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PART SIX

LEGAL, CONCEPTUAL, AND MORAL ISSUES

The four chapters in Part Six address several topics that challenge us:

To understand the facts & implications of the situations involved, & the options available

To choose our values & a course of action in each situation

Chapter 16 Legal issues

Chapter 17 Suicide and Life-Threatening Behavior

Chapter 18 Aided Death: Assisted suicide, euthanasia, and aid in dying

Chapter 19 The meaning and place of death in human life

DEATH&DYING, LIFE & LIVING

Eighth edition

Chapter 16

Legal Issues

Chapter Objectives

To describe the origin and role of formal legal systems as they relate to death-related events

To highlight the importance of conversations about end-of-life care and death-related matters

To explain the nature and function of advance directives for health care

To explore legal issues associated with definition, determination, and certification of death

To examine topics related to organ and tissue donation and transplantation, and body donation

To review subjects related to the disposition of one’s body and one’s property or estate

American Society & Its Laws (1 of 3)

Every society develops a more or less formal system of law

In recent years, challenges to our legal system have arisen from three primary factors:

Disagreements in our heterogeneous population about some social values

Transitions among some other social values

New challenges that have arisen from new circumstances & from new medical procedures & technology

American Society & Its Laws (2 of 3)

For most issues related to death, dying, & bereavement:

State law governs what is to be done & how it is to be done

As a results, different laws & procedures may apply in different states

Some states might not have legislation on a given subject

American Society & Its Laws (3 of 3)

When no specific legislation covers a particular subject:

Case Law

Precedents set by prior court decisions

When neither legislation nor prior court decisions exist:

Common Law

Represented by definitions contained in standard legal dictionaries

Conversations about Death-Related Matters

Research has shown that, “Engaging in ACP [advance care planning] … increases knowledge without diminishing hope, increasing hopelessness, or inducing anxiety in patients with advanced cancer. Physicians need not avoid ACP out of concern for adversely affecting patients' psychological well-being.” (Green et al., 2015, p. 1088)

ACP should include health care practitioners, patients, & surrogate decision makers

The Conversation Project has developed free, downloadable Starter Kits for adults, children, & those with Alzheimer’s to initiate & help facilitate discussions about EOL care wishes

Good ACP includes formulating advance directives

Advance Directives (1 of 5)

Patient Self-Determination Act (1991)

Health care institutions that receive federal funding must inform individuals of their right to accept or refuse treatment, to execute an advance directive, & to know options available to implement these rights

Medicare (2016)

Now accepts billing from primary health care practitioners for engaging in ACP regarding EOL care & patient preferences

Advance Directives (2 of 5)

Instructions to be followed if one is incapacitated & unable to participate in decision making

Before death

Living wills

Durable powers of attorney in health care matters

“Five Wishes” document

POLST

At/after the time of death

Organ & tissue donation

Disposition of one’s body

Distribution of one’s estate

Advance Directives (3 of 5)

Living Wills are primarily intended to:

Refuse certain kinds of cure-oriented interventions that are no longer relevant

Request that dying be permitted to take its own natural course

Ask that suffering associated with life-threatening illness be mitigated with effective palliative care, even if such care should hasten the actual moment of death

“I am not asking that my life be directly taken, but that my dying be not unreasonably prolonged.”

Advance Directives (4 of 5)

Durable Powers of Attorney in Health Care Matters

Empower a surrogate decision maker (an agent or health care proxy) to make health care decisions on behalf of an individual even (or especially) when that individual is no longer able to act as a competent decision maker

Cover specified circumstances including:

Refusing all interventions

Insisting on all interventions

Approving some interventions & rejecting others

Advance Directives (5 of 5)

“Five Wishes”

Combines the best elements of living wills & durable powers of attorney in health care matters in a simple, practical way

Asks the person to express desires & provide guidance regarding:

His or her health care surrogate

Medical treatments

Pain management & comfort care

Treatment by others

What he or she wishes loved ones to know

Physician Orders for Life-Sustaining Treatment (POLST)

POLST are voluntary, actionable, portable documents designed to ensure that seriously-ill or frail patients can choose the treatments they want or do not want & insure that their wishes are documented & will be honored

POLST are medical orders signed by a health care professional; they become part of an individual’s medical file & can be modified at any time

POLST are not advance directives & do not substitute for a health care proxy, although they can be complementary

POLST may have different names & may or may not be available in different states or other jurisdictions

Definition of Death (1 of 2)

“An individual who has sustained either

irreversible cessation of circulatory & respiratory functions, or

irreversible cessation of all functions of the entire brain, including the brain stem,

is dead.”

(President’s Commission, 1981)

Definition of Death (2 of 2)

Uniform Determination of Death Act (UDDA)

Speaks of “an individual,” not “a person”

Requires irreversible cessation of the designated functions

Recognizes the possibility of situations in which external interventions mask the precise status of respiratory & circulatory functions

Requires evaluation of the capacities of the central nervous system

Concludes that irreversible cessation of all functions of the brain & brain stem is the condition understood as death

Determination of Death

Harvard Criteria

Unreceptivity & unresponsivity

No movements or breathing

No reflexes

Flat electroencephalogram

Repeat all of the above tests at least 24 hours later with no change

Criteria exclude hypothermia & the presence of CNS depressants

Certification of Death (1 of 2)

Death Certificates

Necessary for record keeping & statistical data, claiming life insurance & other death benefits, disposition of property rights, & investigation of crime

Include a wide variety of information

Delivered to a local registrar, who signs the form, records it, & provides a permit for disposition of the body

