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Nov 2, 2017 11:33:00 AM

When Advance Directives Conflict with Treatment

by A. William Charters and Jeff Kiser

Advance Directives provide the most definitive information (other than direct patient conversation, of course) about the course of a patient’s treatment. What happens however when the desires of the patient or family run counter to what a physician believes is appropriate or ethical treatment?

Laws to Guide Care Disputes under Advance Medical DirectivesCongress provided a right for patients to decide when they passed the Patient Self-Determination Act in 1990.[1] More and more however, the care that patients and family want (or demand) is beyond what the physician deems appropriate. Different states allow varying degrees of discretion and not everyone “legally” permits the same procedures or care. Virginia, for example, does not recognize the Death with Dignity Act (or any other physician assisted end of life program), but a nearby neighbor, the District of Columbia, does. Knowledge of the particulars of the Virginia statutes provides a springboard for the analysis of what can or should be provided.

How about that circumstance where the treatment demanded is considered unethical, immoral or inappropriate by the treating physician? The Code of Virginia provides that an attending physician faced with an instruction to render care that he/she feels is medically or ethically inappropriate is not required to carry out the instruction (whether contained in an Advance Directive or not) but must first make every reasonable effort to explain his/her reasoning to the patient or decision making authority under the advance directive. Then, within fourteen (14) days the treating physician must make a reasonable effort to transfer the patient to another physician who is willing to comply with the patient’s request or the directive’s instruction. [2] Many facilities have a mediation process of sorts that helps to determine the medical appropriateness of care in conjunction with the physician and patient/decision maker.

It is important to note, however, that this requirement does not extend to treatment that the physician is physically or legally unable to provide[3]. More specifically, the Code directly states that “mercy killing or euthanasia” are not permitted nor is any act that will “end life other than to permit the natural process of dying.”[4] These guidelines aim to help physicians maintain a level of professionalism and control over their practice but, most importantly, offer protection against professional malpractice and personal tort claims.

While these rules and the rest of Virginia’s Health Care Decisions Act offer aid and guidance, they are most effective when implemented on a proactive rather than reactive basis–as the old saying goes, an ounce of prevention is worth a pound of cure. Take the time to educate yourself and your practice on the many facets of advance directives and establish a protocol for how you and your employees will determine if an advance directive exists for a given patient. Once you know that and you determine who the “decision maker” is, be honest and straightforward with what you consider moral and ethical treatment so that care can be transferred early on if there is going to be a dispute.

[1] https://www.congress.gov/bill/101st-congress/house-bill/4449

[2] Va Code §54.1-2987, Va Code §54.1-2990(a)

[3] Va Code §54.1-2990 (c)

[4] Va Code §54.1-2990 (d)


This article originally published in the Fall 2017 issue of Hampton Roads Physician, and is the second in a two-part article on Advance Directives.  Read part one here.

This blog is made available by Goodman Allen Donnelly for general information, and does not constitute legal advice. By reading this blog, you understand that there is no attorney-client relationship between you and the firm. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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