The New Federal Law

November 30, 1991

Effective tomorrow, a new federal law, the Patient Self-Determination Act, requires health care facilities to inform adult patients of their right to make advance directives -- documents that allow patients to say whether they want to remain alive by artificial means. In Maryland, there are three types: a living will, durable power of attorney for health care and LTC documented discussion with a doctor. None is irrevocable.

The law requires hospitals, nursing homes, hospices, home health agencies and health maintenance organizations (HMOs) that receive Medicare or Medicaid reimbursement to do the following:

* Inform incoming patients 18 years of age and older of their right to refuse medical or surgical treatment, including technological means such as a respirator to keep them alive.

* Give patients a copy of the institution's policy describing how it will implement the patient's directives.

* Write in the medical record whether or not the patient has documented instructions.

* Educate staff and the community about the three types of instructions.

WHAT THE FEDERAL LAW DOES NOT COVER

* Emergency room arrivals

* Outpatient clinics and doctors' offices

* Ambulance paramedics: Family or friends should not call 911 if a patient who does not want cardiopulmonary resuscitation or respirators experiences an emergency. Paramedics are trained to override instructions of anyone at an emergency scene except a patient holding a card from a licensed hospice.

WHAT MARYLAND LAW COVERS

Living will: Applies only to patients with terminal diseases whose death is imminent. Maryland residents may use the document to express their wish not to have their lives prolonged artificially, but they must add language specifying a desire not to be given food or water through tubes. Maryland law does not allow living wills for pregnant women. The document must be dated and signed in the presence of two witnesses.

The law requires witnesses to be:

* At least 18 years old.

* Not related to the patient by blood or marriage.

* Not entitled to any financial benefit from the patient's estate.

* Not responsible for the patient's medical care or employed by the institution responsible for his or her care.

Durable power of attorney for health care: Names a person who can speak for patients in any medical decision if they are so sick or injured that they cannot communicate or make a rational decision.

There is no law in Maryland defining durable power of attorney for health care, and the Court of Appeals has not issued a decision on it. However, Attorney General J. Joseph Curran Jr. has written an opinion that a durable power of attorney is legal in Maryland.

Unlike the living will, this document can be used when a patient is in a coma and is not expected to revive.

The document can be written to indicate when it takes effect, but commonly it takes effect when two physicians, including the attending physician, certify that a patient is incapable of making a rational decision about his or her care.

Earlier documented discussion: A prior discussion with a doctor about a patient's wishes on the means to prolong life is as valid as a living will or durable power of attorney in Maryland if the doctor noted the discussion in the patient's medical chart and it is clearly applicable to his or her situation.

*

Forms for a living will and durable power of attorney may be obtained free by writing to:

Maryland Attorney General's Office

Opinions Section

200 St. Paul Place

$ Baltimore, Md. 21202

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