Advanced Directives
The development of new life-saving technologies is accompanied by questions about the quality of life in terminal illness and prolongation of suffering.25 These advances have coincidentally occurred at a time when patient autonomy is increasingly being asserted. Together, the two trends have combined to create a conflict between paternalistic physicians who have always had dominion over life and death decisions and the patient’s wishes regarding the quality of his or her life.
Several landmark cases have had a tremendous impact upon these decisions, changing the entire fabric of medical decision making in the process.
Case of Karen Ann Quinlan
Karen Ann Quinlan was found unconscious following suspected ingestion of barbiturates and alcohol at a party. Following mouth-to-mouth resuscitation, Ms. Quinlan recovered but remained in a persistent vegetative state (PVS). Her family, witnessing her body waste away and given no hope for a recovery to a meaningful life, requested that the mechanical ventilator supporting her be removed and that Ms. Quinlan be allowed to die peacefully, in other words, "death with dignity."
The state took the position that such an act, removal of the ventilator, would cause her death and therefore constitute criminal homicide. The state sought to prevent the family from removing Ms. Quinlan from the ventilator.
The family felt that Ms. Quinlan, a devout Catholic, would not want to live by these extraordinary means, and that decisions on her behalf were a private family matter. The family also felt the state’s position constituted an invasion of privacy (i.e., the patient’s right to self-determination).
The New Jersey Supreme Court ruled in favor of the family, stating that the family’s right to privacy extends to matters of life and death. Ms. Quinlan was removed from the ventilator, started to breathe spontaneously, and survived for almost a decade.
The importance of the Quinlan case was that it recognized the patient’s right to make life and death decisions and preserved the patient’s autonomy. That case helped initiate the right to die movement.
Case of Nancy Cruzan
Nancy Cruzan was a young woman left in a persistent vegetative state (PVS) following head injuries sustained in a motor vehicle collision. Faced with the prospect of a bleak future, the family wanted Ms. Cruzan’s tube feedings stopped.26
The state of Missouri interceded, stating there was no "clear and convincing evidence" that Ms. Cruzan did not want to live this way. The appeals for this decision went all the way to the U.S. Supreme Court, who upheld the lower courts’ decision.
Subsequently, several of Ms. Cruzan’s friends came forward and testified, under oath, that they had had conversations with Ms. Cruzan in the past and that she indicated she would not want to live in a persistent vegetative state.
Had Ms. Cruzan made her intentions known to others earlier, or in a more definite manner (e.g., in a written letter), the controversy would have been averted.
The Cruzan case helped to establish the concept of advanced directives, a central tenant in the right to die movement. Advanced directives, written declarations of patient intent during specific circumstances, are designed to provide guidance when a patient is threatened with an existence in a persistent vegetative state or afflicted with a terminal illness.
Principles of Advanced Directives
Four core principles are included within the concept of advanced directives. These principles provide a foundation which sustains an advanced directive.
The first principle is that competent people can refuse medical treatment, even at their own peril. This statement affirms the patient’s right to self-determination.
Next, the interests of the state are subordinate to the will of a competent patient. If the competent patient, meeting all of the conditions of consent described earlier, makes a decision about his or her health care, then that decision is inconvertible.
The third principle supports making healthcare decisions in a healthcare setting as opposed to a court room. The idea is that the best patient care decisions are made by a partnership of physician and patient and that the courts are used only when an impasse is reached.
The fourth principle states that if a patient lacks the ability to make decisions, then the patient may assign a surrogate decision maker in her stead. A surrogate decision maker has the responsibility to know the patient’s preferences and must place the patients’ wishes before the surrogate’s wishes. This level of understanding usually involves a personal dialogue between the two individuals and frequently results in a written statement that helps to support the decision maker.
If the surrogate decision maker knows the patient’s wishes, then, in certain situations, the surrogate makes the decision in a process called substituted judgment. If the surrogate decision maker does not know the patient’s wishes for the specific situation that he or she is being presented with, but does know the patient’s wishes for similar situations, then the surrogate must make a decision on the presumption of what is in the patient’s best interest.
