Criminal & Civil Liability for Failure to Follow Advanced Directives

Health care workers need to faced with both criminal and civil prosecutions for refusal to follow Advance Directives for Healthcare.

There has been alot of time and energy expended in our country on the issue of healthcare directives. The government as well as private institutions have provided many classes, seminars, and even attorneys to help individuals understand and prepare these directives. Many people, especially the elderly, agonize over the decisions as to whom they want to appoint thier attorney-in-fact and to express what their desires are. In accordance with most state laws, every patient mujst be questioned as the presence of Advanced Directives for Healthcare and must provide further information and assitance to the patient in procuring these directives if the patient requests. Why is then that we are constantly hearing about healthcare providers , primarily physicians, who are refusing to follow these documents.

I believe that physicians need to be arrested for battery and that the families of these patients need to file a civil lawsuit for the tort of committing a battery and that damages need to be paid. For example, a physician who intubates a patient in the Emergency Room after learning of an Advanced Directive requesting "No Intubation" and speaking with the Attorney - in - Fact who states No Intubation. The occurs many times when there are multiple family members who have different wishes. Even though every family member is important, we must lose focus of our patient. The reason the patient identified his or hers desires and appointed an Attorney - in - Fact is that the individual has made the decison for himself.

The definition of a battery is the wilful or intentional touching of a person against that person's will or by an object set in motion by that person. Intubation of the patient in mhy example is clearly the intentional touching of the patient against their will.

In order to intubate a patient, a practitioner must first obtain legal consent. The consent can either be expressed or implied. Neither of these types of consent would be present in this example. There woule be lack of express consent as the Attorney-in-Fact clearly did not give consent to the intubation and furthermore, this expression was consistent with those expressed in the Advanced Directive. Implied consent also would not apply here. While many procedures are performed via the doctrine of implied consent in the Emergency Room, the doctrine would be negated by the refusal of the Attorney-in-Fact to consent. If the patient came in the Emergency Room in respiratory distress and without an Advanced Directive, consent would be implied by the virtue of succumbing to the EMS system. However, the Advance Directive and POA clearly interfere from Implied Consent being necessary.

Criminal prosecution for Battery does not require that any harm occur so an argument by the offending practioner that no damage occured by extending the patient's life would not prevent a criminal finding of Battery with a sentence. The plaintiff in the civil action would be required to show damages and they may be difficult to prove in monetary terms but some degree of pain suffering would be present in these type actions.

Those who choose to work in areas where these issues are present must comply with law even if they do not agree. If they choose to disregard the law. they must be prosecuted. This will eventually affect their licensure as one of the questions we all must answer when renewing our licenses is whether or not you have been convicted of a crime other than speeding offenses.