The law presumes that every adult is competent to make his or her own health-care decisions, and that no one has authority to make such decisions for the individual unless (a) the individual has voluntarily given that person authority to do so or (b) a court has determined the individual “incompetent” to make such personal decisions and has appointed another as guardian or conservator for the individual. The following addresses how you can make sure your health care decisions are made effectively and in keeping with your wishes.
Advance Health-care Directive. The Uniform Health-Care Decisions Act of Mississippi (MCA §41-41-201, -209) prescribes the “Advance Health-Care Directive” (AHCD) as the instrument by which a person with mental capacity can designate an agent who will be able to make health-care decisions for the maker. An adult in Mississippi is entitled to make his own medical treatment and health-care decisions, and maintain the privacy of his own medical information, unless someone else has legal authority to do so. This includes the right to implement, alter and refuse medical treatment. However, one may lose this capacity through illness or injury, and medical providers may be reluctant to render non-emergency treatment without consent of someone with lawful authority to approve such measures. The AHCD allows one to control and direct personal health-care decisions after the onset of any future incapacity.
Section 1 of the AHCD is the health-care power of attorney, in which one or more persons may be listed in the maker’s order or choice and designated as agents to make medical and health-care treatment decisions for the maker. The maker can select whether the agent may make such decisions without prior determination of the maker’s incapacity, or whether one or more doctors must first determine the maker’s incapacity before the agent can make decisions for her. In Section 2, the maker can state any personal health-care decisions, such as about keeping or removing life-support treatments or tube-fed food and liquids in the event of terminal illness, and other choices concerning medical treatment based on the maker’s own personal values. In the optional Section 3, the maker may list the name and contact information about her personal physician. Section 4, added in 2006, allows organ donation instructions in the directive.
In light of the stringent privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA) governing the release of personal medical information, it is wise to include specific language in the AHCD that identifies the agent as your “personal representative” who is entitled to request and receive your medical information for HIPAA purposes.
Family communication about health-care decisions. It is not enough to have an AHCD document signed. Personal values and choices about health-care and end-of-life issues should be discussed with loved ones who will be expected to make such decisions. The law generally requires that a health-care agent, to the extent he has reason to know the decision that the principal would make for himself under the circumstances, must make that decision also. This is called the “substituted judgment” rule, because the judgment of the incapacitated principal must be substituted for the independent decision of the agent. If the agent has no basis to know what the principal would choose in the situation, then the agent must act in the best interest of the principal (the “best interest” rule). Therefore, the principal must communicate her values and choices about medical care and end-of-life treatment to the agent before the need to use the directive arises. (This failure to clearly communicate personal wishes and values in end-of-life situations to her spouse and family was the greatest problem for Terri Schiavo, the severely brain-injured young Florida woman who remained on life support for over 16 years while family members fought in court to determine whether her life support should be removed.) Our firm provides some very helpful tools (developed by The American Bar Association Commission on Legal Problems of the Elderly) to assist an individual in selecting an appropriate agent for her AHCD and communicating personal values about medical care and end-of-life treatment, as well as guidelines to help the agent understand how to carry out such role in the event of the principal’s incapacity.
Once a person has lost the capacity to make personal health-care and medical treatment decisions, he may no longer establish the terms and limitations on those decisions that will be made for him. Others may be able to make such decisions under involuntary legal processes as outlined below.
HIPAA. Even when the patient is not present, or emergency circumstances or the patient’s incapacity may prevent the covered entity from asking the patient’s consent to discuss her care or payment with a family member or other person, HIPAA permits a covered entity to share this information with the third person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR §164.510(b). Thus, for example:
- A surgeon may, if consistent with such professional judgment, inform a patient’s child, who accompanied her parent to the emergency room, that the patient has suffered a heart attack and provide periodic updates on the patient’s progress and prognosis.
- A doctor may, if consistent with such professional judgment, discuss an incapacitated patient’s condition with a family member over the phone.
Call us today for assistance with your health care decision-making and other important planning.