Chapter 15 Foregoing Treatment
PATIENTS RIGHT TO FORGO LIFE-SUSTAINING TREATMENT
RIGHTS & RESPONSIBILITIES OF THE PHYSICIAN
DURABLE POWERS OF ATTORNEY
As a general principle, individuals have the right to refuse medical treatment, regardless of whether the treatment is necessary to sustain the individuals life. Any competent, qualified adult may make the decision to forgo life-sustaining treatment. Even patients who cannot make their own decisions because of illness or legal incompetence have similar rights, which may be exercised for them through the doctrine of “substituted judgment.”
The rights of the patient, as well as the rights and responsibilities of the physician, are contained in Chapter 449 of the Nevada Revised Statutes, specifically sections 449.535 – 449.690. These sections of the Revised Statutes are referred to as the Uniform Act on Rights of the Terminally Ill. The Act provides guidelines and procedures for the patient, his or her representative, and the physician to follow. The statutes also provide a format for a declaration directing a physician to withhold or withdraw life-sustaining treatment that may be executed by any adult meeting certain criteria (reproduced in the Appendix, below).
A physician who becomes aware of the existence of a declaration concerning the withholding or withdrawal of life-sustaining treatment must, in most instances, honor the wishes of the declarant. In the end, however, the physician must make a good faith decision regarding what is best for the patient, considering all factors and sound medical practices. If physicians follow this approach, they have performed their duty and will most likely avoid any legal liability.
Although the Act provides guidelines and procedures to help the physician ensure that the needs and wishes of the patient are clear, there is always the possibility for confusion, error and disagreement. In this area of medical treatment, more so perhaps than in any other, the physician is well advised to seek the advise of legal counsel before proceeding.
Chapter 449 provides a list of critical definitions that may provide guidance to the physician or health care provider. The entire list of definitions is provided in Appendix A at the end of this chapter. Certain definitions that are used throughout this chapter are worthy of current consideration since they provide a framework for understanding the rights of patients and the rights and responsibilities of health care providers.
Life-sustaining treatment is defined as a medical procedure or intervention that, when administered to a patient, serves only to prolong the process of dying. NRS 449.570. The focus of the statute is on prolonging the dying process. When the definition of “life-sustaining treatment” is combined with other relevant definitions in Chapter 449, it becomes clear that the treatment being addressed is treatment offered to patients already diagnosed as terminal. Life-sustaining treatment is not, presumably, treatment associated with a cure, but rather focuses only on treatment that prolongs an inevitable death.
The withholding of life-sustaining treatment is not “proactive“ in nature. Although the withholding of treatment presumably removes any artificially imposed barriers to death, it does not accelerate the process beyond its natural pace. It does not, in Nevada, constitute physician assisted suicide. NRS 449.650 makes this point clear: Death resulting from the withholding or withdrawal of life-sustaining treatment . . . does not constitute, for any purpose, a suicide or homicide.
A terminal condition” as defined by the Nevada Revised Statutes is an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of the attending physician, result in death within a relatively short time. NRS 449.590. This definition is critical to many of the actions that a physician may or must take, depending on the condition of the patient.
A qualified patient is one who is eighteen years of age, who has executed a declaration (regarding the withholding or withdrawal of life-sustaining treatment), and who has been determined to be in a terminal condition by the attending physician. NRS 449.585. The Nevada Code draws a distinction between qualified patients, and those patients, possibly in a terminal condition, who are not qualified. The status of the patient, to a large extent, controls what actions the physician must take before he can withhold or withdraw life-sustaining treatment, and also determines who may make the decision to withhold treatment.
PATIENTS RIGHT TO FORGO LIFE-SUSTAINING TREATMENT
In Nevada, a person of sound mind, and having reached the age of 18, may execute a declaration governing the withholding or withdrawal of life-sustaining treatment. NRS 449.600. Under NRS 449.600, the declarant may designate another individual meeting the criteria of the statute, that is, another person who is 18 years of age and of sound mind and body, to make the decisions regarding the forgoing of life-sustaining treatment. The declaration is not valid unless it is signed by the declarant, or someone directed to sign by the declarant, and attested to by at least two witnesses. NRS 449.600(1). The declarant does not need to be a patient at the time of the declaration, nor does the declarant need to be in a terminal condition. Any natural person meeting the criteria of this statute may execute a declaration to forgo life-sustaining treatment. The declaration will become part of the patients medical record. NRS 449.600(2). If the attending physician cannot or is unwilling to comply with the directions of the declaration, the physician must notify the declarant or the declarant’s representative.
