by state and federal law.
Reference materials can be found at the end
of this guide. Appendix A provides a glossary of key terms. A list of organizations and
information resources is provided in Appendix B. Appendix C summarizes the applicable state and federal laws, including statutes, regulations, case law, and Attorney
General’s opinions. Sample Advance Directive for Health Care and DNR Consent forms
are located in the back of this booklet.
This guide provides general information and
is not intended to serve as legal or medical
advice in any particular situation. Nor does it
create an attorney-client relationship between
the Senior Law Resource Center and its
readers.
The focus of this guide is on helping professionals more effectively provide medical care
to adults with diminished capacity. Therefore,
it does not address medical decisionmaking
for children. It also does not cover mental
health treatment issues. However, information about Advance Directives for Mental
Health Treatment can be found on the Senior
Law Resource Center’s website,
www.OklahomaSeniorLaw.org.
The Senior Law Resource Center would like
to thank the Hospice Foundation of Oklahoma Affiliated Fund, Inc. for providing the
financial support that made this guide possible. Thank you also to the attorneys and
health care professionals who generously
donated their time and expertise to this
project.
We hope that this guide will serve as
a practical resource for health care
providers. Readers’ comments and
suggestions are very welcome.
Please share your feedback with us.
Senior Law Resource Center
P.O. Box 1408
Oklahoma City, OK 73101
[email protected]
(405) 528-0858
3
Patients’ Rights & Incapacity
Competent patients have a constitutionallyprotected right to make decisions about their
own health care. They have the right to refuse
medical treatment or direct that treatment be
withdrawn, even at the risk of causing death.
This right to control one’s own medical
treatment outweighs any obligation a health
care provider has to preserve life.
Adults are presumed to have the capacity to
make their own medical decisions. Certain
people are deemed by law to lack capacity to
make health care decisions. These include
minors and persons who have been declared
legally incompetent by a court to make medical treatment decisions. This typically occurs
in a guardianship proceeding.
If a patient is not deemed legally incompetent
by virtue of age or court order, it is up to
physicians to determine if a patient lacks the
capacity to make medical decisions. This is
often difficult because capacity is not an allor-nothing proposition. Patients may have the
capacity to make some decisions, but not
others. Some patients may have sufficient
capacity at certain times, but lack capacity at
other times due to the effects of medication
or symptoms of mental or physical illness.
Capacity vs. Competency
Mental capacity is assessed by a
health care professional. Competency
is a legal determination made by a
court. Evidence of incapacity may be
used by a judge to determine
whether a person is legally incompetent.
4
Incapacity vs. Poor Judgment
Lack of capacity to make a decision is
not the same thing as making a
foolish decision. Going against medical advice does not automatically
signal a lack of decisionmaking
capacity. However, a seemingly
unreasonable decision coupled by
other signs of incapacity may justify
a more thorough capacity assessment.
Capacity is based on function, not diagnosis.
A patient who is diagnosed with Alzheimer’s
disease does not automatically lose the right
or ability to make decisions. Rather, capacity
should be determined based on whether the
patient can sufficiently understand relevant
information, appreciate the pros and cons of
various options, and express a reasoned
choice based on the information available.
In general, patients have sufficient capacity to
make medical decisions if they can:
•
Understand their medical conditions
and the available treatment options
•
Weigh the risks and benefits of the
possible courses of action
•
Appreciate the likely consequences of
their treatment decisions
•
Communicate their decisions
Patients with limited capacity should be given
every opportunity to make their own decisions. To maximize a patient’s ability, consider the following:
Patients’ Rights & Incapacity
•
Are there times of day when the patient
is more aware and better able to communicate?
Are there medications or treatments
that affect the patient’s capacity?
Can the information be presented in a
way that is easier for the patient to
understand?
Can someone help the patient to better
understand the information and communicate with care providers?
Can the decision be delayed until the
patient is able to understand and communicate sufficiently?
•
•
•
•
When assessing a person’s capacity to
make a particular medical decision,
consider the following factors:
•
•
•
•
•
•
•
Variability – does the patient state
the same wish consistently?
Reasoning – can the patient articulate the reasoning behind the
decision?
Comprehension – does the patient
appreciate the situation and likely
consequences of the decision?
Lifetime Consistency – is the decision consistent with the patient’s
personality and patterns over time?
Undue Influence – does it appear
that the patient is making up his
own mind, or is someone else
exerting pressure?
Potential Harm – to what degree
could the patient be harmed by the
decision?
Irreversibility – can the decision be
reversed?
Patients with diminished capacity should still
be kept informed and involved in their own
health care to the greatest extent possible.
When patients lack capacity to make medical
decisions, they still retain the right to have
their wishes honored. Often these wishes are
expressed in a document such as an Advance
Directive for Health Care. They may also be
communicated by a representative appointed
by the patient or by a judge.
When working with incapacitated patients
and their families, allow the following principles to guide your decisions and actions:
•
Honor Patient Autonomy – Respect
patients’ known wishes and values.
This applies even if the patient’s
wishes contradict those of family
members or health care providers.
•
Strive to Do Good and Avoid Harm –
The goal of care should be helping the
patient. This principle involves more
than treating illness. It also includes
alleviating pain and maintaining the
patient’s dignity.
•
Speak the Truth – Patients and their
representatives must have enough
information about their conditions and
treatment options to give informed
consent.
•
Maintain Confidentiality – Patients’
personal health information is confidential. This right to privacy continues
even when a patient loses capacity.
See page 11 for more information on
HIPAA and permitted disclosures.
5
Treatment Presumptions & Exceptions
Treatment Presumptions and
Exceptions
There is a general presumption that incapacitated patients consent to life-sustaining treatment such as cardiopulmonary resuscitation
(CPR) and artificially administered nutrition
and hydration (ANH). There are two types of
situations when this presumption may not
apply. The first is when there is sufficient
evidence that the patient would not have
consented to treatment if she were capable.
The second is when treatment would be
futile, impossible, or actually cause harm.
Depending on the type of treatment at issue,
there are different ways to overcome the
presumption of consent. This section outlines the rules that apply to the following
types of treatment:
•
Cardiopulmonary Resuscitation (CPR)
•
Artificially Administered Nutrition and
Hydration (ANH)
•
Other Life-Sustaining Treatment
•
Non Life-Sustaining Treatment
In addition, issues about disclosing protected
medical information to family and other
caregivers are also addressed.
Cardiopulmonary Resuscitation
(CPR)
Cardiopulmonary resuscitation (CPR) is
emergency medical treatment designed to
restart heart and/or breathing function. CPR
includes chest compressions, artificial ventilation, intubations, defibrillation, and emergency cardiac medications. Oklahoma law
6
presumes that everyone consents to CPR in
the event their heart function or breathing
stops. Unless this presumption has been
overcome, physicians and other health care
providers are required to provide CPR to a
patient whose heart or breathing has ceased.
This presumption can be overcome if one of
the following conditions is met:
A Competent Patient Declines CPR in
Advance
Competent patients may notify their attending
physicians that they do not consent to CPR.
This notification must be entered into patients’ medical records.
A competent patient may also complete a
Do-Not-Resuscitate (DNR) Consent form
(see page 20) directing that no medical procedure be used to restore breathing or heartbeat. Directions regarding CPR can also be
communicated by a patient in an Advance
Directive for Health Care (see page 12).
A Representative Declines CPR on Behalf
of an Incapacitated Patient
If the patient lacks capacity, a legal representative can refuse to consent to CPR on behalf
of the patient. Legal representatives authorized to refuse CPR are:
•
an attorney-in-fact granted health care
decisionmaking authority under a
Durable Power of Attorney
•
a health care proxy named in an Advance Directive for Health Care
•
a guardian of the person
Treatment Presumptions & Exceptions
The legal representative must base this decision on knowledge that the patient would not
have consented to CPR. The reason the
representative, rather than the patient, is
making the decision must be documented in
the patient’s medical record.
CPR Would Not Prevent Imminent Death
A patient’s legal representative can notify the
attending physician that she knows that the
patient would not have consented to CPR.
This notification should be entered into the
patient’s medical record. A legal representative may also complete a DNR Consent form
on behalf of an incapacitated patient.
Artificially Administered Nutrition
and Hydration (ANH)
The Attending Physician Knows the
Patient Would Not Have Consented
If an incapacitated patient does not have a
representative, the attending physician may
refuse CPR on behalf of the patient if the
physician knows the patient would not have
consented to CPR. The physician must
know by clear and convincing evidence that
the patient, when competent, made an informed decision that he would not have
consented to CPR. This decision may have
been communicated by the patient either
orally or in writing to the physician directly,
or to family members, health care providers,
or others close to the patient, who in turn tell
the attending physician.
A physician may use this knowledge to sign a
DNR Consent form or write a DNR Order in
the chart. The place for physicians to sign is
on the back of the DNR Consent form.
Physicians and other health care providers
are not required to administer CPR if, in their
reasonable medical judgment, such treatment
would not prevent the imminent death of the
patient.
Under Oklahoma law, every incapacitated
patient is presumed to consent to artificially
administered nutrition and hydration (ANH).
ANH can be withheld or withdrawn from an
incapacitated patient only if one of the following conditions is met:
The Patient Completed an Advance
Directive for Health Care
ANH can be withheld or withdrawn if the
patient, when competent, completed the
Living Will section of an Advance Directive
for Health Care and the document specifically authorizes the withholding or withdrawal
Read the Form!
Not all patients who complete Advance Directives for Health Care
choose not to have ANH or other
life-sustaining treatment. Some
patients may specify that they want
ANH or other life-sustainging treatment under certain circumstances.
