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VOL. CLXXXV NO.2 INDEX 87 JULY 10, 2006 ESTABLISHED 1878

This article is reprinted with permission from the JULY 10, 2006 issue of the New Jersey Law Journal. 2006 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

HH EALEALTHTH CCAREARE LLAAWW

By Julie K. Assis

Administrators of New Jerseys

approximately 400 licensed long-term care (LTC) facilities face

complicated challenges when caring forelderly, institutionalized residents near-ing the end of their lives, particularly

involving the provision of life-sustainingtreatment such as artificial feeding, ven-

tilators and dialysis. To protect elderlyindividuals unable to communicate their

wishes, the New Jersey Department ofHealth and Senior Services (DHSS) hasinstituted a complex network of regula-

tory guidance on who should make thesedecisions and the process by which they

should be made.The players in the decision-making

process are numerous, including the res-ident to the maximum extent possible,family and loved ones, healthcare

providers, representatives and/or surro-

gate decision makers, and the Office ofthe Ombudsman for the Institutionalized

Elderly (OOIE). The LTC facility admin-

istrator influences the way these deci-sions are made by instituting facility

policies and procedures addressing theseissues and assuring that its staff complies

with the states regulations. To aid thefacility administrator in this task, thisarticle outlines the various players and

their roles in the decision-makingprocess.

The OOIE was established in 1977to investigate and resolve complaints of

abuse, neglect and exploitation of people60 years of age and older within state-licensed LTC facilities, and regulations

were adopted in 1990 detailing theOOIEs role in the end-of-life process for

these residents.An LTC facility must notify the

OOIE anytime a decision regarding life-sustaining treatment arises, except when

(i) the resident is fully informed andcapable of making healthcare decisions,

(ii) a fully executed and valid advancedirective exists, (iii) the treatment is notmedically necessary, or (iv) the proposed

decision is being reviewed by a court ora regional ethics committee. The OOIE

aids decision making in two main areas:assessing the residents intent regardinglife-sustaining treatment and engaging

the services of two nonattending physi-cians to determine the residents medical

condition. After completing an investiga

tion, the OOIE decides whether the con-ditions are satisfied to authorize with-

holding or withdrawing treatment.An individuals wishes regarding his

own care are of utmost importance inany end of life decision. The New JerseySupreme Court recognized an individ-

uals right to reject life-sustaining treat-ment, when the individual is capable of

making healthcare decisions, bases deci-sions on a wish to be free from medica

intervention rather than a specific intento die and has an underlying medicacondition that ultimately results in death In the Matter of Conroy

, 98 N.J. 321(1985).

Under the OOIE regulations, anelderly resident in a LTC facility may

choose to have life-sustaining treatmenwithheld or withdrawn if he is fullyinformed and has the capacity to make a

healthcare decision. Capacity means theability to understand and appreciate the

nature and consequences of a particularhealthcare decision, including the resi-

dents diagnosis and prognosis, the bur-dens, benefits and risks associated with

the decision and alternatives to the decision, and the ability to voluntarily reasonand make judgments about that informa

tion. If there is any doubt regardingwhether a resident is fully informed or

has capacity, two nonattending physi-cians must assess the resident and docu-

ment their conclusions. N.J.A.C. 8:90-2.3(d)(2). Capacity must be re-assessedperiodically as the residents medica

Assis, a member of the Healthcare

Practice Group at Flaster/Greenberg of

Cherry Hill, focuses her practice on repre-

sentation of individual healthcare

providers and healthcare entities in a vari-

ety of regulatory, contractual, licensing

and organizational issues.

Negotiating the decision-making maze for institutionalized elderly

End of Life Treatment

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2 NEW JERSEY LAW JOURNAL, JULY 10, 2006 185 N.J.L.J. 87

condition or prognosis changes.

An individual can also specify pref-erences regarding life-sustaining treat-

ment through an advance directive. InNew Jersey, there are two forms ofadvance directive. An instruction direc-

tive, also known as a Living Will, doc-uments the residents wishes for health

care in the event that he subsequentlylacks capacity; while a proxy directive,

also known as a Durable Power ofAttorney for Health Care, designates ahealth-care representative to make

health-care decisions on the residentsbehalf in such event. N.J.S.A. 26:2H-55.

Under the recently enacted New JerseyAdvanced Directives for Mental Health

Care Act, an individual may also speci-fy his wishes regarding mental health

care and designate a proxy mentalhealth-care representative. N.J.S.A.26:2H-102 et seq. The advance directive

becomes operative only when it is givento the attending physician or LTC facili-

ty and the patient is determined to lackcapacity. N.J.S.A. 26:2H-59.

The residents wishes regarding hiscare remain paramount under an opera-tive directive. The physician and repre-

sentative must still actively promote theresidents participation to the maximum

extent possible, and follow any prefer-ence expressed in the residents instruc-

tion direction. Absent direct instruction,the representative must base all deci-sions on evidence of the residents val-

ues and wishes. Even if the resident isincompetent, he may revoke an advance

directive by notifying any reliable wit-ness or taking any action evidencing

intent to revoke the document. He cansuspend or reinstate the advance direc-

tive in the same way. N.J.S.A. 26:2H-57.Attending and nonattending physi-

cians, nurses and other caregivers makea number of medical decisions that influ-ence what life-sustaining treatment will

be provided to, or withheld from, a resi-dent.

