Medical Professionals’ Conversations About
Care
At the End of Life
Joanna K. Weinberg, JD, LLM
UC San Francisco
UC Hastings College of the Law
The patient’s right of self-decision can be
effectively exercised only if the patient
possesses enough information to enable an
informed choice. The patient should make his or
her own determination about treatment. The
physician’s obligation is to present the medical
facts accurately to the patient or to the individual
responsible for the patient’s care and to make
recommendations for management in accordance
with good medical practice. The physician has an
ethical obligation to help the patient make
choices from among the therapeutic alternatives
consistent with good medical practice. ..
Informed Consent and the Right
of Patients to be Informed
 At common law, treatment without informing
patients of the risks of treatment is a denial of
informed consent, and constitutes criminal
battery.
 Theoretically, then, under common law, treating a
patient without giving the patient adequate
information about available alternatives and their
risks and benefits, should also constitute a
denial of informed consent.
• What about giving the patient
information about alternatives – and the
risks and benefits – of not treating?
• Shouldn’t this be considered a denial of
informed consent?
•The issue becomes extremely sensitive
when the conversation touches upon
care at the edges of life.
Within the Space of Two Years,
How Doctors Communicate
With Patients has Become a
Hot Topic
 Oct. 21, 2008 “The Right to Know, Then to
Say ‘No’: CA Terminal Patients’ Right to
Know End of Life Options Act,” Jane Gross,
New York Times
 August 24, 2009 Death Panels Smite
Journalism, Howard Kurtz, Washington Post
 August 23, 2010 “New York Law
Encourages Frank Talk on Palliative Care,”
Jane E. Brody, The New York Times
Effective 2-2011: “physicians and nurse practitioners
are required to provide a patient who has less than
6 months to live with information and counseling on
palliative care and end-of-life options, including, ‘the
range of options appropriate to the patient, the
prognosis, risks and benefits of the various options,
and the patient’s legal rights to comprehensive pain
and symptom management at the end of life.’ “
When a healthcare provider diagnoses a patient
with a terminal illness, the healthcare provider
shall, upon the patient’s request, provide the
patient with “comprehensive information and
counseling” regarding legal end-of-life options.
Quick Comparison
California Statute
New York Statute
• Patient Must Request
 Mandatory Requirement
•
•
•
•
•
Information
“Terminal”..”Less than 1
Year”…(fuzzy)
Option to refer to another
provider
Specific detailed
guidelines for patient
information
Mandate for medical
school and CME education
in EOL
Supported by CMA
with (potential) possibility
of criminal penalty
 “Terminal” within 6
months or less
 Option to refer to another
provider
 General/Generic
Guidelines re information
required
 Opposed by NYMA
• The discussion about the Right to Know legislation highlights a
not-so-hidden defect in the 25+ years or so that we have been
talking about Advance Directives, and the 20 years since the
PSDA became federal law:
• The low use of advance care directives and problems with
implementing those that exist have made it clear that
emphasizing patient’s rights and patient control over decision
making are not necessarily the most effective ways to improve
care for dying patients.
Without abandoning the idea of advance directives, an
evolving perspective views direct communication about
options for end-of-life care as a component of a much
larger process that looks at what a “good death” means
and tries to define the various domains that are
necessary for optimal end-of-life care –the physical,
psychological and social supports that are critical to the
care of patients at the end of life.
These views also provide the basis for training
physicians and other health professionals in end-of-life
care. The California law mandates this (with respect to
physicians). While the NY law doesn’t, its mandated
communication seems to point in that direction.
Thank you