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End
of
Life
Issues
Topics Covered on This Page
Autopsy & Death Certificates
Advance Directives for Health Care
Do-Not-Resuscitate (DNR) & COLST Orders
Hospice Orders
Organ Donation (also called Anatomical Gifts)
Physician Assisted Suicide (PAS)
Right to Pain Assessment
About the Author
By
Tracy Bach
Vermont Law School
Edited and updated
by Justin Campfield
Autopsy & Death Certificates
Who must
sign a death certificate?
The physician who last attended the deceased person during his or her
last illness must immediately fill out a death certificate, in a form
established by the commissioner of health. If this physician is unable
to state the cause of death, he or she must immediately notify the
physician, if any, in charge of the patient's care, who should then fill
out the certificate. If neither physician is able to state the cause of
death, then the autopsy provisions discussed below apply.
A physician who
fails to furnish a death certificate within 24 hours of death shall be
fined not more than $100.00.
Beginning on
Jan. 1, 2012, a law passed by the legislature in 2009 will allow
licensed health care professionals (physician assistants and advance
practice registered nurses, as stipulated by the law), in addition to
physicians, to sign death certificates. If a physician assistant or
advance nurse practitioner is unable to determine the cause of death, he
or she must notify a physician.
What role does
the funeral director play in completing a death certificate?
The physician, or other health care professional as stipulated above
after Jan. 1, 2012, may, with the consent of the funeral director,
delegate the responsibility of gathering data and filling out all items
on the death certificate, except the medical certification of cause of
death.
What happens if
the attending physician at a hospital death is unavailable?
When an admitted patient in a hospital dies and it is impossible to
obtain a death certificate from an attending physician before burial or
transportation, any physician (or health care professional after Jan. 1,
2012) who has access to the facts and can certify that the death is not
subject to the autopsy provisions (set out below) may complete and sign
a preliminary death report. The town clerk or deputy shall accept this
report and issue a burial-transit permit. This preliminary report does
not relieve the attending physician from the responsibility of
completing a death certificate and delivering it to the funeral director
within 24 hours after death.
When is
a health care professional required to notify the medical examiner of a
death?
A health care professional must notify the medical examiner when he or
she learns that a person has died:
-
From
violence; or
-
Suddenly, when in apparent good health; or
-
When
unattended by a physician or a recognized practitioner of a
well-established church; or
-
By
casualty; or
-
By
suicide; or
-
As a
result of injury; or
-
When
in jail or prison, or any mental institution; or
-
In any
unusual, unnatural or suspicious manner; or
-
In
circumstances involving a hazard to public health.
The
medical examiner who resides nearest the town where the death occurred
should be notified. The medical examiner must then notify the state's
attorney of the county in which the death occurred.
Does a
physician have to share any potentially privileged information with the
medical examiner?
Yes. Upon a medical examiner’s request, physicians are required to
disclose any information as to the mental or physical condition of a
deceased patient privileged under subsection (C)(2) of 12 V.S.A. § 1612.
Who can order an autopsy?
If the chief medical examiner or investigating state's attorney
deems it necessary and in the interest of public health, welfare and
safety, he or she may order an autopsy. When it is completed, the chief
medical examiner must submit a report to the appropriate state's
attorney and the attorney general, and then complete and sign a
certificate of death.
Advance Directives for
Health Care
States have
enacted statutes to enable patients to create legal documents which
direct their health care when they are unable to make these medical
decisions. Over the years, such documents have been called living wills,
health care proxies, and DPoAs (durable powers of attorney for health
care decision making). Advanced directive (AD) is the current term used
to describe these legal documents. Vermont enacted a new AD statute, Act
55 of the 2005 session, which became effective Sept. 1, 2005. The new
law makes it easier for patients to use advance directives.
What is
an advance directive?
An
advance directive is a written document, signed by a patient and two
witnesses, which tells people the patient’s future medical treatment
wishes when he or she no longer can (or wishes to) do so. It is what
many people think of as a “living will.”
What do
advance directives allow patients to do?