It is important to read the patient’s
Advance Directive. Do not assume
that all patients with Advance Directives wish to forego treatment.
7
Treatment Presumptions & Exceptions
of ANH. It is not enough if the document
only states the patient does not want lifesustaining treatment in general.
Before the Living Will section of an Advance
Directive goes into effect, the attending physician and another physician must first determine that the patient is not capable of making
an informed decision about health care,
including ANH. Second, the attending physician and a second physician must determine
that the patient falls into one of the categories
addressed in the form:
•
Terminal Condition – having an incurable and irreversible condition that will
result in death within six months even
with life-sustaining treatment
•
Persistently Unconscious – having an
irreversible condition causing a lack of
thought and awareness of self and the
environment
•
End-Stage Condition – having an
untreatable and irreversible condition
resulting in severe and permanent
deterioration, indicated by complete
physical dependence and incompetence
•
Any other condition specified by the
patient in the Advance Directive for
Health Care.
If these requirements are met, the patient’s
instructions in the Advance Directive regarding ANH should be followed.
8
Pregnancy Exception
If an incapacitated patient is known
to be pregnant, Oklahoma law requires she be given life-sustaining
treatment. The only exception is if
the patient completed an Advance
Directive for Health Care in which
she wrote in her own words that lifesustaining treatment and/or ANH
should be withheld or withdrawn in
the course of pregnancy.
The Attending Physician Knows the
Patient’s Wishes
ANH may be withheld or withdrawn if the
attending physician has actual knowledge that
the patient would not consent to such treatment. This requires that the patient and physician discussed the patient’s specific preferences about ANH at a time when the patient
had capacity and enough information to
make an informed decision.
If such a conversation occurs, it is strongly
recommended that the details of the discussion be included in the patient’s medical
record.
A Court Determines the Patient’s Wishes
A judge can authorize the withholding or
withdrawal of ANH only if there is sufficient
evidence that the patient did not want such
treatment under the circumstances. The
evidence must show that the patient, when
competent, made an informed decision that
ANH should be withheld or withdrawn.
Treatment Presumptions & Exceptions
The patient’s wishes must be proved by clear
and convincing evidence. This is a high
standard of proof. The evidence must be so
strong that the judge can say without reservation that the patient would not have wanted
ANH under the specific circumstances. This
evidence can be in the form of written or oral
statements made by the patient. The more
specific the statement, the better. For example, a general statement about wanting to
die with dignity is not as strong as a statement such as, “If I ever have Alzheimer’s
disease and can’t feed myself, don’t put me
on a feeding tube.”
ANH Is Not Medically Appropriate
There are three circumstances in which ANH
can be withheld or withdrawn based on a
determination of medical inappropriateness.
These determinations must be made by the
attending physician and a second consulting
physician.
ANH can be withheld or withdrawn if the
attending physician and a second consulting
physician determine that any one of the
following is true:
•
That ANH would cause severe, intractable, and long-lasting pain
•
That it is not medically possible to
administer ANH
•
That the patient will never regain competence, that the patient is in the final
stage of a terminal condition, that
death is imminent, and that death will
be caused by the underlying condition,
not the withdrawal of ANH.
Other Life-Sustaining Treatment
As with CPR and ANH, the law presumes
that incapacitated patients would want to
receive other types of life-sustaining treatment unless there is sufficient evidence to the
contrary. Other types of life-sustaining treatment include, for example, dialysis, ventilators, and pacemakers.
If the patient completed the Living Will section of an Advance Directive for Health Care
stating the wish not to receive life-sustaining
treatment, those wishes must be honored.
(See the previous section on ANH for more
information about when the Living Will section of an Advance Directive for Health Care
takes effect.)
Who Cannot Make Decisions
about ANH or Other LifeSustaining Treatment
An Advance Directive for Health Care
is the only document that can empower a patient’s representative to
make decisions regarding ANH and
other life-sustaining treatment. A
durable power of attorney cannot
grant that authority. Nor can a courtappointed guardian make the decision unless the court has issued a
separate order.
A representative appointed as guardian or under a durable power of
attorney can make other medical
decisions, including signing a DNR
Consent form.
9
Treatment Presumptions & Exceptions
A health care proxy named in an Advance
Directive for Health Care can make decisions
about life-sustaining treatment. However, the
health care proxy cannot make decisions that
contradict the express wishes of the patient.
If the patient’s wishes are not known, the
health care proxy should try to determine
what the patient would have wanted based on
the patient’s values and personal views. If
there is not sufficient information to determine what the patient would have wanted, the
decision can be made based on what is in the
best interest of the patient.
Oklahoma law is less clear about when lifesustaining treatment other than CPR or ANH
Questions for Surrogates
When discussing an incapacitated
patient’s values and preferences with
surrogates, consider using the following discussion questions:
•
•
•
•
•
10
What was he like before he got
sick? What was important to
him?
Did he ever know someone who
was seriously ill? Did he talk
about how he might want to be
treated if he were in a similar
situation?
Did he ever discuss what he
would want if he could not make
decisions for himself?
Did he ever talk about his fears
or wishes about illness or death?
Was he religious or spiritual?
How might his beliefs shape his
decision?
can be withheld or withdrawn absent an
Advance Directive for Health Care. The
guiding principle should always be to honor
the patient’s wishes.
Oklahoma law specifies that substitute
decisionmakers should first consider and
honor the known wishes of the patient. If
there is not sufficient information about what
the patient would have wanted, the surrogate
is to use reasonable judgment in determining
what the patient would have wanted based on
the patient’s values. If this is not possible, the
decision should be made based on what is in
the best interest of the patient.
Non Life-Sustaining Treatment
There is more flexibility in who can make non
life-sustaining treatment decisions on behalf
of incapacitated patients. A health care proxy
named in an Advance Directive for Health
Care can make health care decisions, as can
an attorney-in-fact appointed by a Durable
Power of Attorney containing health care
powers. A guardian of the person appointed
by a court may also make decisions about
most non life-sustaining treatments. (See
page 23 for more on guardians’ authority.)
Often health care providers will look to close
relatives for guidance. While Oklahoma does
not have a statute explicitly authorizing
spouses or relatives to make health care
decisions on behalf of incapacitated family
members, Oklahoma law does state a strong
preference for keeping medical treatment
decisions out of the courts whenever possible.
Treatment Presumptions & Exceptions
Consent to Participate in
Experimental Treatment
Oklahoma law allows family members to consent on behalf of an
incapacitated patient to participation
in a board-approved experimental
treatment, test, or drug. If no guardian, attorney-in-fact, or health care
proxy has the authority, the following persons can consent, in order of
preference: spouse, adult child,
parent, adult sibling, or other relative
by blood or marriage.
A guardian must get prior court
permission unless the treatment is
necessary in an emergency to save
the patient’s life.
ers can exercise professional judgment to
determine whether the patient consents.
If a patient lacks the capacity to consent,
health care providers can share information
with family and friends if, in their professional judgment, it would be in the best
interest of the patient to do so. If someone
besides a family member or friend is seeking
information, the health care provider must
first determine that the person is involved in
the patient’s health care or payment for health
services.
Whether or not a patient has capacity, only
the information the third party needs to know
should be shared. For example, family members may be informed of the patient’s current
condition, but not about the patient’s past
unrelated health problems.
Disclosing Health Information
The Health Insurance Portability and Accountability Act (HIPAA) provides national
standards to protect patients’ medical
records and personal health information.
There has been much confusion and concern
about what patient information HIPAA does
and does not allow health care providers to
disclose.
HIPAA also permits friends and family members to pick up prescriptions, medical supplies, x-rays, and other similar medical items
on behalf of a patient. Again, health care
providers are to use their professional judgment to determine if it is in the best interest of
the patient to allow third parties to pick up
these items.
HIPAA does allow the sharing of health care
information with surrogates, family members,
and others. If a patient has capacity, a health
care provider may share information with
family and friends if the patient consents.
Consent can be given by an affirmative agreement or by failing to object after being given
an opportunity to do so. Health care provid11
Patient Representatives & Legal Documents
Patient Representatives and Legal
Documents
If a patient lacks capacity to make medical
decisions, a representative often must step in
to make decisions on behalf of the patient.
Representatives can be appointed in advance
by the patient or may be appointed by a
court.
There are different legal documents that grant
representatives authority and/or provide
information about patient wishes. These
include:
•
Advance Directive for Health Care
•
Durable Power of Attorney
•
DNR Consent
•
Letters of Guardianship
•
HIPAA Authorization
Document
Advance Directive for
Health Care
The patient, if has
capacity
Durable Power of
Attorney
The patient, if has
capacity
DNR Consent
The patient, if has
capacity
If patient lacks capacity, an attorney-in-fact
for health care, a
health care proxy,
guardian of the person, or attending
physician
Each type of document has different requirements for valid execution, takes effect at
various times, and serves a different purpose.
Advance Directive for Health Care
An Advance Directive for Health Care is
used to communicate in advance a patient’s
instructions regarding medical treatment,
including life-sustaining treatment, in the
event the patient is not able to make decisions in the future. It is also used to appoint
representatives, called “health care proxies,”
who can make all health care decisions on
behalf of the person who executed the document.
