Common law dictates that individuals possess autonomy and self-determination, which encompasses the right to accept or refuse medical treatment. Management of medical treatment can be complicated when the patient’s ability to make reasonable decisions is called into question. Our legal system endorses the principle that all persons are competent to make reasoned decisions unless demonstrated otherwise in a court of law. The capacity to make one’s own decisions is fundamental to the ethical principle of respect for autonomy and is a key component of informed consent to medical treatment (Karlawish, 2016). Determining whether an individual has adequate capacity to make decisions is, therefore, an inherent aspect of all clinician-patient interactions. This paper will discuss the laws that govern the competent patient’s right to choose, the determination of an incompetent patient and decision-making on their behalf, as well as the Long-Term Care Ombudsman Program federally mandated by the Older Americans Act.
Self-Determination Laws
In 1990, the 101st Congress passed legislation requiring healthcare agencies to ensure that patients receive information about their legal right to make informed decisions related to their personal health. The law requires that patients be given the knowledge and tools needed to
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create written instructions, and/or to appoint a healthcare surrogate to make decisions on their behalf should they lose mental capacity. This law, known as the Patient Self-Determination Act of 1990, focused attention on the patient’s right to determine what happens to them, and made advance directives a necessary discussion between patient and provider (U.S. Congress, 1990). The concept of self-determination has legal roots in the 1891 court case of the Union Pacific Railway Co. vs. Botsford, when the court ruled against the railway company’s request that Botsford yield to a surgical examination to prove Botsford’s injuries were not caused by the railroad, as she claimed in her lawsuit against them. The court decision supported the common law belief that control over one’s body is one of the most sacred values of a free society (Standler, 2012). Common law is the term used to describe how legal decisions are made in civil court decisions, often based on previous case outcomes instead of criminal case laws (Common Law, 2016). Many court cases since that 1891 decision clearly indicate that common law precedents protect the rights of citizens to refuse care, even if the result of refusal is detrimental (Standler, 2012). For the ethical healthcare provider, acceptance of the patient’s right to refuse care requires that the patient is competent to make that choice. Competence versus Capacity Winland-Brown and Waggle (2012) assert that competence is a legal status, attributable to all persons who are 18 years and older, allowing them to give consent for healthcare procedures, unless they have been deemed incompetent by a court proceeding. Having adequate mental skills, known as capacity to consent to or refuse treatment, is determined by a clinical assessment of a person’s ability to understand the risks, benefits, and alternatives of the care plan presented (Winland-Brown & Waggle, 2012). A person can be legally competent, yet lack capacity to give consent for treatment because of an acute state of delirium. In such cases, consent must be obtained from a substitute decision-maker, which can be the healthcare proxy, power of attorney, or healthcare surrogate (Jett, 2012). Healthcare Surrogacy The doctrine of informed consent establishes the inclusion of certain elements so that a patient’s right to autonomous self-determination are legally and ethically protected.
