Oklahoma’s Remarkable Laws Regulating End of Life
By Jan Slater
It is well-established in common law and ethical codes that individuals have the right to decide what medical care and treatment they should receive, including the right to refuse care, which may expedite their demise.1 Modern medicine has the ability to extend life and prolong the moment of death long past the point at which a competent person would likely consent, but in most cases the person is no longer able to express his/her wishes.
This article will cover persons’ rights to make their own medical decisions as long as they are competent; what constitutes incapacity and under what conditions Oklahoma law permits persons to exercise these rights upon incapacity. A medical case study and four Oklahoma statutes that relate to end-of-life medical care will be reviewed. The focus will be on the Oklahoma Advance Directive Act. However, three other little known laws will also be examined: the Oklahoma Do Not Resuscitate Act, the Hydration and Nutrition for Incompetent Patients Act, and the Non-Discrimination in Treatment Act. These laws greatly impact decisions health care providers can make, and often inhibit their ability to do what they believe the incapacitated patient would have wished or is in the patient’s best interest.
A CASE STUDY
The following scenario describes a common potential case:2
WD is a 75-year-old male patient with a two-year diagnosis of bladder cancer with meta-stasis to the brain. He was admitted to the hospital due to increasing blood in his urine. While receiving a blood transfusion he developed respiratory distress, requiring a call for the code blue team and emergency intubation. He was sent to the intensive care unit and placed on a ventilator. He was sedated and unable to communicate. It was found that his kidneys were failing due to the cancer growth that now obstructed the ureters; urine could no longer empty into his bladder. His respiratory failure was most likely due to volume overload in his kidneys.
Due to the extent of the cancer, WD was considered terminal. Due to the brain metastasis, it was doubtful that he would regain capacity. He now had kidney failure and subsequent respiratory failure. The family was given this report, and there was discussion by the ICU medical team of removing the ventilator. WD’s death would be expected.
In reviewing the case, and prior to meeting his family, WD’s physicians considered potential pathways for WD. What if nephrostomy tubes were surgically placed? These tubes would be permanent but would allow urine to bypass the obstructed ureters and potentially reverse the kidney failure. This might facilitate WD being weaned from the ventilator. However he would still have a terminal prognosis from the underlying cancer and now with invasive nephrostomy tubes. Without this intervention his death would be more imminent.
The dilemma faced by WD’s medical team was that WD had no Advance Directive, and he was unable to weigh in to give informed consent. Was their obligation, at this moment, to a patient with terminal cancer, respiratory failure and kidney failure, to allow for his death free from invasive life support? Or should they offer a temporary fix of nephrostomy tubes which WD may or may not survive due to his debilitated condition? If he lived he would face discharge from the hospital with permanent drainage tubes and with a recommendation for hospice care. WD had never discussed his wishes with his family, but discussions with his two adult children indicated that WD had suffered greatly from the bladder and brain cancer. The children were of the belief that WD would not have wanted his life extended artificially.
If WD had executed an Advance Directive, the medical team and family would have had some guidance for this decision and the authority to ensure his wishes were honored.
MENTAL CAPACITY AND LEGAL COMPETENCY
Before beginning any discussion of the legal ramifications of this case, the first consideration must be to determine whether WD could return to capacity sufficient to express his wishes regarding treatment. Capacity is a medical determination, and competence is a legal determination; however, both determinations are based on the same principle. The condition precedent to a person making an informed decision in medical or legal matters is mental competence. The simplest definition for competence is “the ability to perform the task at hand.”
Competent judgments distinguish the class of individuals whose autonomous decisions must be respected from those individuals whose decisions need to be checked and perhaps overridden by a surrogate. Common law and medical practice presume that adults are competent to make decisions.3
If a health care professional or legal adviser determines that a person is not competent, the next step is to inquire whether competency can be restored. When incompetence rests on a reversible cause, such as pain or overmedication, the immediate goal is to restore the patient’s capacity to permit his/her involvement in treatment decisions.
Adults are presumed to have the capacity to make a treatment decision when they can understand the relevant information, reflect on it in accordance with their values, and communicate a decision to advisors or caregivers. Essential elements for a competency determination are:
1. Possession of a set of values, preferences, and goals.
2. Ability to understand information relevant to the decision.
3. Ability to reason and deliberate about one’s choices.
4. Ability to communicate one’s choices.4
Whether a person is competent to make a decision may vary with the task at hand. The criteria for a person’s competence to choose what to eat for dinner, to stand trial or to lecture law students are radically different. Competency may wax and wane. Many persons are incompetent to do something at one point in time and competent to perform the same task at another point in time. In some cases competence varies from hour to hour, such as in the case of transient ischemic attacks or transient global amnesia, etc. Competency determinations are often made to decide if a person has the threshold competence to make a particular decision.
