Friday, July 13, 2018
We have blogged a couple of times at least about California's Aid-in-Dying law, most recently about the judge declaring the law unconstitutional. While the constitutionality issue makes its way through the court system, California in late June released statistics to show how many folks had previously availed themselves of the law. The New York Times reported that Nearly 400 People Used California Assisted Death Law in 2017.
Here are some statistics from the article:
374 terminally ill people took drugs to end their lives in 2017, the first full year after a law made the option legal....
577 people received aid-in-dying drugs last year, but not everyone used them....
Of the 374 who died, about 90 percent were more than 60 years old, about 95 percent were insured and about 83 percent were receiving hospice or similar care. The median age was 74....
Most of the recipients were college educated and receiving hospice or similar care....
The 374 people who died include 11 people who were prescribed drugs in 2016 but died last year.
Another 86 people were prescribed the lethal drugs but died without taking them, while the fate of the remaining 128 people wasn't reported.
Tuesday, July 10, 2018
I've written in the past about the use of "gun trusts" as a legal device to handle passage of guns to others, while avoiding some laws related to registration by gun owners.
There's another way to think about trust documents with guns, to provide a safeguarding process within families. As one article suggests,
Talk to your loved one about how to safely transfer ownership of their guns if they should become incapacitated. Consider writing a “gun trust,” a legal document outlining that process.
For more, read the Kaiser Health News's piece, Worried About Grandpa's Guns? Here's What You Can Do. Thanks, Matt Lawrence, for sharing this story.
Tuesday, June 26, 2018
Two more items to add to your resources and reading on end of life in the U.S.
First: The New York Times ran an op-ed earlier in the month, Let Dying People End Their Suffering.Written by Diane Rehm, the focus of this piece is on California's aid-in-dying law. She writes about a friend with terminal cancer who expressed relief about the law that allowed her to seek aid-in-dying. As readers of this blog know, the law was overturned, so Ms. Rehm writes about the turmoil the decision has caused for those with terminal illnesses and their families. She writes about her husband, in Maryland, without the option of aid-in-dying, who instead opted for voluntarily refusing food and fluids.
Ms. Rehm makes a heartfelt argument in support of the aid-in-dying law, concluding her article this way
Let me be clear: I understand that many people believe that only God should determine the time of their death, and I support them 100 percent. Others want every additional minute of life that medical science can give them, and I support those people 100 percent. But the end of life is an extremely personal experience. If, when my time comes, I see only unbearable suffering ahead of me, then I want my preference to have access to medical aid in dying to be supported 100 percent, as well.
As Archbishop Desmond Tutu has written, “Regardless of what you might choose for yourself, why should you deny others the right to make this choice?”
Back in May, the president of the Hastings Center wrote a piece, Hastings Center President Calls for “Moral Leadership” to Improve End-of-Life Care.
The president made two lectures, "the 23rd annual Joseph N. Muschel Medical House Staff Award Lecture at Medicine Grand Rounds at Columbia University on May 16 and the Annual Wilhelm S. Albrink Lecture in Bioethics at West Virginia University on May 18... [where she] called on clinicians, hospital leaders, and bioethicists to broaden the usual ethical framework beyond “thin” notions of autonomy to a more robust relational ethics, that would build new systems, better capable of ensuring that frail older Americans and their caregivers get the support they need."
In her talk, when she turned to the topic of end of life "and population aging, she told the audiences: 'Redesigning our systems of health care delivery is one of the most important challenges of our time and will take significant moral leadership. But even that is not enough: beyond changes within care delivery settings, we also need to redesign our communities – so that housing, transportation and social supports are there for the increasing number of Americans living longer with frailty and dementia.'"
I'm sure these two pieces will not be the last on end of life care, so, stay tuned.
Tuesday, June 19, 2018
Maybe it's just me, but does it seem to you that there are a lot of articles of late about advance directives and end of life issues? Here's a recent one published by Kaiser Health News. That ‘Living Will’ You Signed? At The ER, It Could Be Open To Interpretation.
opens with an ER nurse saying DNR because the patient had a living will, but reading the document showed the language to be just the opposite, "'[d]o everything possible,' it read, with a check approving cardiopulmonary resuscitation." The point is to illustrate the mistake that the existence of a living will automatically means no resuscitation. "Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said [the] medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama."