Patients may appoint an agent to speak for them. They can list
people who should be informed about their care or involved in
decision-making, including their primary care physician. Patients may
also specify the kind of treatment they do or do not want if
seriously ill or dying. They may express their desires regarding pain
medication and being treated at home, if possible, rather than in a
hospital or nursing home. Patients may also state whether they want to
be organ donors. They may specify wishes about funeral and other
arrangements after death, including designating someone to handle
these matters. There are other things that patients may express in their
ADs, but these are the main ones.
When
does the agent’s authority begin?
The agent’s authority usually begins when the person who created the AD
can no longer make and communicate decisions about medical care.
However, the new law allows people to say in their ADs that other events
or conditions may trigger an agent’s authority, even though a person
still has the capacity to speak for himself or herself. A person may
even specify that the agent’s authority begins immediately upon signing
the AD. However, most people choose to continue to make their own
decisions for as long as possible.
Who can serve as an agent and
what are the agent’s rights and responsibilities?
An agent must be 18 years old and someone who the AD maker trusts to
make decisions that reflect his or her values and wishes. A person’s
doctor or other clinician may not serve as an agent, nor may the
non-family member owners or staff of a residential care facility (if the
patient is in that facility). A person may appoint co-agents and
alternative agents.
The
agent has access to all necessary medical records and clinicians
involved in providing care to the patient, to help in gathering
information about the circumstances, diagnosis, and prognosis. The agent
must follow the instructions in the AD. If the document is silent about
the circumstances that the patient is in, the agent must weigh the
benefits and burdens and decide the way the patient would have. If this
is uncertain, the agent is expected to do what is in the patient’s best
interest.
If more
than one agent is named in an AD, may a provider rely on the decisions
of only one?
Only if 1) there is agreement among the agents about the pending
decision, 2) all agents agree that one agent can make any decision, or
3) the other agents are not reasonably available. Such cases should be
documented in the medical record.
When
does an advance directive take effect?
An AD becomes effective when 1) the patient lacks capacity, as
determined by a clinician, 2) a condition expressed in the AD is met
(such as reaching a certain age or being diagnosed with a certain
illness), or 3) a date specified in the AD is reached.
What are
the responsibilities of the clinician who determines that a patient
lacks capacity or becomes aware that a triggering condition has been
met?
Clinicians must speak with an interested individual, such as a family
member, as part of the capacity determination. Clinicians must document
the cause, nature, and projected duration of the lack of capacity in the
patient’s medical record. A clinician must also make reasonable efforts
to notify the patient’s agent or guardian that the AD has taken effect.
How is
capacity defined?
Capacity means an individual’s ability to make and communicate a
decision regarding an issue that must be decided. Capacity to make a
health care decision means the patient has a basic understanding of the
diagnosed condition, and the benefits, risks, and alternatives to the
proposed health care.
Capacity
to appoint an agent means the patient has a basic understanding of what
it means to have another individual make health care decisions and who
would be an appropriate individual to make health care decisions, and
the patient can identify a prospective agent to make health care
decisions for him or her.
Who can
request a re-determination of a patient’s capacity?
The patient, agent, guardian, ombudsman, health care provider, treating
clinician, or an interested individual, such as a family member, may
request that the patient be reexamined to determine whether the patient
has regained capacity.
What are the responsibilities
of the clinician or designee, who reexamines the patient?
The clinician must document the results of the
reexamination in the patient’s medical record and make reasonable
efforts to notify the patient, agent, and guardian of the results.
Consistent with HIPAA’s privacy requirements, the clinician must also
notify the person requesting the reexamination.
What is
the effect of a clinical finding that the patient has regained capacity?
Generally, the AD would no longer be effective and the agent’s authority
to make health care decisions would cease. But if the AD was triggered
by a condition (such as reaching a certain age), the agent’s authority
and provisions of the AD may remain in effect. In such cases, a patient
with capacity retains concurrent decision making authority with his or
her agent (similar to how a pilot and co-pilot function), and in cases
of disagreement, the patient’s decision controls.
Can a patient who does not
have capacity object to care or to withholding or withdrawing care?
