Compassion and Choices

A NEW TOOL FOR HEALTHCARE DECISION-MAKING IN COLORADO

July 26, 2010

During the spring of 2010, several new tools were added to the healthcare decision-making toolbox in Colorado: The regulations governing the CPR (cardiopulmonary resuscitation) directive were revised; in the Colorado Delegate Assembly, the Living Will Act was completely repealed and replaced, and a new bill passed to establish the Medical Orders for Scope of Treatment (MOST) process. Here is a summary of these new and improved tools for healthcare decision-making in Colorado.

In March, the Colorado Board of Health adopted revised regulations governing the Colorado CPR directive, based on recommendations developed by a Colorado Department of Public Health and Environment multi-stakeholder taskforce. The revisions returned the regulations to the spirit and the letter of the law. Specifically, although the statute details certain requirements for the CPR directive form, including a physician’s signature, the statute allows a person to make a CPR directive “in any other manner.” Thus, the Colorado CPR directive form printed on security paper (or “blue form”) is not the only valid form. In fact, the “blue form” will no longer be required. Instead, a template is available on the CDPHE Web site for use as is (or as a model). See http://www.cdphe.state.co.us/em/Operations/CPRDirectives/template.pdf.

Best practice still indicates that the template should be used or closely followed, and a physician (and only a physician—not an advanced-practice nurse or a physician's assistant) signature should be obtained. However, other facility-specific forms, other state forms, the Medical Orders for Scope of Treatment (see below), medical-alert bracelets and necklaces—even “home-made” forms—are acceptable and should be honored. The fact that these forms may not have or require a physician’s signature does not make them any less valid. Faxes, photocopies, and scans are also valid and acceptable.

The revised regulations also emphasize that refusal of CPR does not mean refusal of other treatment or care. Patients with a CPR directive should always be provided with appropriate and available palliative care and transport, if desired, to a healthcare facility.

Rules of revocation of the CPR directive have been clarified: The person to whom the CPR directive applies may revoke the directive at any time in any manner that clearly communicates his or her intentions. A healthcare agent—someone officially appointed to make healthcare decisions when the person can’t make them for him- or herself—of the person to whom the CPR directive applies may revoke a CPR directive only if the agent originally executed the form for that person. Other family members or bystanders have no authority to revoke a CPR directive.

The revised CPR regulations may be downloaded from the CDPHE Web site: http://www.cdphe.state.co.us/regulations/ems/101502AMDCPR.pdf.

The Living Will Act (formally, the Colorado Medical Treatment Decision Act) was completely repealed and re-enacted with significant changes by the Colorado Delegate Assembly. The bill was crafted by the Colorado Bar Association Elder Law Section and sponsored by Representative Ellen Roberts and Senator Linda Newell.

Persistent vegetative state (PVS) is now included as a condition under which the Living Will may take effect. The Living Will directs that life-sustaining treatment be withdrawn or withheld when the person is in terminal condition OR in a persistent vegetative state AND lacks decisional capacity—meaning the person cannot make or express healthcare decisions. As with "terminal condition," PVS must be certified by two physicians, and, over a 48-hour period, "interested persons" (spouse, siblings, parents, adult children, close friends, partners, etc.) must be informed of the certification and impending withholding/withdrawal of life-sustaining treatment. If any of the interested persons wishes to challenge the validity of the Living Will, they may go to court to get an injunction and/or initiate guardianship proceedings.

The Living Will form has been removed from the statute, as has its requirement that the person be “for a period of seven consecutive days, unconscious, comatose, or otherwise incompetent” prior to the withdrawal of treatment.

The Living Will may now be combined with the document appointing a healthcare agent, and the declarant (the person signed the Living Will) may specifically grant to the agent the authority to override instructions in the Living Will.

The Living Will may now include additional medical directions or instructions for care following certification of terminal illness or PVS.

The Living Will may also include a list of persons to be consulted prior to the removal of any life-sustaining treatment. These persons do not have any authority to override the decision, but may offer input to the physicians.

As before, artificial nutrition and hydration (ANH) are not automatically included in the Living Will’s definition of “life-sustaining treatments” to be withdrawn or withheld, but separate statements as to whether ANH should be discontinued, continued for some period of time, or continued may be included in the document. In the revision, the restriction on these instructions of “if it [ANH] is the only procedure being provided" has been removed.

With these changes, the Living Will is now a much more flexible and broadly based document for expressing patient preferences for end-of-life treatment. However, it is still simply an expression of patient preferences, possibly made years in advance of any real healthcare crisis or life-threatening condition and likely without benefit of medical advice or discussion of the consequences of the choices.