Following are four Oklahoma statutes that regulate medical interventions that are permitted to be offered to individuals which are most relevant to end-of-life situations.
OKLAHOMA’S DO NOT RESUSCITATE ACT
Title 63 O.S. §3131.1, et seq., establishes a presumption that every person has consented to be resuscitated in the event of cardiac or respiratory arrest:
a. Exceptions to this presumption:
1. A competent person has informed a physician that the person wanted a do not resuscitate (DNR) order;
2. An incompetent person’s representative (health care proxy, attorney-in-fact, or guardian) consents to a DNR order;
3. The person, when competent, executed an Advance Directive refusing resuscitation or signed a DNR consent document;
4. The person’s attending physician certifies that there is clear and convincing evidence of the person’s wishes not to be resuscitated;
5. If none of the other indicia are present, the attending physician may give a DNR order in the belief that the person’s death is imminent.
b. To signify that a person wishes to have a DNR order given, the person can execute a DNR consent, wear a necklace, bracelet or carry a wallet card indicating the same.
c. This law is designed for a person at the end of life and not the ordinary client.
OKLAHOMA’S HYDRATION AND NUTRITION FOR INCOMPETENT PATIENTS ACT
Title 63 O.S. §3080.1, et seq., establishes a presumption that every incompetent patient has directed his health care provider to provide sufficient hydration and nutrition to sustain life.
a. Exceptions to this presumption:
1. An incompetent person’s physician knows the person, when competent, consented that artificially administered hydration and nutrition (AAHN) should be withheld or withdrawn;
2. The person, when competent, executed an Advance Directive consenting to withholding of AAHN;
3. Two physicians determine that administration of AAHN would cause severe, intractable pain or was not medically possible; and
4. Two physicians determine the person is irreversibly incompetent, in final stages of terminal illness and death is imminent; provided, AAHN cannot be withheld pursuant to this exception if it would result in the patient dying of starvation or dehydration.
Other than the Do Not Resuscitate Act and the Hydration and Nutrition for Incompetent Patients Act, there is no presumption in Oklahoma law regarding other forms of life-sustaining treatment.
OKLAHOMA’S NON-DISCRIMINATION IN TREATMENT ACT
Title 63 O.S. §3090.1, et seq., provides that, when requested by an elderly, disabled or terminally ill patient or the patient’s legal representative, a health care provider may not refuse life-sustaining treatment that would be provided to any other patient based on:
1. A view that extending this patient’s life is of lower value than for a patient who is younger, nondisabled or not terminally ill; or
2. A disagreement with how the patient or legal representative values the trade-off between extending the length of the patient’s life and the risk of disability.
A patient or legal representative may seek an injunction against a health care provider who is about to violate, is violating or has violated this statute; however, a violation will not be considered negligence in a civil action for damages.
The legal representative in this statute is defined in the same manner as in the DNR law: a guardian, a health care proxy named in an Advance Directive, or an attorney-in-fact who holds a valid durable power of attorney for health care.
The practical implications of this statute are several:
1. The practical difficulty with this act is that elderly people need to be treated differently than young people. This difference is the foundation of geriatric medicine. Elderly people respond differently to treatments, medications and many interventions. A hip replacement in a 50-year-old is a very different prospect than a hip replacement in a 90-year-old. On the average, 90-year-olds are less likely to survive the surgery.
2. Health care providers experience patients or their families who demand care that is medically non-beneficial or futile in nature. There is a concern in the health care community that this statute will sanction the demand for futile care.
3. From a health care provider’s standpoint, this statute is an unfunded mandate: it does not define who will pay for futile care demanded by a patient or family, particularly in light of considerations such as:
a. Health insurance that will not cover care that is “unnecessary;”
b. Health care providers aggressively collect bills; however, patients/families rarely have the resources to pay for these expenses; and
c. Health care providers and organizations usually end up absorbing the cost resulting in higher costs for all patients.
OKLAHOMA’S ADVANCE DIRECTIVE ACT
Title 63 O.S. §3101.1, et seq., provides a statutory form that may be used by competent adults to document their wishes regarding medical care and treatment they wish to receive when they are no longer able to express their wishes.
