PENNSYLVANIA - ADVANCE DIRECTIVES FOR HEALTH CARE (LIVING WILLS)

January 1, 2008

Pennsylvania state laws and regulations that affect your medical practice

1. What is an advance directive?

An advance directive is a written document, voluntarily executed, that states the care the individual would like to receive or not to receive in the event he becomes unable to express his wishes at some time in the future. An advance directive is commonly known as a "living will."

2. What is the rationale behind advance directives?

20 Pa. C.S.A. § 5402 (a)

3. Can advance directives authorize a physician to engage in mercy killing or euthanasia?

No. Nothing in Pennsylvania's Advance Directive for Health Care Act is intended to condone, authorize or approve mercy killing, euthanasia or aided suicide. The physician may make no presumption concerning the intent of any person who has not executed a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition or a state of permanent unconsciousness.

20 Pa. C.S.A. § 5402 (b)

4. Who can make a living will?

An individual of sound mind who is 18 years of age or older or who has graduated from high school or has married may execute at any time a declaration governing the initiation, continuation, withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or by another on behalf of and at the direction of the declarant, and must be witnessed by two individuals each of whom is 18 years of age or older.

20 Pa. C.S.A. § 5405 (a)

5. How should a living will be written?

A declaration may but need not be in the following form and may include other specific directions, including, but not limited to, designation of another person to make the treatment decision for the declarant if the declarant is incompetent and is determined to be in a terminal condition or to be permanently unconscious:

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DECLARATION

I, _________________________, being of sound mind, willfully and voluntarily make this declaration to be followed if I become incompetent. This declaration reflects my firm and settled commitment to refuse life-sustaining treatment under the circumstances indicated below.

I direct my attending physician to withhold or withdraw life-sustaining treatment that serves only to prolong the process of my dying, if I should be in a terminal condition or in a state of permanent unconsciousness.

I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing life-sustaining treatment.

In addition, if I am in the condition described above, I feel especially strong about the following forms of treatment:

I ( ) do ( ) do not want cardiac resuscitation.

I ( ) do ( ) do not want mechanical respiration.

I ( ) do ( ) do not want tube feeding or any other artificial or invasive form of nutrition (food) or hydration (water).

I ( ) do ( ) do not want blood or blood products.

I ( ) do ( ) do not want any form of surgery or invasive diagnostic tests.

I ( ) do ( ) do not want kidney dialysis.

I ( ) do ( ) do not want antibiotics.

I realize that if I do not specifically indicate my preference regarding any of the forms of treatment listed above, I may receive that form of treatment.

Other instructions:

I ( ) do ( ) do not want to designate another person as my surrogate to make medical treatment decisions for me if I should be incompetent and in a terminal condition or in a state of permanent unconsciousness. Name and address of surrogate (if applicable):

Name and address of substitute surrogate (if surrogate designated above is unable to serve):

I ( ) do ( ) do not want to make an anatomical gift of all or part of my body, subject to the following limitations, if any:

I made this declaration on the _____ day of ___________________ (month, year).

Declarant's signature:

Declarant's address:

The declarant or the person on behalf of and at the direction of the declarant knowingly and voluntarily signed this writing by signature or mark in my presence.

Witness's signature:

Witness's address:

Witness's signature:

Witness's address:

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20 Pa. C.S.A. § 5404 (b)

6. When does a living will become operative?

An advance directive becomes operative when a copy is provided to the attending physician and the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness.

20 Pa. C.S.A. § 5405

7. What procedure must an attending physician follow upon finding that the declarant is in a terminal condition or in a state of permanent unconsciousness?

An attending physician shall, without delay after the diagnosis that the declarant is in a terminal condition or in a state of permanent unconsciousness, certify in writing that the declarant is in a terminal condition or in a state of permanent unconsciousness. A second physician must confirm the attending physician's conclusion.

20 Pa. C.S.A. § 5408

8. Who is considered to be an "attending physician" for purposes of a living will?

An attending physician is the physician who has primary responsibility for the treatment and care of the declarant.

