[WSBAPT] Advance Directives - Obligations of health care providers

[Heather deVrieze]

Eric,

While I don’t have a response directly on point to your query, my general experience, and a few specific ones, is that health care providers rarely, if ever will put themselves in the position of making a decision. The statute RCW 7.70.065 spells out who may give informed consent for an individual unable to give consent themselves, and this applies to withholding consent as well. If there is no one who meets the criteria of the statute, it is unlikely that any monumental decision will be made and where decisions must be made, guardianship is typically sought.

Accordingly, I don’t think doctors pay much attention to a health care directive in the absence of an advocate or surrogate decision maker forcing them to.

Heather


Heather S. de Vrieze
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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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