1. The statute permits other forms to be used; however, if a client wishes to refuse AAHN, only forms that state that refusal in a separate paragraph, separately signed or initialed, will comply with the law. An excellent Advance Directive is the “Five Wishes,” which can be found on the Internet (see, for example, the website www.agingwith dignity.org/forms/5wishes.pdf).
2. The statutory form serves as a durable power of attorney for health care without requiring notarization or recording in the public record.
a. In the Advance Directive, the declarant may request or refuse life support in the event the declarant becomes incompetent.
b. These choices can be made under four circumstances: when the declarant is terminally ill, persistently unconscious, has an end-stage condition or “other” as described by the declarant.5
c. The declarant may appoint a primary and a secondary proxy.
d. The Advance Directive must be signed by the declarant when he/she is competent, and witnessed by two witnesses who are not legatees, devisees, or heirs of the declarant.
e. Physicians are required to comply with a person’s Advance Directive; if unable or unwilling to comply, a physician is obligated to arrange care for the declarant by another physician or health care provider willing to comply with the Advance Directive.
Dilemmas facing health care providers when honoring the Oklahoma Advance Directive Act, and issues attorneys should consider when advising clients with respect to executing Advance Directives, include the following:
1. The statute contains no provision for a health care provider to refuse to comply with an Advance Directive based on the futility of the care requested and there is little chance an attending physician will find another willing physician to whom to transfer such a patient.
2. Occasionally, a declarant will appoint co-proxies, resulting in the necessity to contact both proxies every time a medical decision must be made. The issue becomes further complicated when the proxies cannot agree. Attorneys should recommend that their clients appoint a primary proxy with primary authority and a secondary proxy to serve only when the primary proxy is unable to serve.
3. The duty of the proxy is to make decisions based on the known wishes of the declarant. A quandary arises when a proxy does not know the declarant’s wishes. The proxy should not make decisions based on the proxy’s own wishes or what the proxy would do if he/she were in the declarant’s place. If there is no evidence of the declarant’s wishes, the proxy should decide based on what is in the best interest of the declarant. Attorneys should advise their clients to discuss in detail their wishes for end-of-life care with their proxies and their families, in addition to executing an Ad-vance Directive.
4. On occasion a client does not wish to make end-of-life medical treatment decisions but prefers to leave all decisions to a trusted proxy based on the family exigencies at the time the Advance Directive is activated. In this event, the client should leave “Section 1. Living Will” blank and complete the remainder of the Advance Directive, appointing the proxies who will make the decisions.
a. Title 63 O.S. § 3101.4.C states in pertinent part: “My health care proxy is authorized to make whatever medical decisions I could make if I were able, except that decisions regarding life sustaining treatment and artificially administered nutrition and hydration can be made by my health care proxy… only as I have indicated in the foregoing section.”
b. It can be argued that in the event Section 1 is left blank, the presumptions in the Do Not Resuscitate Act and the Hydration and Nutrition for Incompetent Patients Act are triggered.
c. To prevent the triggering of presumptions in other laws, advise a client to make clear in the Living Will section (4) that the client wishes the proxy to make decisions the proxy believes best represent the needs and wishes of the family; however, that the declarant would not want his/her life to be artificially prolonged and therefore the declarant consents to withdrawal of life-sustaining treatment and AAHN.
d. Families need permission to refuse care and permit a loved one to die naturally.
Useful tips for attorneys advising clients regarding the Oklahoma Advance Directive Act:
1. Discussion of Advance Directives should be made with all estate planning. Few people actually execute an Advance Directive.
2. There is confusion regarding what constitutes life-sustaining treatment. Life-sustaining treatment is any treatment that is designed to prolong life and delay the moment of death and includes, but is not limited to, cardiac or respiratory resuscitation, AAHN, kidney dialysis, antibiotics, curative procedures, most diagnostic procedures and surgeries except those to relieve pain or symptoms. It is presumed that every person would want palliative care which relieves symptoms and promotes comfort but is not designed to extend life.6
3. Some attorneys advise clients not to refuse AAHN as this would lead to a tortured death from starvation and dehydration. This is an unfortunate misunderstanding since it is natural for a dying person to lose appetite and the desire for liquids. Forcing food on dying patients may greatly increase their suffering.
4. Advise clients to appoint at least one proxy who is younger than the client: someone who is willing to comply with the Advance Directive, which may include withholding or withdrawing life support.
