The Tennessee Health Care Decisions Act of 2004

The Tennessee Health Care Decisions Act (“HCDA”) went into effect in July 2004.  This legislation expands Tennessee law regarding (1) advance planning for health care decisions and instructions by patients and (2) health care decision-making for patients who do not give advance medical instructions but become unable to make those decisions for themselves.  Below is a brief summary of the primary changes adopted by the HCDA.

Advance Directives
The Problem:  Few Tennessee patients have living wills or durable powers of attorney for health care despite the widely known value of leaving instructions for caregivers in the event of the patient's incapacity.  Reasons for the reluctance toward advance planning include the cost of drafting advance directives and the difficulty of understanding the "legalese" of many forms.  Another problem faced by hospitals and health care facilities occurs when they are presented with advance directives by their patients upon admission, but the documents presented are invalid under the law. 

How the HCDA Helps:  The HCDA simplifies the formal requirements of advance directives and makes it easier for patients to provide instructions for medical decisions.  There are no specific language requirements.  In addition, as discussed below, the formalities required for execution are more flexible.  Thus, many advance directives previously invalid due to improper execution now may be valid under the HCDA.

An advance directive may (1) appoint a proxy – an agent to make decisions for the patient, and/or (2) provide an instructional directive – direct instructions to the patient's caregivers concerning the treatments the patient would or would not want.  Individual instructions may be written or oral.

The Tennessee Department of Health recently issued model forms for the Appointment of a Health Care Agent (proxy) and an Advance Care Plan (instructional directives).  Use of these forms is not mandatory, however.  The form for Appointment of Health Care Agent provides only for the appointment of an agent and a successor agent to make any health care decisions that the individual could have made if he or she were capable.  The form for the Advance Care Plan also appoints an agent and a successor agent, but it allows the individual to make decisions about "unacceptable" quality of life conditions, such as permanent unconsciousness, permanent confusion, and end-stage illnesses.  Through the Advance Care Plan, the individual authorizes the withholding of certain kinds of treatment under those unacceptable quality of life conditions.  The kinds of treatment an individual may direct to be withheld through the Advance Care Plan include cardiopulmonary resuscitation (“CPR”), life support or other artificial support and tube feeding.  The Advance Care Plan also provides the individual the opportunity to give other instructions related to burial arrangements, hospice care, and organ donation. The forms can be viewed, completed, and printed at the Department of Health website: http://www2.state.tn.us/health/Boards/AdvanceDirectives/index.htm.

The HCDA requires less formality for the execution of written advance directives.  An advance directive needs only to be witnessed by either (1) a notary or (2) two witnesses.  The witnesses must be competent adults, neither of whom is appointed an agent by the advance directive.  At least one (1) of the witnesses must be unrelated to the individual by blood, marriage, or adoption, and cannot be entitled to any portion of the individual's estate upon the individual's death under the individual's will or by operation of law (i.e., if the individual does not have a will). 

Although the HCDA relaxes the execution formalities for advance directives in the state of Tennessee, it still may be prudent to have a notary and two witnesses to the individual's signature in case the individual ever requires medical care in another state.  Each state has its own requirements regarding the validity of advance directives executed out of state. 

Many people may benefit from a more customized form, especially for the appointment of a Health Care Agent.  The published forms may not cover all options or situations of concern for an individual. 

Existing Advance Directives Still Valid. It is also important to note that the HCDA does not repeal earlier Tennessee laws on advance directives, but merely supplements current law.  Advance directives drafted and properly executed prior to July 2004 are still valid and effective.  Living Wills still may be prepared based on the Tennessee Right to Natural Death Act and durable powers of attorney for health care still may be prepared based on prior law found in Title 34, Chapter 6, Part 2 of the Tennessee Code.