The Medical Orders for Scope of Treatment (MOST) offers a different process—contemporaneous with a patient’s serious health condition and in conversation with a healthcare provider. The MOST bill was put forward by the Colorado Advance Directives Consortium and sponsored by Representatives Ellen Roberts and Mike Merrifield and Senators Williams and Morse, among others.

The one-page, two-sided MOST form summarizes patient preferences in four areas of medical treatment which might be relevant to an emergency or end-of-life situation: CPR, scope of treatment, artificial nutrition/hydration, and antibiotics. Check-box choices are offered by which persons may refuse treatment, request full treatment, or specify limitations.

The MOST is intended for use by individuals who are in frequent contact with healthcare providers due to a chronic, serious, advanced, or terminal illness.

When signed by a physician, advanced-practice nurse, or physician’s assistant, this summary form of patient preferences becomes “portable” medical orders which “travel” with the patient and are honored by any provider in any healthcare setting: by EMS at home, in the community or in a nursing facility; in the ER; in the hospital; in rehab or long-term care.

The portability of the form allows seamless documentation of treatment preferences and closes gaps as patients transfer from setting to setting or experience delays in access to providers. The latitude of authorized signers (physician/APN/PA) allows prompt documentation of preferences in rural regions or areas where physicians and healthcare services are scant.

The original is brightly colored for easy identification; but photocopies, faxes, and electronic scans are also valid. A section on the back prompts patients and providers to regularly review, confirm, or update choices based on changing conditions.

The MOST does not replace advance directives. Living Wills or Medical Durable Powers of Attorney may contain instructions on issues not addressed in the MOST. The MOST form should be completed and updated to be consistent with any other advance directives. In case of any conflict between a person’s MOST form and his or her Living Will, for instance, the most recent document prevails. The MOST may be revoked at any time by the person or, if the person lacks capacity to make decisions, by his or her agent.

The form provides clarity and a certain amount of rigidity for EMS personnel, who can easily scan the form and know what treatments to offer to what degree, in confidence that the treatment preferences are recent, appropriate, and ordered by a medical professional. However, the MOST also provides clarity and a certain amount of flexibility for receiving physicians and facilities who may consult with patients or their healthcare agents to recommend revisions to the orders.

No individual will be obliged to complete a MOST. If a provider or facility objects to the MOST program or individual provisions on individual forms on moral or religious grounds, they must inform the patient of their objections, provide support and comfort care, and arrange for transfer to another facility or provider who will comply with the orders.

The MOST is based on the POLST, or Physician’s Orders for Life-Sustaining Treatment, which was pioneered in Oregon in the early 1990s, and in several varieties is now in use in 14 other states and in development in 24 more. Extensive research indicates that the Medical Orders for Scope of Treatment program greatly improves the incidence of advance planning for healthcare and adherence to expressed wishes. (See the POLST Web site, www.polst.org for references and research findings.)

The Living Will and MOST statutes go into effect on August 11, 2010. However, a great deal of work must be done to educate the provider community—EMS, emergency departments, hospitals, nursing facilities to start—before the MOST program can really get underway. The Colorado Advance Directives Consortium is working with a number of other statewide organizations to coordinate an education campaign about the MOST. By the end of the summer of 2010, the Consortium hopes to have downloadable MOST forms, instruction booklets, self-paced training tools, and train-the-trainer programs available. It is essential that this education campaign be well underway before the MOST form is widely distributed or put into practice. For information on how the campaign is progressing or to offer assistance in the project, please contact the Consortium co-chairs: Dr. David Koets, dkoetsmd@q.com, or Jennifer Ballentine, Jennifer@irisproject.net.

June 26, 2009 Compassion & Choices of Colorado has revised its state-specific model Advance Directives together with associated documents related to end-of-life choices. We would recommend that all members take a look at Colorado Advance Directives, which can be opened with Adobe Reader and easily printed.

July 1, 2006 Members of the Colorado chapter of Compassion & Choices joined forces with other like-minded organizations to help shepherd the passage of Colorado SB 102. The Act, which was signed by Governor Owens on April 4, became effective on July 1, 2006, and amends the state's current manslaughter statute 18-3-104 by stating, "This section (manslaughter) shall not apply to a medical caregiver with prescriptive authority or authority to administer medication who prescribes or administers medication for palliative care to a terminally ill patient with the consent of the terminally ill patient or his or her agent."

Simply put, the new law grants immunity to a medical caregiver who unintentionally causes the death of a terminally ill patient as the result of efforts to relieve the patient's pain by either using increased doses of medication or administering analgesics the physician might otherwise be reluctant to try. Adequate pain management in the United States is extremely poor; 50% of patients who die in institutions experience pain that could be treated, but isn't.