Patient Self-Determination Act of 1990
In 1990, following the public’s growing insistence that the patient should control the personal healthcare decisions, Congress passed the Patient Self-Determination Act (PSDA).27
Regulations within the act required hospitals to provide notice to all patients that they have several rights. First, the patient has a right to participate in and direct her own health care. Next, the patient has the right to refuse medical and/ or surgical treatments, up to and including the use of life-saving or life-preserving technologies. The patient also has a right to prepare an advanced directive, and the hospital should assist the patient with preparing an advanced directive. Finally, the hospital has a duty to assist the patient with those decision-making activities such as preparation of advanced directives, designation of a healthcare proxy, and assistance with the institution’s policies on how to utilize those rights.
Types of Advanced Directives
The intention of an advanced directive is to give the patient control over her own body and to provide guidance to others on how to proceed with healthcare decisions. In addition, these advance directives afford healthcare providers some immunity from criminal or civil prosecution for making decisions or taking actions on the patient’s behalf.
There are several advanced directive instruments which meet these objectives. The first, and perhaps original, advanced directive instrument is the living will. The living will, drawn up by a patient, and perhaps an attorney, details the patient’s wishes regarding specific healthcare decisions.
A living will might preclude certain treatments using terms such as "extraordinary treatment," "heroic measures," and "artificial life support." The use of these imprecise terms has led to confusion and are ineffective if death is not imminent. The states of New York, Massachusetts, and Michigan have rejected the use of living wills as the language therein was not "precise and convincing." These states and many others preferred the creation of a durable power of attorney for health care (DPAHC). A DPAHC is a surrogate decision maker, one who uses substituted judgment to guide the patient’s healthcare decisions.
The healthcare proxy, the title for the person who has a DPAHC, has a responsibility to review the medical record, to consult with healthcare providers, and to give consent to either initiate or to refuse care.
Do-Not-Resuscitate Orders
At some stage during the progression of a terminal disease the patient, or healthcare proxy, may decide that any artificial life support would be futile and that death is inevitable. In those cases, the physician, after consultation with the patient or healthcare proxy, will issue a Do-Not-Resuscitate (DNR) order (sometimes called a Do-Not-Attempt-Resuscitation (DNAR) order).
Paramedics are expected to honor a DNR order and not commence cardiopulmonary resuscitation (CPR), defibrillation, or other advanced life support measures when presented with a DNR.
The confusion lies in which treatments are life-sustaining versus life-prolonging. The provision of supplemental oxygen (e.g., via a partial rebreather mask) is generally considered to be life-sustaining and therefore acceptable. However, assisting ventilations with a bag-valve-mask assembly is thought to be life-prolonging and therefore unacceptable.
It is important that Paramedics establish with their medical directors, beforehand, which treatments are life-sustaining and which are life-prolonging.
There is general agreement that the provision of pain medication, for the purpose of palliative care, is life-sustaining and therefore acceptable. All forms of comfort measures (i.e., palliative care, including suctioning, repositioning, and analgesia) are considered humane and merciful.
Physician’s Order of Life-Sustaining Treatment
Physician’s Order of Life-Sustaining Treatment (POLST) is a more detailed description of the patient’s wishes, placed in the form of a physician’s order. This program was started in Oregon in 1991 as an answer to the issues that routinely occur in patients who may have a DNR order, but who have not yet progressed into cardiopulmonary arrest. Most states in the United States only allow Paramedics to honor DNR orders once the patient has become pulseless and apneic. They also do not allow Paramedics to honor living wills or other advanced directives. The advantage of the POLST program is the forms that are generated through a discussion between the patient and their physician that address specific situations including utilizing artificial hydration, nutrition, intubation, antibiotics, and other medical therapies. Many states that have instituted POLST programs allow Paramedics to follow these orders.
Confidentiality
An aspect of patient trust and provider veracity is the patient’s assumption of confidentiality. Inappropriate disclosure of sensitive patient information would be a failure on the part of the Paramedic and may well have a chilling effect on future Paramedic-patient relations. For this reason Paramedics share patient information only with those on a need-to-know basis.
The duty of maintaining patient confidentiality stems from a person’s right to privacy. In the past, this was more of a professional duty than a legal right. However, current laws protect a patient’s confidentiality to a greater extent.