12
Who Can Execute
Letters of
Guardianship
A judge, upon a
finding that the patient
is incompetent
HIPAA Authorization
The patient, if has
capacity
If patient lacks capacity, a representative
authorized to make
health care decisions
Patient Representatives & Legal Documents
What It Can Do
Evidence the patient’s wishes
regarding medical treatment,
including life-sustaining treatment
Appoint representatives to make
all health care decisions, including
life-sustaining treatment decisions
Requirements
Patient must have been at least
18 and capacitated
Signed by the patient and by 2
witnesses who were at least 18
and who are not going to inherit
from the patient
Evidence the patient’s wishes
regarding organ or body donation
NO notary required
Appoint a representative to make
financial and/or health care
decisions, as described in the
document
Patient must have been at least
18 and capacitated
CANNOT grant authority to make
life-sustaining treatment decisions
Signed by the patient and by 2
witnesses who were at least 18,
not named as attorney-in-fact,
and not related to those named
or to the patient
When It Takes Effect
When attending physician and
second physician determine the
patient is unable to make health
care decisions
Either immediately or upon the
incapacity of the patient, depending on the language of the document
YES notary required
Evidence the patient’s wish not to
receive CPR or other intervention
to restart heart or breathing
function
Signed by patient, representative,
or physician
Immediately
If signed by patient or representative, signed also by 2 witnesses
who were at least 18 and who will
not inherit from the patient
If signed by physician, no witnesses required
NO notary required
Appoint a guardian to make
financial and/or medical decisions
Signed by a judge
Immediately
Signed by patient or representative
Immediately, unless specifies
otherwise
CANNOT grant authority to make
life-sustaining treatment decisions
without a separate court order
Grants third party access to
patient’s medical records and
information
NO notary required
13
Patient Representatives & Legal Documents
What Does an Advance Directive for
Health Care Authorize?
An Advance Directive for Health Care authorizes a health care proxy to make all health
care decisions on behalf of an incapacitated
patient. This includes both life-sustaining
treatment decisions and other health care
decisions.
The health care proxy must make decisions
consistent with the known wishes of the
patient. This means the choices made by the
patient in the Living Will section of the Advance Directive must be followed. For example, if a patient instructed that no lifesustaining treatment be administered if he
became terminally ill, the health care proxy
There is a common misperception
that health care providers are not
legally allowed to witness Advance
Directives or other legal documents.
It is perfectly legal for health
care providers to witness signatures of patients.
For many patients, health care providers may be the only people available to witness their planning documents. Refusal to serve as witnesses
can be a significant obstacle for
some patients wanting to complete
Advance Directives, Durable Powers
of Attorney, or DNR Consent forms.
If an institution has internal policies
forbidding employees from serving
as witnesses, staff should take an
active role in finding alternative
witnesses for patients.
14
does not have the authority to override these
instructions. Likewise, if a patient elected all
treatment in her Living Will, the health care
proxy does not have the power to authorize
the withholding or withdrawal of life-sustaining treatment.
The health care proxy may also know the
patients’ wishes through other sources,
including writings or conversations the patient had with the proxy or others.
Sometimes there is not enough evidence to
show what the patient would have wanted. In
that case, the health care proxy should use
reasonable judgment to determine what the
patient would have chosen, based on the
known values of the patient. If that is not
possible, the decision should be made based
on what the proxy reasonably determines is
in the best interest of the patient.
When Does It Take Effect?
An Advance Directive for Health Care only
takes effect if a patient is unable to make
medical decisions. For purposes of activating
an Advance Directive for Health Care, a
patient lacking capacity is called a “qualified
patient.”
To activate an Advance Directive for Health
Care, the patient’s attending physician and
another physician who has examined the
patient must determine that the patient is
unable to make an informed decision regarding health care, including life-sustaining treatment.
Patient Representatives & Legal Documents
There is no need to refer to a patient’s Advance Directive for Health Care for guidance,
nor can a health care proxy make decisions,
until the patient has been determined to be a
qualified patient.
Checklist for an Advance
Directive for Health Care
;
Who Can Complete an Advance Directive
for Health Care?
;
;
Anyone who is at least 18 and has sufficient
mental capacity can complete an Advance
Directive for Health Care. A person is presumed to have sufficient mental capacity
unless there is evidence to the contrary.
;
Each person must complete his own Advance Directive for Health Care. No one can
complete an Advance Directive for Health
Care for someone else. Forging or falsifying
an Advance Directive for Health Care is a
felony.
How To Tell If an Advance Directive for
Health Care Is Valid
Patient initialed next to choices
regarding life-sustaining treatment
decisions
Dated and signed by the patient
Signed by two witnesses who are
not related to the patient and will
not inherit from the patient
Document has not been revoked
by the patient
An Advance Directive for Health Care does
not need to be notarized. Unless they know
information to the contrary, health care providers can presume that an Advance Directive for Health Care is valid.
Copies of an Advance Directive form are just
as valid as the original.
In order to be valid, an Advance Directive for
Health Care must meet certain requirements.
The person who executed the form must
have been at least 18 and of sound mind. If
the patient filled out the Living Will section of
the form, the patient’s choices regarding lifesustaining treatment should be initialed. The
document should be dated and signed by the
patient.
Once it is determined that the Advance Directive for Health Care was validly executed, the
next step is to make sure it has not been
revoked. If the patient has completed more
than one Advance Directive for Health Care,
only the most recently executed form is in
effect.
It should also be signed by two witnesses
who are not related to the patient or going to
inherit from the patient. While not specifically
prohibited, the people named as health care
proxies should not serve as witnesses.
Oklahoma law recognizes Advance Directives
from other states as long as the person who
executed the form was a resident of that
other state at the time, was in that state when
the form was completed, and the form complies with either the law of that other state or
What about Advance Directives Executed
in Other States?
15
Patient Representatives & Legal Documents
with Oklahoma law. For example, New
Mexico law does not require that an Advance
Directive be witnessed. Therefore, an Advance Directive executed by a New Mexico
resident in New Mexico would be valid in
Oklahoma even if not witnessed.
Unlike Oklahoma’s Advance Directive form,
forms from many other states do not separate ANH from other life-sustaining treatment
choices. For example, Florida’s Living Will
only refers to “life-prolonging procedures”
and does not address ANH specifically.
Under Oklahoma’s Advance Directive Act,
this alone would not be sufficient to authorize
the withholding or withdrawal of ANH.
Other states’ forms specifically authorize the
withholding or withdrawal of ANH, but do
not provide separate provisions dealing only
with ANH that are to be separately marked
by the patient. For example, the New Jersey
form specifically includes ANH in its definition of life-sustaining treatment. But, it does
not provide a place for a patient to separately
express his wishes about ANH.
Under Oklahoma law, as long as the person
who executed the form was not a resident of
Oklahoma or in Oklahoma, a form like New
Jersey’s can be deemed to authorize the
withholding or withdrawal of ANH. If the
person was an Oklahoma resident or in
Oklahoma at the time the form was completed, there must be a separate section
dealing only with ANH that is separately
marked (such as by initials). This can be
added in the person’s own words.
16
For more information about the
forms and requirements of other
states, go to www.caringinfo.org.
If the patient’s Advance Directive does not
meet the requirements of Oklahoma law, that
does not necessarily mean that the patient
must receive ANH. The attending physician
may still authorize the withholding or withdrawal of ANH if that physician knows the
patient gave informed consent for this when
competent. Likewise, the other ways of
overcoming the presumption of providing
ANH still apply (see pages 7-10). The focus
should always be on honoring the known
wishes of the patient.
What about the Five Wishes® Form?
Some patients choose to use the Five
Wishes® advance directive, a form developed
and distributed by the national organization
Aging with Dignity. As long as the form was
properly executed under Oklahoma statute, it
is valid in Oklahoma.
However, unlike Oklahoma’s Advance Directive form, the Five Wishes® form does not
separate AHN from other life-sustaining
treatment. Instead, it defines “life-support
treatment” to include all treatment designed to
prolong life, including tube feeding.
As long as the person who executed the form
was not a resident of Oklahoma at the time
and the form was completed outside of
Oklahoma, the Five Wishes® form can authorize the withholding or withdrawal of ANH. If
Patient Representatives & Legal Documents
the person was an Oklahoma resident at the
time the form was completed, or if the form
was completed in Oklahoma, there must be a
separate section dealing only with ANH that
is separately marked. This can be added in
the person’s own words.
If the Five Wishes® form is not by itself
sufficient to overcome the presumption of
administering ANH, the attending physician
may still authorize the withholding or withdrawal of ANH if that physician knows the
patient gave informed consent for this when
competent. Likewise, the other ways of
overcoming the presumption of providing
ANH still apply (see pages 7-10). The focus
should always be on honoring the known
wishes of the patient.
What about Older Advance Directive
Forms?
The Oklahoma Advance Directive for Health
Care form was updated by statute in 2006.
Advance Directive forms that were validly
executed prior to then are still valid. However, they are limited to their terms. For
example, older forms may not address endstage conditions. Patients who are able
should be encouraged to update their older
Advance Directives using the current form.
How Can an Advance Directive Be
Changed or Revoked?
If a patient wants to make changes, he should
complete a new Advance Directive form. For
example, if a patient wants to change the
name of his health care proxy, he should
complete a new form rather than crossing out
the name and writing in the replacement.
All patients can revoke their Advance Directives for Health Care, even those who have
been determined to lack capacity. A patient
can revoke part or all of an Advance Directive in any manner sufficient to communicate
the intent to revoke. This may include crossing out sections or the entire form, tearing up
the form, or stating orally or in writing that it
has been revoked. Anyone who witnesses a
patient revoke an Advance Directive should
inform the patient’s health care providers as
soon as possible.
The revocation becomes effective as soon as
it has been communicated to the attending
physician or other health care provider. Once
a health care provider is aware that a patient’s
Advance Directive has been revoked in part
or entirely, the revocation must be documented in the patient’s medical record.
It is a felony to willfully hide or withhold
knowledge that someone has revoked her
Advance Directive for Health Care.