Yes, patients may object to the provision of care or
withholding/withdrawing care, even if they are incapacitated. As a
general rule, health care professionals may not provide or withhold care
over a patient’s objection. There are two exceptions to this rule. The
first exception applies when the patient has a Ulysses Clause in his or
her advance directive and the agent authorizes providing or withholding
care over the patient’s objection. The second exception applies when the
patient would suffer serious and irreversible bodily injury or death
within 24 hours if the care is not provided. In these cases, if there is
no available agent or applicable instruction in an AD or the agent
agrees with the health care professional’s decision to provide care, the
health care provider may provide care over the patient’s objection.
What is
a Ulysses Clause and how does it work?
A Ulysses Clause is a provision that is executed when an individual has
capacity in anticipation of a time when he or she will lack capacity.
For example, if patients know they are likely to refuse medication or
other specific treatments when they are incapacitated, the Ulysses
Clause could specify that the patient wants to receive the treatment
even if they object at that time. If executed according to the specific
provisions described below, when a patient lacks capacity, his or her
agent may make health care decisions over the patient’s stated objection
and the clinician is obligated to follow the agent’s instructions. The
provision may refer either to providing care a patient is refusing or
withholding care a patient is requesting.
What
are the required elements of a valid Ulysses Clause?
-
The
patient must name an agent for the clause to be effective.
-
The
agent must accept in writing the responsibility to enforce the Ulysses
Clause over the patient’s objection.
-
The
patient’s clinician must sign the Ulysses Clause and affirm that the
patient understands the risks, benefits, and alternatives to the
treatment specified in the Ulysses Clause.
-
A
lawyer, ombudsman, clergy person, probate court designee, or hospital
designee must explain the clause to the patient and affirm that the
patient appeared to understand the provision and be free from duress
or undue influence. (If the patient is in a hospital when the Ulysses
Clause is executed, a hospital designee may not explain the clause to
the patient.)
-
The
Ulysses Clause must specify the treatments that it covers and include
a specific statement that the patient desires or does not desire the
specified treatments, even if he or she objects in the future.
-
The
clause may authorize the agent to consent to voluntary
hospitalization.
-
The
clause must include an acknowledgment that the principal is knowingly
and voluntarily waiving the right to refuse or receive treatment at a
time when he or she is incapacitated.
When
does a Ulysses Clause become effective?
A Ulysses Clause becomes effective when both the patient’s clinician and
a second clinician have determined that the patient lacks capacity.
What
responsibilities do health care providers have with respect to Ulysses
Clauses?
Providers are obligated to notify the agent or guardian if a patient
makes a decision which the agent appears to have authority to contradict
over the objections of the patient. Providers are also required to make
reasonable efforts to inform the patient of any proposal to withhold or
withdraw health care.
May
health care providers refuse to honor an advance directive or the
instruction of an agent or guardian?
Yes. Providers must follow the instructions of an agent or guardian
unless they are inconsistent with the AD or the statute. Providers or
family members who have concerns about an AD may apply to Probate Court
for clarification.
In
addition, providers do not have to follow instructions of the agent,
guardian, or AD if it would cause the provider to violate criminal law
or professional standards of conduct. Providers must inform the patient,
agent, or guardian of the reason for refusing and document the situation
fully in the medical record.
Providers may also refuse in situations in which they have moral,
ethical, or other conflicts. In such cases, they must:
-
Inform
the patient, agent or guardian;
-
Assist
in the transfer of care to another provider;
-
Provide ongoing care until a new provider is found; and
-
Document the conflict, the steps taken to resolve it, and the final
resolution.
Employees are only responsible to notify the employer of the conflict.
The employer must then take the appropriate action to resolve the
situation, but in the meantime, the employee must continue to provide
care until another employee can be found.
Providers must make reasonable efforts to notify the patient, agent, or
guardian in advance if they will not be able to follow any instructions.
Can
advance directives be executed upon admission to a facility?
Yes. However, these ADs must be accompanied by a signed statement by an
ombudsman, member of clergy, attorney licensed to practice in Vermont, a
probate court designee, or an individual designated by a hospital for
this purpose, that he or she has explained the nature and effect of the
AD to the patient. Hospitals are required to have enough individuals
available to explain ADs to patients.