There's a new report from Pennsylvania, Empowering Patients and Agents to Help Prevent Errors with Living Wills, DNRs, and POLSTs
In 2016, acute healthcare facilities in the Commonwealth reported through the Pennsylvania Patient Safety Reporting System (PA-PSRS) nearly 100 events involving the code status or treatment level of patients. Twenty-nine patients were resuscitated against their wishes. Two patients were not treated when their wishes indicated they should have been. The remaining cases represent near misses that could have affected the patient, but were resolved before harm occurred.
The Pennsylvania Patient Safety Authority is unable to verify whether the do not resuscitate (DNR) orders or physician orders for life-sustaining treatment (POLST) were appropriate, correctly created, or verified prior to these patient safety events occurring in real time.
The Kaiser Health News article details communication missteps and offers that
The problem, Hoffman explained, is that doctors and nurses receive little, if any, training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms, either on the job or in medical or nursing school.
Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.
One expert interviewed for the article suggests these missteps are more common explaining his use of hypotheticals where "he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses." He goes on to explain
He described a 46-year-old woman brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she’s otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an internet survey?
Only 43 percent of those doctors said they would intervene to save her life — a troubling figure...Since this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.
The article offers some suggestions from one expert to avoid these situations: "[m]ake sure you have ongoing discussions about your end-of-life preferences with your physician, surrogate decision-maker, if you have one, and family, especially when your health status changes... Without these conversations, documents can be difficult to interpret."
Monday, June 18, 2018
The New England Journal of Medicine published recently Substitute Decision Making in End-of-Life Care. The article uses a case study of a hypothetical patient in a very serious condition in ICU who has no advance directive. The case study asks whether to enter a DNR or continue treatment and offers short essays by experts to use as resources in making the decision. The article then gives the reader a chance to answer DNR or continue treatment and the ability to compare the choice to other readers'. This is an interesting way to educate on an issue and could be easily adaptable to our elder law classes.
Friday, June 8, 2018
John Oliver, the star of Last Week Tonight focused on guardianship on the June 3, 2018 show. The segment focused quite a bit on some of the abuses that have been reported recently in the press. But, to Mr. Oliver's credit, he notes that sometimes, despite a person's efforts, a guardianship is needed. He provides suggestions for improving the system and for individuals on planning to minimize the chances of a guardianship going wrong. There is some good info in the segment, and he makes several important points, but in a comedic and satirical format.
The link to the segment is here. Be sure to watch through to the end, to see cameos from several celebrities offering advice on planning for incapacity (although they do get off track quite a bit) including health care powers of attorney and DPOAs. And who wouldn't want Tom Hanks to be their health care agent! (You have to watch the last bit to get that reference). Caveat: there is some "salty" language used throughout the segment.
June 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Television | Permalink | Comments (1)
Wednesday, June 6, 2018
Earlier this week I posted an update on California's aid-in-dying law. I was interested in this article published in the New England Journal of Medicine, Beyond Legalization — Dilemmas Physicians Confront Regarding Aid in Dying.
Noting that doctors in jurisdictions where aid-in-dying is lawful are will need to have conversations with patients making the request, the author suggests
Physicians can start by clarifying what patients are asking and why. Some ways in which patients might raise the topic of PAD are listed in the box. Not every question about PAD is a request for assisted suicide. Patients might be seeking information, talking through concerns, expressing distress, or trying to ascertain the physician’s views. To clarify the patient’s motivation, physicians might say, “I’ll be glad to answer that question, but first please tell me what led you to ask.”
The author offers some examples of how patients might raise the issues with their doctors and suggests the next step for doctors is to
explore patients’ concerns and identify and address their palliative care needs, regardless of the physicians’ own views or the legal status of PAD where they practice. Discussions could cover patients’ physical symptoms; psychosocial, existential, and spiritual suffering; hopes and fears; and goals of care. All options for end-of-life care should be discussed, including palliative and hospice care and palliative sedation.
It’s also important for physicians to think through what actions they’re willing to take. Both physicians who support PAD and those who oppose it should try to relieve patients’ multidimensional concerns and distress. After comprehensive palliative care is intensified, 46% of patients who have requested PAD change their minds. (citations omitted).
The author recommends the doctors consider the parameters of when they would participate in medical-aid-in-dying, offering that "perceived loss of autonomy and dignity is now a more common reason for requesting PAD than inadequate pain control." (citation omitted). The author also discusses issues that may occur from a doctor's lack of experience in the area and potential adverse outcomes and counseling families about them. The author also offers some comments for doctors who are opposed to medical aid-in-dying and concludes with this advice: "[r]esponding to inquiries about PAD is new territory for most physicians. To fulfill their obligations to patients and be true to their own values, physicians should think through how they will respond to the challenges raised by these conversations."
