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Advance directives in the perioperative setting

iving wills, durable health care powers of attorney, and I related “do not resuscitate”

orders’ fall under the rubric of advance directives. An advance directive, which a patient initi- ates while he or she is still com- petent, enables the patient to maintain “prospective autono- my” during treatment if he or she is declared incompetent.2 There are instances, however, when a patient may have requested in a directive, or orally expressed to a surrogate, that a particular proce- dure or device be withheld in certain circumstances, although he or she may not have consid- ered all possibilities and conse- quences.3 This article explores a particularly vexing question for surgical team members: How do you handle advance directives in a perioperative setting?

POSSIBLE SCENARIOS Consider the following sce-

nario. A patient who is terminally ill with cancer has written an advance directive that limits the use of certain treatment modali- ties. The patient requires a surgi- cal procedure to alleviate excruci- ating pain, that entails, or may entail, using devices and pro- cedures barred by the patient’s advance directive. What steps should the surgical team members take to protect the patient’s rights and comply with the law?

The patient’s competency level will direct how the situation should be handled. If the patient is competent, the surgeon will

review the procedure in detail with the patient, and explain how the advance directive conflicts with the surgical procedure and why such devices prohibited by the directive are necessary, or may become necessary, during the procedure. As a result of this disclosure, the patient is in a position to make the ultimate decision of whether to temporan- ly suspend the directive.

Consider another scenario involving an incompetent patient who has chosen a surrogate deci- sion maker. The first step involves a review of the patient’s advance directive to determine whether any provisions authoriz- ing surgical procedures have been written into the document. Many living will statutes, such as Virginia’s statutory “Advance Medical Directive,” provide space on the document for the declarant to “specifically direct that the following procedures or treatments be provided” (Va Code Ann § 54.1-2984 [19971).

If, for example, the patient states in writing that the advance directive be suspended for pur- poses of palliative surgery, the surgeon is in a position to pro- ceed with the surgical procedure, and in suspending the advance directive, the patient’s autonomy and legal rights with respect to informed consent would not be jeopardized“ If, however, the patient’s directive does not address surgical procedures specifically, the surgical team members should look to the sur-

rogate for guidance. The surro- gate makes a decision based on how the patient would proceed if he or she were competent; this also is referred to as substituted judgment.’ Assuming the patient has chosen a surrogate who has extensive knowledge of the patient’s desires regarding life- sustaining procedures, the sur- geon should meet with the surro- gate and discuss how the advance directive affects the procedure. Only then can the surrogate make an informed and rational decision on the patient’s behalf.

A more difficult situation aris- es when an incompetent patient has failed to address a particular treatment directly in the directive and has failed to designate a sur- rogate. The surgical team mem- bers may proceed in one of two ways.

Depending on the particular state’s laws, a surrogate decision- maker may be identified for the incompetent person. This person usually is a close family member. If the surrogate is unaware of the patient’s wishes and the living will is unclear, the appointed surrogate likely will default to the “best interest” standard, in which deci- sions are made based on what is in the patient’s best interest.6 The surgeon must assess the situation, explain all relevant factors to the surrogate, and arrive at a satisfac- tory solution that attempts to honor the patient’s wishes per the directive.

The general statutory lan- guage of the directive also should

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be considered to determine whether the patient’s wishes are expressed, albeit latently. For instance, in South Carolina’s Death with Dignity Act (SC Code Ann 5 44-77-50 [ 1996]), the general statutory language seems to authorize suspension of the advance directive during pal- liative surgical procedures, even if the procedures may require devices or actions prohibited by the directive. The statute states:

I direct that the procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medica- tion or the perjormunce of any medical procedure nec- essary to provide me with comfort care (Id).

If the procedure is intended to alleviate pain during the dying process, the patient already has explicitly consented to such a procedure. The surgeon knows, however, that for some palliative surgical procedures to be suc- cessful, certain devices or proce- dures proscribed by the advance directive may, or will, have to be used. So the question for the sur- geon becomes “Why would a patient sign a document that authorizes ‘any medical proce- dure’ designed to provide com- fort care while simultaneously proscribing certain measures pos- sibly sine qua non to the proce- dure’s success?”

The phrase “I be permitted to die naturally,” coupled with the phrase “any medical procedure,” arguably provides the surgeon with justification for suspending the directive for palliative surgery as it involves devices or

procedures proscribed by the directive.