Can
health care professionals witness advance directives?
Yes.
Anyone over 18 who is not an agent, spouse, or other family member may
witness an AD.
Is
there only one copy of an advance directive?
No, there can be multiple copies. People creating an AD should make sure
that the agent or agents named in the document have the original. Copies
may also be provided to a hospital, nursing facility, physician, family
member, pastor, neighbors, or close friends. By 2007, it is expected
that a state AD registry will be online, where people may store advance
directive documents in a secure database available to health care
providers around the clock.
How
does a patient amend an advance directive?
A patient may amend an AD by preparing a new one. The new document must
be dated and signed in the presence of two adult witnesses, who cannot
be relatives of the patient but may be health care professionals. If a
patient amends an advance directive while in a hospital or nursing home,
the amendment must be accompanied by a signed statement from an
attorney, clergy person, ombudsman, probate court designee, or hospital
designee attesting that he or she has explained the effect of the
amendment to the patient. The patient should destroy copies of the
previous document, or ask people who have copies to destroy them, to
avoid confusion.
Can a
patient suspend or revoke an advance directive?
Yes, a patient can revoke or suspend all or part of an AD. A suspension
makes the AD inapplicable for a specific period of time or while a
specific condition exists.
Can a
patient revoke or suspend an advance directive if the patient does not
have capacity?
Yes, in general, a patient may revoke or suspend their advance
directive regardless of their capacity. If a patient has executed a
Ulysses Clause, they may only suspend or revoke their AD if they have
capacity. (See section on Ulysses Clause above.)
How can
a patient suspend or revoke an advance directive?
To suspend or revoke all or part of an AD, including the designation of
an agent, a patient may either execute a new AD or:
-
Sign a
statement suspending the designation of an agent;
-
Personally inform the clinician who is responsible for the patient’s
care;
-
Burn,
tear, or obliterate the AD personally; or
-
Direct
another person to burn, tear or obliterate the advance directive.
A
patient may suspend or revoke any provision, other than the designation
of an agent, orally or by any other action or statement showing an
intention to suspend or revoke all or part of an advance directive.
How can
a patient suspend or revoke the designation of an agent?
It is done much the same way as revoking or suspending an advance
directive, except the patient cannot do it orally, except to a
clinician.
What are the responsibilities
for health care professionals, health care facilities and residential
care facilities that become aware of amendments, suspensions and
revocations?
If a clinician, hospital,
nursing home, or home health agency becomes aware of an amendment,
suspension, or revocation while treating an incapacitated patient, they
must make reasonable efforts to:
-
Confirm the suspension, amendment, or revocation;
-
Record
and flag the amendment, suspension, or revocation in the patient’s
medical record; and
-
Notify
the patient, agent, and guardian.
If a
clinician, hospital, nursing home, or home health agency becomes aware
of an amendment while treating a patient with capacity, they must make
reasonable efforts to confirm and record the amendment. In addition, the
health care professional, health care facility, or residential care
facility must assist the patient to notify the agent, guardian, and
family members if the patient requests assistance.
If a
clinician, hospital, nursing home, or home health agency becomes aware
of an amendment, suspension, or revocation when they are not providing
care to the patient, they must record and flag the amendment,
suspension, or revocation.
What
kinds of policies are providers required to have in place?
All health care providers, health care facilities, and residential care
facilities must develop protocols to ensure that:
-
Advance directives and DNR orders are available when services are
provided;
-
The
existence of an AD or DNR order is prominently noted on the file
jacket of a patient’s medical record or flagged in an electronic
record;
-
Once
an AD registry is available, the provider checks the registry before
providing services to an incapacitated patient; and
-
Agents
and guardians have the right to access patient records, participate in
discussions about treatment and decisions, and file complaints.
Health
care and residential care facilities must also develop protocols to
ensure that:
-
Patients are asked if they have ADs before or as soon as possible
after admission and periodically while at the facility;
-
ADs
are reviewed to determine whether the facility is able to follow their
instructions;
-
If the
facility is unable to follow the instruction, steps are taken to
notify the patient and agent, and to assist the patient to transfer to
another facility that has the ability to follow the instruction;
-
Patients are encouraged and helped to submit their ADs to the
registry;
-
The
facility has a consistent process to issue, revoke, and handle DNR
orders; and
-
ADs
and DNR orders are transferred along with the patient when the patient
moves from one facility to another.
