End of Life Planning Takes Center Stage at Health Care Reform Debates
While tuning in to a NPR broadcast last week, the subject invariably turned to the recent health care reform “town hall” meetings and the legislators behind them. The guest speaker on that particular morning’s broadcast was Senator Robert Menendez (D-New Jersey), and the segment featured a clip of him addressing a frenzied town hall crowd during a discussion on end-of-life care and how a national health care plan may incorporate the issue.
During the broadcast, Menendez noted that contrary to the sentiments voiced by some opponents (i.e., such as Former Alaska Governor Sarah Palin), the proposed health care legislation does not include the creation of a “panel” which will ration health care to seniors or those with terminal illnesses. Instead, the legislation incorporates the use of “end of life" or "advance care" treatment consultations and provides coverage for patients to engage in discussions with their doctors about end of life care. Menendez also explained that this provision had created quite a bit of misunderstanding and confusion among the public, although the aim of the legislation is simply to increase communication between patient and doctors. To which, the NPR correspondent offered the query of: “Wouldn’t it just be easier to cut it out altogether?”
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While doing so may certainly lead to less public outcry, it may also diminish the use of such end-of-life treatment consulations, which are an effective method of reducing the costs of health care and easing the emotional burdens on patients and their families who are faced with terminal illnesses or other end-of-life decisions. Specifically, a recent study published by the AMA’s Archives of Internal Medicine found that “patients with advanced cancer that reported having [end of life] conversations with physicians had significantly lower health care costs in their final week of life,” while “higher costs were associated with worse quality of death.” Further, the study’s findings suggested that if end of life discussions increased to only 50 percent, there would be a cost difference of $76,466,891 between individuals who had end of life discussions versus those who had not. (This cost savings figure was based solely on the number of cancer deaths in the United States per year and did not factor in other terminal illnesses, diseases or causes of death.) See Health Care Costs in the Last Week of Life: Associations With End-of-Life Conversations, Arch Intern Med. 2009; 169(5):480-488.
From a purely legal perspective, having simple discussions with one’s medical provider can certainly help ensure that patients' end-of-life wishes are communicated. While not specifically addressed in the proposed legislation, an additional tool that may be employed is the use of “advanced directives” or legal documents that patients can execute to direct their medical treatment should they become incapacitated or unable to communicate their wishes.
What is an Advance Directive?
Advance directives are also commonly referred to as a living will, power or attorney, or patient advocate designation. While such legal protections ease the burden on patients, families and health care providers - both emotionally and financially - they are largely under-utilized. In 2003, the Agency for Healthcare Research and Quality found that less than 50 percent of severely or terminally ill patients had an advance directive in their medical record, and up to 76 percent of physicians whose patients did have an advance directive were not aware that it existed.
Patient advocate designations allow patients to name an individual (known as a patient advocate, proxy or agent) to make medical decisions on their behalf, including the use of life-prolonging health care, mental health treatment and anatomical gifts, in the event the patient becomes incapacitated. Living wills are similar to designations in that they memorialize a patient’s health care wishes; however, they do not involve the appointment of a patient advocate.
State laws determine how advance directives may be created, suspended and revoked, so patients should take care to meet the requisite state legal requirements. At this time, Michigan does not have a statute governing living wills. However, in order to properly execute a patient advocate designation in Michigan, the designation must be signed by the patient and two witnesses (in general, family members and/or individuals who stand to inherit from the estate may not witness a designation), and the patient advocate must sign an acceptance.
Copies of advance directives should be kept in the patient’s medical record and provided to the patient advocate, physicians, family members, friends and anyone else who may become involved in a patient’s health care.
Suspending and Revoking Advance Directives
While choosing a patient advocate is undoubtedly a weighty consideration, individuals should not be reluctant to execute advance directives. Generally, it is easier to suspend or revoke an advance directive than to create one. Patients should understand that a designation only takes effect after two physicians determine, in writing, that a patient is unable to make medical treatment decisions, and the designation is suspended when the patient regains the ability to participate in medical treatment decisions. Additionally, even if the patient is unable to participate in medical treatment decisions, a patient may revoke a designation at any time and in any manner by which he or she is able to communicate intent to revoke the designation.
Designations are automatically revoked if a patient dies; if the patient advocate resigns or is removed by a probate court for failing to act in the patient’s best interests; if the patient executes a subsequent designation; or if the patient appointed his or her spouse as the patient advocate and the marriage ends.
At its core, the purpose of advance directives is to honor a patient’s right to control decisions about his or her own health care and death. However, on a practical level, advance directives provide guidance for health care providers and eliminate conflicts between multiple decision-makers, thereby allowing physicians, patient advocates and families to efficiently make health care decisions in line with a patient’s individual values and wishes.
Conclusion
While the specific use of advanced directives has not been incorporated into the proposed legislation, it is important that lawmakers such as Senator Menendez choose not to run away from including such end-of-life planning measures. Instead, legislatures should focus their efforts on ensuring that the public is aware of the necessity and benefits of end-of-life planning.*
*The opinions expressed in this post are solely those of the author, and do not necessarily reflect the opinions of other attorneys at Frank, Haron, Weiner and Navarro. The author further wishes to thank Maro E. Bush for her contributions to this post.
