2007 Spring, Pg. 29. Advance Directives Revisited: Health Care Decision-Making Legislation Approved.

AuthorBy Shawn V. LaFrance and Attorney Melissa Leaver

New Hampshire Bar Journal


2007 Spring, Pg. 29.

Advance Directives Revisited: Health Care Decision-Making Legislation Approved

New Hampshire Bar JournalSpring 2007, Volume 48, No. 1Health Care & the LawAdvance Directives Revisited: Health Care Decision-Making Legislation ApprovedBy Shawn V. LaFrance and Attorney Melissa LeaverA significantly revised RSA 137-J, "Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions," became law on January 1, 2007, following a long process of study and considerable debate.(fn1) This article briefly describes how the revised statute was developed, and highlights some of the significant changes in the law that are intended to promote a better understanding of health care decision-making and more efficient access to the necessary legal documents. An overriding goal of this legislative effort was to facilitate improved communication of a person's health care choices to those who provide the care.

Approximately one-third of people who die in New Hampshire require some form of alternate decision-making process at the end of their lives due to their lack of capacity to make health care decisions at that critical time.(fn2) In addition, many people who are injured or who become suddenly seriously ill and are therefore temporarily or permanently unable to communicate or make health care decisions do not have a way to tell their health care providers their beliefs and preferences regarding treatment. It comes as a surprise to many people that in New Hampshire an adult's family members (including a spouse) are not automatically legally authorized to consent to medical treatment. Only a court-appointed legal guardian or an agent appointed under a Durable Power of Attorney for Healthcare ("DPOAH") can legally consent to medical care for a person who lacks the capacity to make health care decisions on his or her own behalf.(fn3) A 2004 statewide poll by the University of New Hampshire Survey Center found that only 29 percent of adults had completed a Durable Power of Attorney for Healthcare, and that more than one out of every four respondents had never heard of a Durable Power of Attorney for Healthcare.(fn4) These findings highlight the need for increased accessibility to and public awareness about New Hampshire's advance directive laws.

The New Hampshire legislature passed the first Living Will statute in New Hampshire in 1985(fn5), and subsequently passed the Durable Power of Attorney for Healthcare statute in 1991.(fn6) The Foundation for Healthy Communities ("the Foundation"), a non-profit organization with a mission to improve health and healthcare delivery in New Hampshire, initiated work on improving advance directives in 1999 following a series of 13 town hall-style meetings held across the state. At those meetings, people consistently expressed concerns that end-of-life care information and communication were confusing and difficult. A major focus of confusion was the statutory forms for the Living Will and the Durable Power of Attorney for Healthcare.(fn7) Meeting attendees often cited the use of double negatives in the forms and unfamiliar terminology (such as "life-sustaining treatment" or "lack capacity") as potential barriers to clearly understanding and using the forms. The Foundation convened a multi-disciplinary group, the NH Partnership for End-of-Life Care ("the Partnership"), to study the issues related to advance directives in New Hampshire, and to then recommend changes to the statutes.

The Partnership initially considered going directly to the legislature to make changes, but decided instead to work within the then-existing statutes to make improvements and clarifications. The Partnership conducted a survey of the members of the NH Bar Association Elder Law, Estate Planning and Probate Section and of health care professionals at New Hampshire hospitals who help patients with advance directives, to better understand the challenges those groups experienced working with advance directives. The outcome of these efforts was the creation of the "Advance Care Planning Guide" ("the Guide") in 2001.(fn8) The Guide re-worked the Living Will and DPOAH forms into more consumer-friendly language (derived directly from the statutory requirements) and placed them both within the context of a Guide that emphasized the process of thinking through and talking about future health decisions with one's health care providers and family members, rather than merely signing the legal documents and putting them on a shelf. The Foundation also made the Guide available in Spanish, French, Braille, and on audiotape for the visually-impaired. The Foundation has distributed more than 100,000 copies of the Guide since its development.

In tandem with the introduction of the new Guide in 2001 to improve access to Living Will and DPOAH forms and information, the Partnership identified through the medical literature an intensive two-day training program, "Respecting Choices," in LaCrosse, Wisconsin.(fn9) The Partnership brought "Respecting Choices" to New Hampshire as means of educating health care professionals to help people consider their future health care choices and preferences, and how to discuss those issues with their loved ones and health care providers. More than 600 people have completed the "Respecting Choices" program since 2001, with the majority of participants coming from nursing, social work, and spiritual care services. New Hampshire initiated the model for the expansion of "Respecting Choices" outside of LaCrosse and the program has grown nationally to include many states and communities.

In 2003, the NH Partnership for End-of-Life Care decided to raise awareness among public policymakers of the issues the Partnership was addressing related to advance directives, and requested the establishment of a legislative study committee on end-of-life care.

Representative Peter Batula (R-Merrimack), chairman of the House Health and Human Services Committee, appointed a special subcommittee for that purpose, chaired by Representative Hilda Sokul (D-Hanover). The study committee held hearings and issued a final report in December 2003, recommending a re-examination of the state's advance directive laws. The special subcommittee decided to organize a larger group to develop legislative recommendations.

A Healthcare Decisions Coalition ("the Coalition") was subsequently convened to draft legislation to update and clarify New Hampshire's advance directive statutes. The Coalition was a multi-disciplinary group of about 30 people, representing medical, nursing, legal, judicial, religious, advocacy and consumer organizations.(fn10) The Coalition endeavored to incorporate the suggestions and address the concerns of a wide variety of interested groups. The goal was to make advance directive documents more accessible to people who want to make their wishes known in the event they can no longer participate in their health care decisions and to make it easier for health care providers to comply with those wishes and follow the documents. The Coalition considered...

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