New Uses for Advance
Directives in Health Care
(And Other 2009 Changes in Virginia’s
Health Care Decisions Act)
Richard J. Bonnie
University of Virginia
October 22, 2009
Outline
• Brief review of innovations in law
governing health care decisionmaking over last 30 years
• Overview of recent changes in
Virginia’s Health Care Decisions
Act
Two Traditional Models for
Decision-making after Incapacity
• Advance Directive – exercise of
“precedent autonomy” (e.g., wills;
contracts and trusts for long-term
care)
• Surrogate decision-making -“best
interests” (e.g., guardianship –
with judicial oversight)
Innovations in healthcare decisions #1
(“extending precedent autonomy”)
• Durable powers of attorney (departure from traditional
“agency model” in financial affairs) – VA statute in 1954
• “Living will” statutes to resolve end-of-life treatment
dilemmas (Virginia did this in 1983)
• Note evolution of modern health care decisions acts: (1)
proxy directives and (2) instructional directives
• Autonomy-driven model is elegant solution to the
growing challenge of deciding when to stop
• It has powerful moral force and helps move decisions
back to the bedside rather than the courtroom
• Propelled by Congress in Patient Self-Determination Act
in 1990 after Cruzan
Innovations in health care
decisions #2 (“default surrogates”)
• The problem – most people don’t
have ADs
• Traditional practices (medical
decision-making and family consent)
lacked strong legal foundation and
were often ethically problematic
• Guardianship is costly and
cumbersome
Innovation in health care decisions
#2 (“default surrogates”)
• The answer: statutory default list of surrogates,
together with substituted judgment/best interests
instruction (Virginia did this in 1992)
• Profound change – even more so than ADs
• Without moral grounding in autonomy, it
embraces medical-family decision-making as
alternative to guardianship or direct judicial
decision-making
• [Digression] Note parallel history of surrogate
decision-making for people with intellectual
disabilities and severe and chronic mental
illness
Next Steps in Advance Directives
• Bolster efforts to facilitate advance
planning and agent-designation even
when people are uncertain about
specific end-of-life preferences
• Facilitate instructional directives in
contexts other than end-of-life care
Facilitate use of advance directives for
health care decisions other than end-of-life
• Advance directives for mental health care can
foster genuine empowerment : 24 states have
“PAD” statutes
• Other main context is advance planning by
patients and families in case of decline in
cognitive capacity
• Commission on Mental Health Law Reform
opposed stand-alone “PAD” statute and
appointed Task Force to draft HCDA
amendments to facilitate instructional directives
for all health care, not only life-prolonging
treatment
Overview of Revised HCDA:
Innovations in Advance Directives
• Advance authorization for research
participation (as approved by IRB)
• Advance authorization for nursing home
/long-term care placement
• Advance authorization for psychiatric
hospitalization (as a non-judicial process)
• “Ulysses clauses” – authorizing facility
admission and treatment even over later
“incompetent” protest
Overview of Revised HCDA: Strengthen
Capacity Determinations
• Presumption of capacity
• Capacity determinations are functional and should not be
based on diagnosis alone
• Encourage more specific and particularized capacity
determinations
• Require that second assessment (always required) be by
physician not involved in patient’s treatment (unless
unavailable)
• Require provider to notify patient and apparent surrogate
• Permit restoration of patient’s decision-making
prerogative by single examiner
Overview of Revised HCDA: Non-Judicial Options
Are Now Available for Surrogates in 2 Situations
• Admission to mental health facilities: Guardians
may now authorize 10-day admission to mental
health facilities if patient lacks decisional
capacity and such authority has been conferred
in guardianship order
• Treatment over “incompetent protest” is allowed
(even if not specifically authorized by an AD) if
approved by facility ethics committee
Unfinished Business
• Allow designation of non-relative
surrogates (after appropriate inquiry)
• To be re-introduced in 2010
Summing Up
• 2009 Revision of HCDA takes next steps to improve law
and practice in health care decision-making for patients
with decisional incapacity
– Use ADs to help empower patients to guide health care outside
context of end-of-life care
– Strengthen and extend procedures for non-judicial capacity
determinations and designation of surrogates
• Two Important Practice Implications
– Provide more opportunities for discussions about advance health
care planning in clinical settings
– Help improve practice in capacity assessment and default
decision-making