Barriers to proper pain control include concerns over government scrutiny when prescribing Schedule II drugs, the possibility of patient addiction, and the fear that aggressive efforts to relieve pain might unintentionally cause a patient's death. While there is still a long way to go in improving end-of-life care in Colorado and elsewhere, SB 102 at least removes one of the barriers, and hopefully will encourage more Colorado physicians to be more aggressive in their efforts to relieve patient suffering. (This item is repeated in the "Information" section of this Web site

Last week, more than 1,600 Compassion & Choices supporters contacted members of the House Ways and Means Committee, urging them to support Medicare coverage of the end-of-life discussion.

Your voices were heard loudly and clearly. And I am thrilled to report that the Committee passed the Medicare provision without any weakening language or amendments.

As the health care reform debate continues to unfold, we do expect future challenges to the Medicare provision. We'll keep you posted on all the developments, and I encourage you to visit our web site on a regular basis for more detailed information.

Today, however, is about celebrating. Your support has enabled Compassion & Choices to lead the charge in making patient choice at end-of-life a key part of the health care reform debate. As the only organization fighting to gain Medicare coverage for comprehensive end-of-life consultations, we are putting end-of-life issues on the map in Congress and laying important groundwork for new victories in the months and years ahead.

Thank you so very much for your continued support and tireless activism. We could not do this transformational work without you.

MESSAGE FROM ROLAND HALPERN

National Director of Local Groups

As many of you know, the FBI and various state authorities have been cracking down on Final Exit Network (FEN), alleging that several of its members committed crimes by “assisting” in the deaths of FEN clients.

Compassion & Choices has always acted within the law. Our safeguards, including thorough screening of potential clients by our end-of-life consultation team and collaboration with family members, further assures that clients are making informed decisions based upon those end-of-life options that are legally available to them.

However, despite these controls, there is nothing to prevent the authorities from attempting to insinuate that there is a relationship between Compassion & Choices and Final Exit Network, particularly when some members of C&C also belong to FEN.

If you are approached by a government agent, it is important that you notify Compassion & Choices of any contacts you may have, even if the nature of the contact appears to be a casual one.

Should you have any questions, please feel free to contact Roland Halpern at rhalpern@compassionandchoices.org.

CANBERRA, Australia - An Australian judge ruled Friday that a quadriplegic man who says he cannot "undertake any basic human functions" has the right to direct a nursing home to stop feeding him and allow him to die.

The case sheds light on a gray legal area in Australia; patients have a lawful right to refuse lifesaving treatment but helping another to commit suicide is a crime punishable by a life prison sentence.

Chief Justice Wayne Martin told the Western Australia state Supreme Court that the staff and owner of the Perth nursing home caring for 49-year-old Christian Rossiter would not be held criminally liable if any of them withdrew his feeding tube according to his instructions.

Martin said Rossiter, a former stockbroker who broke his spine in 2004 in a road accident and was left a spastic quadriplegic after a fall last year, clearly had a right to direct — and refuse — his treatment.

Food and fluid "should not be administered against his wishes," but medical staff must fully inform Rossiter of the consequences, the judge said.

Man says he could decide to live
Rossiter welcomed the ruling and said he would take further medical advice before refusing food and water. "I'm happy that I won my right to die," he told reporters at his nursing home. "I want to end my life, but after I speak to a medical professional," he added. "There's a possibility I could still be dissuaded."

Rossiter appeared at court for Friday's one-day hearing in a reclining wheelchair and with a tracheostomy tube fitted in his throat to allow him to breathe. He was accompanied by a nurse.

Lawyer Linda Black also read a statement by Rossiter to the court. "I am unable to undertake any basic human functions," his statement said. "I am unable to blow my nose. I'm unable to wipe the tears from my eyes."

Nursing home worried about breaking law

Rossiter said he was prepared to travel to Switzerland, where assisted suicide is allowed, but that the Swiss government has been known to hold up cases like his with red tape.

None of Rossiter's family attended court on Friday. Sky News said he has one brother who lives overseas.

Brightwater Care Group, which owns the nursing home, asked the court to rule on its legal culpability if it acceded to Rossiter's request. Brightwater's lawyer, Jeremy Allanson, told the court that the company did not have a particular view on whether Rossiter should be fed, but did not want to break the law by denying him food. Brightwater's chief executive, Penny Flett, told reporters outside the court that a palliative care doctor would be directed to speak to Rossiter about the consequences of stopping nutrition and fluids.

"The whole organization has been most concerned for Mr. Rossiter but also concerned for our own legal standing and this has clarified things greatly," Flett said.

