POLICY STATEMENT.
The Division of Veterans Healthcare Services (DVHS) shall advocate on behalf of its residing population of residents and ensure that residents and/or their representatives are afforded ethical, legal, and medical considerations when making decisions whether to forgo life-prolonging treatment.
PURPOSE.
This procedure is intended to serve as a guide for the Interdisciplinary process in determining whether to forgo life-prolonging treatment, identifying ethical, legal, and medical considerations to be afforded to the competent and incompetent resident/representative in the following manner:
A. The New Jersey Veterans Memorial Homes (VMH) provide medical care to all residents with the objective of sustaining life and relieving suffering. Therefore, there is a presumption in favor of providing care according to accepted ethical, medical, and nursing standards.
B. The dignity, physical, social, psychological, and spiritual well-being of the resident will be respected.
C. Nursing measures to relieve discomfort and provide hygienic care will be provided to all residents.
D. Do Not Resuscitate (DNR) orders will not affect complete and compassionate care directed towards comfort.
E. Medication intended to provide relief from pain and suffering may be used even if the unintended outcome is to hasten the resident's death. The physician should make the resident/surrogate aware that pain medication may have this side effect.
F. Although it is often psychologically more difficult to stop treatment, there is no legal or moral difference between withholding and withdrawing life-prolonging treatment when the burdens outweigh the benefits.
G. A decision to forgo treatment is specific to each resident, situation, and treatment.
H. The physician should inquire and document the resident's wishes regarding forgoing treatment and implement those wishes. Residents or their surrogates should be apprised upon admission, or when otherwise appropriate, of the options regarding forgoing life-prolonging treatments.
I. If a physician disagrees with the resident's/surrogate's wishes to forgo treatment, the physician should offer the option of transferring the resident's care to another physician in a timely manner.
DEFINITIONS.
DO NOT RESUSCITATE (DNR) - is the withholding of cardiopulmonary resuscitation, which means extraordinary efforts to maintain life, such as intubation, mechanical ventilation, closed chest cardiac massage, and defibrillation. All residents shall be resuscitated unless there is a physician's written order, Do Not Resuscitate (DNR), in the Medical Record.
CLEAR AND CONVINCING EVIDENCE - the resident's personal choices regarding medical care, which have been communicated verbally, in an Advance Directive, or in a Durable Medical Power of Attorney.
LIFE-PROLONGING TREATMENT - is the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore, or supplant a vital bodily function and thereby increases the expected life span of a resident.
FORGO - the term forgo is used to include both withholding a medical treatment and withdrawing a treatment that has already been initiated.
TERMINAL ILLNESS - is considered to be a debilitating condition which is medically incurable or untreatable with current technology, and which can be expected to cause death.
COMPETENT RESIDENT - a resident is considered to be competent if they can understand the nature, alternatives, and consequences of proposed medical treatments and can come to a reasonable decision based upon the information, as determined by a licensed physician. This shall be documented in the medical record. If there is a question concerning the resident’s competence, then one or more licensed physicians, not involved with the care of the resident, should be asked to examine the resident and confirm that the resident is competent and is fully informed about their prognosis, the medical alternatives available, the risks involved, and the likely outcome if medical treatment is discontinued. This shall be documented in the medical record. If it is a question of psychiatric competence, then at least one of the physicians shall be a psychiatrist.
INCOMPETENT RESIDENT - is a resident who lacks decision-making capacity, is cognitively impaired, on a respirator, and in a comatose or persistent vegetative state (PVS).
SURROGATE DECISION MAKER - is an individual whose role is to make health care decisions for another person who is unable to act upon their own behalf. A surrogate decision maker may be either the person set forth in an advance health care directive (“Advance Directive”) or in the event that no document exists, other more distant relatives, grandchildren, aunts, uncles, cousins, and close friends may serve in this capacity. The attending health care professionals may determine that the relative or friend can and should be treated as a close and caring family member or associate. The surrogate decision maker must be an adult of at least 21 years of age or older.
An employee of the facility in which the individual is a resident may not serve as an individual’s health care representative (i.e., surrogate decision maker) pursuant to an Advance Directive unless the employee is related to the individual by blood, marriage, or adoption.
ADVANCE DIRECTIVE - is a written document that is either witnessed by two individuals or notarized, which sets forth a competent adult's wishes with respect to providing or withholding life-prolonging treatment in the event that they become incompetent. It also may designate a person or persons to act on behalf of the individual in the event of incompetence.
An Advance Directive becomes operative when (1) it is transmitted to the attending physician or to the hospital and (2) it is determined that the resident lacks the capacity to make a particular health care decision.
Treatment decisions pursuant to an Advance Directive shall not be made and implemented until there has been a reasonable opportunity to establish, and where appropriate confirm, a reliable diagnosis and prognosis for the resident.
