The Law & Your Rights

Decisions about Life-Prolonging Treatment

Some day you may face a difficult decision about life-prolonging treatment. The decision may be for yourself or for someone close to you. This can be a difficult time and you will need to know your rights and/or the rights of your loved one. The information provided in this booklet includes some basic facts about Kentucky laws that affect health care decisions. You are encouraged to read this information and ask your doctor any questions you might have. You may also want to speak with your attorney to ensure that your doctor and other health care professionals can legally follow your decisions.

If you would like additional assistance in your decision-making, feel free to call Jewish Hospital’s Ethics Committee at 587-4426. The Ethics Committee was established to consider all matters of medical ethics for Jewish Hospital, as well as to serve as an intermediary between Jewish Hospital patients and their health care providers. The committee does not make decisions for you, but rather, it provides the objective and experienced considerations you may need when making a difficult decision.

Kentucky Law

Kentucky has an important law, which affects health care decisions. The Kentucky Living Will Directive Act allows people who are age 18 or older, and are of sound mind, to write down directions for their doctor to follow in the event they are no longer capable of decision-making, have a terminal condition or are in a permanently unconscious state.

These directions may include:

• Designation of a surrogate to make health care decisions in the event the patient loses the capacity to do so; or
• Providing directives to health care providers regarding life-prolonging treatment, artificially-provided food, water and other fluids.

Under the Kentucky Living Will Directive Act, withholding or withdrawing tube feeding (artificial hydration and nutrition) is permissible under the following conditions:

• When death is imminent.
• When a patient is in a permanently unconscious state and the advance directive specifically authorizes the withholding or withdrawing of artificially-provided nutrition and hydration.
• When artificial nutrition cannot be physically assimilated by the patient.
• When the burden of providing artificial nutrition and hydration to the patient outweighs the benefits. However, such nutrition and hydration cannot be withheld or withdrawn from the patient if it is needed to provide comfort or to relieve pain.

Under this Act, there is a hierarchy of who can make medical decisions when the patient does not have a Living Will or has not designated a health care surrogate; the surrogate isn’t available; or the directive doesn’t cover the decision that must be made. The hierarchy is:

• Judicially appointed guardian — if medical decisions are within the scope of the guardianship
• The patient’s spouse
• Adult children (majority rules)
• The patient’s parents
• Nearest living relative(s) (majority rules)

This information is provided to you in compliance with Federal and State Law:

In addition, the Kentucky Supreme Court in DeGrella, By and Through Parrent v. Elston, Ky., 858 S.W. 2d 698 (1993) held that artificial life-sustaining medical treatment — including nutrition and hydration — may be withdrawn from a patient in a persistent vegetative state through a surrogate decision-making process if there is clear and convincing evidence that such withdrawal was the wish of the patient, expressed by him/her while competent. The Court has also held that legal action would not be required to authorize discontinuing artificial life-sustaining medical treatment if the attending physician, hospital, legal guardian or next of kin all agree and document the patient’s wishes and condition.

However, the parties who participate in making the decision will not be absolved from liability if the facts do not exist to support the decision.

Our Self-Determination Policy

It is the policy of Jewish Hospital to recognize and adhere to, whenever possible, a patient’s right to formulate and maintain an advance directive. No one will be denied the right to medical care at the hospital based upon whether he/she has executed an advance directive.

The decision to refuse or stop life-prolonging treatment will be made a part of the patient’s medical record. All who participate in the decision, including the patient, family and surrogate, will be identified in the patient’s medical record.

Doctors’ Rights

Adoctor has the right to make moral, religious and professional decisions about the treatment of patients. Therefore, if a patient or surrogate decides to refuse or stop treatment, the doctor has the right to transfer the care of the patient to another doctor. The doctor must inform the patient, the patient’s family or surrogate that he/she cannot comply with the decision. The doctor will then assist in the transfer of the patient’s care. This allows the doctor to maintain his/her beliefs and the patient and/or surrogate and family to maintain treatment decisions.

Family

Patients who make decisions to refuse or stop life-prolonging treatment are encouraged to share the decision with their families. This makes it easier for the family to understand and satisfy the patient’s wishes. However, if a patient does not want the family to be told of such a decision, the doctor and hospital will not tell the family in order to protect the patient’s privacy and confidentiality.

Procedures

The patient or the patient’s family, friends and/or surrogate is responsible for telling the doctor that the patient has a Living Will Directive. It is the responsibility of the doctor to include this information in the patient’s medical record.

The Living Will Directive must meet the requirement of Kentucky law. This means that it must be witnessed by two people who are NOT:

• Blood relatives,
• Going to inherit the patient’s property under Kentucky law,
• Employees of the facility where the patient is located unless the employee serves as a notary, or
• Financially responsible for the patient’s care.

Instead of two witnesses, the document may be acknowledged by a notary public that can be a hospital employee. A sample of a Kentucky Living Will Directive can be provided upon request.

Conclusion

These facts should assist you as you begin to think about what treatment you may want to receive, or the treatment a loved one may want when facing a terminal condition. These are difficult decisions that are often easier to make if they are considered before a terminal condition occurs. Your family physician and attorney are the most informed resource to answer further questions you may have.