Are there penalties associated with these new policy requirements?
Yes, providers and facilities are subject to review and discipline by
the licensing entity for 1) failure to act in accordance with a known AD
or instruction of an agent or guardian and 2) unauthorized accessing of
the registry.
Can a clinician, health care
facility, or residential care facility be sued or prosecuted for relying
on an advance directive?
No, health care provider can
be subject to criminal or civil liability for relying in good faith on
the provisions of an AD, a DNR order, or the direction of an agent or
guardian. They are also immune from suit when they rely in good faith on
a copy of an AD, if they are unaware that it has been suspended or
revoked.
Can employees be subjected to
disciplinary action for following the provisions of an advance
directive?
No, employees may not be
disciplined for relying in good faith on an AD or an AD that has been
revoked.
Can employees be disciplined
for providing notice of a moral conflict to their employer?
No, as long as the employee
provides ongoing health care until a new employee or health care
provider has been found to provide the services.
What law
applies when a patient has an advance directive from another state?
ADs that are validly prepared in another state are effective in Vermont
and may be relied on to provide guidance to health care professionals.
What law applies when a
patient with a Vermont advance directive is being treated in another
state?
Conflict of laws doctrine
will determine which law applies to patients with Vermont ADs receiving
care in other states. The new Vermont AD statute provides that ADs will
be interpreted under Vermont law to the extent possible.
Are the old standard Vermont
documents -- terminal care documents (living wills) and durable powers
of attorney for health care -- still valid?
Yes, if the document was
signed before September 1, 2005 and met the formal requirements in
effect when prepared (including being signed, dated, and witnessed).
Health care providers may rely on these older documents to provide
guidance and to authorize agents to make health care decisions for
patients.
What
issues concerning advance directives can be reviewed in Probate Court?
Probate courts can consider whether to revoke an advance directive on
grounds that at the time the patient signed the AD, he or she did not
have capacity to understand its nature, was under duress, or was the
subject of fraud or undue influence. Probate courts can also consider
whether to reinstate an AD on the grounds that the patient was under
duress or the subject of undue influence or fraud at the time of a
suspension or revocation. Probate courts may construe the terms of an AD
or construe the rights, legal status, or legal relationship of the
parties with respect to an AD.
Patients, agents, or family members may challenge determinations that
triggering conditions have been met. Patients, agents, or family members
may also challenge capacity determinations, provided certain procedural
steps are taken.
Is an
advance directive effective during probate court review? Yes, if the
AD is in effect, either because a condition has been triggered or a
determination of incapacity has been made, it would remain in effect
until the probate court ordered otherwise. Probate judges can issue
emergency orders on request when there is a risk of harm occurring
before notice and a full hearing can take place.
Do-Not -Resuscitate (DNR)
& COLST Orders
What must a DNR/COLST Order
include?
A DNR order is the
portion of a COLST form that indicates a patient’s decision to forego
resuscitation when experiencing cardiopulmonary arrest. The remainder
of the COLST form details the patent’s wishes for life sustaining
treatment. A DNR/COLST form must be signed by the patient’s clinician
and include the name of the person giving informed consent (patient or
agent or guardian, per the patient’s advance directive – see above),
and specify that individual’s relationship to the patient. If the
patient is in a health care facility or residential care facility, the
DNR order should certify that it meets the facility’s DNR protocol.
Are original DNR/COLST forms required?
No. While the use of original documents is encouraged, photocopies and
faxes of signed DNR/COLST forms are legal and valid.
Is the
Department of Health’s DNR/COLST form required to be used?
No, some facilities and clinicians prefer to use their own forms. There
is no problem with using other forms as long as the forms meet the legal
requirements.
May a
DNR order be issued without consent?
Yes, provided that two clinicians certify that resuscitation would not
prevent the imminent death of the patient, should the patient experience
cardiopulmonary arrest.