A breach of confidentiality should not be confused with libel or slander. Libel occurs when a falsehood which is damaging to a person’s reputation is written or printed and then disseminated to the public. Slander occurs when defamatory lies about a person are told to others. Libel and slander involve the telling of an un-truth, whereas a breach of confidentiality is an act of unauthorized disclosure of private and personal patient information. Both libel and slander are actionable in a court of law.
Breaches of Patient Confidentiality
A patient’s confidentiality can be broken under some very specific circumstances. The American Medical Association (AMA) acknowledged this in a position paper which says that a physician may breach a patient’s confidentiality when required to do so by law.
As stated earlier, the courts hold the physician-patient relationship in high regard. Before making a decision to abridge a patient’s rights to privacy, the courts weigh the good of the community and the protection of the physician-patient relationship versus the individual’s rights. The disclosure is then limited to that which is necessary to the issue so as to protect the patient’s privacy rights.
Situations in which a Paramedic might be compelled by law to disclose confidential patient information may include gunshot wounds, contagious diseases, and/or child abuse and those cases where it is necessary to protect the welfare of another individual or the community. Laws in each state or jurisdiction may vary and the Paramedic should be familiar with applicable statutes that may impact him or her.
Limited Disclosure
The number of people who are directly, or indirectly, connected to the care of one patient is incredible. Literally dozens of people, from bedside caregivers to support services, to utilization review, billing, and quality assurance, all have access to a patient’s confidential record.
The concept of legitimate interest comes into play when deciding if patient information should be shared. A Paramedic should only provide confidential patient information to those who have a need to know, and then only to the extent that that is needed. For example, an admission clerk does not need to know the patient’s HIV status, yet does need to know if the patient has been previously admitted. A notable portion of people in the medical chain will need confidential patient information (Table 6-2).
Table 6-2 Information Dissemination
|
• |
Paramedic |
|
• |
ER MD and RN |
|
• |
Billing clerk |
|
• |
Utilization reviewer |
|
• |
Infectious disease RN |
|
• |
Public health service |
|
• |
CDC |
|
• |
Media—reporting outbreak |
Health Insurance Portability and Accountability Act
The U.S. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in 1996.28, 29 HIPAA provides for criminal penalties for inappropriate disclosure of patient information. It also establishes a number of protections for the patient’s right to privacy. HIPAA was enacted, in part, to stem the electronic transmission of patient information to unauthorized parties.
HIPAA restricts the distribution of confidential patient information to only those with a legitimate interest, such as consulted healthcare professionals, those providing patient treatment, coding and billing offices, and specific managerial functions, such as quality assurance and utilization review.30 Patient information may be used for training and education provided that all identifying information is removed or the patient consents.
HIPAA also requires that every healthcare agency, including EMS, appoint a privacy officer. The privacy officer is responsible for patient record security, record security awareness training of all employees, as well as implementing a privacy protection plan within the agency.
In the future, Paramedics may be required to provide patients with a notice of privacy practices for the EMS agency. That may include information about what confidential patient history is considered to be protected health information (PHI).
Disclosure to Law Enforcement
On occasion, law enforcement officers will request specific information about a patient. In most cases, the disclosure of confidential patient information to another could be a violation of the HIPAA regulations. Generally, the officer should be provided with information which is required by law. The patient’s name and address can be shared but all other requests for information should be denied until the patient signs a release of information or a subpoena is served.31
Employment Law
The Paramedic, whether career or volunteer, is an employee of the EMS agency. As such, the Paramedic is afforded certain protections as a result of Congressional acts. The following is a gross overview of those laws which may pertain to the Paramedic. Other laws, both local ordinances and state statutes, may also apply to the Paramedic. Therefore, every Paramedic is advised to become aware of the relevant legal environment and seek legal counsel when appropriate.
Americans with Disabilities Act
Congress passed the Americans with Disabilities Act (ADA) to protect those citizens who had suffered hardship or discrimination from employers. The ADA prohibits discrimination based on disability in hiring, promoting, training, and retiring. To be included in the class of protected persons, the individual must have a permanent disability which limits full participation in the activities of daily living (ADL).
The ADA does not imply that, for example, the hearing-impaired person must be hired as a Paramedic. Clearly, some jobs require specific skills and capabilities. These skills and capabilities are generally described in the position’s functional job description. The tasks described therein are those that are needed to perform the function and exclude rare or marginal job functions.