Monday, June 4, 2018
As we previously blogged, after a trial court judge struck the law, the California Attorney General filed an appeal. According to a recent article in the San Francisco Chronicle, California’s right-to-die law on hold for at least a month.
California’s right-to-die law for terminally ill patients will apparently remain suspended for at least another month after a judge on Wednesday reaffirmed his ruling that the law was illegally considered and passed during a special legislative session on health care.
[The judge] ruled the law invalid May 15 and halted its enforcement last Friday. It had been in effect since June 2016, allowing doctors to prescribe life-ending medication to mentally competent adults who have less than six months to live.
On Wednesday, the nonprofit Compassion & Choices ... asked [the judge] to suspend his ruling and cited its potential impact on two terminally ill patients, one of them an 82-year-old Marin County woman who has already obtained a prescription for life-ending medication. The judge denied the request.
The state attorney general also weighed in, seeking to have the order set asid eon the grounds that "the judge improperly issued a statewide order in a local lawsuit and also should have given his office 10 days, under state law, to file objections to Friday’s order before putting it into effect." The Judge has set a June 29 hearing.
The article offers this to describe the impact of the order. "Because of the ruling, doctors can no longer prescribe life-ending medication to dying patients, and a patient who had already been provided with the medication would be committing suicide by taking it, with implications for insurance coverage."
Tuesday, May 29, 2018
As we reported last week, a trial court judge in California held that the California physician-aid-in-dying law was invalid. The state appealed, according to an article in the LA Times. A subsequent article in the New York Times reports that the appellate court declined a stay of the trial court's ruling pending the appeal, No Stay of Ruling That Tossed California Assisted-Death Law. "California's 4th District Court of Appeal refused to grant an immediate stay requested by state Attorney General Xavier Becerra. However, the court gave Becerra and other parties time to "show cause" — that is, provide more arguments as to why the court should grant the stay and suspend the lower court ruling.” Since no injunction was entered, the law still is in effect, as noted in the article. The California AG " argued that the measure was legitimately passed and asked [the appellate court] for quick action so that terminally ill people seeking options under the law wouldn't die "an excruciating, painful death" before the issue is finally decided."
Monday, May 28, 2018
Here's a challenging but potentially important topic for many families on this holiday weekend.
Becky has a post last week about the importance of doctors asking older patients about guns as a safety risk. I've posted in the past, here and here, about related issues, including laws affecting registration of gun ownership when intervivos or testamentary trusts are used as the legal vehicle to pass down weapons to succeeding generations.
The New York Times continues the conversation with In Elderly Hands, Firearms Can Be Even Deadlier. From Paula Span's article:
While older adults make many fewer suicide attempts than younger cohorts, they die more often, in part because they use such lethal methods. Yet health care providers who ask older patients about driving and wandering may not ask about guns.
“Safety planning for adults with dementia is something every clinician thinks about, but I don’t think firearms are often on the radar,” said Dr. Donovan Maust, a psychiatrist at the University of Michigan Medical School and co-author of a recent article on guns and dementia in the Annals of Internal Medicine.
They should be. At various stages of dementia, people may grow unable to distinguish loved ones from intruders. Their decision-making ability deteriorates. They can become paranoid, depressed, impulsive, agitated or aggressive.
Dr. Maust's co-authored commentary, linked above, is worthy of closer reading. Perhaps in an attempt to allay the fears of gun owners that dementia is not an automatic disqualifier for gun ownership, the piece suggests that doctors consider the stage of any neurocognitive impairment as part of a multi-party discussion about access:
A diagnosis of cognitive impairment or dementia does not in itself mean that a person should not have access to firearms—the level of cognitive impairment is probably most important. In a recent review, Patel and colleagues proposed using the clinical dementia rating scale to estimate the stage of dementia and the person's ability to safely complete complex tasks, including firearm handling.
For patients with minimal cognitive impairment, approaches could be similar to those related to driving, including acknowledging the emotions involved and allowing the PWD [person with dementia] to maintain agency in the decision for as long as it is safe. As with an “advance driving directive”, PWDs, their family members, and their health care providers may proactively discuss firearm access and consider setting a “firearm retirement date”. This patient-centered approach may allow an older adult to maintain decisional control and identify trusted family members or providers as future surrogate decision makers. To our knowledge, no one has tested the acceptability or efficacy of this approach.