20 Pa. C.S.A. § 5403

9. What does it mean to be "incompetent"?

An incompetent person lacks sufficient capacity to make or communicate decisions concerning himself or herself.

20 Pa. C.S.A. § 5403

10. Under what circumstances can a living will be revoked?

A living will may be revoked at any time and in any manner, without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation.

20 Pa. C.S.A. § 5406

11. Can a physician be found criminally or civilly liable when following a declarant's wishes regarding the withdrawal of life-sustaining treatment?

No. No physician or other health care provider who causes or participates in the initiating, continuing, withholding or withdrawal of life-sustaining treatment from a qualified patient who is incompetent shall, as a result thereof, be subject to criminal or civil liability or be found to have committed an act of unprofessional conduct if the attending physician has followed the declarant's wishes as set forth in his or her living will.

20 Pa. C.S.A. § 5407

12. What if a physician cannot in good conscience comply with an individual's wishes as set forth in his or her living will?

If an attending physician or other health care provider cannot in good conscience comply with a declaration or if the policies of the health care provider preclude compliance with a declaration, the attending physician shall so inform the declarant, or if the declarant is incompetent, shall so inform the declarant's surrogate, or if a surrogate is not named in the declaration, shall so inform the family, guardian or other representative of the declarant. The attending physician shall make ever reasonable effort to assist in the transfer of the declarant to another physician or health care provider who will comply with the declaration.

20 Pa. C.S.A. § 5409 (a)

13. Will a physician be held liable if he or she does not wish to comply with the wishes of a declarant and is unable to transfer the declarant to another health care provider who would be willing to carry out the declarant's wishes?

No. If transfer is not possible, the provision of life-sustaining treatment to a declarant shall not subject a health care provider to criminal or civil liability or administrative sanctions.

20 Pa. C.S.A. § 5409 ( c )

14. What is the definition of "life-sustaining treatment?

Any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. Life-sustaining treatment shall include nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration of the qualified patient so specifically provides.

20 Pa. C.S.A. § 5403

15. What is the definition of a "terminal condition"?

An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life-sustaining treatment.

20 Pa. C.S.A. § 5403

16. What is the definition of "permanently unconscious"?

A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma.

20 Pa. C.S.A. § 5403

17. Can the withholding or withdrawal of life-sustaining treatment be considered as suicide or homicide?

If the withholding or withdrawal of life-sustaining treatment from a qualified patient is in accordance with his or her wishes as set forth in a living will, it shall not, for any purpose, constitute suicide or homicide.

20 Pa. C.S.A. § 5410 (a)

18. Can withholding or withdrawal of life-sustaining treatment invalidate a patient's life insurance policy?

No. The making of or failure to make a declaration in a living will shall not affect in any manner any policy of life insurance nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from an insured patient, notwithstanding any term of the policy to the contrary.

20 Pa. C.S.A. § 5410 (b)

19. May a physician request that a person execute a living will for insurance or other purposes?

No. A physician, health care provider, health service plan, health maintenance organization, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital plan or Federal, State or local government sponsored or operated program may not require any person to execute a living will as a condition for being insured or for receiving health care services and may not charge any person a different fee or rate based upon whether that person has executed a living will.

20 Pa. C.S.A. § 5411

20. Must an emergency medical services provider follow the wishes set forth in a living will?

Yes. An emergency medical services provider shall, in the course of providing care to a declarant, at all times comply with the instructions of an authorized medical command physician to withhold or discontinue cardiopulmonary resuscitation for a declarant whose advance directive has become operative pursuant to the factors set forth in paragraph (6) above.

20 Pa. C.S.A. § 5413

21. Are advance directives applicable in the case of a pregnant woman who is incompetent and has a terminal condition or is permanently unconscious?

