July 18, 2024

Healt Hid

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Administering health care when there is no patient directive

5 min read
Weijer Josh 600

Joshua Weijer

Maintaining one’s essential records can be tedious, and all too frequently many individuals overlook the importance of their most important documents: their healthcare directives.

What are the obligations of healthcare providers in New Hampshire and the neighboring states of Massachusetts and Maine to incapacitated patients who are admitted without healthcare directives in place? Each state has its own rules – with subtle, but important, differences.

Healthcare providers are not obligated to – but should – inquire about and collect healthcare directives from their patients.

While no state requires healthcare providers to collect or inquire about the existence of a capacitated patient’s healthcare directive, it is highly encouraged that they do. Without having an established healthcare agent or directive in place, providers servicing incapacitated patients may later be obligated to identify the existence of any healthcare directive or, in absence thereof, will be forced to identify a surrogate decision-maker. It is therefore best practice to collect and maintain up-to-date healthcare directives from existing patients in the event they later become incapacitated.

Healthcare providers should ask all patients upon each check-in whether the current version of their healthcare directive is on file (similar to asking if insurance information is current). Patients that do not have valid healthcare directives, or who may have an outdated healthcare directive, should be encouraged to prepare new directives.

Providers may consider keeping their jurisdiction’s most recent statutory forms on hand to supply to patients. However, it should also be noted that Maine, New Hampshire and Massachusetts all prohibit healthcare providers from requiring patients to execute any healthcare directive as a pre-requisite for treatment.

New Hampshire additionally prohibits healthcare providers from charging increased rates for patients without any healthcare directives. It should also be noted that most states do not allow healthcare provider staff (especially attending practitioners) to witness the execution of such documents, nor do they permit such persons to act as designated agents (though exceptions exist for individuals who are related by blood, marriage, or adoption).

Where patients do maintain their directives, most jurisdictions require healthcare providers to promptly record such healthcare directives into medical records immediately upon receipt. Additionally, the healthcare provider also has an affirmative duty to promptly amend a patient’s medical record if and when any healthcare directive is revoked.

Revocations may be made in writing (usually by creating a new or updated healthcare directive), verbally, or in any manner indicating specific intent to revoke. Facility staff have an affirmative duty to immediately notify the attending practitioner (and in turn the healthcare provider) of any such revocation, as well as any other agents involved in the patient’s care. Non-compliance may result in liability for inaction.

In the absence of any incapacitated patient’s healthcare directive, healthcare providers may have a duty to identify the existence of any healthcare directive or, in absence thereof, identify a suitable surrogate decision-maker.

New Hampshire is the only state of the three that requires healthcare providers to affirmatively make a “reasonable inquiry” as to the existence of any incapacitated patient’s healthcare directive. However, the law does not clearly define what a “reasonable inquiry” amounts to.

In most jurisdictions when no healthcare directive can be identified, the provider must then inquire as to whether there are any suitable surrogate decision makers that can act on behalf of the incapacitated patient. (New Hampshire’s hierarchy of eligible surrogates is found under NH RSA 137-J:35, and Maine’s is under 18-C:5-806(2).)

Massachusetts has not adopted any surrogacy laws — in fact, it rejected a proposed surrogacy statute as recently as 2017. However, M.G.L.C. 201D § 16 instead provides that “nothing … shall preclude a healthcare provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients.”

The fact that “responsible parties” is an undefined term confounds many practitioners. The resulting consensus is that prudent healthcare providers (or a patient’s family) should petition the probate court for guardianship so that a court appointed decision maker can act with authority. Without a court-sanctioned decision-maker, healthcare providers may risk liability — especially in the event there are competing interests among the persons who would ordinarily be expected to act as agent.

Absent any designated agent, surrogate or other decision-maker, healthcare providers generally have a duty to continue treatment in a manner consistent with the patient’s wishes to the extent they are known.

Careful review of a patient’s medical record may provide guidance as to his or her preferences. Inferences may arise from previous conversations with the patient or as close family and friends may otherwise communicate to the healthcare provider or attending practitioner.

However, it is clear in each jurisdiction that the absence of any healthcare directive does not give rise to any inferences about medical care (or any decision to abstain from life-saving medical care). For instance, under New Hampshire’s recently revised healthcare directive statute, surrogates have greater latitude to direct withdrawing life support. It does not necessarily follow that any patient relying on surrogacy laws (failing to create a healthcare directive) is deemed to have wanted life-sustaining treatment to be withdrawn (and vice versa).

In each jurisdiction, the healthcare provider has a continuing duty to communicate with and inform the unrepresented patient about his or her care — even while he or she is still determined to be incapacitated.

State legislatures have gone to great lengths to make preparing healthcare directives easy, accessible and low-cost. Therefore, healthcare providers should strongly incorporate systems or procedures to effectively encourage patients to maintain current healthcare directives. Without these simple documents in place, patients and healthcare providers may find themselves in precarious situations.

Patients without healthcare directives are therefore encouraged to work with their existing healthcare providers or qualified estate planners to prepare comprehensive directives; and medical facilities should consult counsel to enact systems that promote the same.

Joshua R. Weijer, an associate in the Trusts and Estates Department at McLane Middleton, advises clients in the areas of estate planning, tax planning, fiduciary matter and estate and trust administration.


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