The key judicial decision in this area is McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990), a case in which the Supreme Court of Nevada established the right of a non-terminal patient to forgo treatment even if doing so meant certain death for the patient. In McKay, a quadriplegic patient petitioned the court to allow the removal of his respirator after his father, who was also his care giver, passed away. The court, balancing the interests of the state with those of the petitioner, concluded that in situations involving adults who are: (1) competent; (2) irreversibly sustained or subject to being sustained by artificial life support systems or some form of heroic, radical medical treatment; and (3) enduring physical and mental pain and suffering, the individuals right to decide will generally outweigh the States interest in preserving life. The court emphasized that informed consent to withdraw life support is not akin to suicide. Instead, after weighing several factors, including whether the patient was seeking affirmative measures or simply attempting to remove artificial barriers, and the patient’s physical condition and prognosis, the Court concluded that a natural death, prolonged only by artificial means, did not have to be impeded.
Of great value in McKay are the specific procedures the Court mandated to be followed before a competent, non-terminal patient can choose to forgo life-sustaining treatment. The Court outlines the steps physicians follow to certify that the patient is making an informed decision, free of coercion or lack of competency. Once the procedural requirements are met, the Court draws a distinction between patients that are terminally ill (those with an estimated life span of less than 6 months), and non-terminal patients (those who had more than 6 months to live, with or without life support systems). If the patient is terminal, the rights of the patient will prevail over the interests of the state. If non-terminal, the rights of the patient must be weighed against the interests of the state, with the courts having the final say as to whether the patient will be allowed to die. The McKay decision has, in part, been codified in NRS 449.626.
As discussed above, a qualified patient is one who has properly prepared a declaration concerning the withholding or withdrawal of life-sustaining treatment. Chapter 449 of the Nevada Revised Statutes provides a recommended format for the declaration. NRS 449.610 (provided at Appendix A of this chapter) is an acceptable format to use when the patient himself directs the physician as to his or her wishes. NRS 449.613 is a form that may be used by the declarant to designate another person as the decision maker regarding continuing life-sustaining care. There are several key elements of the forms:
- Each identifies the criteria that the condition must be incurable or irreversible, and will lead to death in a relatively short time if life-sustaining treatment is suspended.
- Each specifically references NRS 449.535 – 449.690, the Uniform Act on Rights of the Terminally Ill.
- Each provides the declarant the option to choose to receive artificial nutrition and hydration.
- Each must be signed by the declarant and two witnesses.
The use of these exact forms is not required, but similar information should be included in whatever declaration the patient chooses to execute.
Once a declaration has been drafted and signed, it becomes operative as soon as the attending physician determines that the patient is in a terminal condition, and is no longer able to make his or her own decisions regarding health care and the use of life-sustaining equipment. NRS 449.617. Under 449.617, the physician has, in most cases, only two options. The first is to carry out the instructions contained in the declaration, and the second is to transfer care of the patient to another physician (see following section, below). The instructions of the declaration will be to either withhold treatment or to designate another to make such decisions. Nonetheless, the physician may have other options he may choose to exercise.
As soon as the patient is determined to be terminal, the physician aware of the existence of a declaration, must record the declaration and its terms in the medical records of the patient, if such declaration is not already a part of the patient’s records. NRS 449.622. Unless the physician has a legitimate reason to believe the declaration is invalid, it is valid if it complies with the statutes (449.535-449.690). The statutes that constitute the Uniform Act on Rights of the Terminally Ill do not in any way create any presumption, with regard to life-sustaining treatment, regarding the intentions of a declarant who has revoked a former declaration or a patient who has not executed a declaration. NRS 449.645.
Patients who have not previously executed a declaration regarding the withholding or withdrawal of life-sustaining treatment and are terminally ill and are unable to make decisions for themselves, may nonetheless still have life-sustaining treatment withheld under certain circumstances. Under the doctrine of “substituted judgment,” if a written consent to withhold treatment, attested to by two witnesses, is given to the physician, the physician may act at the direction of the consent. The consent may be executed by, in order of priority: the patients spouse; an adult child of the patient or a majority of the adult children of the patient reasonably available for consultation; the parents of the patient; an adult sibling, or a majority of adult siblings reasonably available for consultation; or the nearest other adult relative reasonably available. NRS 449.626(2). The consent must be given in good faith, and cannot contradict the expressed wishes of the patient. The final decision on the validity of a consent rests with the physician, acting in good faith. NRS 449.626. It is interesting to note that 449.626 contains language precluding the withholding or withdrawal of life-sustaining treatment for pregnant patients, if it is probable that the fetus will survive to birth with continued life-sustaining efforts. NRS 449.626(6).
Patients may revoke a declaration at any time. The manner of revocation is irrelevant, and the mental or physical condition of the declarant is never an issue. Once the attending physician or health care provider is given the revocation by the declarant or a witness to the revocation, the revocation becomes effective, and must be entered in the patients medical records. NRS 449.620.
RIGHTS & RESPONSIBILITIES OF THE PHYSICIAN
There are certain responsibilities the attending physician or health care provider must assume, once a declaration becomes effective. Some of these responsibilities may cause the physician to act against the stated interests of the declarant, depending on the attending physician’s assessment of the situation.