Perhaps more importantly, the ADA establishes that reasonable accommodations must be made, whenever possible, which would permit the disabled person to function. New technologies are ever increasing the capacity of disabled citizens to perform varied and vital functions, many within EMS.
Title VII
Title VII, the Civil Rights Act, provides the employee with certain rights (e.g., freedom of religious expression, etc.). Recently, a great deal of notoriety has been given to the right of employees to be free of sexual harassment.
Sexual harassment can be as blatant as demands of sex in exchange for career advancement, a quid pro quo. In many cases, the charge of sexual harassment stems from a perception of a "hostile working environment." A hostile working environment is one that is intended to humiliate or intimidate the worker because of gender. Examples of a hostile working environment include displays of sexually explicit pictures, uninvited kissing or embracing, or flagrant sexual humor.
Every EMS agency should have a policy forbidding sexual harassment and that policy should include a complaint process. Most complaint processes start with an internal investigation of the inappropriate conduct and end with a resolution that can vary from counseling and reassignment to termination.
Amendments to Title VII
Since its passage through Congress, Title VII has had several amendments added. One of them, the Age Discrimination in Employment Act (ADEA), prohibits the discrimination of those over the age of 40. Another, the Equal Pay Act, requires that pay be based on seniority or merit and not personal preference.
EMS and the Fair Labor Standards Act (FLSA) have come into conflict from time to time. The FLSA is intended to guarantee that all employees are paid the minimum wage as well as receive overtime for working extended hours past the normal workweek.
Over the years, employers have created a large number of work patterns and arrangements in order to meet the public’s demand for round-the-clock EMS coverage. These arrangements include on-call pay, per diem pay, stipends, and the like. Some of these arrangements had to be modified to meet the requirements of the FLSA.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) requires that employers with more than 50 employees provide their employees 12 weeks of unpaid leave for purpose of childrearing.
Many employers have embraced the FMLA by creating family leave policies, believing that employees who are afforded the opportunity to establish their families and then return to work will be happier and more productive.
Conclusion
The acts, laws, and regulations which affect a Paramedic are intended to either protect the Paramedic or to provide for the patient’s protection. Careful attention to these laws, both in letter and in spirit, will help the Paramedic provide safe and effective care.
key points:
• Case law is developed from compiled case decisions and assures fairness through consistent application of the law.
• Different units or departments carry out various functions of government. Each department may be regulated by rules or regulations that are not statutory laws but carry the same force.
• Criminal law is a violation of a person’s duties to the community; therefore, the prosecutor is the state and the case is tried in a criminal court.
• An appeal is a request for the appellate court to change the decision issued by the trial level court.
• Civil law is the system of law concerned with private disputes between members of the community.
• A tort is a civil or private wrongful act, other than a breach of contract, resulting in some type of injury or harm (not necessarily physical injury).
• Simple negligence is the Paramedic’s failure to exercise the degree of care that a prudent person, under the same or similar circumstances, would exercise.
• Gross negligence involves intent on the Paramedic’s part to willfully or with reckless disregard cause the patient harm.
• For a tort of malpractice to be actionable against a Paramedic, it must have the four elements of tort. First, the Paramedic must have a duty to act. Second, it must be shown that the Paramedic breached his duty (standard of care). Third, there is actual harm or damages as a result. Fourth, proximate cause of harm must be shown.
• Good Samaritan laws protect healthcare providers from liability for negligent acts that are performed in the course of providing assistance when there is no duty to act or respond. Although these laws do not provide immunity from lawsuits, the Good Samaritan acts do provide the Paramedic with legal defense to counter a complainant’s claim of negligence.
• Standard of care is the care and treatment that another Paramedic with the same or similar training would have rendered in the same or similar situation.
• Malfeasance is the performance of an inappropriate procedure.
• Misfeasance is the situation when a Paramedic performs the right procedure but performs it incorrectly.
• Nonfeasance is the failure to perform the correct or required procedure, which would be an error of omission.
• Damages are compensation awarded to the patient for some injury or loss.
• The Paramedic is responsible for directing and supervising the patient care performed by any other EMS providers on the team with less training than the Paramedic.
• The process of a civil lawsuit begins with the Paramedic being served papers by a process server.
• The purpose of the pretrial discovery phase is to provide both parties with sufficient information to decide how to proceed with the case.
