The Colorado Patient Autonomy Act: Opportunities and Challenges-part Ii
| Jurisdiction | United States,Federal,Colorado |
| Citation | Vol. 10 No. 1992 Pg. 2203 |
| Pages | 2203 |
| Publication year | 1992 |
1992, October, Pg. 2203. The Colorado Patient Autonomy Act: Opportunities and Challenges-Part II
Advance directives are written instruments addressing the declarant's future medical care. Recent federal and state legislation have brought advance directives into the spotlight. This is the second article in a two-part series concerning the recent federal Patient Self-Determination Act and the new Colorado Patient Autonomy Act (see the September issue at page 1901).
The federal Patient Self-Determination Act,(fn1) which became effective December 1, 1991, requires facilities funded by Medicare and Medicaid to: (1) furnish information to all incoming patients concerning advance directives under state law; (2) inquire whether a patient has advance directives; (3) include such directives in the patient's medical record; and (4) hold educational programs about advance directives for staff and members of the public. However, patients cannot be required to execute directives as a condition of admission or treatment. Furthermore, facilities and providers are not required to supply advance directive forms.
In conformity with the Patient Self-Determination Act, many facilities distribute pamphlets describing advance directives to incoming patients. Some facilities also furnish living will forms on request.
The Colorado Patient Autonomy Act ("Colorado Act"),(fn2) signed into law on June 4, 1992, by Governor Romer, recognizes that every adult
has a right to establish, in advance of the need for medical treatment, . . . directives and instructions for the administration of medical treatment in the event the person lacks the decisional capacity to provide informed consent to, or refusal of, medical treatment.
The first article in this series described the Colorado Act. This article analyzes various types of advance directive documents that practitioners may encounter under the Act.
At present, there are four general types of advance directives: (1) instruction,(fn3) (2) proxy,(fn4) (3) "trail map" and (4) boilerplate grids and checklists. Instruction directives articulate the client's subjective concerns and future goals without appointing a specific agent or representative. These instruments may focus on particular techniques and situations or may cover a broader spectrum of treatments and procedures. Two examples of instruction directives are living wills and cardiopulmonary resuscitation ("CPR") directives. Living wills prohibit life-sustaining treatment for terminal conditions.(fn5) CPR directives, authorized for the first time in this state by the Colorado Act,(fn6) limit the administration of CPR by emergency response teams and other medical providers.
Proxy directives appoint a substitute decision-maker on the client's behalf. The most common form of proxy directive is the medical durable power of attorney, which carries with it implied fiduciary principles and overtones from the law of agency. Whereas instruction directives are unilateral declarations, proxy directives create bilateral relationships. Some practitioners utilize a formal acceptance by the agent of the agent's nomination, although the Colorado Act has no such requirement.
Hybrid documents, known colloquially as trail map medical powers of attorney, supplement the agent's appointment with instructions and guidelines for the agent to follow. Boilerplate grids and checklists present questions or hypothetical situations allowing for "yes/no" responses.
The Colorado Act does not contain sample or mandatory forms. Thus, a practitioner's initial task is to evaluate and explain the most suitable type of directive for a client's particular situation. For example, socially isolated clients who have no living relatives or close friends may be better served by an instruction directive, whereas an elderly
client who is intellectually or emotionally unable to provide refined guidelines may be more comfortable with a proxy directive.
There are pros and cons to each approach. The Colorado Act recognizes the validity of holographic directives, which frequently take the form of "letters of instruction" commonly done without the assistance of counsel. The primary drawback of a unilateral instruction directive is that its implementation is unpredictable in the absence of a designated agent or a stable and collaborative doctor/patient relationship.
Unadorned proxy directives have the attraction of simplicity. Unfortunately, they may prove to be the ultimate "fatal attraction." Many clients appoint their spouse as agent and instinctively assume that the spouse will "naturally" know what to do. However, experience teaches that partners in close emotional relationships are traumatized and often impaired in their thinking when one of them has a medical emergency. Furthermore, a spouse is probably the client's most frequent traveling companion and, therefore, likely to be disabled in the same accident. A "blank check" medical power of attorney carries a degree of risk in any event, regardless of the client's marital status, because in the agent's absence the client's wishes are unknown.
A delegation devoid of instructions merely transfers decision-making responsibility to the agent's shoulders. Most persons who undertake advance directives do so to alleviate the burden on family members, not to enhance it. Carte blanche agency...
To continue reading
Request your trial