As previously discussed, once a declaration becomes operative, the physician generally has a responsibility to execute the wishes of the patient. NRS 449.617. The physician must withhold not only life-sustaining equipment, but artificial nutrition and hydration, if so stated in a declaration or other consent form. There are, however, exceptions to these general rules. Pregnant patients may not have their wishes honored if there is a probability that the fetus will survive to birth if life-sustaining efforts are continued. NRS 449.624; 449.626.
Although the physician must give weight to a declarants declaration, he may also consider other factors when deciding whether to follow the instructions of the declaration. Nevada gives medical professionals great latitude in making these critical decisions as to whether to withhold or withdraw life-sustaining treatment. No physician, medical facility, or person working for a physician is subject to criminal or civil liability for failing to follow the directions of a patient requesting the withholding or withdrawal of life-sustaining treatment. NRS 449.626(2). Therefore, if, in the opinion of the physician, after weighing all the factors, the removal or withholding of life-sustaining treatment is not in the patients best interests, the physician may ignore the declaration without fear of legal retribution. NRS 449.630 even more clearly spells out the immunity granted physicians from civil or criminal liability, and from professional discipline, for failing to follow a patient’s declaration. A physician is not subject to liability for:
- Giving effect to a declaration or written consent for which the physician has no knowledge of a revocation. NRS 449.630(1).
- Acts pursuant to the Uniform Act on Rights of the Terminally Ill, in accordance with reasonable medical standards. NRS 449.630(2).
- Deciding, in good faith, the validity of consent given. NRS 449.630(3).
The statute essentially states that physician or other health care providers acting in good faith and in accordance with good medical practices, cannot be held liable for following, or failing to follow, the patients direction regarding life-sustaining treatment. NRS 449.670. If, however, the attending physician is unwilling to comply with the wishes of the patient or representative, the physician must take all reasonable steps as promptly as practicable to transfer care of the declarant to another physician or provider of health care. NRS 449.628.
Despite the immunity offered by the above statutes, physicians or others may be subject to liability for actions in this area that constitute “bad faith.” NRS 449.660. For instance, willful failure to transfer the care of a patient whose wishes a physician cannot, or will not, follow is a gross misdemeanor. Willful failure to record the terms of a declaration or the terminal status of a patient in the medical records of the patient is a misdemeanor. Willful concealment, cancellation, or destruction of the declaration of another, or falsifying or forging a revocation, is a misdemeanor. Requiring or prohibiting the execution of a declaration, as a condition of insurability, is a misdemeanor offense. Fraudulently inducing, or falsifying a declaration of another, is generally a misdemeanor. However, anyone who falsifies or forges a declaration, or willfully conceals a revocation or knowledge of a revocation, with the intent of having life-sustaining treatment withheld contrary to the wishes of the patient, is guilty of murder if the patient dies as a result of the wrongful acts and the withholding of treatment. A related statute, NRS 449.670, specifically points out that the Uniform Act on Rights of the Terminally Ill does not condone or authorize assisted suicide, euthanasia, or mercy-killing.
The Uniform Act on Right of the Terminally Ill contains several miscellaneous provisions worthy of mention and consideration by physicians and health care providers:
NRS 449.650 – As previously discussed, under 449.650, death in accordance with Act does not constitute suicide or homicide. Also, the execution of a declaration does not affect the sale, procurement, or validity of a life insurance policy.
NRS 449.690 – Declarations validly executed in another state, or instruments voluntarily executed prior to 1977 that clearly express an intent to have life-sustaining treatment withheld, if substantially compliant with the Act, and not revoked, are valid under the Act.
DURABLE POWER OF ATTORNEY
Under NRS 449.613(2), a valid power of attorney designation, executed in accordance with provisions of applicable Nevada law (NRS 449.800-449.860; NRS 111.460) or the judicial appointment of a guardian, constitutes a declaration with the same effect and authority as a declaration prepared under 449.613. NRS 449.810 authorizes any adult person to execute a durable power of attorney. The specific details of how to execute a durable power of attorney, as well as the recommended format the power of attorney are contained in 449.800-449.860. If the physician is presented with a durable power of attorney for health care, he should ensure the power of attorney complies with Nevada law, or more appropriately, he should have an attorney confirm the validity. Once the power of attorney is deemed to be valid, it gives the patient the same rights, and the physician the same rights and responsibilities, as a declaration.
Individuals have the right to refuse life-sustaining treatment, in most instances. The Nevada Code provides guidelines for the patient and the physician, so that the wishes of the patient are clearly stated, and the duties of the physician are clearly understood. In the final analysis, the physician must act in good faith, in accordance with sound medical practices, to determine what course of treatment, or lack thereof, is best for the patient. If the physician follows these guidelines, he should be immune from civil or criminal liability, regardless of the course of treatment selected.