Physicians have the responsibility ofassessing whether a resident has capaci-ty to make health-care decisions and at

what point an advance directivebecomes operative. To effectuate an

advance directive, the attending physi-

cian must determine capacity, inform thepatient and his health-care representative

of such a decision and their right to con-test it, and document this in the patients

chart. Unless the attending physician and

the representative agree that the patientslack of decision-making capacity isclearly apparent, one or more physiciansmust confirm the attendings determina-

tion. N.J.S.A. 26:2H-60. Confirmationby a physician with specialized mental

health training is required if the attend-ing or confirming physician determines

that a patient lacks capacity because of amental or psychological impairment or adevelopmental disability.

The residents attending physician,or an advanced practice nurse in collab-

oration with the attending physician, hasthe primary responsibility for determin-

ing whether a particular treatment ismedically indicated. Medically indicat-ed means treatment that will improve

the medical condition of, or is necessaryto provide palliative care to, the resident.

N.J.A.C. 8:90-2.2. This decision is criti-cal because it changes the process by

which a facility must proceed. If thetreatment is not medically indicated, the

facility is not required to report to theOOIE and follow the OOIEs proce-dures.

Before medically indicated life-sus-taining treatment can be withheld or

withdrawn in accordance with an opera-tive advance directive, the attending

physician and another physician mustdetermine that the resident is permanent-ly unconscious, in a terminal condition

or has a serious irreversible illness orcondition and the burdens of medical

intervention outweigh the benefits.N.J.S.A. 26:2H-67. If there is no

advance directive, two nonattendingphysicians selected by the OOIE mustdetermine that the resident is permanent-

ly unconscious, in a persistent vegetativestate, or suffers severe and permanent

mental and physical impairments andhas less than one year to live before

treatment can be withheld or withdrawn.N.J.A.C. 8:90-2.4.

A health-care provider has the right

to decline from participating in with-holding or withdrawing life-sustaining

treatment, in accordance with sincerelyheld personal or professional convic-tions. N.J.S.A. 26:2H-62(c). Should this

occur, the provider has the responsibility

to (i) inform the patient and health-carerepresentative, (ii) notify the appropriatesupervisor or designated facility official

(iii) cooperate in a respectful and time-ly transfer of care, and (iv) assure thatthe patient is not abandoned or treated

disrespectfully.The contribution of family, friends

and guardians to the decision-makingprocess is particularly important when a

resident lacks capacity, because theseindividuals make decisions on behalf ofthe resident and provide critical insight

into the residents wishes regarding end-of-life care.

If a resident has effectuated a proxydirective, he has formally designated a

health-care representative or a mentalhealth representative to make health-

care or mental health decisions upon adetermination that the resident lackscapacity. The resident may also desig-

nate alternate health-care representa-tives, in order of priority, in the event

that the primary representative isunavailable. A health-care representative

may not be an operator, administrator oremployee of the facility at which the res-ident is receiving care, unless related to

the resident. N.J.S.A. 26:2H-58.If a resident has not designated a

representative through a proxy direc-tive, a surrogate decision-maker will be

responsible for representing the resi-dents interests. A surrogate decisionmaker may be a guardian, a close and

caring family member, or a person des-ignated by the resident, who is willing

and able to make a decision to withholdor withdraw life-sustaining treatment

on behalf of the resident. N.J.A.C8:90-2.2. If several family members

seek to become the residents surrogatedecision-maker, the order of priority isthe residents spouse, parents, children

and next of kin.When these decision-makers are not

available or the resident has no identifi-

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able friends or family to function in

these roles, the court may appoint a spe-cial medical guardian to represent the

residents interests. R. 4:86-12.In 1998, New Jersey established a

system of regional long-term care

ethics committees (the Network) aspart of the innovative New Jersey Stein

Ethics Education & Development (NJSEED) project. These committees

composed of facility administrators,social workers, nurses, physicians, and

clergy provide ethics consultations

to LTC facilities. NJ SEED also pro-vides ethics training, continuing educa-

tion units and peer support to LTCfacility personnel. A 2003 evaluation ofthe project found that almost 60 per-

cent of New Jerseys LTC facilities hadbecome members of the Network, and

of those, almost 70 percent had con-sulted with one of the committees

regarding an ethical issue. C.M.Weston, The NJ SEED Project:

Evaluation Of An Innovative Initiative

For Ethics Training In NursingHomes, 6 J Am Med Dir Assoc. 68-75

(Jan-Feb 2005).Participation in the Network bene-

fits an LTC facility, since it will be

exempt from reporting and followingoversight procedures by the OOIE if a

regional ethics committee has reviewedan end-of-life decision and recom-

mended in favor of the facilitys pro-posal. N.J.A.C. 8:90-2.3(d)(6).