Do I have the right to decide where I die, at home or in a hospital?
Full Question:
Answer:
Generally, a person has a right to refuse medical treatment if they are competent to do so. It is recommended for a person to complete an advance health care directive. A living will is prepared for the event when you are in a terminal condition and specifies what your wishes are to receive life-sustaining treatment if you are unable to do so for yourself. You may also specify other desires, such as to be allowed to die at home. If you are incapacitated, you may have a person appointed by you under a health care power of attorney make medical decisions on your behalf. The health care power of attorney may specify that your health care agent is to follow the desires stated in your living will wjhen making decisions.
In Arizona, a doctor may refuse to comply with an advance health care directive if it goes against his/her conscience and transfer the patient to another care provider who will follow the directive. However, you may have a particular physican sign a statement that he/she is willing to comply with the directive.
The following are AZ statutes:
36-3204. Responsibilities of health care providers
A. A health care provider shall comply with health care decisions made
by the patient's surrogate unless those decisions are inconsistent with
the patient's health care directive as known to the provider or the
provider has transferred responsibility to another provider pursuant to
section 36-3205, subsection C, paragraph 1. If the directive requires
provision of treatment, food or fluids that would have a significant
possibility of sustaining the patient's life, the provider shall ensure
the provision until the transfer is completed.
B. A health care provider has a duty to volunteer and otherwise disclose
information about the patient's health status and care to the patient's
surrogate to the same degree that the provider owes this duty to the
patient.
36-3205. Health care providers; immunity from liability; conditions
A. A health care provider who makes good faith health care decisions in
reliance on the provisions of an apparently genuine health care directive
or the direction of a surrogate is immune from criminal and civil liability
and is not subject to professional discipline for that reliance.
B. Health care provider acts and refusals to act made in reliance on the
provisions of a health care directive or directions of a surrogate are
presumed to be made in good faith. A court shall base a finding of an
absence of good faith on information known to the provider and shall enter
its finding only after it has made a determination of bad faith in written
findings of fact based on clear and convincing evidence of improper motive.
For the purposes of this subsection, "good faith" includes all health care
decisions, acts and refusals to act based on a health care provider's
reasonable belief of a patient's desires, a patient's best interest or the
directives of a patient's surrogate if these decisions, acts or refusals to
act are not contrary to the patient's express written directions in a valid
health care directive.
C. A health care provider is not subject to criminal or civil liability
or professional discipline for any of the following:
1. Failing to comply with a decision or a direction that violates the
provider's conscience if the provider promptly makes known the provider's
unwillingness and promptly transfers the responsibility for the patient's
care to another provider who is willing to act in accordance with the
agent's direction.
2. Failing to consult a disabled or incapacitated patient's surrogate if
the surrogate cannot be contacted after the health care provider has made a
reasonable effort to do so or if an emergency situation does not provide
the health care provider with sufficient time to locate and consult with
the surrogate.
3. Relying on a court order concerning a patient.
D. This section does not relieve a health care provider from civil or
criminal liability or prevent a provider from being subjected to
professional disciplinary action for the provider's negligent treatment of
a patient if the negligence is unrelated to the provider's reliance on a
health care directive, directions from a surrogate or the recommendations
of an institutional ethics committee pursuant to section 36-3231.
36-3203. Surrogate; authority; responsibilities; immunity
A. A person authorized as a surrogate to make health care decisions
under this chapter is not responsible for paying the patient's health
care costs unless the person is otherwise required to do so.
B. This chapter does not authorize a surrogate to consent to any act or
omission to which the patient could not lawfully consent.
C. The surrogate shall make health care decisions for the patient in
accordance with the patient's wishes as expressed in the health care
directive. If the health care directive does not provide sufficient
information to know what the patient would want in a particular
circumstance, the surrogate shall base these decisions on the surrogate's
knowledge of the patient's values if those are known or can be determined
to the surrogate's satisfaction. If neither the health care directive nor
the surrogate's knowledge of the patient's values provides a sufficient
basis for making a health care decision, the surrogate shall decide based
on the surrogate's good faith belief as to what is in the patient's best
interest.
