End of Life Issues

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?  

  1. The patient must name an agent for the clause to be effective.
  2. The agent must accept in writing the responsibility to enforce the Ulysses Clause over the patient’s objection.
  3. 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.
  4. 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.)
  5. 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.
  6. The clause may authorize the agent to consent to voluntary hospitalization.
  7. 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;
  • Each 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:

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:

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.

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.

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.).

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About the Author
Professor Tracy Bach

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.

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