[WSBAPT] Advance Directives - Obligations of health care providers

[Eric Reutter]

Hello and good afternoon,

I am a UW Tax LLM student interested in Estate Planning. I have a question
related to a basic article about Advance Directives that I am currently
drafting. I have combed through the relevant RCW and WAC sections, but I
believe that my question is one that requires practice experience to answer.

I have encountered what, in my opinion seems to be some gray-area in
Washington law regarding health care provider's responsibilities under
Advance Directives. While I understand that the Natural Death Act
explicitly permits health care providers to decline to participate in
withholding life-sustaining treatment, and that they are then required to
inform the patient of any such conflicting policies (RCW 70.122.060), I am
less clear regarding their responsibilities if they choose not to honor the
applicable advance directive when their patient is both incapacitated and
without a health care agent or guardian.

I understand that WAC 182-501-0125 requires health care providers to "Make
a good faith effort to transfer the client to another health care
practitioner who will honor the directive* if the client chooses not to
retain the facility or organization*." But I am trying to understand the
obligations (if any) of the health care provider when the patient is
permanently unconscious and does not have a health care agent or a guardian
appointed.

My ultimate question is,* in this circumstance, would a health care
provider still have an obligation to make a good-faith effort to transfer a
patient to a health care practitioner who will honor the directive?*

My hunch is that, if a health care facility were in this situation and
refusing to honor the directive, a patient's family or friend could
petition for guardianship of the patient, and then have the power to move
them to a different facility that would honor the advance directive. If the
patient did not have such a guardian step in, however, I cannot envision
how the health care facility would be under any legal obligation to
transfer the patient, unless WAC 182-501-0125(6)(d) were to be interpreted
quite broadly by a court.

I am curious if I am understanding the legal obligations (or lack thereof)
of a health care provider in this situation. Any thoughts would be greatly
appreciated.

Eric Reutter

Tax LLM Candidate 2016
University of Washington School of Law
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