Nothing in these policies shall be construed to require a health care institution to participate in the beginning, continuing, withholding, or withdrawing of health care in a manner contrary to law or accepted medical standards.
PROGNOSIS COMMITTEE - a medical committee responsible for reviewing the resident's medical records and seeking additional medical information in an attempt to determine the possibility of whether or not the resident may return to a cognitive and sapient life.
COGNITIVELY IMPAIRED -the inability of the mind to process or become aware of objects or thoughts, perceptions, and all aspects of thinking and remembering.
PUBLIC GUARDIAN - A person entrusted by law with the care of another person, of another person’s property, or both.
PROCEDURE.
A. New Jersey Veterans Memorial Homes
1. The New Jersey Veterans Memorial Homes will provide medical care to all residents with the objective of sustaining life and relieving suffering. Therefore, there is a presumption in favor of providing care according to accepted ethical, medical, and nursing standards.
2. The New Jersey Veterans Memorial Homes will implement these guidelines as written, affording competent and incompetent residents and their representatives all ethical, legal, and medical considerations when making a determination whether to forgo life-prolonging treatment.
3. Acts of failure to follow the requirements set forth for “forgoing life-sustaining treatment” will be subject to discipline for professional misconduct, and the facility will be subject to monetary fines for each offense.
B. Department of Social Services
1. The Department of Social Services will review each application made to the Homes for completeness and ascertain whether the applicant has executed an Advance Directive, and whether “forgoing life-sustaining treatment” has been addressed, and they will assist the applicant as needed.
2. Applicants who do not provide an Advance Directive during the application process will be encouraged/provided an opportunity to do so upon admission, and annually thereafter.
a. Individuals permitted to make decisions on refusal of medical treatment, in priority:
(1) Self
(2) Designated Durable Medical Power of Attorney
(3) Medical Guardian – Court Appointed
b. Each resident/representative will be given the opportunity to execute, change, or revoke an Advance Directive disclosing the individual’s health care wishes, at the time of admission and annually thereafter.
c. Documentation regarding the Advance Directive must:
(1) be recorded in the Medical Record,
(2) be identified on the outside of the Medical Record,
(3) be implemented upon a physician’s order, and be noted in the Progress Notes that the physician had discussed implementation of the Advance Directive in regards to diagnosis and prognosis.
3. When the facility receives a copy of the Advance Directive, it will NOT go into effect until it has been determined that the resident lacks the capacity to make health care decisions.
a. The attending physician, in conjunction with another physician, will determine that the resident lacks decision-making capabilities.
b. Family disputes concerning Advance Directives will be referred to the Bio-Ethics Committee for review/discussion regarding diagnosis, prognosis, and advantages/disadvantages of prolonging treatment. Further assistance can be obtained through the New Jersey:
(1) Office of the Ombudsman
(2) Public Guardian
(3) Judicial System
(4) Department of Health and Senior Services
4. In situations where the resident has not declared his/her medical wishes with regard to forgoing life-sustaining treatment, the physicians must note their findings as to the nature, course, extent, and probable duration of the incapacity, and inform the resident and the healthcare representative. If either party contests this decision, the matter will be forwarded to the Bio-Ethics Committee for discussion.
5. Consideration to withdraw or withhold treatment will occur under the following circumstances:
a. When life-sustaining treatment is experimental.
b. When treatment is not proven therapy.
c. When treatment is considered ineffective/futile in prolonging life.
d. When treatment is considered likely to prolong an imminent death.
e. When the resident is determined to be in a permanent vegetative state (P.V.S.) by the attending physician and confirmed by a second physician.
f. When the resident is in a terminal condition, as determined by the attending physician and confirmed by a second physician.
g. When the wishes and burdens associated with the medical intervention out-weigh the likely benefit of medical intervention and considered inhumane.
C. Competent Resident - (With decision-making capacity)
1. Competent residents may accept or decline any treatment or procedure. Consent to forgo life prolonging measures should be obtained from the competent resident and decision making should occur in consultation with the attending physician and, when appropriate, nurses and other care givers. The resident should be encouraged to involve family members/others in the medical decisions. In the event the resident chooses not to involve family in these discussions, the resident’s confidentiality and privacy should be respected.
2. If, in the treating physician's professional judgment, discussion of forgoing treatment(s) would lead to further harm to the resident's health or well being, then the discussion may be withheld if desired by the resident. In such cases, limited discussion with the resident consistent with their well being and ability to participate should be held. Family members should be involved. In all cases, such choices, discussions, and reasons for judgments must be documented in the medical record.
D. Incompetent Residents - (Who lack decision-making capacity)
1. If the attending physician determines that a resident is not competent, as previously defined, that determination shall be stated in writing, include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the resident's incompetence, and shall be made a part of the resident's medical record. In cases where decision-making capacity is clearly apparent and the surrogate decision maker concurs, additional medical opinions are not required. When it is apparent that decision making capacity is related to mental or psychological impairment and the attending physician lacks specialized training or expertise, the resident’s lack of decision making capacity shall be confirmed by one or more physicians with appropriate specialized training or expertise.
