Chapter 26 - Patient Self-Determination And Advance Directives

3-26.1  INTRODUCTION

1. PURPOSE.  This chapter establishes the Indian Health Service (IHS) policy regarding a patient's right to accept or refuse medical or surgical treatment.
2. BACKGROUND.  Every person recognized as competent to make medical decisions has the right to determine whether or not he/she will receive treatment.  Whenever possible, the patient or his/her surrogate should have the opportunity to consider ahead of time if life-sustaining or life-prolonging treatment is desired.  It is the responsibility of all health care providers to include their patients in the decision-making process and to adhere to Federal law governing patient Self-determination.

   The Patient and Self-Determination Act (PSDA), was passed as part of the Omnibus Budget Reconciliation Act of 1990, Public Law (P.L.) 101-508, December 1, 1991.  The PSDA requires that hospitals and other specified types of health care organizations participating in Medicare and Medicaid programs inform patients of their right under existing State law to accept or refuse medical or surgical treatment and to formulate advance directives.

3. AUTHORITY.  The "Patient and Self-Determination Act," P.L. 101-508, December 1, 1991.
4. POLICY.  The IHS respects the patient's right of self-determination and supports patient participation in health care decision making.  This policy applies to all IHS hospitals and health care facilities.
5. DEFINITIONS.
   1. Advance Directive.  An advance directive is a written instruction, such as a living will or durable power of attorney for health care, which is recognized under State law, either by statute or case law, and which is designed to direct the health care of the patient to whom it applies.  An advance directive takes effect when the patient to whom it applies becomes incompetent to make medical decisions.
   2. Hospital.  Any reference to "hospital" or "hospitals" herein shall be construed to encompass all IHS health care facilities that admit patients for inpatient care.

3-26.2  PROCEDURES

1. WRITTEN INFORMATION.  All IHS hospitals must develop, maintain, and provide to all adult inpatients written information to explain an individual's rights, under State law (statutory or case law), to make decisions about his or her medical care, including the right to accept or refuse medical or surgical treatment, and the right to formulate advance directives; and the written policies of the hospital regarding the protection of such rights.
2. HOSPITALS.  All hospitals must do the following:
   1. Ensure that each adult patient or his/her surrogate is given the required information upon admission.
   2. Document in a prominent part of the patient's medical record whether or not the patient has executed an advance directive.  If possible, a copy of any valid advance directive executed by the patient should be included in the medical record.  Hospital staff responsible for a patient's care should be made familiar with the contents and requirements of a patient's advance directive.  The provision of information on advance directives, and any provider-patient discussion concerning advance directives, also should be documented in the medical record.
   3. Not condition the provision of care to, or in any way discriminate against, an individual based upon whether or not the individual has executed an advance directive.
   4. Provide training to all appropriate staff concerning the hospital's policies and procedures on advance directives, relevant to IHS and individual hospital policy, and requirements of the PSDA.
   5. Provide for the education of the community served by the hospitals on issues regarding advance directives.
   6. Honor valid advance directives to the extent required by State or Tribal laws.
3. INDIVIDUAL IHS HEALTH CARE PROVIDER.  An individual IHS health care provider may request to decline to participate in the withholding or withdrawal of life-sustaining treatment for reasons of conscience.  In such cases, responsibility for the patient's care shall be delegated to another provider of the same discipline who is capable of providing appropriate and skilled care and able to comply with the provisions of the patient's advance directive.
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4. LEGAL CONSULTATION.  Legal consultation should be obtained when there is a question concerning the applicability of State or Tribal laws governing advance directives or the validity of an advance directive.
5. STATE LAW.  The State law referenced in the information provided to patients will be that of the State in which the IHS hospital is located, unless Tribal law applies, in which case it will be Tribal law that is referenced.
6. TRIBAL LAW.  If there is Tribal law that governs advance directives, it will apply for those Tribal members living on that Tribe's reservation.  An advance directive executed in a State or Tribal jurisdiction other than that in which the IHS hospital is located may be honored if it is valid under the law of the jurisdiction where executed and the local State or Tribal law recognizes advance directives executed in another jurisdiction.
7. PATIENT'S TRIBAL CUSTOMS AND TRADITIONAL BELIEFS.  A patient's Tribal customs and traditional beliefs that relate to death and dying will be respected whenever possible.  However, an individual patient's preference and beliefs will take precedence over his or her Tribal customs and traditional beliefs.
8. PATIENT REVOCATION OF ADVANCE DIRECTIVE.  A patient may revoke an advance directive at any time in accordance with applicable law.  The health care provider should document this for the record with a notation in the patient's medical record with the date and signature.  State or Tribal law may prescribe the means by which an advance directive may be revoked.
9. DO NOT RESUSCITATE ORDER.  Specific issues that relate to "Do Not Resuscitate" (DNR) orders and guidelines for withholding cardiopulmonary resuscitation for certain patients are addressed in Part 3, Chapter 25, "Guidelines for Withholding Cardiopulmonary Resuscitation," Indian Health Manual.