MASSACHUSETTS - ADVANCE DIRECTIVES FOR HEALTH CARE (LIVING WILLS)

January 1, 2008

Massachusetts state laws and regulations that affect your medical practice

1. What is an advance directive for health care?

An advance directive is a witnessed written document that allows the patient to direct who will make health care decisions for the patient and to state his or her wishes for medical treatment if the patient becomes unable to make those decisions in the future. The patient's advance directive may be used to accept or refuse any procedure or treatment, including life- sustaining treatment. The Massachusetts Health Care Proxy lets patients name someone to make decisions about the patient's medical care, including life support, if the patient can no longer speak for himself. All Massachusetts citizens have the constitutional right to state their wishes about medical care in the event they develop a terminal condition that prevents them from making their own medical decisions.

Massachusetts General Laws Annotated, Chapter 201D

A. Competent adults have the fundamental right to control decisions about their health care. In order that this right should not be lost in the event a patient loses decision making capacity, Massachusetts recognizes the right to plan ahead for health care decisions through the execution of advance directives.

B. Modern advances in science and medicine have made possible prolonging the lives of seriously ill individuals without always offering the prospect of improvement or cure. While for some individuals, the possibility of extended life is desirable, for other individuals, the artificial prolongation of life is seen as extending suffering and prolonging the dying process. Massachusetts recognizes the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging treatments withheld or withdrawn.

C. The right of individuals to forego life-sustaining measures is not absolute and is subject to certain interests of society. These interests include the preservation of life, the protection of individuals from purposeful self-destruction, motivated by a specific intent to die; the protection of innocent third parties (i.e. minor children) who may be harmed by the patient's decision to forego therapy; safeguarding the ethical integrity of the health care professions; and ensuring the soundness of health care decision making.

3. What is a health care proxy?

A health care proxy is a document delegating to an agent the authority to make health care decisions. The health care proxy identifies the patient and the health care agent; indicates that the patient intends the agent to have authority to make health care decisions on the patient's behalf; describes the limitation, if any, that the patient intends to impose upon the agent's authority; and indicates that the agent's authority shall become effective if it is determined that the patient lacks capacity to make health care decisions. An agent shall have the authority to make any and all health care decisions on the patient's behalf that the patient could make, including decisions about life-sustaining treatment.

Massachusetts General Laws Annotated, Chapter 201D, §2, §4, §5

4. Are there any restrictions on health care proxies?

An adult must be competent to execute a health care proxy. It shall be in writing signed by such adult or at the direction of such adult in the presence of two witnesses who shall affirm in writing that the patient appeared to be at least 18 years of age, of sound mind and under no constraint or undue influence. No person who has been named as the patient's agent in a health care proxy shall act as a witness to the execution of the proxy.

Massachusetts General Laws Annotated, Chapter 201D, §2

5. When does a health care proxy go into effect?

The authority of a health care agent shall begin after a determination is made that the patient lacks the capacity to make or to communicate health care decisions. Such determination shall be made by the attending physician according to accepted standards of medical judgment. The determination shall be in writing and shall contain the attending physician's opinion regarding the cause and nature of the patient's incapacity as well as its extent and probable duration. This written determination shall be entered into the patient's permanent medical record.

Massachusetts General Laws Annotated, Chapter 201D, §6

6. What if the patient objects to his agent's health care decision?

If the patient objects to a health care decision made by an agent pursuant to a health care proxy, the patient's decisions shall prevail unless the patient is determined to lack capacity to make health care decisions by court order.

Massachusetts General Laws Annotated, Chapter 201D, §6

7. What happens when the attending physician determines that the patient has regained capacity?

The authority of the agent shall cease, but shall recommence if the patient subsequently loses capacity and the patient's consent for treatment shall be required.

Massachusetts General Laws Annotated, Chapter 201D, §6

8. Can a health care proxy be revoked?

Yes. A patient may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act. Every patient is presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order. A health care proxy shall also be revoked upon execution by the patient of a subsequent proxy or the divorce or legal separation of the patient and his spouse, where the spouse is the patient's agent under a health care proxy. A physician must immediately record the revocation in the patient's medical record and notify orally and in writing the agent and any health care providers known by the physician to be involved in the patient's care.

Massachusetts General Laws Annotated, Chapter 201D, §7

9. Can a physician be found liable for carrying out a health care decision by an agent?

No. No health care provider or employee thereof shall be subject to criminal or civil liability or be deemed to have engaged in unprofessional conduct, for carrying out in good faith a health care decision by an agent pursuant to a health care proxy.

Massachusetts General Laws Annotated, Chapter 201D, §8

10. Does the State of Massachusetts permit mercy killing?

No. The State of Massachusetts does not condone, authorize or approve suicide or mercy killing or permit any affirmative or deliberative act to end one's own life other than to permit the natural process of dying.

Massachusetts General Laws Annotated, Chapter 201D, §12

11. Is there a duty for physicians to provide comfort care?

Yes. An attending physician should provide comfort care or pain alleviation through treatment with sedation and pain-killing drugs; non-artificial oral feeding; suction; and hygienic care.

Massachusetts General Laws Annotated, Chapter 201D, §12

12. Must a physician honor an agent's health care decision that is contrary to his moral or religious views?

No. There is no requirement for a physician to honor an agent's health care decision that the physician would not honor if the decision had been made by the principal because the decision is contrary to the moral or religious views of the physician. However, the patient must be transferred to another physician in the same facility or in an equivalent facility that is reasonably accessible to the patient's family who is willing to honor the agent's decision. A physician's refusal to act for moral or religious reasons shall not be grounds for dismissal, suspension, or any other punishment.

Massachusetts General Laws Annotated, Chapter 201D, §14

13. What procedures must be followed if no health care proxy has been executed?

A health care provider may rely upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law.

Massachusetts General Laws Annotated, Chapter 201D, §16

14. What happens when there is a dispute as to a health care proxy?

The health care provider, the conservator for, or guardian of the patient, members of the patient's family, a close friend of the patient, or the commissioner of public health may commence a special proceeding in a court to (i) determine the validity of the health care proxy; (ii) have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations or is acting in bad faith; or (iii) override the agent's decision about health care treatment on the grounds that the decision was made in bad faith.

Massachusetts General Laws Annotated, Chapter 201D, §17

15. What is a "living will" and does the State of Massachusetts recognize them?

A living will lets the patient provide written directions that spell out what kinds of medical treatments the patient would accept or refuse and the circumstances in which he wants his wishes implemented. Massachusetts does not have a specific statute governing the use of living wills and there are no specific requirements to make it legally binding. However, if a patient chooses to execute a living will, it should be signed and executed in the same manner as the health care proxy. While a living will is not legally binding in Massachusetts, it can provide valuable guidance to a health care provider or court trying to make a health care choice on behalf of a patient.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.