D. A surrogate who makes good faith health care decisions for a
patient is not subject to civil or criminal liability for those
decisions. Acts and refusals to act made in reliance on the provisions of
a health care directive are presumed to be made in good faith. A court
shall base a finding of an absence of good faith on information known to
the surrogate and shall enter its finding only after it has made a
determination of bad faith in written findings of fact based on clear and
convincing evidence of improper motive. For the purposes of this
subsection, "good faith" includes all health care decisions, acts and
refusals to act based on a surrogate's reasonable belief of a patient's
desires or a patient's best interest if these decisions, acts or refusals
to act are not contrary to the patient's express written directions in a
valid health care directive.
E. A SURROGATE WHO IS NOT THE PATIENT'S AGENT OR GUARDIAN SHALL NOT
MAKE DECISIONS TO WITHDRAW THE ARTIFICIAL ADMINISTRATION OF FOOD OR FLUID.
Sec. 2. Section 36-3206, Arizona Revised Statutes, is amended to read:
36-3206. Enforcement or challenge of a directive or decision; judicial
proceedings
A. An interested person may file a verified petition with the superior
court to determine the validity or effect of a health care directive or the
decision of a surrogate.
B. The petition shall include the following information:
1. The name and current location of the patient and any surrogate
authorized to make decisions for the patient.
2. The name and address of any health care provider known by the
petitioner to be providing health care to the principal.
3. A description or a copy of the health care directive.
4. The judicial relief sought by the petitioner.
C. ON THE FILING OF THE PETITION THE COURT SHALL ENTER A TEMPORARY
ORDER DIRECTING COMPLIANCE WITH SECTION 36-3203, SUBSECTION E. NOTICE OF
THIS ORDER SHALL BE PROVIDED BY PERSONAL SERVICE ON THE SURROGATE, THE
PATIENT, THE HEALTH CARE PROVIDERS IMMEDIATELY RESPONSIBLE FOR THE
PATIENT'S CARE AND OTHER PERSONS THE COURT REQUIRES TO BE NOTIFIED.
C.D. The court shall review the petition, any other pleadings on file
and any evidence offered by the petitioner to determine if it should
order temporary orders without a further hearing. The court may enter a
temporary order directing the provision or the withholding of specific
medical treatment pending a further hearing if the court determines that
there is reasonable cause to believe that health care decisions are being
made by a surrogate or a health care provider that derogate the patient's
wishes or, if the patient's wishes are not known, the patient's best
interests.
D.E. The court shall schedule and conduct a hearing within five
working days of the filing of a petition. Notice shall be provided by
personal service on the surrogate, the patient, the health care providers
immediately responsible for the patient's care, and other persons the
court requires to be notified.
E.F. On the filing of the petition the court may:
1. Appoint an attorney for the patient if it appears that this is in
the patient's best interests.
2. Appoint an investigator as provided under section 14-5308 or a
physician, or both, to evaluate the patient and submit a written report to
the court before the hearing.
3. Enter other temporary orders that the court determines are necessary
and appropriate to protect the wishes or the best interests of the patient,
including an order exercising the power of a guardian or appointing a
temporary guardian as provided under section 14-5310.
F.G. A person filing a petition under this section is not required to
post a bond unless the court determines that a bond is necessary to
protect the interests of any party.
G.H. On notice and a hearing, the court may enter appropriate orders
to safeguard the wishes of the patient. If the court is unable to
determine those wishes, the court may enter appropriate orders to
safeguard the patient's best interest. These orders may include:
1. Appointing a surrogate if the procedural requirements of title 14,
chapter 5, article 3 have been met.