Only the patient can revoke an Advance
Directive for Health Care. No one else can
revoke an Advance Directive on behalf of a
patient. It is a felony to willfully hide, change,
or destroy someone else’s Advance Directive
for Health Care without permission.
Can a Health Care Provider Refuse to
Comply with an Advance Directive?
Before an Advance Directive takes effect, any
physician or other health care provider given
a patient’s Advance Directive who is unwilling to comply with the patient’s wishes must
promptly tell the patient.
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Patient Representatives & Legal Documents
A physician or other health care provider may
refuse to comply with a patient’s Advance
Directive for Health Care once it becomes
active. However, Oklahoma law requires that
she promptly take all reasonable steps to
arrange care for the patient by another provider who will comply. Furthermore, a physician or other health care provider must comply with an Advance Directive pending transfer to another provider if refusal would likely
result in the death of the patient. Willfully
failing to arrange for alternate care for a
patient constitutes unprofessional conduct.
Durable Power of Attorney
A durable power of attorney is a legal document in which one person gives another
person the power to act on her behalf. The
person who executes a durable power of
attorney is called the “principal.” The person
who is given the power to act on behalf of
the principal is called the “attorney-in-fact” or
“agent.”
What Does a Durable Power of Attorney
Authorize?
Each durable power of attorney is different
and must be read carefully to determine what
it authorizes. Some are narrow and cover
only a few types of decisions. Others are
broad and encompass all financial and health
care decisions.
Furthermore, durable powers of attorney
may sometimes include limitations on authority. For example, some may require more
than one person to sign off on certain decisions. Others may contain specific instruc18
tions regarding health care that an attorney-infact must follow.
A durable power of attorney can never grant
someone the authority to execute an Advance
Directive for Health Care for the principal.
Nor can it give the power to make life-sustaining treatment decisions unless it complies
with the requirements of an Advance Directive for Health Care. This means that any
paragraph authorizing the attorney-in-fact to
make life-sustaining treatment decisions must
be separately initialed or signed by the principal.
When Does It Take Effect?
There are two types of durable powers of
attorney. One type takes effect as soon as it
is signed. The other type, called a “springing” durable power of attorney, takes effect
only if the principal becomes incapacitated.
Each durable power of attorney should
include a section that states whether the
document takes effective immediately or only
if the principal becomes incapacitated.
Springing durable powers of attorney generally will also include a description of when
the principal will be determined to be incapacitated. Usually, a determination of incapacity requires written documentation by two
physicians.
If a durable power of attorney requires written documentation of the principal’s incapacity, it does not take effect until that documentation is attached.
Patient Representatives & Legal Documents
Who Can Complete a Durable Power of
Attorney?
Anyone who is at least 18 and of sound mind
may execute a durable power of attorney.
Each person must execute her own durable
power of attorney. However, if the principal
is mentally competent but physically unable
to sign her name, she may direct another to
sign it for her on her behalf and in her presence.
How To Tell If a Durable Power of
Attorney Is Valid
A valid durable power of attorney that includes health care powers should be signed
by the principal and two witnesses. Witnesses must be at least 18 and not related by
blood or marriage to the principal or to
anyone named as attorney-in-fact. A person
named as attorney-in-fact cannot also serve
as a witness.
Durable powers of attorney that include
health care powers must be notarized.
Checklist for a Durable
Power of Attorney
;
;
;
;
Signed by the patient
Signed by two witnesses who are
not named as attorney-in-fact nor
related to the principal or to anyone named as attorney-in-fact
Notarized
Document has not been revoked
by the patient
Once it is determined that the durable power
of attorney was validly executed, the next
step is to make sure it has not been revoked.
If the patient has completed more than one
durable power of attorney, only the most
recent validly executed one is in effect.
Copies of a durable power of attorney are
usually just as valid as the original, unless the
document states otherwise. Often the durable
power of attorney will address this explicitly.
What about Durable Powers of Attorney
Executed in Other States?
Oklahoma law recognizes durable powers of
attorney from other states as long as they
conform to the requirements of a validly
executed durable power of attorney under
Oklahoma law (see section above).
How Can a Durable Power of Attorney
Be Changed or Revoked?
The principal may make changes to a durable
power of attorney in a separate document,
often called “Amendment to Durable Power
of Attorney.” Changes should never be made
directly on the original document. Any
amendment must be signed, witnessed, and
notarized in the same manner as a durable
power of attorney.
As long as the principal is still of sound
mind, she can revoke her power of attorney
in any manner and at any time. The revocation becomes effective when the attorney-infact is informed that the power of attorney
has been revoked.
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Patient Representatives & Legal Documents
A durable power of attorney is automatically
revoked when the principal dies and the
attorney-in-fact becomes aware of the
principal’s death.
Can a Physician Refuse to Honor a
Durable Power of Attorney?
There is no statute requiring that a physician
or other health care provider honor a durable
power of attorney by allowing the attorneyin-fact to exercise his authority.
Do-Not-Resuscitate (DNR)
Consent
A Do-Not-Resuscitate (DNR) Consent form
documents a patient’s wish that, should the
patient’s heart or breathing stop, no medical
procedures are to be used to restore heart
function or breathing.
What Does a DNR Consent Authorize?
A DNR Consent form instructs health care
providers, including EMS personnel, not to
give a patient CPR. The form only applies to
emergency medical treatment aimed at restoring breathing or heart function. It does not
address any other life-sustaining medical
treatment.
When Does It Take Effect?
A DNR Consent form takes effect as soon as
it is signed. It is very important that patients
and caregivers understand this fact. A DNR
Consent form is a “near death” document
that should only be used in cases when CPR
or other medical procedures to restore
breathing and heart functions would be inappropriate or unwelcome.
20
Who Can Complete a DNR Consent?
If the patient has capacity, the patient may
sign a DNR Consent form. If the patient
lacks sufficient capacity, an authorized representative may sign a DNR Consent form on
behalf of the patient. Authorized representatives can be one of the following:
•
Attorney-in-fact acting under a Durable
Power of Attorney that includes health
care decisionmaking
•
Health care proxy acting under an
Advance Directive for Health Care
•
Guardian of the Person
If the patient is under the care of a health care
facility, a representative must be informed in
writing by the patient’s attending physician
that the representative is required to base the
decision on what the incapacitated patient
would have wanted. The attending physician
should also encourage the representative to
consult family members and others close to
the patient before making the decision. The
attending physician should explain the consequences of signing a DNR Consent form to
the representative and others being consulted.
The reason why a representative, rather than
the patient, signed the DNR Consent form
and evidence that the nature and consequences of the decision were explained must
be documented in the patient’s medical
records.
In the event an incapacitated person lacks an
authorized representative, an attending physician may sign a DNR Consent form on
behalf of the patient. The attending physician
Patient Representatives & Legal Documents
must know by clear and convincing evidence
that the patient, when competent, made an
informed decision to forego CPR. The attending physician may know the patient’s
wishes based on oral or written communication between the patient and family members,
friends, or health care providers. Information
about the patient’s wishes may come from
the patient directly or from third parties.
How To Tell If a DNR Consent Is Valid
Oklahoma law provides a standardized DNR
Consent form. The form should be signed by
the patient, if competent at the time. If the
patient is not competent, the form may be
signed by an authorized representative or the
attending physician.
If the form was signed by the patient or
representative, it should be dated and signed
by two witnesses who were at least 18 and
did not stand to inherit from the patient. If the
form is signed on the back by the physician,
it does not need to be witnessed.
A DNR Consent does not need to be notarized or signed by a physician. Copies of a
DNR Consent are just as valid as the original.
DNR Consent forms other than the one
provided by Oklahoma law may be valid if
they comply with Oklahoma law. For example, a patient could write instructions in an
Advance Directive for Health Care directing
that CPR not be performed.
What about DNR Forms Executed in
Other States?
Oklahoma law does not specifically address
whether or not DNR forms from other states
are recognized in Oklahoma. If the form is
similar to Oklahoma’s form, it should be
honored. Furthermore, any form that communicates the wishes of the patient regarding
CPR may be used as evidence of the
patient’s wishes by a representative or attending physician to sign an Oklahoma DNR
Consent form on behalf of an incapacitated
patient.
How Can a DNR Consent Be Changed or
Revoked?
Checklist for a DNR Consent
Form
;
;
;
Signed by the patient, an authorized representative, or an attending physician
Signed by two witnesses who will
not inherit from patient (unless
signed by physician, then no
witness required)
Document has not been revoked
by the patient or representative
If a patient is receiving health care services,
she may revoke a DNR Consent by telling
the physician or other health care provider
either in writing or verbally. Any health care
provider who is notified that a patient has
revoked a DNR Consent must immediately
inform the attending physician. As soon as
the attending physician is informed that the
DNR Consent is revoked, that physician
must immediately cancel the DNR Order and
notify the other health care professionals
providing care to the patient.
21
Patient Representatives & Legal Documents
If a patient is not receiving health care services, the DNR Consent may be revoked by
destroying the form and removing all DNR
identification from the person (e.g., a DNR
bracelet). The patient is responsible for telling
her attending physician that her DNR Consent has been revoked.
An incapacitated patient’s representative may
also revoke a DNR Consent by telling a
physician or other health care provider either
verbally or in writing. The representative may
also destroy the DNR Consent form and
remove all DNR identification from the
patient’s body. It is up to the representative
to notify the attending physician that the
DNR Consent has been revoked.
Can Physicians or Other Health Care
Providers Refuse To Issue or Comply
with a DNR Consent?
If a patient goes into cardiac or respiratory
arrest, physicians and health care providers
must comply with the patient’s wishes expressed in a DNR Consent. Likewise, Oklahoma law requires that, when given a DNR
Consent form, health care providers take
appropriate actions to comply.