May 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, May 23, 2018
Both Becky and I have written about a California trial court's recent ruling that a California's law permitting physician assistance in death was enacted in an unconstitutional manner. The judge granted a window of five days before the ruling would become effective, to permit any appeal. That appeal has now been filed by the California Attorney General. From the Los Angeles Times:
California Atty. Gen. Xavier Becerra on Monday filed an appeal against a judge's recent ruling overturning the state's physician-assisted suicide law. . . .
Becerra's action Monday moves the case to an appeals court, which will decide the future of the law. He also asked that the law stay in place while the matter is further litigated, a request that will most likely be granted, said Kathryn Tucker, an attorney who heads the End of Life Liberty Project at UCSF/UC Hastings Consortium on Law, Science & Health Policy.
As Becky says, stay tuned. But probably best not to hold your breath while awaiting the next ruling.
Monday, May 21, 2018
A number of news outlets reported that a trial court judge has overturned California's aid-in-dying law. As an example, the LA Times reported Riverside judge overturns California's doctor-assisted suicide law. The judge ruled "that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law." The law, which has been in effect about 6 months, has already been used, according to sources quoted in the article. "In the first six months California's law was in effect, more than 100 people made use of it to end their lives. Fifty-nine percent of them had cancer, according to state data." Both sides on this issue are quoted in the article. The state attorney general has 5 days from the order's entry to file an appeal.
Thursday, May 17, 2018
On May 15, 2018, a state judge issued a long-awaited ruling, concluding that the California Legislature violated the state constitution by enacting the state's End of Life Option Act that became effective in 2016 during a 2015 special session dedicated to healthcare issues. From the Los Angeles Times:
A Riverside County judge overturned California's physician-assisted suicide law on Tuesday, giving the state attorney general five days to file an appeal to keep the law in place.
California's law, which allows terminally ill patients to request lethal medications from their doctors, has been the subject of a fierce and emotional debate since it was approved in 2015. The state was the fifth in the nation to legalize the practice.
Superior Court Judge Daniel A. Ottolia said Tuesday that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law.
"We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."
In a statement emailed to The Times, California Atty. Gen. Xavier Becerra said: "We strongly disagree with this ruling and the state is seeking expedited review in the Court of Appeal."
Thursday, May 10, 2018
Earlier in the week we'd blogged about Australian David Goodall who, at 104, had decided he'd lived more than long enough and traveled to Switzerland to end his life. The New York Times, among other news outlets, reported that he has done so. A Song Before Dying: David Goodall, 104, Australian Scientist, Ends His Life in Switzerland reports that "[o]n Thursday, Mr. Goodall died about 12.30 p.m. local time, according to Exit International, a right-to-die organization of which he had been a longtime member." His decision has caught a lot of media attention, and the article relates that he held a final press conference the day before his death.
He was crystal clear about why he had chosen “the Swiss option.” Euthanasia and assisted dying are banned in Australia, though Victoria State has passed a law on assisted dying that goes into effect next year; it will apply only to terminally ill patients who have a life expectancy of no more than six months... He said he hoped his life story would “increase the pressure” on Australia to change its laws. “One wants to be free to choose his death when death is at the appropriate time,” Mr. Goodall said.
Mr. Goodall wanted no events marking his death. The article concludes that when he was asked "[h]ow would he like to be remembered? “As an instrument of freeing the elderly from the need to pursue their life irrespective,” he said at the news conference on Wednesday. .. At one point, he was asked what tune he would choose for his last song, and he said the final movement of Beethoven’s Ninth Symphony. Then he began to sing, with verve and vigor... According to Mr. Nitschke, Mr. Goodall did end up choosing Beethoven, and he died the moment “Ode to Joy” concluded."
*updated to correct location
Tuesday, May 8, 2018
Last week the Washington Post ran an article about Australian David Goodall. This Australian scientist just turned 104. Now he’s flying to Switzerland to die explains that Goodall thinks he has lived too long. "When asked whether he had a nice birthday, he told the news organization: 'No, I’m not happy. I want to die. ... It’s not sad, particularly. What is sad is if one is prevented. My feeling is that an old person like myself should have full citizenship rights, including the right of assisted suicide,' the 104-year-old man added." In the article he expressed regret that he had to leave his home country to travel to another where aid-in-dying is available. The article reviews the laws in various European countries as well as the states in the U.S. that have legalized medical aid-in-dying.
