You asked how Connecticut's living will and health care representative laws compare with other states, especially regarding the situations a living will covers.

SUMMARY

A living will, also called an “advance directive,” conveys a patient's wishes regarding treatment when those wishes can no longer be personally communicated.

Connecticut law defines “advance directives” as a writing, including a living will, an appointment of a health care representative, or both. To protect themselves from liability, the law requires physicians to consider advance directives when deciding on treatment plans for incapacitated patients. But they do not have to comply with the directive. This is a significant difference from the requirements of the Uniform Health-Care Decisions Act (UHCDA), a model law adopted in California, Delaware, Hawaii, Maine, Mississippi, and New Mexico. The UHCDA requires physicians to follow directives as drafted or expressed. Florida and New Jersey grant immunity to health care professionals who act in good faith and in accordance with an advance directive, and Oregon law holds harmless from liability health care providers and representatives withholding or withdrawing life-sustaining treatment.

Under the Connecticut advance directives law, physicians or licensed medical facilities are held harmless from liability for withholding or withdrawing treatment or life support from patients deemed “incapacitated” if the patient's condition is terminal or he or she is permanently unconscious (triggering events). “Incapacitated” is defined as being unable to understand and appreciate the nature and consequences of health care decisions, including the benefits and disadvantages of such treatment, and to reach and communicate an informed decision regarding the treatment. These standards are narrower than the UHCDA, which holds harmless from liability physicians and facilities withholding or withdrawing treatment from patients when they suffer from an incurable or irreversible condition or permanent unconsciousness or when the risks and burdens of treatment outweigh the benefits.

The Connecticut triggering events are also narrower than those in such states as Florida, New Jersey, and Oregon. Florida law allows withdrawal or withholding of life support from patients who (1) are in permanent vegetative states or (2) have terminal or end-stage conditions, resulting in progressively severe and permanent deterioration and treatment would be ineffective. New Jersey law allows withdrawal or withholding of life support if (1) such treatment is experimental or will only prolong an imminent dying process or (2) patients are permanently unconscious, in a terminal condition, or have a serious, irreversible condition and the risks or burdens of treatment outweigh the benefits or are inhumane. Oregon law allows patients to express preferences concerning withholding or withdrawal of life support when they (1) are close to death and life support only postpones the moment of death; (2) are permanently unconscious; (3) are in a condition where life support only prolongs the pain; or (4) have an advanced progressive illness and are unable to communicate, swallow, care for themselves, or recognize family, and are not likely to improve.

GENERAL OVERVIEW OF LIVING WILL LAWS

The living will is a written declaration by a capable individual specifying the individual's wishes regarding life-sustaining treatment in the event of incapacity, identifying a surrogate decision-maker, or both. Most states have adopted statutory standards allowing for withholding or withdrawing life-sustaining treatment according to instructions expressed in a living will or by a surrogate. There are two types of surrogate decision makers: appointed proxies and individuals designated

by a statutory hierarchy. In some states, the law explicitly gives more deference to the choices of an appointed proxy (Lois Shepherd, End of Life Decision Making, 15 Temp. Pol. & Civ. Rts. L. Rev. 361 (2006)).

CONNECTICUT LAW TRIGGERING ADVANCE DIRECTIVES

The Connecticut advance directive law authorizes patients to execute a living will, appoint a health care representative to make health care decisions on their behalf, or both (CGS § 19a-570).

In order to be held harmless from liability for withdrawing or withholding life support from an individual, a physician must first assess the patient to be “incapacitated.” Unlike states like New Jersey, Connecticut law does not provide guidance on how to make such an assessment. Where a patient is incapacitated, the attending physician must also deem the patient either to be in a terminal condition or, in consultation with a physician qualified to make a neurological diagnosis and who has examined the patient, permanently unconscious. A “terminal condition” is the final stage of an incurable or irreversible medical condition which, without life support, will result in death within a relatively short time period. “Permanently unconscious” is an irreversible condition in which the individual is not aware of himself or herself or the environment and shows no behavioral response to the environment. It also includes permanent comas and persistent vegetative states (CGS § 19a-570). If the incapacitated patient is not in one of these conditions, physicians must provide beneficial medical treatment, including nutrition and hydration (CGS § 19a-571).