Those elements include: a) full disclosure of the risks, benefits, and alternatives; b) the patient is capable of understanding; and, c) the patient is not coerced in the decision-making process (Buppert, 2012). When a patient lacks capacity to exercise executive functions for managing their own health or other affairs, the court system may be needed to appoint a legal guardian or conservator who will honor the patient’s wishes in the least restrictive way (Jett,
2012). A patient who has executed advanced directives, including a healthcare power of attorney, can be spared influence from court orders regarding healthcare decisions, as long as the power of attorney retains capacity for decision-making on the patient’s behalf and outlives them. Sometimes, however, patients create advance directives and never update them, even when the selected surrogate dies. In such cases, a patient who lacks capacity may need family or facility intervention to obtain a court-appointed guardian (Jett, 2012). The process requirements vary based on the laws of each state. Obtaining guardianship in the court system yields legal remedies for people who can no longer make healthcare decisions. The first step to a guardianship appointment is a court hearing, which declares the patient as incompetent or incapacitated. This adjudication makes the patient dependent on the court-appointed guardian to make healthcare choices in his or her best interest. An incompetent person loses the ability to be autonomous and self-directed, creating the possibility for the patient to be exploited. Another court proceeding is required for an incompetent person to be adjudicated as competent in order to restore his/her right of self-determination (Arias, 2013). Long-Term Care Ombudsman Program Disagreements within a nursing home can arise regarding any number of topics, including the quality of food, troublesome roommates, lack of privacy, or services not meeting what was promised. Many disputes can be resolved by speaking with a nursing home staff member, supervisor, or moving up the chain of command. When problem resolution within the nursing home organizational structure fails, the next step is to contact the local ombudsman assigned to the nursing home. An ombudsman is an advocate for residents of nursing homes, board and care homes, and assisted living facilities who is trained to resolve problems. Under the Older Americans Act, every state is required to have a Long-Term Care Ombudsman Program (LTCOP) that addresses complaints and advocates for improvements in the long-term care system (Administration for Community Living [ACL], 2016). The statewide programs are federally funded under Titles III and VII of the Act and other federal, state, and local sources. An ombudsman helps improve the quality of life and the quality of care available to the residents. While ombudsmen do not have direct authority to require action by a facility, they have the responsibility to negotiate on a resident's behalf and to work with other state agencies for effective enforcement (ACL, 2016). In addition to resolving complaints, ombudsmen may provide information about how to select a nursing home, answer questions about long-term care facilities, help people find the services they need in the community instead of entering a nursing home, and provide education on residents' rights. The LTCOP is supported by local staff and volunteers committed to improving and enriching the lives of institutionalized older persons. One goal of the LTCOP is to have volunteers at each facility in the state to work with the facility and surrounding community (ACL, 2016). The Area Agency on Aging provides local supervision and support for the volunteers, and the state ombudsman office staff provides additional support (ACL, 2016). Training in skills such as problem solving and communication, the processes of aging, and long-term care facility regulations are provided by the LTCOP for volunteers. Thousands of local ombudsman staff and volunteers work in hundreds of communities throughout the country assisting residents and their families providing a voice for those unable to speak for themselves (ACL, 2016). Conclusion When a patient is deemed to lack capacity, the interests of the patient must be respected as conveyed in advance directives or living wills. Surrogate decisions are necessary if no directives are available. Primary care providers can reduce some of the potential uncertainties by introducing the benefits of advance directives and the designation of a health care proxy in discussions with their patients. In this way, the patient's autonomy and self-determination can be ensured should he or she become incapacitated and unable to make reasoned decisions. Additionally, the LTCOP is funded with government dollars, so residents and families do not have to pay for ombudsmen services. Residents of nursing homes and other long-term care facilities, as well as their families, have a right to quality care that is free from abuse, neglect, discrimination, or retaliation.
Autonomy is a concept found in moral, political, and bioethical reasoning. Inside these connections, it is the limit of a sound individual to make an educated, unpressured decision. Patient autonomy can conflict with clinician autonomy and, in such a clash of values, it is not obvious which should prevail. (Lantos, Matlock & Wendler, 2011). In order to gain informed consent, a patient
According to Terrence F. Ackerman, as of the 1980s the American Medical Association had to include the respect for a person’s autonomy as a principle of medical ethics (Ackerman 14, 1982). This includes having the physician provide all the medical information to the patient even if the information could cause negative implication onto the patient. The physician is also expected to withhold all information of the patient from 3rd parties (Ackerman 14, 1982). Although it is seen as standard in today’s world, in
Why is important for the HIPAA and the Bill of Right work in the healthcare system.
In this paper, I will be arguing a that in the Please Let Me Die case, the patient did not give informed consent to rejecting treatment due to a variety of factors. In summary, the patient was a 25-year-old male named Dax Cowart who suffered severe burns over 65% of his body after a propane gas explosion. He had several fingers amputated and his right eye removed after he was stabilized. He was discharged with minimal use of his hands, totally blind, and needed assistance with daily activities. He asked that treatment be discontinued throughout his hospital stay and rehabilitation, but his request was denied because his physicians deemed him not competent. I believe he was not competent because of his injuries; as is said about many patients
The individual will need to be encouraged to make decisions about the care they receive and the type of life they want to live and also ensure that their families are part of the decision making process.