If a physician knows that she will not be able
to comply with a DNR Consent, that physician must take reasonable steps to promptly
inform the patient or patient’s representative
of the refusal. The physician must also
promptly take all reasonable steps to arrange
for care of the patient by another physician
or health care provider who will comply.
22
Required Policies Regarding
DNR Consent and Orders
Health care agencies are required to
have written policies and procedures to
ensure patients’ rights are honored.
The policies and procedures must
require that:
•
•
•
•
•
•
All decisions regarding CPR are to
be made by the patient unless the
patient lacks capacity
The reason a representative,
rather than the patient, is making
a decision regarding CPR must be
documented in the patient’s
record
Representatives must be given
written materials instructing them
that they are to make their decisions based on what the patient
would have decided if able
Physicians are to encourage
consultation among family members and others close to the
patient
Physicians are to explain to patient representatives and family
members the nature and consequences of the decision to be
made and to document in the
patient’s record the fact that such
an explanation was given
Patients, health care providers,
and the community must be
provided with ongoing education
by the health care agency about
the use of the DNR Consent.
Patient Representatives & Legal Documents
Guardianship
A guardian is a person appointed by a court
to make decisions on behalf of an incapacitated or partially incapacitated person. An
incapacitated person under a guardianship is
called a “ward.”
When a judge appoints a guardian, she will
issue an order. She will also issue Letters of
Guardianship. The guardianship order may
specify the scope of the guardian’s authority.
The Letters of Guardianship are evidence that
the guardianship has taken effect.
What Does a Guardianship Authorize?
There are two types of guardianship in Oklahoma. Guardianship of the Person can grant
the authority to make decisions regarding the
ward’s personal and health care. Guardianship of the Property (sometimes called
Guardianship of the Estate) can grant the
power to manage the ward’s finances and
assets. Usually the same person is appointed
as Guardian of the Person and the Property
(or Estate). However, if a person is only
appointed Guardian of the Property (or
Estate), she probably does not have authority
to make personal care or medical decisions
on behalf of the ward.
Guardianships can also be General or Limited. A General Guardian of the Person has
broad authority to make almost all decisions
about the ward’s personal and health care. A
Limited Guardian of the Person has only the
authority specifically granted by the court.
Usually, these powers are described in a
court order.
In some cases, co-guardians may be appointed. Co-guardians must act jointly unless
one has given the other written permission to
act for them both or if the court order allows
them to act independently. The court may
also issue an order declaring one of the
guardians to be unable to carry out the duties
of guardianship and allowing the remaining
guardian to act alone. If more than two
guardians are appointed, the majority of the
guardians may act.
A guardian can sign a DNR Consent without
a separate court order. The power of a
guardian to authorize the withholding or
withdrawal of other life-sustaining treatment
is very limited.
If the ward has an Advance Directive for
Health Care, the guardian can carry out the
wishes expressed in the document. However,
Limitations on Guardians’
Authority
Unless there is a life-threatening emergency, a guardian must get court
permission to consent to certain non
life-sustaining medical procedures on
behalf of the patient, including:
•
•
•
•
•
abortion
psychosurgery
removal of a bodily organ
experimental biomedical or behavioral procedure
participation in a biomedical or
behaviorial experiment.
23
Patient Representatives & Legal Documents
if the ward does not have an Advance Directive, the guardian must obtain an order from
the court authorizing the withholding or
withdrawal of life-sustaining treatment. This
can only be done at the time the ward is in
need of such treatment.
Checklist for Letters of
Guardianship
;
;
;
When Does It Take Effect?
Signed by a judge
Signed by the guardian under
oath
Specifies that it grants Guardianship of the Person
A guardianship takes effect as soon as Letters of Guardianship are issued by the court.
Who Can Appoint a Guardian?
Only a district court judge can appoint a
guardian.
How To Tell If Guardianship Papers Are
Valid
Guardianship orders and Letters of Guardianship must be signed by a judge. Letters of
Guardianship should also be signed under
oath by the guardian.
Make sure there is a file stamp stating the
court and date of filing. This is usually in the
DHS Guardianship
The Department of Human Services
(DHS) may be appointed guardian of
an incapacitated person who has
been the victim of abuse, neglect, or
exploitation if that person is at substantial risk of death or serious
harm. As guardian, DHS cannot
consent to or deny consent to a DNR
order or other life-sustaining treatment. Only the district court overseeing the guardianship has authority to make life-sustaining treatment
decisions.
24
upper right hand corner on the first page of
the document. If you have doubts, you can
ask for a certified copy. This is a copy that
has been embossed and signed by a deputy
court clerk confirming that the copy matches
the original filed with the court clerk’s office.
Guardianship files are not public record. A
judge may authorize the release of part or all
of a guardianship file.
What about Guardianships Granted in
Other States?
Every state’s guardianship laws are different.
Transferring guardianship from one state to
another is often a complicated legal process.
However, it is fairly safe to say that, at least
for wards who are only visiting Oklahoma,
guardianships granted in other states remain
valid and should be honored.
Some state laws limit a guardian’s authority
to move a ward to a different county or state.
Generally, when a ward has permanently
moved to a different state, the guardian
should have the guardianship transferred to a
court in the new state.
Patient Representatives & Legal Documents
HIPAA Authorization
The Health Insurance Portability and Accountability Act (HIPAA) allows a patient or
a representative to execute an “authorization”
giving health care providers permission to
share protected information with named third
parties.
What Does a HIPAA Authorization
Authorize?
A HIPAA Authorization permits the disclosure of otherwise protected medical information to third parties named in the document.
Each document should be read to determine
the scope and timeframe of the authorization.
Checklist for a HIPAA
Authorization
;
;
;
;
;
;
When Does It Take Effect?
Unless otherwise specified, a HIPAA Authorization will take effect as soon as it is signed.
A HIPAA Authorization remains in effect until
it is revoked or it expires.
Who Can Execute a HIPAA
Authorization?
The patient or the patient’s representative
who is authorized to make health care decisions may sign an authorization. If the authorization is signed by a representative, a description of the representative’s authority
must be included.
How to Tell if a HIPAA Authorization is
Valid
Federal regulations outline the basic requirements of a valid HIPAA Authorization. First,
it must contain a specific and meaningful
description of the information that can be
used or disclosed. Guidelines provided by
;
;
;
Describes information to be used
or disclosed
Describes the person(s) or classes
authorized to disclose the information
Describes the person(s) or classes
authorized to receive the information
States an expiration date or describes an expiration event
Includes a statement about the
patient’s right to revoke and how
to revoke
States that a person who receives
the information may disclose it to
others, and it may thereby lose its
protected status
Signed and dated by the patient or
representative
If signed by the representative, a
description of the representative’s
authority
The document is not known to
have expired or been revoked
These requirements apply to HIPAA
Authorizations that are not being provided to the patient by an entity covered by HIPAA.
There are additional requirements for
valid HIPAA Authorizations given to
patients by covered entities, such as
hospitals, on behalf of themselves or
other covered entities.
25
Patient Representatives & Legal Documents
the U.S. Department of Health and Human
Services state that this description can be
broad, such as “entire medical record.”
However, the guidelines warn that general
statements such as “all protected health
information” are likely too vague because
patients may not understand the scope of the
information covered.
Second, the authorization must identify the
person(s) or class of persons who are authorized to disclose the information. It is not
necessary to list individual health care providers if the authorization describes classes or
categories of providers. For example, a
document may authorize “any physician,
health care professional, hospital, medical
facility, or other health care provider” to
disclose information. It may also simply say
“all medical sources.”
Third, the document must identify the
person(s) or class of persons who are authorized to request and receive the information.
Often this will be specifically named people
or entities. However, an authorization can
permit disclosure to a class of people, such
as employees of a particular company.
A HIPAA Authorization should also contain
an expiration date or event. If the expiration
is not a fixed date, it must be based on either
the patient (e.g., when the patient reaches a
certain age) or the purpose of the disclosure
(e.g., when enrollment in a plan ends).
A HIPAA Authorization must include a statement describing the patient’s right to revoke
the authorization and describe how the pa26
tient can revoke. It must also contain a statement that information used or disclosed as a
result of the authorization may be redisclosed
by the person who received the information,
thereby losing its protection.
The patient must sign and date the authorization. If the authorization was executed by a
representative, the document should state the
source of this representative’s authority.
There is no requirement under federal or
Oklahoma law that a HIPAA Authorization be
notarized or witnessed. Copies are as valid as
the original.
How Can a HIPAA Authorization Be
Revoked?
A HIPAA Authorization can be revoked in
writing at any time. The revocation takes
effect when it is received by the health care
provider who was previously authorized to
disclose information.
Can Physicians or Other Health Care
Providers Refuse To Comply with a
HIPAA Authorization?
A physician or other health care provider can
refuse to disclose medical information if he
reasonably believes the patient may be subject to abuse or neglect by the person requesting the information, or if he otherwise
believes releasing the information would put
the patient in danger.
Other Legal & Ethical Issues
Protection from Liability
Oklahoma law protects physicians and other
health care providers from liability if they act
reasonably and in good faith. Physicians are
required to use their best judgment, exercise
ordinary care, and apply the knowledge and
skills possessed and used by other physicians in good standing who are engaged in
the same field of practice. This is a national
standard of competence.
Absent contrary knowledge, physicians and
other health care providers can presume that
documents such as Advance Directives for
Health Care are valid. Health care providers
cannot be held liable if they reasonably rely
on documents that they were unaware had
been revoked or were not validly executed.