Once the above conditions have been met, the decision to withhold or withdraw treatment must be based on the best medical judgment of the attending physician in accordance with the usual and customary standards of medical practice.

If the patient's wishes have not been expressed in a living will, the Connecticut statute directs physicians to (1) consult statements made by the patient directly to the physician and (2) consult with, if available, the patient's health care representative, next of kin, legal guardian or conservator, if any; any person designated by the patient; and any other person to whom the patient has communicated his or her wishes (CGS § 19a-571). “Next of kin” includes, in the order of priority, the patient's spouse, adult son or daughter, parent, adult brother or sister, and grandparent (CGS § 19a-570(9)).

For a patient who has drafted a living will, physicians seeking to be held harmless are bound to consider the wishes concerning the withholding or withdrawal of life support systems expressed in the living will. But they are not mandated to implement the patient's wishes. In evaluating the wishes and intentions of the incapacitated patient who is terminally ill or permanently unconscious and who does not have a living will, however, physicians seeking to be held harmless from liability must consider not only the patient's wishes expressed by the authorized health care representative, but also the next of kin and other non-appointed individuals who may know the patient's wishes.

Under Connecticut law, an attending physician or health care provider unwilling to comply with the patient's wishes must, as promptly as practicable, take all reasonable steps to transfer care of the patient to a physician or health care provider willing to comply (CGS § 19a-580a).

BROADER ADVANCE DIRECTIVE LAWS

Based on a 2000 survey, Connecticut law is typical of most state laws, and in some respects more expansive. Appendix 1 provides a general overview of the triggering events, provisions for food and water, and order of surrogate priority in the absence of an appointed agent (Edward A. Haman, How to Write Your Own Living Will, Illinois: Sphinx Publishing, 2000; http://www.abanet.org/aging/legislativeupdates/docs/Famcon_05-07.pdf).

Broader, more expansive statutory provisions regarding triggering events for withholding or withdrawing treatment and the roles of appointed or statutorily authorized representatives exist in the six states that have adopted the Uniform Health-Care Decisions Act, as well as in Florida, New Jersey, New York, and Oregon.

Uniform Health-Care Decisions Act (UHCDA)

The UHCDA is currently in effect in six states: California, Delaware, Hawaii, Maine, Mississippi, and New Mexico. It offers a hierarchy of directives for physicians to follow: the written directive, appointed agent, then the statutorily authorized surrogate. The UHCDA also has a broad triggering action (Cal. Prob. Code §§ 4600-4805; Del. Code Ann. tit. 16, §§ 2501-2517; Haw. Rev. Stat. §§ 327E-1 to 327E-16; Me. Rev. Stat. Ann. tit. 18-A, §§ 5-801 to 5-817; Miss. Code Ann. §§ 41-41-201 to 41-41-229; and N.M. Stat. Ann. §§ 24-7A-1 to 24-7A-18).

The UHCDA allows patients to declare when an agent's authority becomes effective. This can occur either when the primary physician determines that the patient is unable to make health-care decisions or immediately. If not specified, the agent's authority becomes effective only upon a determination that the patient lacks capacity. It is the agent's obligation to make decisions in accordance with the patient's best interest, considering the patient's personal values. Patients satisfied that the agent will determine what is best for them do not need to instruct further.

“Health-care decisions” include (1) selection and discharge of health-care providers and institutions; (2) approval of tests, procedures, medication, and orders not to resuscitate; and (3) directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care.

A “surrogate” is an individual, other than a patient's agent or guardian, authorized to make health-care decisions for the patient and who may make such decisions for a patient lacking capacity when no agent or guardian has been appointed or is reasonably available. The act allows the patient's spouse, adult child, parent, or adult sibling, in descending order of priority, to act as surrogate. If none is available, an individual who has exhibited special care and concern for the patient, is familiar with the patient's values, and is reasonably available may act as surrogate.