Surrogate Consent
The Problem:  Prior to the adoption of the HCDA, there was no Tennessee statutory authority for "surrogate decision making."  If a patient had not executed an advance directive and the patient lacked the capacity to make health care decisions, the typical custom was for physicians to consult with the patient's "next-of-kin" in making health care decisions.  However, Tennessee law does not sanction this practice for making health care decisions for a patient who does not have any advance directives when that patient becomes incapacitated. 

How the HCDA Helps:  The HCDA adopts provisions that permit surrogate decision-making in the event the patient has no guardian or designated health care agent.  A surrogate must be an adult who has exhibited special care and concern for the patient, is familiar with the patient's personal values, is reasonably available, and is willing to serve.  A patient with capacity may designate a surrogate orally or in writing to inform the health care provider of such designation.  Otherwise, the designation of a surrogate is made by the patient's "designated" physician (a physician who has primary responsibility for the patient's health care).  A surrogate may act only after the designated physician has determined that the patient lacks capacity.  A surrogate may make nearly all health care decisions for a patient that the patient could make.  However, the withholding or withdrawal of artificial nutrition and hydration from a patient may occur only if the designated physician and a second independent physician certify that the provision of nutrition and hydration is merely prolonging the act of dying and that the patient is highly unlikely to regain capacity to make medical decisions.

The HCDA also provides a mechanism through which a treating physician can make necessary health care decisions in the absence of either an advance directive or a qualified surrogate.  A physician may either (1) consult with and obtain recommendations from the institution's "ethics mechanism" or (2) obtain the concurrence of a second physician who is not directly involved with the patient's treatment.

"Universal" Do Not Resuscitate (“DNR”) Orders
The Problem:  Nursing and other clinical staff members are under standing orders to deliver CPR to a patient in the event of cardiac or pulmonary arrest.  If a determination has been made that CPR is not appropriate for a particular patient because it would be medically futile, such standing orders can be revoked by a DNR order issued by a physician.  A DNR order does not authorize the withholding of other medical interventions, such as intravenous fluids, oxygen, or other therapies deemed necessary to provide comfort care or to alleviate pain.  Traditionally, DNR orders are intra-institutional only, meaning that they are not universally recognized nor are they transferable.  The problem arises when a patient with a standing DNR order at one health care facility is discharged and goes home (emergency responders deliver CPR automatically in the event of cardiac or pulmonary arrest) or a patient is transferred to another health care facility. 

How the HCDA Helps:  The HCDA introduces the concept of a "universal" DNR order, which is a written order that is signed by the patient's physician and that applies regardless of the treatment setting.  In contrast, the traditional DNR order issued by a physician in a health care institution directs only that institution's staff with respect to the delivery of CPR.  The HCDA's introduction of the universal DNR order does not affect traditional DNR orders.

The HCDA also specifically authorizes emergency responders and other caregivers to follow a universal DNR order that is available to them in a form approved by the Board for Licensing Health Care Facilities.  The HCDA also requires health care facilities to communicate the existence of a universal DNR order to the receiving facility prior to any transfer and must send a copy of the universal DNR order along with the patient during transport.

The form for the Universal DNR also can be found at the Tennessee Department of Health website at http://www2.state.tn.us/health/Boards/AdvanceDirectives/index.htm.

Conclusion
The HCDA simplifies and expands the means by which an individual's wishes for medical decisions may be communicated in the event the individual becomes unable to make those decisions.  The HCDA also allows physicians and other health care providers to be more confident that they are providing the kind of care their patients want.  The advance directive forms created by the Tennessee Department of Health can be effective tools for many Tennesseans.  Unfortunately, these forms may not be universally recognized in all states.  It is recommended that you discuss these forms and your individual concerns with your attorney prior to signing them to make sure the forms adequately reflect your true preferences and instructions.  More detailed directives, especially regarding appointment of a Health Care Agent, may be appropriate for your situation.

If you have any questions about this article and how the HCDA may affect your choices and future planning for your health care or how it may affect your responsibilities and internal policies as a health care provider, please contact a member of our Taxation & Estate Preservation Group.