2. Removing an agent or any other surrogate and appointing a successor.
3. Directing compliance with the terms of the patient's health care
directive including the provisional removal or withholding of treatment if
the court finds that this conforms with the patient's wishes or, if the
patient's wishes are not known, is in the patient's best interest.
4. Directing the transfer of the patient to a suitable facility or to
the care of a health care provider who is willing to comply with the
patient's wishes.
5. Assessing court costs and attorney fees against a party found to
have proceeded in bad faith.
H.I. Notwithstanding a person's incapacity, the court may deny a
petition to appoint a guardian for that person based on the existence of a
valid and unrevoked health care directive.
I.J. A guardian appointed pursuant to this section is immune from
civil and criminal liability to the same extent as any other surrogate
pursuant to section 36-3203, subsection D.
Sec. 3. Section 36-3231, Arizona Revised Statutes, is amended to read:
36-3231. Surrogate decision makers; priorities; limitations
A. If an adult patient is unable to make or communicate health care
treatment decisions, a health care provider shall make a reasonable
effort to locate and shall follow a health care directive. A health care
provider shall also make a reasonable effort to consult with a surrogate.
If the patient has a health care power of attorney that meets the
requirements of section 36-3221, the patient's designated agent shall act
as the patient's surrogate. However, if the court appoints a guardian for
the express purpose of making health care treatment decisions, that
guardian shall act as the patient's surrogate. If neither of these
situations applies, the health care provider shall make reasonable
efforts to contact the following individual or individuals in the
indicated order of priority, who are available and willing to serve as
the surrogate, who then have the authority to make health care decisions
for the patient and who shall follow the patient's wishes if they are
known:
1. The patient's spouse, unless the patient and spouse are legally
separated.
2. An adult child of the patient. If the patient has more than one
adult child, the health care provider shall seek the consent of a
majority of the adult children who are reasonably available for
consultation.
3. A parent of the patient.
4. If the patient is unmarried, the patient's domestic partner
5. A brother or sister of the patient.
6. A close friend of the patient. For the purposes of this
paragraph, "close friend" means an adult who has exhibited special care
and concern for the patient, who is familiar with the patient's health
care views and desires and who is willing and able to become involved in
the patient's health care and to act in the patient's best interest.
B. If the health care provider cannot locate any of the people listed
in subsection A of this section, the patient's attending physician may
make health care treatment decisions for the patient after the physician
consults with and obtains the recommendations of an institutional ethics
committee. If this is not possible, the physician may make these
decisions after consulting with a second physician who concurs with the
physician's decision. For the purposes of this subsection, "institutional
ethics committee" means a standing committee of a licensed health care
institution appointed or elected to render advice concerning ethical
issues involving medical treatment.
C. A person who makes a good faith medical decision pursuant to this
section is immune from liability to the same extent and under the same
conditions as prescribed in section 36-3205.
E.D. A surrogate may make decisions about mental health care
treatment on behalf of a patient if the patient is found incapable.
However, a surrogate who is not the patient's agent or guardian shall not
make decisions to admit the patient to a level one behavioral health
facility licensed by the department of health services, except as
provided in subsection FE of this section or section 14-5312.01, 14-5312.02
or 36-3281.
F.E. If the admitting officer for a mental health care provider has
reasonable cause to believe after examination that the patient is
incapable as defined in section 36-3281, subsection D and is likely to
suffer serious physical harm or serious illness or to inflict serious
physical harm on another person without immediate hospitalization, the
patient may be admitted for inpatient treatment in a level one behavioral
health facility based on informed consent given by any surrogate
identified in subsection A of this section. The patient shall be
discharged if a petition for court ordered evaluation or for temporary
guardianship requesting authority for the guardian to consent to
admission to a level one behavioral health facility has not been filed
within forty-eight hours of admission or on the following court day if
the forty-eight hours expires on a weekend or holiday. The discharge
requirement prescribed in this section does not apply if the patient has
given informed consent to voluntary treatment or if a mental health care
provider is prohibited from discharging the patient under federal law.