Can a
clinician authorize DNR identification for a patient?
Yes, a clinician who issues a DNR order may authorize a DNR
identification, such as a bracelet or wallet card to the patient.
Must
health care professionals and facilities honor DNR orders?
Yes, unless they believe in good faith that the patient wishes to revoke
the DNR order or that the patient is not the individual for whom the
order was issued. When deciding not to honor a DNR order, a clinician
must consult with the agent or guardian, if possible, and document the
basis for the decision in the patient’s medical record.
Does a DNR order preclude all therapeutic interventions for the
patient?
No, a DNR order only precludes efforts to resuscitate the patient in the
event of cardiopulmonary arrest. The remaining portion of the COLST form
details the patient’s wishes regarding other appropriate therapeutic
interventions.
Must oral fluids and nutrition always be offered?
Yes. If medically feasible, oral fluids and nutrition must always be
offered.
Is using IVs for dehydration considered life sustaining?
Yes. If a
patient wishes to be hydrated through IVs, their order should indicate
either “limited interventions” or “full treatment.”
Hospice Orders
Under the Bill of Rights for Hospital Patients [18 V.S.A. § 1852],
hospital and nursing home patients have the right to be informed in
writing of the availability of hospice services and the eligibility
criteria for those services. Failure to comply with any provision of
this section may constitute a basis for disciplinary action against a
physician and a complaint may be filed with the Board of Medical
Practice.
Organ Donation
(also called Anatomical Gifts)
Anatomical gifts are a donation of all or part of a human body that
occurs after death. They are regulated by the state under the Uniform
Anatomical Gift Act [18 V.S.A. § 5238 – 48].
Who may donate an organ?
A person who is at
least 18 years of age may make an anatomical gift for one of the
purposes listed in the next section.
In addition, certain classes
of individuals, in the order of priority listed below, may make an
anatomical gift of all or a part of the decedent's body for an
authorized purpose, unless the decedent has made an unrevoked refusal to
make that anatomical gift:
·
The spouse of
the decedent;
·
The reciprocal
beneficiary of the decedent;
·
An adult son or
daughter of the decedent;
·
Either parent
of the decedent;
·
An adult
brother or sister of the decedent;
·
A grandparent
of the decedent;
·
An individual
possessing a durable power of attorney;
·
A guardian of
the person of the decedent at the time of death;
·
Any other
individual authorized or under obligation to dispose of the body.
Who may receive an organ?
The following
persons may become recipients of anatomical gifts for any of the
following purposes:
·
A hospital,
physician or procurement organization, for transplantation, therapy,
medical or dental education, research or advancement of medical or
dental science.
·
An accredited
medical or dental school, college or university for education, research
or advancement of medical or dental science.
·
An anatomical
gift may be made with or without designating a donee. If a donee is not
designated or if the donee is not available or rejects the anatomical
gift, the anatomical gift may be accepted by any hospital or procurement
organization.
How does one donate an organ?
An anatomical gift
may be made only by a document signed by the donor. This document of
gift may be attached to or imprinted on a donor's motor vehicle
operator's license. If the donor cannot sign, the document must be
signed by another individual and by two witnesses, all of whom have
signed at the direction and in the presence of the donor and of each
other, and state that it has been so signed.
An anatomical gift may also
be made by will. If so, it takes effect upon death of the testator,
whether or not the will is probated. If, after death, the will is
declared invalid for testamentary purposes, the validity of the
anatomical gift is unaffected.
An anatomical gift made by
the “certain classes of individuals” listed above must be made in a
document of gift signed by that individual or that individual's
telegraphic, recorded telephonic, or other recorded message or other
form of communication from the individual that is contemporaneously put
in writing and signed by the recipient of the communication.
Organs may not be sold or
bought. A person who does so may be fined up to $50,000.00 or imprisoned
up to five years.
Can one change or revoke an
anatomical gift?
Yes, a donor may
amend or revoke an anatomical gift only by one of the following methods:
·
A signed
statement;
·
An oral
statement made in the presence of two individuals;
·
Any form of
communication during a terminal illness or injury addressed to a
physician; or
·
The delivery of
a signed statement to a specified donee to whom a document of gift had
been delivered.