5. The statutory form requires only the declarant’s name, city, county and date of birth for identification. It is uncanny how many names and dates of birth are identical in a large city. Advise clients to also add a social security number to ensure they are not confused with other patients when a hospital attempts to retrieve an Advance Directive from their records.
6. After execution, copies of the Advance Directive should be given to the proxy, key family members, the attending physician and the hospital to which the client will likely be admitted.
a. Advise the client against putting the only copy of an Advance Directive in a lock box, as it will be unavailable once the client becomes incapacitated.
b. Encourage clients to talk to families, to let everyone know the client has an Advance Directive, to let the proxy know what the client’s wishes are, and to be sure the proxy understands his or her duties.
c. Recommend the client keep track of who holds copies of the Advance Directive. In the event the client later desires to revise or revoke the document, the whereabouts of documents allows outdated documents to be gathered and destroyed.
7. Failure to have an Advance Directive often causes strife among family members who disagree about treatment the incapacitated person should receive. Physicians and judges find it very difficult to face family demands that conflict with the physician’s duty to comply with the patient’s known wishes or to do what is in the patient’s best interest. In these situations, the families’ demands often win over the silence of an incapacitated person who cannot speak for himself and has never executed an Ad-vance Directive expressing his wishes regarding end-of-life care.
8. The most common defects in Advance Directives seen in hospitals include:
a. The declarant’s signature is not legible. Recommend all clients legibly print their names on the Advance Directive following their signature.
b. A witness is related to the declarant.
c. Only one witness signature appears on the document.
d. The Advance Directive was executed on behalf of the declarant after the declarant lost capacity.
e. Written instructions are illegible or unclear.
f. The document lacks a date.
OKLAHOMA LAW REGARDING DECISION MAKERS FOR INCAPACITATED PERSONS
As discussed above, Oklahoma law is clear that the only persons who may make decisions to withdraw or withhold life-sustaining treatment decisions on behalf of an incapacitated person are a health care proxy named in an Advance Directive, an attorney-in-fact named in a Durable Power of Attorney for Health Care, or a guardian. The law is silent about who may make other medical decisions. It would not be a violation of the law to permit the spouse, next of kin, or a friend to make general medical decisions for the incapacitated person as long as the decisions are medically reasonable and do not withhold or withdraw life-sustaining treatment or AAHN.
In the case study of WD presented above, his wife or next of kin could authorize the placement of nephrostomy tubes, but they are not authorized to request removal of life-support even though they believe this would be WD’s wish. As WD had no Advance Directive, his adult children have no standing to authorize that life-sustaining treatment be withheld. Life-sustaining treatment could only be withheld when WD’s death becomes imminent; AAHN could only be withheld if it resulted in intractable pain or was medically impossible to provide; and once again, the peculiar nature of Oklahoma’s laws may have the result of requiring unwanted medical treatment that would only extend WD’s suffering against his wishes.
1. Raphael J. Leo, MD, “Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physician” Prim Care Companion J Clin Psychiatry. Oct 1999; 1(5): 131–141.
2. This case, with some facts and identifying information redacted to protect confidentiality, is a typical case reviewed by hospital ethics committees.
3. Raphael J. Leo, MD, “Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians” Prim Care Companion J Clin Psychiatry. October 1999; 1(5): 131–141.
5. 63 O.S. §3101.4. The act defines a terminal illness as “an incurable and irreversible condition that even with the administration of life-sustaining treatment will, in the opinion of the attending physician and another physician, result in death within six (6) months.” Persistently unconscious is defined as “an irreversible condition, as determined by the attending physician and another physician, in which thought and awareness of self and environment are absent.” End-stage condition is defined as “a condition caused by injury, disease, or illness, which results in severe and permanent deterioration indicated by incompetence and complete physical dependency for which treatment of the irreversible condition would be medically ineffective.
6. 63 OS §3101.8 B.
ABOUT THE AUTHOR
Jan Slater is the executive director of the Oklahoma Cen-ter for Healthcare Improvement. She served as corporate legal counsel for the St. John Health System for more than 18 years and subsequently served as CEO of OSU Medical Center. She has also served in the capacity of hospital administrator in acute care hospitals. She received a B.A. in biochemistry from Ottawa University in Kansas and a dual J.D. and MBA degree from the University of Tulsa.
Originally published in the Oklahoma Bar Journal - Oct. 4, 2014 - Vol. 85, No.26