Life-sustaining treatment, nutrition and hydration must be provided to a pregnant woman who is incompetent and has a terminal condition or who is permanently unconscious, despite any wishes to the contrary in her advance directive. However, if the attending physician and an obstetrician who has examined the patient can certify to a reasonable degree of medical certainty that life-sustaining treatment, nutrition and hydration will not maintain the pregnant woman in such as way as to permit the continuing development and live birth of the unborn child or will be physically harmful to the pregnant woman or would cause pain to the pregnant woman which cannot be alleviated by medication, then life-sustaining treatment may be withheld pursuant to her wishes.

20 Pa. C.S.A. § 5414

22. May a terminally ill patient secure an out-of-hospital do-not-resuscitate order?

Yes. Pennsylvania's Do-Not-Resuscitate Act (DNR Act) empowers a terminally ill person or the person's surrogate to secure an out-of-hospital do-not-resuscitate order, bracelet or necklace that directs emergency medical services (EMS) personnel in the out-of-hospital setting not to provide the person with CPR in the event of the person's cardiac or respiratory arrest.

20 Pa. C.S.A. § 54A01

23. Who is entitled to request a DNR order?

A patient who is at least 18 years of age, has graduated from high school or has married, or the patient's surrogate if the surrogate is so authorized. The patient may, at the patient's option, wear the bracelet or display the order or necklace to notify emergency medical services providers of the patient's do-not-resuscitate status.

24. What information should the DNR order contain?

The form of the DNR order shall contain, but not be limited to, the following:

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PENNSYLVANIA OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER

Patient's full legal name:

I, the undersigned, state that I am the attending physician of the patient named above. The above-named patient has requested this order, and I have made the determination that this patient is in a terminal condition and eligible for an order.

I direct any and all emergency medical services personnel, commencing on the effective date of this order, to withhold cardiopulmonary resuscitation (cardiac compression, invasive airway techniques, artificial ventilation, defibrillation and other related procedures) from the patient in the event of the patient's respiratory or cardiac arrest. I further direct such personnel to provide to the patient other medical interventions, such as intravenous fluids, oxygen or other therapies necessary to provide comfort care or to alleviate pain, unless directed otherwise by the patient or the emergency medical services provider's authorized medical command physician.

Signature of attending physician:

Printed name of attending physician:

Dated:

Attending physician's emergency telephone number:

Signature of patient (if capable of making informed decisions):

I, the undersigned, hereby direct that in the event of my cardiac and/or respiratory arrest efforts at cardiopulmonary resuscitation not be initiated. I understand that I may revoke these directions at any time by giving verbal instructions to the emergency medical services providers, by physical cancellation or destruction of this form or my bracelet or necklace or by simply not displaying this form or the bracelet or necklace for my EMS caregivers.

Signature of surrogate (if patient is incapable of making informed decisions):

I, the undersigned, hereby certify that I am authorized to execute this order on the patient's behalf by virtue of having been designated as the patient's surrogate and/or by virtue of my relationship to the patient (specify relationship: ______________________). I hereby direct that in the event of the patient's cardiac and/or respiratory arrest efforts at cardiopulmonary resuscitation not be initiated.

* * *

20 Pa. C.S.A. § 54A04

25. How is a DNR order revoked?

If a patient has obtained an order, only the patient may revoke the patient's DNR status. If a surrogate has obtained an order, the patient or the surrogate may revoke the patient's status. Revocation may be done at any time without regard to the patient's physical or mental condition and in any manner, including verbally or by destroying or not displaying the order, bracelet or necklace.

20 Pa. C.S.A. § 54A05

26. What if the patient is pregnant?

Life-sustaining treatment, cardiopulmonary resuscitation, nutrition and hydration must be provided to a pregnant patient despite the existence of a DNR order. However, if the attending physician and an obstetrician who has examined the patient can certify to a reasonable degree of medical certainty that life-sustaining treatment, nutrition and hydration will not maintain the pregnant woman in such as way as to permit the continuing development and live birth of the unborn child or will be physically harmful to the pregnant woman or would cause pain to the pregnant woman which cannot be alleviated by medication, then life-sustaining treatment may be withheld pursuant to her wishes.

20 Pa. C.S.A. § 54111

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