“NASH” system refers to four basic categories of the manner of death: natural, accidental, suicide, or homicide

Certification of Death (2 of 2)

Coroners

Usually individuals who have been elected to office

Not normally required to have any special qualifications

Many, especially in rural areas, are funeral directors

Medical Examiners

Individuals who have been appointed to their positions

Are required to be qualified medical doctors (usually forensic pathologists)

Organ, Tissue, & Body Donation (1 of 9)

Background: Tissue typing, immuno-suppression, & organ donation

Two critical advances

Ability to classify & compare human tissues

Development of immunosuppressant medication (cyclosporine)

Major organs that can currently be transplanted are listed in the top line of Table 16.1

Organ, Tissue, & Body Donation (2 of 9)

Tissue Donation

Human tissues are donated & transplanted for a wide variety of purposes

Approximately 30,000 individuals donate tissue each year

One donor can restore health & heal lives of 75 people

An estimated 1.5 million human tissue transplants are accomplished each year in the United States

There usually is no problem of rejection after the transplantation

Organ, Tissue, & Body Donation (3 of 9)

Two distinctive forms of tissue transplantation

Xenotransplantation

Skin donation from living donors after certain forms of weight-loss surgery

Organ, Tissue, & Body Donation (4 of 9)

Body Donation

For medical education & research

Recipients might include the anatomy departments of medical or dental schools, state or regional agencies that serve this purpose, or organizations like the International Institute for the Advancement of Medicine or Science Care

Arrangements must be made in advance & follow required procedures

Receiving institutions typically have special procedures for disposing of remains

Organ, Tissue, & Body Donation (5 of 9)

The Need for Organ Donation & Transplantation

Organ, Tissue, & Body Donation (6 of 9)

Who Can Donate?

Living Donors

May be directed or nondirected donors

5,980 living donors = 37.5 % of all donors in 2016

Made possible 17.8% of all transplants = 5,975

Have many advantages

Organ, Tissue, & Body Donation (7 of 9)

Nonliving Donors

9,971 nonliving donors = 62.5% of all donors in 2016

Made possible 82.2% of all transplants = 27,630

Two primary types

Individuals whose donation occurred after declaration of brain death

Individuals whose donation occurred after experience of cardiac death

Organ, Tissue, & Body Donation (8 of 9)

Authorizing Donation: Principles & Procedures

Governed by Uniform Anatomical Gift Act (1968) & state legislation

Donor rights legislation & first-person consent

Registries are open to enrollment by individuals 18 years of age or older

Decisions are legally binding & do not require additional witnesses or family consent

Authorization for donation by next-of-kin

Donation may be authorized by health care surrogate, donor’s spouse, adult son or daughter, either parent, adult brother or sister, legal guardian, or any other person authorized to dispose of the body—in that order of priority

Medicare & Medicaid “Conditions of Participation for Organ, Tissue, & Eye Donation”

All hospitals that receive Medicare or Medicaid funding must:

Have a memorandum of agreement with their local or regional organ, tissue, & eye banks concerning organ donation

Report to their local or regional Organ Procurement Organization (OPO) all patients whose deaths are imminent or who have died in the hospital

Permit the OPO to determine the suitability or eligibility of such patients for donation

Arrange for trained personnel to offer the opportunity to donate

Efforts to Increase Organ & Tissue Donation

Public education efforts to dispel myths & emphasize facts

Encourage signing up on state donor registries

Encourage discussions & decision making in families

“Share your life. Share your decision.”

“Don’t take your organs to heaven … heaven knows we need them here!”

Organ, Tissue, & Body Donation (9 of 9)

Caring for Families at & after Donation

Explain “first-person consent” to family members

Offer family members of nonliving donors the opportunity to authorize the donation of human organs & tissues from the body of their loved one

Provide a comprehensive program of bereavement-centered care for all donor families, including opportunities for commemoration & memorialization of their loved one

Recognize both the rights of donor families & their contributions to donation programs

Disposition of One’s Body

Disposition of dead bodies:

State & local regulations provide a general framework

Beyond that, regulation is essentially a matter of:

Professional practice

Social custom

Good taste

Disposition of One’s Property (1 of 4)

Probate

The process of administering & executing disposition of personal property following death

Disposition of personal property

Governed by state law of decedent’s residence

Disposition of real estate

Governed by state law of real estate location

Decedent’s personal representative charged with carrying out post-death duties

Executor—named in the will

Administrator—appointed by the court

Disposition of One’s Property (2 of 4)

Intestacy

Individuals who die without a valid will are said to have died intestate

Distribution of property is then generally based on assumptions made by state legislators as to a typical person’s wishes

With no qualified heir, the estate escheats or passes to the state

Wills

An individual’s formal statement of wishes to give some measure of control over the distribution of property

Drawn up, signed, & dated by adults of sound mind, referred to as Testators

Holographic wills are handwritten & unwitnessed

Disposition of One’s Property (3 of 4)

Trusts & Other Will Substitutes

Ways to avoid expense & delay of probate

Transfer assets while still living

Make an irrevocable & unconditional gift

Transfer assets effective at the time of death

Joint tenancy with right of survivorship

Life insurance policies

Create a trust

Testamentary trusts

Living trusts

Disposition of One’s Property (4 of 4)

Estate taxes

Imposed on & paid from the decedent’s estate

Taxes are on the transfer of property from a decedent to his or her beneficiaries

Occur before all remaining assets in the estate are distributed to heirs or beneficiaries

Inheritance taxes

Imposed on individuals who receive property through inheritance

Both are subject to federal & state tax laws