Patients electing to provide a written advance directive must select from a range of health care decisions. A patient may opt not to prolong life when (1) the patient has an incurable and irreversible condition that will result in death within a relatively short time; (2) the patient becomes unconscious and, to a reasonable degree of medical certainty, will not regain consciousness; or (3) the likely risks and burdens of treatment would outweigh the expected benefits. A patient may also choose to prolong life as long as possible within the limits of generally accepted health-care standards. A patient may also decide if he or she would like artificial hydration and nutrition to be provided or withheld, as well as treatment for alleviating pain or discomfort, even if such treatment hastens death. A patient may also outline other wishes to clarify or state his or her directions.

The act requires health care providers to comply with the patient's instruction and with a reasonable interpretation of that instruction made by an authorized individual, except when the instruction is contrary to

institutional policy or generally accepted health-care standards. The act gives a provider acting in good faith in accordance with such standards immunity for complying with the decision of an authorized person.

Florida

Under Florida law, a patient may use a living will to stipulate his or her desires regarding life-sustaining treatment (Fla. Stat. Ann. § 765.303, 304). The patient may also designate a surrogate and an alternate surrogate to make health care decisions (Fla. Stat. Ann. § 765.202). If neither is available or willing to make decisions, the health care facility may seek the appointment of a proxy (Fla. Stat. Ann. § 765.202). The proxy may be, in order of priority, a judicially appointed guardian, the patient's spouse, an adult child, parent, adult sibling, adult relative, close friend, or a clinical social worker (Fla. Stat. Ann. § 765.401).

Before proceeding in accordance with the patient's living will, the physician must determine that the patient does not have a reasonable medical probability of recovering capacity (Fla. Stat. Ann. § 765.304).

The patient also must be in a persistent vegetative state or a terminal or end-stage condition (Fla. Stat. Ann. § 765.304). An “end-stage condition” is an irreversible condition caused by injury, disease, or illness, which has resulted in progressively severe and permanent deterioration, of which treatment would be ineffective. A “persistent vegetative state” is a permanent and irreversible unconsciousness in which there is the absence of voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment. A “terminal condition” is a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, will cause death (Fla. Stat. Ann. § 765.101).

Lastly, the physician must consider and satisfy any limitations expressed orally or in writing (Fla. Stat. Ann. § 765.304). A health care provider carrying out a patient's directive is immune from criminal or civil suit, as is the surrogate or proxy making a health care decision on a patient's behalf (Fla. Stat. Ann. § 765.109).

New Jersey

New Jersey affords competent adults the fundamental right to control decisions about their own health care. It explicitly recognizes, in its law and public policy, the personal right of the patient to voluntarily choose among alternate courses of medical and surgical treatment (N.J. Stat. Ann. 26:2H-54).

The law allows a patient to designate a competent adult to act as a health care representative and to execute a written directive detailing specific wishes regarding the provision, withholding, or withdrawal of any form of health care (N.J. Stat. Ann. 26:2H-58).

Under the law, life-sustaining treatment may be withheld or withdrawn when (1) the treatment is an experimental, unproven therapy, is likely to be ineffective in prolonging life, or is likely to prolong an imminent dying process; (2) the patient is permanently unconscious; (3) the patient is in a terminal condition; or (4) the patient has a serious irreversible illness or condition and (a) the likely risks and burdens associated with medical care may be reasonably judged to outweigh the benefits or (b) imposition of the medical care on an unwilling patient would be inhumane (N.J. Stat. Ann. 26:2H-67).

The New Jersey advance health care directive law defines “permanently unconscious” as a total and irreversible loss of consciousness and capacity for interaction with the environment, including a persistent vegetative state or irreversible coma. It defines “terminal condition” as the terminal stage of an irreversibly fatal illness, disease, or condition. While a specific life expectancy determination is not required, a prognosis of six months or less, with or without life-sustaining treatment, constitutes a terminal condition (N.J. Stat. Ann. 26:2H-55).