Physicians and other health care providers
can also presume, absent evidence to the
contrary, that patients have sufficient capacity
to make decisions about their medical care.
Legal Requirements
Both state and federal law impose requirements on health care organizations and professionals regarding advance planning for
medical treatment and honoring patients’
wishes.
Informing Patients of Their Rights
Most hospitals, home health care agencies,
hospice organizations, HMOs, and nursing
homes are required to provide patients with
written information regarding their rights to
make medical decisions, including the right to
execute planning documents such as Ad-
While health care providers must
give patients information about
Advance Directives and other planning documents, they cannot require
patients to complete these forms.
vance Directives. Generally, this information
is provided to patients at the time of admission or prior to the initiation of services.
In the event state law changes, written materials provided to patients must be updated
within 90 days from the effective date of the
change.
Health care institutions must also provide
patients with written information about their
policies regarding implementing patients’
treatment preferences. If the organization has
an institutional objection to honoring certain
wishes, patients must be given written statements of limitation that describe the range of
medical conditions or procedures affected
by the objection. These statements must also
clarify the difference between objections of
the institution as a whole and objections
raised by individual health care providers.
These statements of limitation should cite to
the legal authority permitting such objections.
Documenting Patients’ Wishes
In addition to providing patients with information, health care organizations are required
to have systems in place for documenting
whether patients have Advance Directives or
DNR Consents. They are also required to
have policies and procedures designed to
ensure patients’ wishes are honored.
27
Other Legal & Ethical Issues
Checklist of Legal
Requirements
Does your facility . . .
;
;
;
;
;
;
;
;
;
Have written policies about documenting patients’ wishes, Advance
Directives, and DNR Consent or
Order forms?
Ask patients if they have Advance
Directives or DNR Consent forms?
Inform patients about their rights
to make medical decisions and
complete Advance Directives and
DNR Consent forms?
Provide patients with current
Advance Directive for Health Care
and DNR Consent forms when
requested?
Make patients’ wishes and forms
part of their medical records?
Educate staff and patients about
Advance Directives, DNR Consent
forms and patients’ rights?
Treat patients equally whether
they have an Advance Directive or
not?
Promptly inform patients if you
are unable to honor their expressed wishes?
Have systems in place to ensure
documentation of patients’ wishes
follow the patients when they are
discharged or transferred?
A health care provider who is given a copy of
a patient’s Advance Directive or DNR Consent form must make it a part of the patient’s
medical record. Likewise, these documents
should follow the patient if transferred to a
different facility or health care provider.
28
Honoring Patients’ Wishes
If a physician or other health care provider
would not be willing to comply with a competent patient’s Advance Directive for Health
Care or DNR Consent, she must promptly
inform the patient of this fact.
If the attending physician or other health care
provider is not willing to comply with an
incapacitated patient’s Advance Directive for
Health Care or DNR Consent, that health
care provider must promptly take all reasonable steps to arrange care for the patient by
another provider who is willing to comply. If
refusal to comply with the wishes of the
patient would likely result in the death of the
patient, the provider must comply with the
POLST Forms
POLST, which stands for Physician
Orders for Life-Sustaining Treatment,
is a system designed to improve the
quality of end-of-life care by converting patients’ preferences into medical
orders. A POLST form is a brightly
colored order form completed by a
health care provider in consultation
with a patient or surrogate decisionmaker. A POLST form does not
replace other forms like Advance
Directives or DNR Consents. Rather,
it serves to translate those forms into
medical orders that go with the
patient and help to ensure that
health care providers in different
settings comply with the patient’s
end-of-life wishes. For more information about the POLST program, go to
www.POLST.org.
Other Legal & Ethical Issues
patient’s treatment decision until the patient is
transferred to another provider’s care. It is
considered unprofessional conduct to refuse
to arrange alternate care for a patient.
Ongoing Education
Health care agencies are required to provide
ongoing education to patients, staff, and the
general public about Advance Directives for
Health Care and DNR Consent forms. Agencies are also required to provide ongoing
education to staff regarding organizational
policies and procedures.
Reporting Suspected Abuse, Neglect, or
Exploitation
If a physician or other health care professional suspects abuse, neglect, or exploitation of a vulnerable person, she must make a
report to the Department of Human Services
or local law enforcement. Knowingly and
willingly failing to make such a report is a
misdemeanor.
Anyone who makes a report in good faith is
protected from liability. Employers are not
permitted to retaliate against employees for
reporting suspected abuse.
More information about the the signs of
caregiver abuse, neglect, and exploitation can
be found on the Resource Center section of
the Senior Law Resource Center’s website,
www.OklahomaSeniorLaw.org.
Ethical Issues
Below is a brief discussion of some of the
common ethical issues that arise when caring
Reporting Abuse, Neglect, or
Exploitation
If danger appears to be immediate,
call 911.
Notify Adult Protective Services at
(800) 522-3511.
If the suspected abuse is taking place
in a nursing home or other longterm care facility, contact Oklahoma’s
Long-Term Care Ombudsman at
(405) 521-6734.
Notify the local police, sheriff, or
district attorney’s office.
for patients with diminished capacity, particularly at the end of life. Questions regarding
the ethical implications of treatment choices
should be referred to the ethics committee of
the health care facility.
Informed and Freely Given Consent
Patients have the right to exercise informed
consent when making medical decisions. To
exercise informed consent, patients must
have sufficient information about their medical condition, treatment options, and likely
side effects and outcomes.
If a patient lacks the capacity to understand
the information about her condition and
treatment options, she cannot exercise informed consent. Likewise, if someone who
has power or influence over the patient is
exerting pressure, the patient’s decision may
not be based on true consent.
29
Other Legal & Ethical Issues
Withholding Treatment vs. Withdrawing
Treatment
Never starting treatment may seem less problematic than withdrawing treatment that has
already been started. However, there is no
legal or ethical difference between withholding and withdrawing treatment.
Withholding or Withdrawing ANH
Of all the life-sustaining treatments, withholding or withdrawing artificially administered
nutrition and hydration (ANH) is perhaps the
most troubling to health care providers and
the general public. We associate ANH with
the basic human acts of eating and drinking.
However, it is important to distinguish ANH
from food and water. Delivering nourishment
and hydration through a tube inserted into the
stomach is fundamentally different from
assisting a patient to take in food and liquids
by mouth.
ANH is a medical intervention that can cause
complications, including infection, bloating,
loss of mobility, and discomfort. Rejection
of hydration and nutrition is a normal part of
the dying process as the body’s functions
shut down. For patients at the end of life who
are not longer able to take in food or water,
death is caused by the underlying medical
condition, not by the removal of ANH.
Refusal of Treatment vs. Suicide
Refusing treatment may hasten death, but it is
not the same as committing suicide. When a
patient refuses treatment, the cause of death
is the underlying illness or injury. Refusing
treatment is a legally protected right. Suicide
30
involves an act that directly causes death.
There is no legal right to commit suicide.
Honoring a patient’s wish to forego treatment
is not assisted suicide. When a health care
provider withholds or withdraws life-sustaining treatment, the cause of death is the underlying terminal condition. It is not illegal or
unethical to withhold or withdraw unwanted
life-sustaining treatment. However, it is illegal
in Oklahoma and in most other states to
administer a lethal dose of medication or
otherwise act in a way that directly causes the
death of a patient.
Double Effect
Patients at the end of life who experience chronic and severe discomfort
may be given high doses of pain
medication. Some of these medications may have the side effect of
suppressing breathing to the point of
hastening death. This is referred to
as “double effect.”
As long as the purpose of the medication is to treat pain and alleviate
symptoms, such treatment is both
legal and ethical. However, morphine
or other pain treatment cannot be
administered in high doses with the
intent of causing death.
Appendix A: Glossary of Key Terms
Advance Directive for Health Care: A
document that enables a person to state
what kind of life-sustaining treatment he
or she would wish to receive or forego if
the person is no longer able to make
decisions in the future. It also allows a
person to appoint decisionmakers, called
health care proxies.
Durable Power of Attorney: A document
used to delegate legal authority to another
person, called an attorney-in-fact.
Artificially Administered Nutrition and
Hydration (ANH): A method of delivering liquids and nutrients through a tube
inserted through the nose and throat or
surgically placed into the stomach for
patients who cannot eat or drink by
mouth.
Health Care Provider: Any physician,
dentist, nurse, paramedic, psychologist,
or other professional providing medical,
dental, nursing, psychological, hospice,
or other health care services.
Attending Physician: A licensed physician
with primary responsibility for treatment
of a patient. A patient may have more than
one attending physician who share responsibility.
Cardiopulmonary Resuscitation (CPR):
Emergency measures used to restore heart
or breathing function.
Do-Not-Resuscitate (DNR) Consent
Form: A form completed by a patient,
representative, or physician to document
a patient’s wishes that, should the
patient’s heart or breathing stop, no medical procedures are to be used to restore
heart function or breathing.
Do-Not-Resuscitate (DNR) Order: A
physician’s order not to perform CPR on
a patient.
Guardian: A person appointed by a court
and given power to make some or all
decisions on behalf of an incapacitated
person.
Incapacity: The inability, because of physical or mental impairment, to understand
the nature and likely consequences of a
decision, to make an informed choice,
and/or to communicate that choice.
Living Will: See Advance Directive for
Health Care.
Persistent Vegetative State: A deep and
permanent unconsciousness. Patients may
have eyes open, but they have very little
brain activity and are capable only of
involuntary and reflex movements.
Persistent Unconsciousness: See Persistent
Vegetative State.
Terminal Condition: An incurable condition
from which a person is expected to die
within six months, even if treatment is
administered.
