PENNSYLVANIA ADVANCED DIRECTIVE FOR HEALTHCARE ACT

20 Pa. C.S.A. 5401 et seq.

1. Effective date – April 16, 1992
2. Purpose

   – To effectuate the qualified right of competent adults to control their medical care decisions even if they become incompetent to make or communicate those decisions, when a medical procedure would only prolong the process of dying or where life is prolonged beyond “natural limits” such as in a state of permanent unconsciousness.

3. Not Condoned

   – Mercy killings, euthanasia or aided suicide

4. No Presumption

   – As to person not executing a "declaration" (statutory term for Living Will).

5. Medical Treatment Covered

   – All life sustaining treatment.  This includes artificial nutrition and hydration by nasogastric tube, intravenous or other artificial or invasive means if specifically provided in declaration.

What conditions are covered?

• Terminal illness – an incurable and irreversible medical condition in an advanced state…which will… result in death regardless of the continued application of life-sustaining treatment.
• Permanent Unconsciousness – includes a persistent vegetative state, an irreversible coma or any other irreversible loss of consciousness and capacity for interaction with the environment.

Who can execute a declaration?

An individual of sound mind who is either:

1. at least 18 years old
2. married; or
3. a high school graduate

Requirements of a valid declaration:

1. Signed by declarant, or by another on behalf of and at the direction of declarant.
2. Witnessed by two persons 18 or older (cannot be one who signed declaration for declarant).
3. Form – Non-exclusive statutory form "may but need not be in the following form…" and "may include other specific directions including, but not limited to, designation of another person to make the treatment decision for the declarant" (if incompetent and in terminal condition or permanent unconsciousness).
4. Provisions of Declaration Severable – if one held invalid, other directions are still effective.
5. Physician or Other Healthcare Provider – Shall make it part of medical record when given copy.
6. Declaration becomes operative when:
   1. Copy provided to attending physician (no original not expressly required by terms of act except for EMS personnel referred to below).
   2. Attending physician determines declarant is incompetent and in either a terminal condition of permanent unconsciousness.
   3. Terminal condition or permanent unconsciousness must be confirmed by opinion of second physician.
7. Effect When Operative – Healthcare provider shall act in accordance with the declaration or if unwilling to comply shall make "every reasonable effort" to assist in transfer to another physician or provider who will honor it.
8. Revocation – Can be made at any time and in any manner…without regard to the declarant’s mental or physical condition – a revocation is also made part of medical record.
9. No Effect Life Or Health Insurance. 
   1. Making or failing to make a declaration shall not affect sale or issuance of any life insurance policy, nor invalid nor impair any existing policy, regardless of policy provisions. Nor shall any heath insurer, disability or healthcare plan require any person to execute a declaration as a condition to issue a policy or charge any person a different rate depending on execution of a declaration.
10. Preservation Of Existing Rates. Statute "shall not impair or supersede any existing rights or responsibilities addressed in this act."
11. Emergency Medical Services.  Declaration only applies to E.M.S. personnel if E.M.S. personnel are given an “original” declaration signed by declarant, or if "medical command physician" (under E.M.S. Act) had prior notification that valid and operative declaration exists and directs E.M.S. personnel to comply. In case of uncertainty, ordinary protocol should be followed.
12. Criminal Penalties
    1. Willful concealment of irrevocation may be criminal homicide.
    2. Concealing or damaging someone else’s declaration-third degree felony.
    3. Undue influence, fraud or duress in causing a person to execute a declaration – third degree felony.
13. No liability to healthcare provider who initiates, continues, withholds or withdraws life-sustaining treatment from "a qualified patient who is incompetent", if they are following declarant’s wishes expressed in declaration.
14. Withholding or withdrawing treatment not suicide or homicide, for any purpose if authorized under the Act.
15. Pregnancy Exception – Life-sustaining treatment may not be withdrawn from a pregnant woman who is incompetent and in a terminal condition or permanently unconscious unless:
    1. Baby cannot be born
    2. Care would be physically harmful to pregnant woman;
    3. Would cause pain to woman which would not be alleviated by medication.
    4. COMMONWEALTH SHALL PAY COSTS OF MEDICAL CARE FOR A PREGNANT WOMAN WHOSE DECLARATION IS NOT CARRIED OUT.
       1. Employees of Healthcare Providers Are Not Forced To Participate. No employee of a provider shall be required to comply with a declaration if it is against their conscience.  Nor is a physician or other healthcare provided compelled, but when given a copy of a declaration they must contact the declarant or agent or family member and make every reasonable to assist in transfer to provider who will comply.
       2. Key Aspects Of The Act
          1. The act only covers terminal illness or permanent unconsciousness  - not Alzheimer’s, or any other condition where an advance directive or appointment of a healthcare agent may be desired.
          2. Surrogate powers are completely undefined.  They have the power to "make a treatment decision” is this a power to interpret any written directives or fill in uncovered situations, or to have full authority?  The statutory form is entirely unclear.
          3. The power to revoke may be exercised regardless of the patient’s physical or mental condition.  There is a strong presumption in favor of life.  The person must be "of sound mind" to make a declaration but can revoke it regardless of "mental condition." Hopefully, good sense will prevail in this issue. The Act should validate existing living wills or healthcare powers of attorney, exercised before the Act, but they should be reviewed for execution (two witnesses) and content.  Do they refer specifically to a terminal illness and permanent unconsciousness?  Some forms do neither.  Many refer only to terminal illness.  Do they specifically to artificial nutrition and hydration?  If not, they will not be withdrawn.
          4. An inadequacy in a living will declaration, not like taking into account permanent unconsciousness, could have devastating effects.  While a healthcare provider might (and should) honor an advance directive that contains a technical flaw, such as failing to have two disinterested witnesses, a failure to correctly include matters concerning nutrition and hydration or permanent unconsciousness, could have devastating effects.
       3. A form which combines a Durable Healthcare Power of Attorney and healthcare treatment instructions provides the best opportunity to effectuate the client’s wishes.