An anatomical gift that is
not revoked by the donor before death is irrevocable and does not
require the consent or concurrence of any person after the donor's
death.
Can one refuse to make an
anatomical gift?
Yes, an individual
may refuse to make an anatomical gift of the individual's body or part
by any one of the following:
·
A writing
signed in the same manner as a document of gift;
·
A statement
attached to or imprinted on the donor's Vermont motor vehicle operator's
license; or
·
Any other
writing used to identify the individual as refusing to make an
anatomical gift.
·
During a
terminal illness or injury, the refusal may be an oral statement or
other form of communication.
During a terminal illness or
injury, the refusal may be an oral statement or other form of
communication.
To determine whether an
individual is a donor or has refused to make an anatomical gift, the
following persons shall make a reasonable effort to inspect an
individual's motor vehicle operator's license and to determine whether
the individual has an organ donor card in his or her possession:
·
A law
enforcement officer, fireman, paramedic or other emergency rescuer
finding an individual who the rescuer believes is dead or near death;
·
A designated
representative of the hospital, upon the admission of an individual at
or near the time of death, if no other source of that information is
immediately available.
If a document of gift or
evidence of refusal to make an anatomical gift is located by a search,
and the individual or body to whom it relates is taken to a hospital,
the hospital shall be notified of the contents and the document or other
evidence shall be sent to the hospital.
May a donor make a “live”
donation?
Yes, Vermont law
does not limit the right of an individual to authorize removal, while
alive, and give one or more of his or her parts to another person,
including a designated individual, for transplantation or therapy.
What are the recipient’s
rights and duties?
A donee may accept
or reject an anatomical gift. If a donee accepts an anatomical gift of
an entire body, the donee, subject to the terms of the gift, may allow
embalming and use of the body in funeral services. If the gift is of a
part of a body, the donee, upon the death of the individual and before
embalming, shall cause the part to be removed without unnecessary
mutilation. After removal of the part, custody of the remainder of the
body vests in the person under obligation to dispose of the body. If the
donee is under obligation to dispose of the body, the donee must have
the body decently buried or cremated.
Do health care providers have
specific duties under the anatomical gift act?
Each hospital in
Vermont, after consultation with other hospitals and procurement
organizations, shall establish agreements or affiliations for
coordination of procurement and use of human bodies and parts. Also,
hospitals must notify donees of imminent donations, if one is named and
known to the hospital; if not, it shall notify an appropriate
procurement organization.
The time of death must be
determined by a physician who attends the individual at death, or, if
none, the physician who certifies the death. Neither the physician who
attends the individual at death nor the physician who determines the
time of death may participate in the procedures for removing or
transplanting a part. The term "procedures" as used in this section
shall include the actual physical removal and transplantation of a part,
but shall not include the consent, process, disposal, preservation,
quality control, storage, transportation or scientific research
involving a part.
May hospital administrators
request anatomical gifts?
If, at or near the
time of death of a patient, there is no medical record that the patient
has made or refused to make an anatomical gift, the hospital
administrator or representative may discuss the issue with those
categories of persons empowered to make a gift and request that an
anatomical gift be made. The request must be made with reasonable
discretion and sensitivity to the family’s circumstances. An entry must
be made in the medical record of the patient, stating the name and
affiliation of the individual making the request, and of the name,
response and relationship to the patient of the person to whom the
request was made.
How does one learn about an
anatomical gift?
If an anatomical
gift is made to a designated donee, the document of gift, or a copy, may
be delivered to the donee to expedite the appropriate procedures after
death. However, this is not required. The document of gift, or a copy,
may be deposited in any hospital, procurement organization or registry
office that accepts it for safekeeping or for facilitation of procedures
after death.
The Department of Health, in
coordination with the Department of Motor Vehicles, shall develop and
maintain a registry identifying persons who have authorized a document
of an anatomical gift. The registry shall be maintained in a secured
database that provides authorized organ procurement organizations,
tissue banks, and eye banks immediate access to the registry at all
times. All persons entered in the registry shall have the right to
revoke or amend their document of gift as provided in this chapter. In
no event shall the data be accessed or used for any purpose unrelated to
the making of anatomical gifts.