• Immunity is usually granted when the Paramedic is required by law to report a crime, called mandatory reporting, and the Paramedic does so in good faith.
• A motion is a request to the judge for some action.
• The best defense against a successful lawsuit is to practice within the Paramedic’s scope of practice, to practice to the standard of care within the EMS system, to observe the patient’s rights, and to completely and thoroughly document one’s actions.
• The significance of patient consent is that the patient makes a rational decision based on information that the Paramedic provides.
• To obtain a valid legal consent, the patient must be of sound mind and have the capacity to understand what is being offered.
• The patient’s consent must be voluntary and the patient cannot be coerced into consenting.
• In rare instances disclosure is contraindicated from a medical point of view if the disclosure poses a threat or detriment to the patient.
• Consent protects the patient’s right to choose, decreases legal charges against providers, and can have a therapeutic benefit in and of itself.
• A law enforcement officer can provide involuntary consent during a life or limb emergency when a patient is in custody. Similar circumstances apply to patients who are under the control of mental health officials.
• Emancipated minors are those youths under the age of 18 who are married, enlisted in the armed forces, or have petitioned and have legal documentation of emancipation. Also, once an adolescent female is a mother she is capable of consenting for treatment for herself and her children.
• Similar to consent for an adult, obtaining consent for a child requires the parent to be capable of understanding the consequences of the decision to accept the treatment, the risk/benefit, as well as the consequence if treatment is refused.
• If the child has been left in the custody and care of another adult, that adult has been given loco parentis and has the authority to provide consent.
• In rare cases, a parent may refuse treatment and transportation for a child. If the parent still refuses to give consent after attempts to convince him care is needed, it may be necessary to involve a law enforcement officer and invoke child protective laws.
• Paramedics may encounter a patient experiencing a behavioral emergency. In a situation in which the patient does not want to go voluntarily, it may be necessary for either the Paramedic or the officer to invoke the mental health law and to restrain the patient in order to protect the patient from himself or herself or to protect others from the patient.
• Following restraint, it is imperative that the Paramedic periodically reassess the patient and document the continued need and use of restraints. The least restrictive, but effective, restraint should be used.
• In the case where the patient can consent, and yet still refuses care, the Paramedic needs to carefully proceed with a refusal of medical assistance (RMA). The Paramedic should proceed with a complete description of the illness or injuries that he or she has sustained and the potential complications that could arise if the illness or injuries are not treated.
• Paramedics should offer assistance to the limit that the patient will accept.
• Generally, patients are transported to the closest appropriate medical facility. Circumstances may occur necessitating diversion from the closest hospital to a hospital equipped to handle the patient’s particular emergency.
• High-profile cases such as the Quinlan case emphasized a patient’s right to self-determination, while the Cruzan case showed that written directives would have provided guidance when in a vegetative state.
• Types of advanced directives include the living will, healthcare proxy, and DNR order.
• In cases of a terminal disease, the patient, or healthcare proxy, may decide that any resuscitation efforts should not be performed. A physician can issue a Do-Not-Resuscitate (DNR) order or a Do-Not-Attempt-Resuscitation order (DNAR).
• Confidentiality is the nondisclosure of sensitive patient information and stems from a patient’s right to privacy. Libel occurs when a falsehood, which is damaging to a person’s reputation, is written or printed and then disseminated to the public. Slander occurs when defamatory lies about a person are told to others.
• A Paramedic should only provide confidential patient information to those who have a need to know to the extent that that is needed.
• The Health Insurance Portability and Accountability Act (HIPAA) established a number of protections for the patient’s right to privacy.
• The Americans with Disabilities Act (ADA) prohibits discrimination based on disability in hiring, promoting, training, and retiring. The ADA also asserts that reasonable accommodations must be made, whenever possible, which would permit the disabled person to function.
• Some jobs require specific skills and capabilities that are generally described in the position’s functional job description.
• The Civil Rights Act, Title VII, provides employees the right to be free of sexual harassment in the workplace. Amendments to Title VII include the Age Discrimination in Employment Act that prohibits the discrimination of those over the age of 40 and the Equal Pay Act that requires pay to be based on seniority or merit, not personal preference.
• The Family and Medical Leave Act provides employees 12 weeks of unpaid leave for purposes of childrearing.