31
Appendix B: Information Resources
AARP
(866) 295-7277
Oklahoma Chapter (405) 632-1945
www.aarp.org/endoflife
Bazelon Center for Mental Health Law
202-467-5730
www.bazelon.org
Adult Protective Services
(800) 522-3511
CAAVA: Court-Appointed Advocates for
Vulnerable Adults
(405) 522-3077
Aging with Dignity
(888) 5WISHES (594-7437)
www.agingwithdignity.org
Center for Practical Bioethics
(800) 344-3829
www.practicalbioethics.org
Alzheimer’s Association
(800) 272-3900
www.alz.org
Oklahoma Chapter www.alz.org/alzokar
Centers for Medicare and Medicaid
Services
www.cms.hhs.gov
Alzheimer’s Resource Room
www.aoa.gov/alz/index.asp
American Bar Association Commission
on Law and Aging
(202) 662-8690
www.abanet.org/aging
American Bar Association Health Law
Section
www.abanet.org/health
American Health Lawyers Association
(202) 833-1100
www.healthlawyers.org
American Medical Association
(800) 621-8335
www.ama-assn.org
American Nurses Association
1-800-274-4ANA
www.nursingworld.org
Americans for Better Care of the Dying
703-647-8505
www.abcd-caring.org
32
Department of Health and Human
Services
www.hhs.gov
Joint Commission on Accreditation of
Health Care Organizations
www.jointcommission.org
Last Acts
(877) 843-7953
www.lastacts.org
Legal Aid Senior Law Project
(405) 557-0014
www.legalaidok.org/
Long-Term Care Ombudsman
(405) 521-6734
National Gerontological Nursing
Association
www.ngna.org
National Hospice and Palliative Care
Organization
www.nhpco.org
Appendix B: Information Resources
Oklahoma Alliance for Better Care of the
Dying
www.okabcd.org
Oklahoma Mental Health and Aging
Coalition
www.omhac.org
Oklahoma Attorney General’s Office
(405) 521-3921 or (918) 581-2885
www.oag.state.ok.us
Oklahoma Palliative Care Resource
Center
(405) 271-1491, ext. 49194
http://okpalliative.nursing.ouhsc.edu
Oklahoma Bar Association
(405) 416-7000 or (800) 522-8065
www.okbar.org
Oklahoma Department of Human
Services, Aging Services Division
(800) 211-2116
www.okdhs.org
(Advance Directive forms can be ordered
from DHS by calling (877) 283-4113 or by
fax at (405) 524-9633)
Oklahoma Developmental Disabilities
Council
(405) 521-4984 or (800) 836-4470
www.okddc.ok.gov
Oklahoma Disability Law Center
(405) 525-7755 or (800) 880-7755
www.oklahomadisabilitylaw.org
Oklahoma Health Care Authority
(405) 522-7300
www.ohca.state.ok.us
Oklahoma Hospice and Palliative Care
Association
(405) 606-4442, (866) 459-4152, or
(800) 356-0622
www.okhospice.org
Oklahoma Supreme Court Network
www.oscn.net
Partnership for Caring
(800) 658-8898
www.partnershipforcaring.org
POLST: Physician Orders for LifeSustaining Treatment Paradigm
www.POLST.org
Promoting Excellence in End-of-Life
Care
www.promotingexcellence.org
Senior Law Resource Center
(405) 528-0858
www.OklahomaSeniorLaw.org
Sooner Palliative Care Institute
(405) 271-1491, ext. 49160
www.nursing.ouhsc.edu/SPCI
Supportive Care Coalition
www.supportivecarecoalition.org
TIME: Toolkit of Instruments to
Measure End-of-Life Care
www.chcr.brown.edu/pcoc/toolkit.htm
Oklahoma Geriatric Education Center
(405) 271-8199
www.ouhsc.edu/OkGEC
33
Appendix C: Relevant Law
Oklahoma Statutes
All of these statutes can be viewed at
www.oscn.net.
Hydration and Nutrition for Incompetent
Patients Act (63 O.S. §§ 3080.1 – 3080.5)
This act creates a presumption that all incompetent patients consent to artificially administered nutrition and hydration (ANH). It also
lays out the circumstances when this presumption can be overcome.
Oklahoma Advance Directive Act (63
O.S. §§ 3101.1 – 3102A)
This act codifies the constitutional right to
decline medical treatment. It provides the
Advance Directive for Health Care form
which can be used by patients to state what
types of medical treatment they would want
at the end of life and to appoint representatives, called health care proxies, to make
medical decisions in the event the patients
ever lack capacity.
Oklahoma Do-Not-Resuscitate Act (63
O.S. §§ 3131.1 – 3131.14)
This act creates a presumption that all patients consent to cardiopulmonary resuscitation (CPR) if their heart or breathing stops. It
also describes the circumstances in which
this presumption can be overcome. The
statute includes the DNR Consent Form used
by patients, their representatives, or their
physicians to choose not to consent to CPR.
Uniform Durable Power of Attorney Act
(58 O.S. §§ 1071 – 1077)
This act permits a competent adult to appoint
a representative (called an attorney-in-fact) to
make financial and/or medical decisions on
his or her behalf. It sets out the requirements
34
for appointing an attorney-in-fact and puts
some limits on the types of medical decisions
the attorney-in-fact can make.
Oklahoma Guardianship and
Conservatorship Act (30 O.S. §§ 1-101 –
4-904)
This act outlines the procedure by which a
guardian may be appointed by a court to
make decisions, including medical decisions,
on behalf of an incompetent person. It also
places certain limits on guardians’ powers to
make medical decisions.
Advance Directive for Mental Health
Treatment Act (43A O.S. §§ 11-101 – 11113)
This act recognizes individuals’ right to
control their own mental health treatment. It
provides the Advance Directive for Mental
Health Treatment form which can be used to
state in advance what kinds of mental health
treatment a person consents to if he or she is
ever unable to make decisions. It also allows
for the appointment of attorneys-in-fact to
make mental health treatment choices.
Protective Services for Vulnerable Adults
Act (43A O.S. §§ 10-101 – 10-111)
This act defines abuse, neglect, and exploitation of vulnerable adults and requires health
care professionals and others to report suspected abuse, neglect, or exploitation. It also
describes the procedure for investigating
allegations.
Abuse, Neglect, or Financial Exploitation
by Caretaker (21 O.S. §§ 843.1 – 844)
This act makes it a felony to abuse, neglect,
or exploit a vulnerable adult. It makes verbal
abuse of a vulnerable adult a misdemeanor.
Appendix C: Relevant Law
Federal Statutes & Regulations
Health Insurance Portability and
Accountability Act (HIPAA)
This federal act and accompaning regulations
creates national standards for giving patients’
control over their personal health information.
Among other things, the act and regulations
put limits on who can access private medical
records. An excellent source for guidance on
HIPAA laws and regulations is the U.S.
Department of Health and Human Services
website www.hhs.gov/hipaafaq.
Patient Self-Determination Act (PSDA)
The federal law commonly referred to as the
Patient Self-Determination Act requires most
health care providers, including hospitals,
nursing homes, hospices, HMOs, and home
health agencies, to provide patients with
information about advance directives. Generally this is done at admission by providing a
written handout about patients’ rights to
make health care decisions and by giving
patients the opportunity to make advance
directives part of their medical records. The
law also prohibits health care providers from
discriminating against patients for having or
not having advance directives.
Unfortunately, the relevant federal provisions
are embedded in complex laws and regulations spanning hundreds of pages. For guidance on federal requirements, the following
websites are recommended:
•
Department of Health and Human
Services www.hhs.gov
•
Centers for Medicare and Medicaid
Services www.cms.hhs.gov
•
The Joint Commission on Accreditation of Health Care Organizations
www.jointcommission.org
Attorney General Opinions
Attorney General Opinions can be accessed
at www.oscn.net.
Oklahoma Attorney General Opinion
2006 OK AG 7
This opinion addresses the effectiveness of
the Five Wishes® advance directive form
under Oklahoma law. The opinion states that
the Five Wishes® form is sufficient to give an
attending physician knowledge that the patient authorized the withholding or withdrawal
of ANH. It also determined that Oklahoma’s
former law was unconstitutional and led to a
revision of the Advance Directive statute,
expanding the circumstances under which
patients could refuse ANH.
Oklahoma Attorney General Opinion
2006 OK AG 32
In 2006, the Oklahoma Legislature amended
the advance directive statute. This opinion
held that advance directives executed prior to
May 2006 were still valid and enforceable.
Oklahoma Attorney General Opinion
2006 OK AG 34
This opinion deals with the issue of whether a
durable power of attorney can be used to
appoint someone to make life-sustaining
treatment decisions. The opinion states that
to do so, the durable power of attorney must
comply with the requirements of an advance
directive form and specifically authorize the
attorney-in-fact to withhold or withdraw
ANH.
35
Appendix C: Relevant Law
Case Law
Cruzan v. Director, Mo. Dep’t of Health,
497 U.S. 261 (1990)
Nancy Beth Cruzan was a young woman
who, after a severe car accident, was in a
persistent vegetative state. The state court
refused her parents’ request that the feeding
tube be removed. The U.S. Supreme Court
held that Cruzan had a constitutional right to
refuse unwanted treatment, including lifesustaining treatment, but that states can
require such wishes be proven by clear and
convincing evidence.
Washington v. Glucksberg, 521 U.S. 702
(1997); Vacco v. Quill, 521 U.S. 793
(1997)
In both of these cases, the U.S. Supreme
Court made a distinction between refusing
medical treatment and physician-assisted
suicide. The constitutional right to refuse
treatment is based on the right to maintain
bodily integrity. However, the constitution
does not guarantee the right to commit suicide or hasten death.