DO NOT RESUSCITATE ORDERS Just as many hospital policies

do not directly address the prac- tice of suspending advance

Patients should be informed of a

faci I Sty‘s advance directive policies

when they are ad m i tted .

directives during palliative surgi- cal procedures, the same also is true for do not resuscitate (DNR) orders, another form of advance directive used in perioperative settings (Va Code Ann 5 54.1- 2984 [1997]).7 Do not resuscitate orders are analogous to the advance directive scenario pre- sented previously in that clients request that treatment (eg, extra- ordinary resuscitative therapy) be withheld to ensure a natural death at the end of a progressive illness.* Most patients with des- ignated DNR orders will consent to and undergo surgical proce- dures for palliative purpose^.^

Just as in surgical cases involving advance directives, the surgical team members would suspend DNR orders during pal- liative surgical procedures because the procedures could involve complications that might lead to cardiac or pulmonary arrest.10 A suggested policy for DNR orders has been that for

patients with active DNR orders who consent to palliative surgical procedures, the order; shall be suspended until sometime after the surgical procedurmll This approach actually has been prac- ticed in various health care insti- tutions and justified cln the basis that if a patient or prclxy consents to the palliative procedure, that person implicitly consents to sus- pension of the DNR order during the procedure.12

As required by applicable fed- eral and state law, patients should be informed of the facili- ty’s advance directive policies on admission.13 Informing the patient or the proxy of the poli- cies will result in the surgical team members’ honoring the patient’s wishes and .will provide for the patient’s consiitutional right to refuse treatment (Cruzan v Director, Missouri Dept of Health [110 SCt 2841 { 199011). This policy also ensures that the surgeon will preserve the physi- cian-patient relationship while providing for a legally valid health care decision-making process.14

WILIJAM THOMAS MHA, JD(C)

UNIVERSITY OF Soum CAROLINA

COLUMBIA, SC SCHOOL OF b W

!iUSAN E. ZlEL RN, JD

ALICE V. HARRIS JD

NELSON MULLINS RILEY & SCARBOROUGH, LLP

COLUMBIA, SC

The authors would like to thank San- dra S. Latham, RN, CNOR, staff nurse, Providence Hospital, Colum- bia, SC, for her help with this article.

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N O T E S

The N e w England Journal of Medicine 326 (May 28, 1992) 1501-1503.

Death with Dignity (Indianapolis: Indiana University Press, 1993) 23.

1. R B Miller, “The patient self-determination act,”

2. N L Cantor, Advance Directives and the Pursuit of

3. Ibid, 24. 4. E Silfen, “Theoretical and generic considerations

for hospital life-sustaining treatment policies,” AHA Jour- nal of Health and HospitalLaw 28 (JanuaryFebruary 1995) 21.

5. A S Brett, “Limitations of listing specific medical interventions in advanced directives,” Journal ofthe American Medical Association 266 (Aug 14, 1991) 825- 828.

6. Ibid.

7. J 0 Margolis, “Do not resuscitate (DNR) orders during surgery: Ethical foundations for institutional poli- cies in the United States,” Anesthesia and Analgesia 80 (April 1995) 806-809

8. J L Bemat, E W Graboski, “Suspending do-not- resuscitate orders during anesthesia and surgery,” Surgi- cal Neurology 40 (July 1993) 7-9.

surgery: Ethical foundations for institutional policies in the United States,” 806-809.

10. Bemat, Graboski, “Suspending do-not-resuscitate orders during anesthesia and surgery.”

1 1. Ibid, 9. 12. R M Walker, “DNR in the OR.” 13. Ibid, 2411. 14. Silfen, “Theoretical and generic considerations for

9. Margolis, “Do not resuscitate (DNR) orders during

hospital life-sustaining treatment policies,” 21.

Communication Guidelines for Donors and Recipients Unveiled To respond to the need expressed by donor family members and recipients of organ and tissue trans-

additional information at any time in the future. Within one month of donation, health care profes-

plants to receive information about and to communi- cate with each other, a task force led by the National Kidney Foundation’s Donor Family Council has cre- ated guidelines for communication between the two groups. These guidelines are intended to provide transplant and procurement professionals with basic systems for providing information to donor family members and transplant recipients and to help them establish methods of communication. Key guidelines include the following.

At the time of donation consent, health care profes- sionals should offer family members of organ and tissue donors and transplant candidates an opportu- Nty to receive follow-up information about each other at a designated time after transplantation. Special attention should be paid to the wishes of those who do not want to receive such follow-up

sionals should provide participating donor family members and transplant recipients a written report confuming which organs and tissues were pro- cured and information on age, gender, geographic region, occupation, and family information, along with cause of death or illness. If the intended recipient is unwilling to accept written communication, health care professionals should retain it in their files and inform authors that their communication has not been forwarded for this reason. If donor family members and transplant recipients wish to disclose their names and/or addresses to communicate directly by telephone, e-mail, or in person, that disclosure should be accomplished by mutual agreement of both parties. Direct commu- nication should take place without the assistance

information. They should be assured that all per- sonal information will be kept confidential. Donor family members and transpiant recipients who do not wish to receive infomation should be informed by health care professionals that they can change their decision on this matter and obtain

of the health care professionals, unless the partici- pants ask for such help.

Guidelines for Communication Beiween Donor Families and Transplant Recipients Unveiled (news release, Nutionul Kid- ney f~undafion, July 27, 1997) 1-2,

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