Living Will Information
In 1992, the Pennsylvania Legislature adopted the Advance Directive for Health Care Act, commonly known as the Living Will. In essence, the act creates the ability of competent adults to sign a document directing in advance their wishes in regard to the medical treatment to be given or withheld in the event they should be terminally ill or permanently unconscious.
The intent of this act is to permit competent adults the right to control decisions relating to their own medical care. This right is subject to the ethical standards of the medical profession and the preservation and protection of human life.
However, due to the ability of modern medical technology to prolong human life beyond the natural limits, the application of some medical procedures to an individual suffering a difficult and uncomfortable process of dying may cause loss of patient dignity and result only in prolonging the pain and suffering of the dying process.
The act does not condone, authorize or approve mercy killing, euthanasia or any act or omission to end a life except as defined in the act. Further, the existence of the act alone does not create any presumptions in regard to the intent on any person who has not signed the declaration consenting to the withholding of life sustaining procedures in the event of a terminal condition or a state of permanent unconsciousness.
The act defines a “terminal condition” as “an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in the death, regardless of the continued application of life sustaining treatments”.
It also defines “permanently unconscious” as a “medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment.” The term includes, without limitations, a persistent vegetative state or irreversible coma.
The living will may be signed only by persons who are competent at the time of the signing, are 18 years of age or over or who have graduated from high school or are married. The living will may be signed by another on behalf of the declarant and at the direction of the declarant. It must be witnessed by two individuals, each of whom is 18 years of age or older. Any person who signed the living will on behalf of the declarant, as provided in the Act, may not be a witness on the living will.
The living will becomes operative when a copy is provided to the attending physician and the declarant is determined to be incompetent by the attending physician. The attending physician is the physician who has primary responsibility for the treatment and care of the declarant. The basis for the attending physician’s determination of incompetancy is whether the declarant lacks sufficient capacity to make or communicate decisions concerning him. The attending physician must, without delay after diagnosis that the declarant is in a terminal condition or state of permanent unconsciousness, certify in writing that the declarant is in such state or condition and arrange for a physical examination and confirmation by a second physician.
Once the declaration is operative, the attending physician and health care providers must act in accordance with its provisions. If the attending physician or other health care providers can not in good conscience comply with the declaration, the attending physician or health care provider must inform the declarant, or if the declarant is incompetent, the declarant’s surrogate, or if no surrogate is named in the declaration, the family, guardian or other representative of the declarant. Then every reasonable effort must be made to assist in the transfer of the declarant to another physician or health care provider who will comply with the declaration.
There are several interesting issues related to the Living Will. I have already discussed the “in good conscience” concern of a physician in regard to following the declaration. Another is the liability issue related to following the directive. The act provides that no physician or health care provider who, consistent with the provisions of the law, causes or takes part in the initiating, continuing, withholding or withdrawal of life-sustaining treatment from a patient who has signed a Living Will and who has been determined to be in a terminal condition or to be permanently unconscious and who is incompetent, shall as a result thereof be subject to criminal and/or civil liabilities if the declarant’s wishes and the provisions of the act were followed.
There are also insurance issues related to suicide and homicide. The act provides that such withholding of life-sustaining treatment from a patient who has a valid Living Will under the law shall not constitute homicide or suicide. It also provides that making or failing to make a Living Will shall not affect the sale, obtaining of or issuance of insurance, nor shall the Living Will invalidate an insurance policy despite any terms in the policy to the contrary.
No physician, health care provider, health care service plan, HMO, disability insurer or other entity issuing insurance, private or governmental, may require the signing of a Living Will before being insured or the changing of different rate or fee depending on the existence of the Living Will.
Emergency medical care is expected from the provisions of the Living Will when the emergency services are provided prior to the Living Will becoming operative. The Living Will shall take effect in an emergency situation only if an original Living Will is presented to the emergency medical personnel and the physician in command under the Emergency Medical Services Act is notified of the existence of the Living Will or if the command physician, based on prior notification by the attending physician or other health care provider received notification of the Living Will and so directs the emergency medical personnel to act according to its provisions.
The act provides for special procedures related to treatment of a pregnant woman despite the existence of a Living Will under certain circumstances. Life-sustaining treatment, nutrition and hydration, must be provided to a pregnant woman who has a terminal condition or is in a state of unconsciousness unless, to a reasonable degree of medical certainty, as certified on the patient’s record by the attending physician and an obstetrician who has examined the patient that such treatment: 1) will not maintain the pregnant woman in such a way as to permit the continuing development and live birth f the unborn child; 2) will be physically harmful to the pregnant woman, or 3) would cause pain to the pregnant woman which cannot be alleviated by medication.
Interestingly the act also provides for payment of such treatment to the pregnant woman by the Commonwealth of Pennsylvania, notwithstanding the declaration. The Commonwealth can collect from the woman’s insurance company. Any expenditure incurred on behalf of the pregnant woman will be considered a grant and no liens will be placed against her property, her estate, or her heirs.
The Living Will can be revoked at any time and in any manner by the declarant regardless of the declarant’s physical or medical condition. The revocation is effective as soon as it is communicated to the attending physician or other health care provider by the declarant or by any witness to the revocation. Once the revocation is made, the attending physician or other health care provider shall make it part of the declarant’s medical record.
The form of the declaration itself is fairly simple. It indicates that the person signing it is competent and has made a determination that life-sustaining treatment should be withheld or withdrawn if the declarant is terminally ill or in a state of permanent unconsciousness with no hope of recovery. It further directs that the treatment be limited to measures that would keep the declarant comfortable and relieve pain. It also permits one to choose whether certain forms of treatment, such as, but not limited to, cardiac resuscitation, mechanical respiration and intravenous water, nourishment, or blood. The form also may include preferences such as a surrogate to make medical decisions in the event of incompetency and a terminal condition or state of unconsciousness. Another possible provision is the making of an anatomical gift.
When filling out the Living Will form, it is recommended that you use your initials in each block for selecting a choice, rather than an “X”: or a check mark. You should complete and sign more than one original, leaving them with your surrogate(s), your family doctor, and anyone else who should know your wishes. Provide an original to the hospital when you are admitted. Some people have also gone so far as to have an original at a location within the home along with information regarding the identity of the attending physician as to allow emergency personnel to obtain it.
You should consult with your attending physician should you determine that you wish to have certain life-sustaining treatments. This may complicate the procedures used because certain procedures may require the use of another as well. If you have not identified that procedure as one you wish to have, the doctor may be prevented from meeting your wishes or may have to provide care you don’t want, due to the conflict.
Finally, remember when you are filling out the form that you are giving directions, which should occur only if you are terminally ill, or are in a state of permanent unconsciousness.