36
OKLAHOMA ADVANCE DIRECTIVE FOR HEALTH CARE
If I am incapable of making an informed decision regarding my health care, I direct my health care
providers to follow my instructions below.
I. Living Will
If my attending physician and another physician determine that I am no longer able to make decisions
regarding my health care treatment, I direct my attending physician and other health care providers,
pursuant to the Oklahoma Advance Directive Act, to follow my instructions as set forth below:
(1) If I have a terminal condition, that is, an incurable and irreversible condition that even with the
administration of life-sustaining treatment will, in the opinion of the attending physician and another
physician, result in death within six (6) months:
(Initial only one option)
_____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take
food and water by mouth, I wish to receive artificially administered nutrition and hydration.
_____ I direct that my life not be extended by life-sustaining treatment, including artificially administered
nutrition and hydration.
_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth,
I wish to receive artificially administered nutrition and hydration.
(Initial only if applicable)
_____ See my more specific instructions in paragraph (4) below.
(2) If I am persistently unconscious, that is, I have an irreversible condition, as determined by the attending
physician and another physician, in which thought and awareness of self and environment are absent:
(Initial only one option)
_____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take
food and water by mouth, I wish to receive artificially administered nutrition and hydration.
_____ I direct that my life not be extended by life-sustaining treatment, including artificially administered
nutrition and hydration.
_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth,
I wish to receive artificially administered nutrition and hydration.
(Initial only if applicable)
_____ See my more specific instructions in paragraph (4) below.
(Page 1 of 4)
(3) If I have an end-stage condition, that is, a condition caused by injury, disease, or illness, which results
in severe and permanent deterioration indicated by incompetency and complete physical dependency for
which treatment of the irreversible condition would be medically ineffective:
(Initial only one option)
_____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to take
food and water by mouth, I wish to receive artificially administered nutrition and hydration.
_____ I direct that my life not be extended by life-sustaining treatment, including artificially
administered nutrition and hydration.
_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by
mouth, I wish to receive artificially administered nutrition and hydration.
(Initial only if applicable)
_____ See my more specific instructions in paragraph (4) below.
(4) OTHER. Here you may:
(a) describe other conditions in which you would want life-sustaining treatment or artificially
administered nutrition and hydration provided, withheld, or withdrawn,
(b) give more specific instructions about your wishes concerning life-sustaining treatment or artificially
administered nutrition and hydration if you have a terminal condition, are persistently unconscious, or
have an end-stage condition, or
(c) do both of these:
_______
Initial
(Page 2 of 4)
II. My Appointment of My Health Care Proxy
If my attending physician and another physician determine that I am no longer able to make decisions
regarding my medical treatment, I direct my attending physician and other health care providers pursuant
to the Oklahoma Advance Directive Act to follow the instructions of ____________________________,
whom I appoint as my health care proxy. If my health care proxy is unable or unwilling to serve, I
appoint______________________________ as my alternate health care proxy with the same authority.
My health care proxy is authorized to make whatever health care treatment decisions I could make if I
were able, except that decisions regarding life-sustaining treatment and artificially administered nutrition
and hydration can be made by my health care proxy or alternate health care proxy only as I have indicated
in the foregoing sections.
If I fail to designate a health care proxy in this section, I am deliberately declining to designate a health
care proxy.
III. Anatomical Gifts
Pursuant to the provisions of the Uniform Anatomical Gift Act, I direct that at the time of my death my
entire body or designated body organs or body parts be donated for purposes of:
(Initial all that apply)
_____ transplantation therapy
_____ advancement of medical science, research, or education
_____ advancement of dental science, research, or education
Death means either irreversible cessation of circulatory and respiratory functions or irreversible
cessation of all functions of the entire brain, including the brain stem. If I initial the “yes” line below, I
specifically donate:
_____ My entire body
or
_____ The following body organs or parts:
_____ lungs
_____ liver
_____ pancreas
_____ heart
_____ kidneys
_____ brain
_____ skin
_____ bones/marrow
_____ blood/fluids
_____ tissue
_____ arteries
_____ eyes/cornea/lens
(Page 3 of 4)
IV. General Provisions
a. I understand that I must be eighteen (18) years of age or older to execute this form.
b. I understand that my witnesses must be eighteen (18) years of age or older and shall not be related to me and shall
not inherit from me.
c. I understand that if I have been diagnosed as pregnant and that diagnosis is known to my attending physician, I will be
provided with life-sustaining treatment and artificially administered hydration and nutrition unless I have, in my own
words, specifically authorized that during a course of pregnancy, life-sustaining treatment and/or artificially administered
hydration and/or nutrition shall be withheld or withdrawn.
d. In the absence of my ability to give directions regarding the use of life-sustaining procedures, it is my intention that this
advance directive shall be honored by my family and physicians as the final expression of my legal right to choose or
refuse medical or surgical treatment including, but not limited to, the administration of life-sustaining procedures, and I
accept the consequences of such choice or refusal.
e. This advance directive shall be in effect until it is revoked.
f. I understand that I may revoke this advance directive at any time.
g. I understand and agree that if I have any prior directives, and if I sign this advance directive, my prior directives are
revoked.
h. I understand the full importance of this advance directive and I am emotionally and mentally competent to make this
advance directive.
i. I understand that my physician(s) shall make all decisions based upon his or her best judgment applying with ordinary
care and diligence the knowledge and skill that is possessed and used by members of the physician’s profession in good
standing engaged in the same field of practice at that time, measured by national standards.
Signed this ___ day of ________________, 20 ___.
_____________________________________________
Signature
_____________________________________________
City of
_____________________________________________
County, Oklahoma
_____________________________________________
Date of birth (Optional for identification purposes)
This advance directive was signed in my presence.
_______________________________________
Signature of Witness
_______________________________________
Signature of Witness
____________________________________, OK
Residence
____________________________________, OK
Residence
(Page 4 of 4)
OKLAHOMA DO-NOT-RESUSCITATE (DNR) CONSENT FORM
I, ____________________________________, request limited health care as described in this document. If my
heart stops beating or if I stop breathing, no medical procedure to restore breathing or heart function will be
instituted by any health care provider including, but not limited to, emergency medical services (EMS) personnel.
I understand that this decision will not prevent me from receiving other health care such as the Heimlich maneuver
or oxygen and other comfort care measures.
I understand that I amy revoke this consent at any time in one of teh following ways:
1.
If I am under the care of a health care agency, by making an oral, written, or other act of communication
to a physician or other health care provider of a health care agency;
2.
If I am not under the care of a health care agency, by destroying my do-not-resuscitate form, removing all
do-not-resuscitate identification from my person, and notifying my attending physician of the revocation;
3.
If I am incapacitated and under the care of a health care agency, my representative may revoke the donot-resuscitate consent by written notification of a physician or other health care provider of the health
care agency or by oral notification of my attending physician; or
4.
If I am incapacitated and not under the care of a health care agency, my representative may revoke the
do-not-resuscitate consent by destroying the do-not-resuscitate form, removing all do-not-resuscitate
identification from my person, and notifying my attending physician of the revocation.
I give permission for this information to be given to EMS personnel, doctors, nurses, and other health care providers. I hereby state that I am making an informed decision and agree to a do-not-resuscitate order.
______________________________________
Signature of Person
or
______________________________________
Signature of Representative
(Limited to an attorney-in-fact for health care decisions acting under the Durable Power of Attorney
Act, a health care proxy acting under the Oklahoma
Rights of the Terminally Ill or Persistently Unconscious Act or a guardian of the person appointed
under the Oklahoma Guardianship and Conservatorship Act.)
______________________________________
Date
This DNR consent form was signed in my presence.
______________________________________
Signature of Witness
______________________________________
Address
______________________________________
Signature of Witness
______________________________________
Address
(Page 1 of 2)
CERTIFICATION OF PHYSICIAN
This form is to be used by an attending physician only to certify that an incapacitated person without a representative would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or
respiratory arrest. An attending physician of an incapacitated person without a representative must know by clear
and convincing evidence that the incapacitated person, when competent, decided on the basis of information
sufficient to constitute informed consent that such person would not have consented to the administration of
cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. Clear and convincing evidence for this
purpose shall include oral, written, or other acts of communication between the patient, when competent, and
family members, health care providers, or others close to the patient with knowledge of the patient’s desires.
I hereby certify, based on clear and convincing evidence presented to me, that I believe
______________________________________
Name of Incapacitated Patient
would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. Therefore, in the event of cardiac or respiratory arrest, no chest compressions, artificial ventilation,
intubation, defibrillation, or emergency cardiac medications are to be initiated.
______________________________________
Physician’s Signature
______________________________________
Physician’s Name (PRINT)
____________________________________________________________________________________
Physician’s Address/Phone
_______________________________________
Date
(Page 2 of 2)
Funding for the publication of this guide was provided by the Hospice Foundation of
Oklahoma Affiliated Fund of the Oklahoma City Community Foundation.
Other Publications Available from the Senior Law Resource Center
Your Right To Decide: Oklahoma’s Advance Directive & Other Health Care Planning Tools
Oklahoma Grandparents’ Legal Guide
Publications may be downloaded from www.OklahomaSeniorLaw.org or ordered from:
Senior Law Resource Center
P.O. Box 1408
Oklahoma City, OK 73106
(405) 528-0858
FAX (405) 601-2134
[email protected]
The Senior Law Resource Center offers information about a variety of legal issues on our website:
www.OklahomaSeniorLaw.org.
.
SENIOR LAW
RESOURCE CENTER
WWW.OKLAHOMASENIORLAW.ORG

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