Prior to discussing why Advanced Directives are so essential the definition of Advanced Directives is crucial. An Advanced Directive is made up of several legal components which ultimately online the patient’s wishes if one was to be incapacitated or unable to verbally make wishes know regarding healthcare. The understanding of what a living will and a durable power of attorney both need to be discussed before one is able to compare and contrast. A living will ensures that anyone reading this paper will understand how the patient wanted to continue their form of treatment. With a living will anyone ranging from patients to healthcare professions should be able to determine the specific actions the patients would want taken if they are unable to make said wishes known. A
In this context, new emphasis is being placed on the rights of patients. Recent federal legislation, for example, requires all health care facilities receiving Medicare or Medicaid monies to inform patients of their right to make medical treatment decisions. This includes the right to specify "advance directives," [1] which state what patients wish to be done in case they are no longer able to communicate adequately.
Autonomy is an important ethical principal that should be considered with great attention, especially with the limitation of personal autonomy one finds in hospitals. Burkhardt (2008) and Nathaniel define autonomy as self-governing and describe it as including four elements, the ability to determine personal goals, decide on a plan of action, to be respected, and to have freedom to act on choices. In John’s situation, his vulnerability in contrast to the power that the health care professionals hold over him put all four of these elements into jeopardy. Since his advance directive and his current choices differ, the matter of respec...
Patients are ultimately responsible for their own health and wellbeing and should be held responsible for the consequences of their decisions and actions. All people have the right to refuse treatment even where refusal may result in harm to themselves or in their own death and providers are legally bound to respect their decision. If patients cannot decide for themselves, but have previously decided to refuse treatment while still competent, their decision is legally binding. Where a patient's views are not known, the doctor has a responsibility to make a decision, but should consult other healthcare professionals and people close to the patient.
his own life how he wishes, even if it will damage health or lead to
The major implication of this decision is that each state decides the type of evidence required to withhold or withdraw medical treatment from an incompetent patient. The state ...
Alan Goldman argues that medical paternalism is unjustified except in very rare cases. He states that disregarding patient autonomy, forcing patients to undergo procedures, and withholding important information regarding diagnoses and medical procedures is morally wrong. Goldman argues that it is more important to allow patients to have the ability to make autonomous decisions with their health and what treatment options if any they want to pursue. He argues that medical professionals must respect patient autonomy regardless of the results that may or may not be beneficial to a patient’s health. I will both offer an objection and support Goldman’s argument. I will
Personal autonomy refers to the capacity to think, decide and act on one's own free initiative (Patient confidentiality & divulging patient information to third parties, 1996). For a patient’s choice to be an autonomous choice, the patient must make his choice voluntarily (free of controlling constraints), his choice must be adequately informed, and the patient must have decision-making capacity (he must be competent) (Paola, 2010), therefore Physicians and family members should help the patient come to his own decision by providing full information; they should also uphold a competent, adult patient's decision, even if it appears medically wrong (Patient confidentiality & divulging patient information to third parties, 1996).
Self-determination theory is one that assumes all humans are born with an innate drive to better oneself, basically becoming self-actualized, which is referred to as full-functioning. In self-determination theory, or SDT, full-functioning is characterized as “being aware and mindful, acting autonomously…, and pursuing and attaining intrinsic life goals” (Deci, Ryan, and, Guay 2013). SDT describes three autonomous behaviors: intrinsically motivated, extrinsically motivated, and emotionally motivated. SDT also describes three psychological basic needs of every human: the needs for competency, autonomy, and relatedness. The need for competency causes people to try tasks slightly tougher than they can currently manage, in order to improve upon