Multi-Cultural Issues in Advance Directives

Abstract

1 The author thanks Professor Miriam Cotler, Chair, and Assistant Professor Louis Rubino, both of the Department of Health Sciences, California State University Northridge, Northridge, California for their invaluable assistance. Google Scholar The Patient Self Determination Act (PSDA), adopted in 1991, 2 42 U.S.C. §1395cc(f) Google Scholar requires hospitals, nursing facilities, home health care providers, hospice programs, HMOs, and other health care providers that accept Medicare and/or Medicaid to develop and adhere to specific guidelines and requirements regarding a patient's right to execute an “advance directive.” The PSDA defines an “advance directive” as a “written instruction, such as a living will or durable power of attorney for health care recognized under state law (whether statutory or as recognized by the courts of the state), and relating to the provisions of such care when the individual is incapacitated.” 3 42 U.S.C. §1395cc(f)(3) Google Scholar Joint Commission on Accreditation of Healthcare Organizations (JCAHO) accreditation standards parallel these requirements, 4 See Joint Commission on Accreditation of Healthcare Organizations, Accreditation Manual for Hospitals. (Standard R1.1.1.3.2), 1992. Google Scholar as do the laws and regulations of various states, although the specifics may vary. In general, accredited facilities are required to develop written policies regarding the administration of advance directives. From an administrative standpoint, established written policies benefit both the institution and the patient. When properly implemented and enforced, an appropriate advance directive policy avoids uncertainty, confusion, and inconsistency when handling a patient's advance directive (or dealing with the agent, surrogate, or family member regarding the advance directive.). 5 For example see New Jersey Stat. Ann. §26. 2H-65(1), (2). For a state-by-state overview of health care decision-making statutes and requirements, see Meisel, A., The Right To Die, 2d. Ed., 2000 Supp. at 324 New York: John Wiley & Sons, Inc, 1995. Google Scholar Furthermore, the PSDA mandates that subject organizations advise the patient in writing of his or her right under state law to execute an advance directive (as defined), and as noted, adopt guidelines and procedures for implementing this requirement. The existence of an executed advance directive must be prominently noted in the patient's chart. 6 42 U.S.C. §1395cc(f)(1)(B) Google Scholar In practice, this is usually accomplished by having the admissions office ask the patient or the patient's family if the patient has an advance directive, noting that information in the patient's chart, and handing the patient or family member the required information and possibly a blank advance directive form prepared by the local medical society, if the patient does not already have one. It is unusual for either the staff or the physician to go beyond these basic legal requirements and protocols. 7 See generally, Meisel, Vol. 2, p. 52. Google Scholar