Medical management without patient supervision

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Joshua Weijer

Maintaining important records can be cumbersome and all too often many people overlook the importance of the most important document – the medical order.

What obligations do health care workers in New Hampshire, and the neighboring states of Massachusetts and Maine, have for disabled patients admitted without medical supervision? Each state has its own rules. , with a subtle but important difference.

Providers are not obliged to inquire and collect medical orders from their patients, but should do so.

No state requires health care providers to collect or inquire about the existence of a qualified patient’s medical order, but they are strongly encouraged to do so. In the absence of an established health care surrogate or direction, a health care provider serving an incapacitated patient may later be obliged to confirm the existence of a medical order, or, in the absence of a medical order, to have a surrogate. You may be forced to identify decision makers. Therefore, it is best practice to collect and maintain up-to-date medical orders from existing patients in case they later become incapacitated.

Providers should ask every patient at every check-in whether they have the latest version of their medical orders (similar to asking if their insurance information is up to date). Patients who do not have a valid medical order, or who may have an outdated medical order, should be encouraged to create a new order.

Providers may consider keeping the latest statutory forms for their jurisdiction on hand to provide to their patients. However, it should also be noted that Maine, New Hampshire, and Massachusetts all prohibit healthcare providers from requiring patients to perform medical orders as a prerequisite to treatment.

New Hampshire also prohibits health care providers from charging premiums to patients without a medical order. In addition, most states do not allow staff of health care providers (especially attending physicians) to be present at the preparation of such documents, nor do they allow such persons to act as designated agents. (although exceptions exist for related individuals). marriage or adoption).

If a patient maintains an order, most jurisdictions require healthcare providers to promptly record such medical orders in their medical records upon receipt. In addition, providers also have an affirmative obligation to promptly amend a patient’s medical record if a medical order is revoked.

Cancellation can be in writing (usually by drafting a new or updated medical order), orally, or by indicating your specific intention to cancel. Facility staff are obligated to promptly notify the attending physician (and thus the healthcare provider) and other parties involved in the patient’s care of any such cancellation. Failure to comply may result in omission liability.

In the absence of medical orders for incapacitated patients, health care providers may be obligated to confirm the existence of medical orders or, in the absence of medical orders, identify an appropriate surrogate decision maker.

New Hampshire is the only state of the three that requires providers to actively conduct “reasonable investigations” into the availability of medical orders for incapacitated patients. However, the law does not clearly define what “reasonable investigation” means.

In most jurisdictions, where medical directives cannot be identified, healthcare providers should inquire whether there is an appropriate surrogate decision maker who can act on behalf of the incapacitated patient. (New Hampshire’s hierarchy of eligible surrogate mothers is at NH RSA 137-J:35 and Maine is at her 18-C:5-806(2).)

Massachusetts has not adopted a surrogacy law, and in fact just recently rejected a proposed surrogacy law in 2017. However, MGLC 201D § 16 instead states that “there is nothing to prevent health care providers from relying on the informed consent of the responsible party on their behalf.” of an incapacitated or incapacitated patient. ”

The fact that “responsible” is an undefined term baffles many experts. The result is a consensus that prudent health care providers (or family members of patients) should apply to probate courts for guardianship so that court-appointed decision makers can act with authority. Without a court-sanctioned decision maker, health care providers may be at risk of liability. This is especially true where there is a conflict of interest between the person ordinarily expected to act as agent.

In the absence of a designated agent, agent, or other decision-maker, providers generally have a duty to continue treatment in a manner that is known and consistent with the patient’s wishes.

Careful review of the patient’s medical records may provide guidance regarding patient preferences. Inferences may arise from previous conversations with the patient, or may be passed on to health care providers or doctors by close family members or friends.

However, it is clear in jurisdictions that the absence of a medical directive does not result in any medical inference (or decision to forego critical care). For example, under the recently amended New Hampshire Medical Directive Act, surrogate mothers have greater latitude to directly withdraw from life support machines. A patient who resorted to surrogacy (failed to develop a medical directive) is not necessarily assumed to have wanted life-sustaining treatment to be discontinued (and vice versa).

In each jurisdiction, health care providers have an ongoing obligation to communicate with unrepresented patients and inform them of their care, even while they are still determined to be incapacitated. increase.

Legislatures have gone to great lengths to make health care directives easy, accessible, and inexpensive to produce. Therefore, health care providers must strongly incorporate systems or procedures to effectively encourage patients to maintain current medical instructions. Without these simple documents in place, patients and providers can be in dangerous situations.

Therefore, patients who do not have a medical prescription are encouraged to work with their existing healthcare provider or a qualified estate planner to develop a comprehensive prescription. And medical facilities should consult lawyers to enact a system to facilitate this.

Joshua R. Weijer, McLane Middleton’s Trust & Real Estate Associate, advises clients in the areas of estate planning, tax planning, fiduciary affairs, estates and trust administration.

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