Jerry Kopel

KOPEL: IF I DIE BEFORE I WAKE?

Patients' rights should extend to the very end

If I had the choice, when my time comes, I would want it to be in my home, in my bed, circled by my family, while I close my eyes in sleep.

If that cannot happen, I should want to be in a hospice subject to House Bill 1122, sponsored by Reps. Ellen Roberts, R-Durango, and Mike Merrifield, D-Colo. Springs, and Sen. Suzanne Williams, D-Aurora.

However, the bill contains a loophole wide enough to wipe out any backup evidence. There is no collection of oral and written talks between doctor, hospital worker and patient which can be reviewed. A change in orders from the patient should be traced to discussions indicating an actual change in position. All the doctor has to show is the doctor’s conclusion. This loophole is expanded on later in this column.

As stated in the bill’s legislative declaration, “Colorado law has traditionally recognized the right of an adult or his or her authorized surrogate decision-maker to accept or reject medical treatment and artificial nutrition or hydration”... The declaration often sets up medical treatment and administration if the adult later lacks the decisional capacity to provide informed consent to, withdraw from, or refuse treatment.

There has to be a consistent method for identifying and communication of critical treatment preferences to be or not to be followed. The use of standardized forms will ensure those preference are clearly and unequivocally documented.

I normally oppose leaving legislative declarations within a substantive bill. Just having a legislative declaration in the session laws and referred to in the statute provides protection for the declaration. But with HB 1122, I think the declaration has a place in the statute books.

The declaration here is for the benefit of the patient, not of the institution.

The information in dealing with the hospital or hospice is easily divided. The form is easy as to vital statistics that can be inserted. That also includes any program where the adult is enrolled, name, address and phone of adult’s physician or other health aide. Signature or mark of adult and if there is one, of surrogate decision maker.

The biggest danger to a patient is what any recent hospital patient will tell you: The inability to receive and understand within a short period of time exactly what the substantive printed forms you are told to sign “guarantee” that you have had the information needed. As a recent hospital patient I can tell you the effect is just the opposite.

Old forms of “living wills” may not include palliative or comfort care, or transfer to a hospital with limited intervention or full treatment. Lack of time to read and understand substantive issues should be a defense to a claim by the institution.

Medical personnel who comply with the scope of treatment in the form are immune from criminal or civil liability but not criminal immunity for other criminal acts. In absence of an order not to initiate CPR, adult consent to CPR will be presumed.

A health care facility that knows its care is based or not based on moral conviction or religious beliefs of the provider shall provide notice when reasonably possible prior to initiating medical treatment. As soon as possible thereafter the institute must transfer the patient to a place with a provider that meets the patient’s requirement.

Suppose an adult has changed his or her mind. The bill provides for this to be taken into consideration in reaching a decision as to the type of treatment the adult will receive, or if in the provider’s independent medical judgment is medically appropriate. The provider consults with the adult and the provider can revise an adult’s executive order based upon the adult’s revision. This is where there is danger.

“The provider consults with the adult” and the adult has “decisional capacity to consent to or refuse medical treatment.” CRS 15-18.7-107 is the revision and revocation of the scope of treatment. If the provider consults with the adult the revisions are recorded on the form if it is a clear communication. If the health worker is very involved in getting the decision changed, an oral communication is all that is available as the end result of the revision.

Language NEEDS to be added to provide for preserving any full or partial oral discussion pro and con in transcript form. Any discussion of the suggested changes should remain available to the family or surrogate of the adult and who should not sign off until they are satisfied the written revision flows from the full discussion. If it does not, the family or surrogate should retain the authority to continue the unrevised language.

Should the bill be considered for a vote by Colorado citizens? That decision may be up to Williams.

Meanwhile there is an outside legislative move to amend the state constitution to prohibit government from infringing on religious liberty or organization, by way of a coalition called Colorado For Liberty. The Anti-Defamation League regional director is concerned about a “hidden agenda in the remarkably vague language.”

Jerry Kopel served 22 years in the Colorado House including eight as the one person of Jewish faith.