2. For the resident who lacks decision-making capacity, a surrogate decision maker(s) should be recognized and consulted. The surrogate decision maker should seek to choose, as the resident would if able, that which maybe in the best interest of the resident. The forgoing of life-prolonging treatments from a resident without decision-making capacity should be the unanimous decision of the attending physician, the consulting physician(s), and the designated surrogate(s). If problems arise, refer to Conflict Resolution/Bio-Ethics Committee.
a. For a resident who was once competent, where there is clear and convincing evidence for the resident's choice of medical care, as in an Advance Directive, Living Will, or Durable Medical Decision Power of Attorney, the physician must document that information and should honor the instructions.
b. If the family or surrogate disagrees with the wishes expressed in a valid Advance Directive of a once competent resident, refer to Conflict Resolution/Bio-Ethics Committee.
c. For a once competent resident, where there is some trustworthy evidence of what that resident would have wanted (e.g., testimony of relatives, friends, style of life, expressed values) and the burdens of treatment substantially outweigh the benefits, then life-prolonging treatment may be withheld or removed.
d. For a resident who was never competent and for the once competent resident for whom there is no evidence of what that person would have wanted, life-prolonging treatment may be withheld or withdrawn by the primary physician if one or more independent physicians not involved in the resident's care or related to the resident, confirm the diagnosis, the prognosis, and agree that the burdens of treatment substantially outweigh the benefits, and the decision is agreed to by the surrogate decision maker. The attending physician shall have informed the resident and the health care representative that the resident has been determined to lack decision making capability. If there is a difference of opinion, the matter will be referred to the Bio-Ethics Committee for the conflict resolution process.
3. Whenever a health care professional becomes uncertain about whether family members are properly protecting a resident's interests, termination of life-prolonging treatment should not occur without consulting with the Bio-Ethics Committee for a decision regarding the appointment of a guardian.
a. If the resident has no surrogate decision maker and has not left clear and convincing evidence that they intended another relative or a non-relative friend to make surrogate medical decisions, then a guardian shall be appointed consistent with New Jersey State Law and Departmental Procedure.
b. Life-prolonging treatment may be forgone if one or more independent physicians, not involved in the resident's care or related to the resident, confirm the diagnosis and the prognosis and agree that the burdens of treatment substantially outweigh the benefits.
c. If the treatment is futile (i.e., useless, may cause further harm, or will not correct the physiological problem), then it is not necessary and need not be applied or may be withdrawn. This is not applicable in the case of a resident who is determined brain dead and whose family objects to withdrawal of life support on religious grounds. The family's wishes must be honored according to State Law.
REVIEW PROCESS.
The physician should frequently review and communicate/discuss the resident's status with the competent resident, or the surrogate for the incompetent resident. Changes in the resident's condition may suggest other treatment options, which may be more appropriate. An order to forgo life-prolonging treatment or a DNR order may be revoked or modified at any time by the resident or by the family or surrogate of an incompetent resident. The physician should communicate with nursing personnel and other physicians involved in the resident's care, as needed. These communications and any revisions in the treatment must be documented in the progress notes.
CONFLICT RESOLUTION.
When there are conflicts between the resident/surrogate, family members, or the physician(s), consultation with the following facility personnel should be considered: pastoral care, nursing, social services. If these professionals cannot resolve the problem, the Bio-Ethics Committee should be consulted. Consultation with the Bio-Ethics Committee shall be documented in the resident's medical record using the Bio-Ethics Committee Consultation Form. Treatment should not be forgone unless there has been resolution of conflicts.
A. Physician Responsibilities/Documentation
1. Obtain informed consent. Consent may be obtained verbally or in writing from the resident or their appointed surrogate decision maker. An Advance Directive or Living Will shall be followed provided that the validity of the document is not in question. The Advance Directive/Living Will shall be placed in the medical record and a note placed in the progress notes.
2. Write the forgoing life-prolonging treatment order or the DNR order on the doctor's order sheet.
3. Discuss with and inform the responsible nursing staff and consultant(s).
4. A progress note should be written documenting the discussion with the resident, family, and/or surrogate decision maker.
5. If the resident's status improves, review the resident's/family's/guardian's wishes concerning the forgoing life-prolonging treatment order. Rescind the order on the doctor's order sheet, if appropriate, and note in the progress notes and record the date.
B. Nursing Responsibilities/Documentation
1. Participation in discussions with physicians, resident's family, or surrogates concerning the resident's care.
2. Notify the physician of any significant improvement in the resident's condition.
3. When the forgoing treatment order is received, it is the responsibility of the nurse to continue all regular nursing care with special attention to the resident's comfort and to the emotional needs of the resident and family, via the implementation of a palliative care program.
Revised: July 2007