Health Care Decision Making
There may come a point where the individual is unable to make medical decisions such as whether to see a doctor, consent to a medical procedure, or make decisions regarding withholding or withdrawing life sustaining treatment. In Maryland, the Health Care Decisions Act, effective October 1993, creates standards for health care decision making. The Act gives individuals flexibility in determining how health care decisions will be made in the event that individuals are unable to make the decisions themselves. It does this by allowing individuals to express their wishes regarding health care and the withholding or withdrawal of life sustaining procedures through written instructions and/or the appointment of a "health care agent,"to make decisions for them. Additionally, if individuals have not expressed their wishes in advance, the Act allows other persons close to them, known as "surrogates," to make healthcare decisions on their behalf. As a last resort, the court may appoint a guardian of person to make health care decisions for the individual.
- Advance Directives
An advance directive is an instrument which details an individual's wishes regarding health care. Unless documented otherwise, the directive becomes effective when the attending physician and a second physician certify in writing that the patient is unable to make an informed decision. If the patient is unconscious or unable to communicate, a second physician certification is not necessary. There are three forms of advance directives: 1) Health Care Power of Attorney, 2)Health Care Instructions and 3) Oral Directives.
Health Care Power of Attorney
Health Care Instructions
This is a document in which one individual, the grantor, grants authority to another individual, the health care agent, to make medical decisions, including decisions regarding life sustaining treatment. The grantor must be competent when the document is executed. The healthcare power of attorney will remain in effect if the grantor becomes incompetent and can be revoked at any time while the grantor is competent. Additionally, health care powers of attorney can be either springing, i.e., only effective upon the grantor's disability, or effective immediately upon execution. The health care agent has priority decision making power over other individuals who may be qualified to make decisions in their capacity as surrogate decision makers.
This is a document in which an individual details in advance what types of health care treatment they want to receive. A living will, in which an individual specifies whether or not to provide life sustaining treatment under certain circumstances, falls under this category. The health care instructions differ from a health care power of attorney in that no one is appointed to make the health care decisions. An individual must be competent when the document is executed.
Oral Directives
A competent individual can orally appoint a health care agent and/or give instructions regarding treatment. The request must be made in the presence of the attending physician and a witness, documented in the patient's medical record, and signed and dated by the attending physician and the witness.
- Surrogate Decision Making
In the absence of an advance directive, a surrogate decision maker can make health care decisions for a person who is incapable of making informed decisions. Surrogates are somewhat limited in their ability to make health care decisions: 1) they cannot authorize sterilization or treatment for a mental disorder (if the patient needs one of these treatments and an advance directive does not exist, it may be a necessary to have the court appoint a Guardian of the Person to make such health care decisions) and 2) can only authorize the withholding or withdrawal of life sustaining treatment if two physicians certify that the patient has a terminal or end stage condition or is in a persistent vegetative state. The following individuals can act as surrogate decision makers in the following order of priority: guardian of the person, spouse, adult child, parent, adult sibling, and a close friend or relative. Surrogate decision makers must make decisions based on what the patient would have wanted. If the patient's wishes are unclear or unknown, the surrogate decide on the basis of the patient's best interest. In making healthcare decisions, surrogates must consider the following factors: the patient's current diagnosis and prognosis; expressed preference regarding treatment at issue; relevant religious or personal beliefs; behavior and attitude toward the treatment at issue; reaction to a similar treatment for another individual; and expressed concerns about the effect on family or friends.
- Guardian of Person
A guardian of person is appointed by the court to make decisions concerning health care, food, clothing, and shelter. In Maryland, the Circuit Courts have exclusive jurisdiction over guardianship proceedings for adults. To establish a guardianship of person the court must determine by clear and convincing evidence that an adult lacks the understanding or capacity necessary to make or communicate responsible decisions concerning his or her person. The court must also find that a less restrictive arrangement to provide for the needs of the disabled person does not exist. The guardian has the same rights and powers over the ward as a parent has over a minor child. The guardian is an agent of the court and as such must file papers with the court and seek court authority prior to making certain decisions.