[D.4 Providers’ Obj.   E.3 Double-Effect]

February, 1990; Amended March, 1993; Amended June 1996 

[From the 1993 Guidelines: These Guidelines were developed by the committee on biomedical ethics of the Los Angeles County Medical Association and Los Angeles County Bar Association. Adopted by the Council of the Los Angeles County Medical Association on January 8, 1990 and by the Board of Trustees of the Los Angeles County Bar Association on February 28, 1990]

A. APPLICATION of GUIDELINES

        1. These Guidelines are  applicable to all adult persons, whether in health facilities that provide acute care, skilled nursing care, or other levels of health care.

        2. It been widely believed that the State Department of Health Services does not permit the foregoing of some types of life-sustaining treatment in certain treatment settings (primarily medically administered nutrition and hydration in skilled nursing facilities). The Department has Issued written guidelines (amended in December of 1988) clarifying that this is not its policy, and that such decisions are to be made by:

[1] patients or their surrogates
[2] and the patient’s physician.

        3. Once a patient has been pronounced dead, all medical interventions, including ventilatory support, may be withdrawn.  For information concerning the Neurological Determination of Death, see Appendix I of these Guidelines.

B. RIGHTS of PATIENTS

         1. An adult person capable of giving informed consent has the right to make his or her own decisions regarding medical care after having been fully informed about the benefits, risks and consequences of treatment alternatives, even when such decisions might result in shortening the individual’s life.  As the California Court of Appeal has stated, “(I)f the right of the patient to self-determination as to his own medical treatment is to have any meaning at all, it must be paramount to the interests of the patient’s hospitals and doctors.” [Bartling v. Superior Court, 163 Cal. App. 3d 186, 195 (1984)]

2. For adult persons who are unable to give informed consent, the legal authority to make decisions regarding life-sustaining treatment rests with a surrogate decision-maker.

C. SURROGATE DECISION MAKERS

for INCOMPETENT PATIENTS 

[ The terms competent and incompetent are used in this document as they are used by physicians, and in the Durable Power of Attorney for Health Care.  Competent means that the patient has the ability to understand the nature and consequences of the treatment options being discussed, and incompetent means that the patient lacks this ability.  While the terms also have technical legal meanings which refer to a formal adjudication by a court of a person’s competence, the terms are not used with such a meaning here.  Such a formal adjudication of competence by a court is not required in making most treatment decisions, or in determining whether the appointed surrogate may act persuant to a Durable Power of Attorney for Health Care.]

        1. The surrogate decision maker for an incompetent patient is the attorney-in-fact appointed persuant to a Durable Power of Attorney for Health Care, or where there is none, the family or significant others.

[In seeking to identify the appropriate surrogate of the patient with whom to consult the provider should consider immediate family members who:

(a) are “in the best position to know (the patient’s) feelings and desires (regarding treatment),”

(b) “would be most affected by the treatment decision,”

(c) “are concerned for (the patient’s) comfort and welfare,” and

(d) have expressed an interest in the patient by visits or inquiries to the patient’s physician or hospital staff.

Barber v. Superior Court, 147 Cal.App. 3d 1006, fn 2 (1983).

In addition to family members, it may be appropriate to rely on non-family members who satisfy these criteria.]

 Only in rare cases will it be necessary to seek Court appointment of a conservator to make these decisions.  Where there is no attorney-in-fact or conservator, and family members or potential surrogate decision makers disagree among themselves, the physician should generally maintain life-sustaining treatment until either the disagreement is resolved or a conservator is appointed and makes a decision.

        2. The surrogate should act in accordance with treatment preferences stated by the patient, if known.

        3. If the surrogate does not know of any treatment preferences stated by the patient while competent, the surrogate is to act in the patient’s best interest by analyzing the comparative benefits and burdens of continued treatment, as well as the patient’s attitudes and beliefs, and such factors as relief of suffering, the preservation or restoration of function, and the quality and the extent of life sustained.

D. ROLE of the PHYSICIAN

        1. The physician must provide sufficient information to patients or surrogates to enable them to understand the medical condition, the treatment options, and the possible consequences of the various treatment options.  Understanding of options by the patient or surrogate will often increase over time.  Therefore, decision making should be treated as a process, rather than an event.  In order to provide patients and surrogates adequate time to reach a decision, the process of informing patients or surrogates and communicating with them concerning treatment goals should begin at the earliest possible time.

        2. Before withdrawing or withholding life-sustaining treatment from a competent patient, it is the responsibility of the physician to assess the patient’s mental and emotional status carefully to identify any factors (such as the existence of pain) that may be affecting the patient’s refusal of treatment.  Any identified factors should be discussed and any options that might cause the patient to continue life-sustaining treatment should be explored with the patient.  If after such assessment and discussion, the patient continues to refuse life-sustaining treatment, the patient has a right to forgo treatment even though the physician disagrees.

        3.  The role of the physician in determining whether or not life-sustaining treatment may be withheld or withdrawn from an incompetent patient is to provide to the surrogate decision maker the same information that would be provided to a competent patient, i.e. full and complete information concerning the diagnosis, the prognosis, and the options for treatment.  Recommendations from the physician are appropriate, and are often helpful to the surrogate.  The decision, however, belongs to the surrogate decision-maker, in light of his or her knowledge of the patient’s preferences and beliefs, except in the circumstances discussed in paragraph D.5.