June 1, 2009 A diverse group of organizations and individuals have petitioned for permission to urge the Montana Supreme Court to uphold a lower-court ruling that terminally ill Montanans have the right to choose aid in dying. Medical associations, civil liberties and human rights organizations, bioethicists, religious leaders, constitutional law experts and Montana State legislators have also requested leave to file briefs to argue that terminally ill Montanans have the right to choose a dignified death, under the State Constitution's guarantees of privacy and dignity. The Montana Supreme Court will hear arguments later this year on whether to uphold the landmark decision issued last December by First Judicial Court Judge Dorothy McCarter.

Compassion & Choices Legal Director Kathryn Tucker, co-counsel to the plaintiffs/respondents, commented on the friend-of-the-court motions: "... This is a choice the Constitution entrusts to them, not to the government. Montanans trapped in an unbearable dying process deserve this end-of-life choice. This is a choice that Bob Baxter sought for himself, and his courage is bringing this case forward will help bring comfort and relief to his fellow citizens." Click here to read the complete story.

May 22, 2009 Linda Fleming, age 66, of Sequim, Washington, becomes the first terminally ill Washingtonian to die using the state's new Death with Dignity Act. Linda was diagnosed just one month ago with stage 4 pancreatic cancer, and was told she was actively dying. Linda worked with her physician and C&C's client support volunteers to carefully consider her choices and to make her end-of-life decisions. Linda took her prescribed medication on Thursday evening at home with her family, her dog and her physician at her bedside. "The pain became unbearable, and it was only going to get worse," said Linda in explaining her decision to use the Death with Dignity law. She died peacefully knowing that she had a choice in controlling her suffering and time of death from pancreatic cancer. Tom Preston, M.D., a cardiologist and C&C's medical director, said that terminal patients are deriving comfort and peace of mind from prescriptions issued under the new law, and that law is working as voters and its sponsors intended. For more information, click here.

December 5, 2008 Judge Rules that Montanans Have the Right to a Dignified Death. Two terminally ill Montana patients, four physicians, and Compassion & Choices sued under the state constitution for the right to death with dignity. Montana State District Court Judge Dorothy McCarter issued a summary judgment to plaintiffs, holding that the state constitution's individual dignity clause and the constitution's "stringent" right of privacy are "intertwined insofar as they apply to plaintiffs' assertion that competent terminal patients have the constitutional right to determine the timing of their death and to obtain physician assistance in doing so."

The State filed a notice of appeal. It also sought a stay of the lower court ruling pending the appeal. Judge McCarter denied the request for a stay in January 2009. This means her ruling is fully effective and will remain so unless and until the Montana Supreme Court rules differently.

Montana is a leader in providing excellent pain management and palliative care for terminally ill patients. But even with excellent pain and symptom management, the right to aid in dying would offer a safe, legal option for those who would otherwise suffer from intolerable pain.

November 4, 2008 Washington becomes the second state to pass a Death with Dignity law. Washington's Death with Dignity Act was overwhelmingly passed by voters (59%-41%) in 2008. The law allows mentally competent, terminally ill adults - with six months or less to live - the legal choice of aid in dying. Eligible patients now have the option to make this personal decision with their physicians and families. The initiative includes numerous safeguards to protect patients from abuse.

Washington patients in the final stages of a terminal illness have the choice to end their life with dignity, on their own terms. Under the approved Death with Dignity law, a terminally ill patient has the right to make a legal, informed, and personal decision about his or her own body.

Voters in Oregon passed an identical law by initiative over 10 years ago. The text of the Washington initiative is based on the Oregon law, which has proved to be both safe and effective.

September 30, 2008 California Governor Arnold Schwarzenegger signed into law Compassion & Choices' bill AB 2747, called the Right-to-Know End-of-Life Option Act. The law requires doctors, upon the request of a terminally ill patient, to provide that patient with information on their legally available treatment options, including the right to refuse treatment. Although this is a right we should already have (one the U.S. Supreme Court says we have), research shows that as many as a third of all doctors fail to inform patients of their legal options, often because of personal moral or religious objections. Under the new law, if the doctor does not wish to comply, he or she must refer the patient elsewhere.

June 9, 2007 CALIFORNIA LEGISLATION: Not good news. One day before the June 8 deadline in the Assembly, lawmakers have declined to bring AB 374 to a vote. The legislation would have given terminally ill Californians the option to request life-ending medications from a physician to hasten an impending death.

February 5, 2007 Life on Her Terms: Patient eschews aggressive treatment for 'bonus year'. LA Times article by Susan Brink

NEWS

MESSAGE FROM ROLAND HALPERN

National Director of Local Groups