Also, law enforcement
officers, fire fighters, paramedics, and other emergency rescuers,
having found an individual who the rescuer believes is dead or near
death, are charged with making a reasonable effort to inspect an
individual's motor vehicle operator's license, to determine whether the
individual has an organ donor card in his or her possession. Likewise, a
designated representative of the hospital, when admitting an individual
at or near the time of death, should also search for a donor card, if no
other source of that information is immediately available. If a document
of gift or evidence of refusal to make an anatomical gift is located by
the search, and the individual or body to whom it relates is taken to a
hospital, the hospital shall be notified of the contents and the
document or other evidence shall be sent to the hospital.
Physician Assisted Suicide
(PAS)
Physician assisted suicide (PAS) occurs when a medical provider provides
prescription medicine for a patient to use to end his or her life. It
differs from euthanasia in that the medical provider does not directly
administer the lethal dose to the patient. Currently PAS is legal only
in Oregon. The Vermont Legislature has considered PAS bills during
several recent sessions, including in 2010. Previous attempts to enact
PAS legislation, which have been mostly modeled after Oregon’s Death
with Dignity Act, have failed to pass.
Is
withholding or withdrawing life sustaining treatment considered to be
suicide?
No, withholding or withdrawing life-sustaining treatment from a patient
who has an AD that limits the provision of life sustaining treatment is
not considered to be suicide.
Right to Pain Assessment
As with hospice orders, under the Bill of Rights for Hospital Patients
[18 V.S.A. § 1852], hospital and nursing home patients have the right to
receive professional assessment of pain and professional pain
management. Failure to comply with any provision of this section may
constitute a basis for disciplinary action against a physician and a
complaint may be filed with the Board of Medical Practice.
Rights to Palliative Care and Pain Management
Under 18 V.S.A. § 1871, a patient has the right to:
-
Be
informed of all evidence-based options for care and treatment,
including palliative care, in order to make a fully informed choice;
-
If
suffering from a terminal illness, be informed by a clinician of all
available options related to terminal care; to be able to request and,
all, or none of these options; and to expect and receive supportive
care for the specific option or options available;
-
If
suffering from pain, request or reject the use of any or all
treatments in order to relieve his or her pain;
-
If
suffering from a chronic condition, competent and compassionate
medical assistance in managing his or her physical and emotional
symptoms; and,
A
pediatric patient suffering from a serious or life-limiting illness or
condition, receive palliative care while seeking and undergoing
potentially curative treatment. (Added 2009, No. 25, § 3.).
specializes in three areas: 1) legal research, analysis, and writing; 2)
health care law and policy; and 3) international human rights,
especially genocide. The courses she has taught at Vermont Law School
include Appellate Advocacy, Legal Writing in Environmental Health Law,
Health Law, Health Law and Public Policy, Genocide, Professional
Responsibility, and Dispute Resolution.
Professor Bach received her B.A. degree in history, cum laude,
from Yale University in 1984 and her M.A. degree in public affairs from
the University of Minnesota Hubert Humphrey Institute in 1994. In that
same year, she earned her J.D. degree, cum laude, from the
University of Minnesota Law School, where she was article editor for the
Minnesota Law Review and director of the 1992 Jessup
International Moot Court Competition Team, and where she received the
Steven M. Block Prize for Best Paper in Civil Rights and Civil
Liberties.
From 1984 to 1990, Professor
Bach worked in health care finance and management for a mid-sized New
York City consulting firm, a large midwestern hospital chain, and as a
self-employed consultant. Before joining Vermont Law School’s faculty in
1996, Professor Bach interned for the trial and appellate courts of the
Non-Removable Mille Lacs Band of Chippewa Indians and clerked for the
Honorable Harriet Lansing of the Minnesota Court of Appeals. Professor
Bach is a member of both the New Hampshire and the Vermont Bar
Associations and serves as the Co-Chair of the VBA’s Health Law
Committee. |