Health care representatives must give priority to the patient's instruction directive (N.J. Stat. Ann. 26:2H-63) and act according to the patient's wishes or, when the patient's wishes cannot adequately be determined, make a health care decision in the patient's best interest (N.J. Stat. Ann. 26:2H-61).

If the patient has executed a written directive but has not designated a representative, the written directive is legally operative. If it provides clear and unambiguous guidance, it must be honored in accordance with its specific terms by a legally appointed guardian, family members, physicians, nurses, other health care professionals, health care institutions, and others acting on the patient's behalf (N.J. Stat. Ann. 26:2H-64). A health care representative, professional, or institution is not subject to criminal or civil liability for any actions performed in good faith to carry out the terms of an advance directive (N.J. Stat. Ann. 26:2H-73).

New York

A patient may appoint a health care agent by a health care proxy (N.Y. Pub. Health Law § 2981). Subject to any express limitations in the proxy, the agent has the authority to make all health care decisions on the patient's behalf. After consulting with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker, the agent must make health care decisions in accordance with the patient's wishes, including the patient's religious and moral beliefs, or if the wishes are not reasonably known, in accordance with the patient's best interests. If the patient's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot be ascertained, the agent cannot make decisions about these measures (N.Y. Pub. Health Law § 2982). The statute does not expressly state triggering events.

While New York does not have a statutory living will law, the courts have recognized a patient's right to decide in In the Matter of Westchester County Medical Center, 72 N.Y.2d 517 (1988).

Oregon

Oregon law presumes that every person deemed temporarily or permanently incapable has consented to artificially administrated nutrition and hydration, except when administration is not medically feasible or would cause severe, intractable, or long-lasting pain, or the patient:

1. clearly and specifically stated a refusal of artificially administered nutrition and hydration;

2. has an appointed health care representative;

3. does not have an appointed health care representative or advance directive clearly stating that he or she would refuse artificial administration, and that he or she is permanently unconscious;

4. does not have an appointed health care representative or advance directive clearly stating that he or she would refuse artificial administration, and that he or she has a terminal condition;

5. (a) has a progressive illness that will be fatal and is in an advanced stage, (b) is consistently and permanently unable to communicate, swallow food and water, care for himself or herself, or recognize family and others, and (c) is very unlikely to improve (Or. Rev. Stat. § 127.580(1)).

The law defines “permanently unconscious” as completely lacking awareness of self and environment, with no reasonable possibility of regaining consciousness. The status must be medically confirmed by a neurological specialist who is an expert on unresponsive individuals (Or. Rev. Stat. § 127.505(18)). A “terminal condition” is a health condition in which death is imminent irrespective of treatment and applying life-sustaining procedures or artificial administration of nutrition and hydration only postpones the moment of death (Or. Rev. Stat. § 127.505(22)).

The advance directive form requires that patients list their care preferences when they are (1) close to death and life support would only postpone the moment of death; (2) permanently unconscious; (3) in a position where life support will not help the medical condition and would make the patient suffer permanent and severe pain; (4) afflicted with an advance progressive illness that will be fatal and is in an advanced stage, and (a) the patient is unable to communicate, swallow food and water, care for himself or herself, or recognize family and others, and (b) it is very unlikely that the condition will improve (Or. Rev. Stat. § 127.531(2)).

The provisions of the Oregon law do not impose civil or criminal liability on a health care representative or provider who withholds or withdraws life-sustaining procedures or artificially administered nutrition and hydration when a patient's condition is different from those described above. They also do not abolish or limit the civil or criminal liability of a health care representative under other statutory or common law (Or. Rev. Stat. § 127.555).

Appendix A: 50-State Advance Directives Survey

Source: Edward A. Haman, How to Write Your Own Living Will, Illinois: Sphinx Publishing, 2000; http://www.abanet.org/aging/legislativeupdates/docs/Famcon_05-07.pdf).

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