[WSBAPT] Advance Directives - Obligations of health care providers

[Tom Stuen]

Eric:  When there is no enforcement mechanism, such an obligation becomes an ethical issue.  Will the doctor be influenced by financial considerations?  I think some will.  I tell my clients to discuss the directive (and POLST) with their doctors, so they have confidence the doctor is on board with the plan.

 

Thomas Stuen

 

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Reutter
Sent: Wednesday, October 21, 2015 1:01 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Advance Directives - Obligations of health care providers

 

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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