Goodall has been active for many years as an "honorary research assistant", but his long career has had some blips. The article reports that in 2016 "the school ... deemed him unfit to continue making the trek to campus.... after nearly two decades on the campus, Goodall was told to leave amid concerns about his well-being. The incident gained international media attention, with Goodall, then 102, calling it ageism in the workplace.... University officials later reversed their decision."
His goal is to die on May 10. According to CNN earlier today, he has checked into a clinic in Switzerland.
Thursday, April 26, 2018
Happy Friday! If you haven't read the latest issue of BIFOCAL, the publication of the American Bar Association Commission on Law & Aging, check it out here. This issue contains 6 articles, including the implications of the tax bill on older Americans, POLST issues to avoid, the new Medicare cards, a book review, and a preview of the 2018 NALC conference. Access the latest issue here.
April 26, 2018 in Advance Directives/End-of-Life, Books, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs | Permalink | Comments (0)
Wednesday, April 18, 2018
The National Center on Law & Elder Rights has released an issue brief, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. The issue brief offers 4 key lessons:
- Extra care in the creation of advance care planning documents can reduce the risk of abuse and exploitation.
2. Requiring accountability, additional checks and balances, and limited authority are drafting tools lawyers can utilize to limit risk of abuse.
3. Attorneys should advise clients to be extra diligent when selecting the agent(s) named in advance planning documents.
4. Authorizing revocation by third parties can help to limit the damage done by named agents who start to abuse or exploit the client.
I was intrigued by #4-the idea of naming a third party who could step in. The section, Five Safeguards to Consider Adding to a Financial POA discusses that among others. Here's how the issue brief explains the third party revocation provision: "Grant a power to revoke the agent’s authority to a trusted third person. This is a serious power to give any third person, so it requires an exceptional level of trust and reliability in the third person. But, if the agent’s actions prove seriously out of line, this can be a last resort. Some powers of attorney also authorize law enforcement or adult protective services to revoke the authority of the agent if they believe abuse or exploitation is taking place." Sample language is also included for each of the 5 Safeguards.
The brief discusses selection of agents and drafting health care directives in addition to drafting POAs. Practice tips are included as well as case examples. The issue brief is available here.
To learn more about the corresponding webcast click here. To download the PowerPoint for the webcast, click here.
April 18, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Programs/CLEs, Property Management, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Monday, April 16, 2018
Hawaii's governor signed into law the medical aid-in-dying bill, making medical aid-in-dying legal in Hawaii starting January 1, 2019. Hawaii is now the 6th state with a statute, in addition to the District of Columbia. Montana dealt with the issue via a Montana Supreme Court opinion. The Hawaii law provides safeguards. The law is known as "'Our Care, Our Choice' Act" and according to the article published in the Honolulu paper, took two decades to become a reality.
Sunday, April 15, 2018
Of late it seems to me that we have seen a lot of articles dealing with issues regarding end of life wishes. The New York Times ran an article in late March about doctors actually seeing a patient's advance directive. You’ve Detailed Your Last Wishes, but Doctors May Not See Them is written by a doctor who summarizes first-hand experiences in a hospital with one patient in the ER who "had done everything we could have asked. He’d been brave enough to talk with his doctors about his cancer and acknowledge that time was short. He had designated a health care proxy. But there he was, surrounded by strangers, the intubation he never would have wanted looming and the record of that conversation buried in his electronic record."
Here's how the doctor described the problem, as "not about individuals, but instead about a system that doesn’t sufficiently protect patients from getting care they do not want." The issue it seems is documenting the info or the ability to retrieve the info in the chart.
This doctor "delved into the unexpectedly interesting world of advance care planning and electronic health records, interviewing clinicians with on-the-ground experience recording and retrieving these conversations and representatives from the companies behind some of the most widely used electronic records." The stories shared are quite interesting and highlights the issues that arise without a national standard.
Here are some suggestions the author included in the article:
What could really make a meaningful difference, I heard time and time again, is standards for sharing, or “interoperability” across all electronic records that would benefit every patient, everywhere. At least, all related advance care planning documentation should be in one place in the medical record and accessible with one simple click of the mouse. Beyond that, maybe all health systems could require identification of a health care proxy for all patients, so we would know who should make decisions if the patient can’t. Maybe patients should be able to access their health records through a patient-facing interface, send in their own directives, or even update related notes. Ideally, the electronic record isn’t just a clunky online version of a paper chart but actually a tool to help us do our jobs better.
Wednesday, April 11, 2018
Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation
Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:
In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.
This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.
To register, click here.
April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)