        4.  Should the patient or patient’s surrogates choose a course of action that would violate the ethical or religious beliefs of the physician, the physician may generally decline to participate in that course of action, where another physician who is willing to be guided by the patient’s wishes will accept care of the patient.

[An ethical or religious objection by another member of the healthcare team should generally be accomodated as well, to the extent possible without interfering with the patient’s or surrogate’s decision.]

  In doing so, however, the physician declining to participate must cooperate in transfer of the care of the patient to the new physician.  A decision to transfer the patient should be made only for reasons of conscience and after serious efforts have been made to reconcile the views of the physician and patient or patient’s surrogate, and after adequate notice has been given to the patient or surrogate that the physician will have to withdraw from the case.

        5. In cases where a surrogate’s treatment decisions appear to be inconsistent with the patient’s previously expressed preferences or best interests, the treating physician should thoroughly discuss the issue with the surrogate.  If at the conclusion of the discussion(s), the physician continues to believe that the surrogate’s requested course of treatment is inconsistent with the patient’s treatment preferences or best interests, the physician should advise the surrogate that he or she is unwilling to write the  orders requested, giving reasons.  Consultation with a Bioethics Committee, or other institutional resources, may be of assistance.  In extreme cases, if the surrogate is clearly not acting in the patient’s best interest, legal remedies exist to replace the surrogate.

        1. Life-sustaining treatment need not be continued solely because it was initiated.

        2. Dignity, hygiene and comfort of patients should be preserved in all circumstances, even if specific life-sustaining treatment is withheld or withdrawn.

        3. Medication should be given as indicated for pain or discomfort even if it may tend to hasten death, but should not be used with the primary intent to cause or hasten death.

        4. Medically administered nutrition and hydration (i.e., including NG tubes, gastrostomies, intravenously administered fluids, and hyperalimentation) should be analyzed in the same way as any other medical treatment.  Nutrition and hydration have a powerful symbolic significance to many members of the public, as well as to many caregivers.  It is therefore particularly important that those people who take care of the patient fully understand the rationale for any order to forgo medically administered nutrition and hydration.

F. DOCUMENTATION and INSTITUTIONAL POLICIES

        1. In cases in which life-sustaining treatment is withheld or withdrawn, the medical record should include:

    a. A clear statement in the physician’s progress notes of all relevant data and information concerning the treatment decision, including the treatment plan, the diagnosis and prognosis, and how they have been established, along with documentation of any consulting opinions that have been obtained;

     b. A statement in the physician’s progress notes of the basis on which the physician concluded that an informed refusal of life-sustaining treatment has occurred.  This could include documentation by the physician of discussions with a competent patient, or with an appropriate surrogate of an incompetent patient.  This documentation will usually suffice in lieu of written consent forms except when institutional policies require otherwise.  The refusal may also be documented by a written treatment directive signed by the patient such as a living will or a Natural Death Act Directive; and

      c. A written order directing the withholding or withdrawal of the specific treatment.

        2. Decisions to withhold or withdraw life-sustaining treatment should be made in accordance with any applicable institutional policies or procedures.

G. USE of ETHICS COMMITTEES

         1. Many institutions have found a biomedical ethics committee functioning in an advisory capacity to be helpful in dealing with decisions to withhold or withdraw life support.

        2. Such committees may be helpful in discussing and exploring alternative approaches to the problem, clarifying legal or ethical issues, facilitating communications, resolving any disputes or questions among members of the healthcare team, or identifying perspectives on the issue not previously considered by the physician or the surrogate.  Such committees should not make treatment decisions, however.  Such decisions are to be made by the patient or the surrogate and the treating physician, as set forth in these Guidelines.

H. ROLE of the COURTS

        1. Most cases involving the forgoing of life-sustaining treatment can be, should be, and are, resolved without the involvement of the courts.

        2.  When necessary, the courts may be approached to resolve legal disputes, such as when healthcare providers cannot determine who the proper surrogate is, or believe that the surrogate is not acting in the patient’s best interests.

        3. Withholding or withdrawing life-sustaining treatment at the direction of a patient or appropriate surrogate does not legally constitute encouraging or participating in suicide.

        4.  Physician orders to withhold or withdraw life-sustaining treatment in appropriate circumstances do not create civil or criminal liability for the physician.

I. DURABLE POWER OF ATTORNEY for HEALTH CARE AND DOCUMENTATION
of PATIENT TREATMENT PREFERENCES

        1. Physicians should be familiar with the Durable Power of Attorney for Health Care, and should encourage its use because it identifies and appoints a person as surrogate decision maker without the need for court proceedings, offers the opportunity for discussion and reflection concerning treatment issues, and helps to assure that the patient’s wishes will be followed.  The Durable Power of Attorney for Health Care is generally the most powerful and flexible method available by which a person may attempt to assure future medical treatment in accordance with his/her preferences.  See Appendix II.

        2. Any communication by a patient concerning treatment preferences, whether written or oral, may provide helpful guidance in determining an appropriate course of treatment.  Written communications are often given greater weight by the courts because they reflect that the patient was sufficiently serious about his or her treatment preferences to document them.  Patients with clear treatment preferences should be encouraged to state them in writing, with copies provided to the physician for inclusion in the medical record.  Any oral statements of the treatment preferences should be documented in the medical record.

        3. Various methods for documenting treatment preferences, and the Durable Power of Attorney for Health Care, are discussed in more detail in Appendix II to these Guidelines.

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