Health Care Decision Making in Michigan: A Guide

© 2013 Constance L. Brigman. All rights reserved. No portion may be copied or published in any media without the author’s express consent. The author has given exclusive permission to the State Bar of Michigan Probate and Estate Planning Council to edit and distribute all or portions of this work to the public in a brochure format.

Who should read this guide?

This helpful guide is for patients receiving medical treatment in Michigan. Because this guide is about health care decision making, it uses the word “patient” to refer to anyone receiving medical care – including nursing home residents. This guide does not include the special rules for health care decisions made by legal guardians of persons with developmental disabilities. If after reading this guide, you would like to make an appointment to go over your personal legal rights or those of a loved one, please do not hesitate to contact our office. Brigman Law attorneys are experienced and have a special dedication to health care decision making.

Can the patient, patient advocate or guardian ask for more information about the patient’s medical condition and proposed treatment?

Yes. Before a healthcare provider begins any non-­‐emergency treatment to procedure, he or she must explain the treatment or procedure and ask if the patient consents to it.* If a patient advocate or guardian is asked to provide consent for a patient, then that individual exercises the patient’s right to the information that is necessary to make an informed decision about the patient’s medical treatment.
In re Martin, 450 Mich 204, 538 NW2d 399 (1995) at 217. The Martin opinion concurs with the Rosebush opinion that Michigan recognizes a patient’s right to informed consent and that this right arises from an individual’s common law right to freedom from unwanted interference with his or her bodily integrity.

Adults Who Have the Ability to Make Informed Decisions

Do all adult patients have a right to make their own health care decisions?

Yes. Patients have a right to make their own health care decisions, but a patient may not always have the ability to do so. If that is the case, then a surrogate must exercise the patient’s rights. The surrogate’s role is tightly limited to exercising the patient’s right to make his or her own health care decisions.*
* “…a person’s right to refuse life-­‐sustaining medical treatment survives incompetency and may be discharged by a surrogate decision-­‐maker…” Martin at 219. “A third person must implement an incompetent patient’s previously expressed decisions.” Martin at 219

What is decision­ making capacity for a health care decision?

It has three components and all three must exist in order for a patient to make a decision that meets the criteria of informed consent:

(1) the ability to be informed means the ability to comprehend and appreciate the nature and consequences (benefits and risks) of the proposed health care treatment,
(2) the ability to make a competent decision which means the patient can apply reasoning and reach an informed decision and
(3) the decision is a voluntary one.*
*Charles P. Sabatino, Advance Directives and Advance Care Planning: Legal and Policy Issues, prepared for U.S. Department of Health and Human Services Contract #HHS-­‐ 100-­‐03-­‐0023, Oct. 2007. The Michigan statute for a patient advocate designation (Michigan’s health care power of attorney law) refers to the ability to provide informed consent as the patient’s “ability to participate in medical decisions.”

Who decides whether a patient has decision making capacity?

The patient’s attending physician.* If the attending physician doubts that a patient has the capacity to provide informed consent, then he or she will examine the patient and document in the patient’s medical chart that the patient cannot provide informed consent to the proposed treatment because the patient lacks the decision making capacity to do so. If there is no documentation that this has been done, then we presume that the patient has decision making capacity.
* The doctrine of informed consent places a legal obligation on the physician to provide adequate disclosures and to obtain informed consent from the patient. MCL 700.5508.

May a family member serve as a surrogate?

A family member may serve as a surrogate for a patient when designated as the patient’s guardian or patient advocate. Many patients do not have a guardian and they never executed a patient advocate designation. In these cases, healthcare providers often allow family members to provide consent to ordinary and routine medical procedures to help the patient receive low risk, medically necessary medical treatment. Michigan law provides a very narrow limitation for when a family member may consent on behalf of a patient to a medical treatment.*
* MCL 400.66h is applicable to indigent persons. It requires physicians to obtain consent from a guardian or nearest relative of a patient who is not of sound mind. “Nothing in this act shall be construed as empowering any physician or surgeon, or any officer or representative of the state or county departments of social welfare, in carrying out the provisions of this act, to compel any person, either child or adult, to undergo a surgical operation, or to accept any form of medical treatment contrary to the wishes of said person. If the person for whom surgical or medical treatment is recommended is not of sound mind, or is not in a condition to make decisions for himself, the written consent of such person’s nearest relative, or legally appointed guardian, or person standing in loco parentis, shall be secured before such medical or surgical treatment is given. This provision is not intended to prevent temporary first aid from being given in case of an accident or sudden acute illness where the consent of those concerned cannot be immediately obtained.” 1957 Public Act No. 286. (emphasis added)

Advance Directives

What is an advance directive?

An advance directive is a written instruction about health care made by an adult patient prior to losing decision making capacity.* Michigan refers to its statutory advance directive as a patient advocate designation.**
*The Patient Self Determination Act (PSDA) of 1990 defines an advance directive as a written instruction, such as living will or durable power of attorney for healthcare, that is recognized under state law (whether statutory or as recognized by the courts of the State), relating to the provision of health care when the individual is incapacitated. 42 U.S.C. § 1395cc(f)(3).
**MCL 700.5506.

What decisions can a patient advocate make?

It depends on the instructions in the patient advocate designation. The patient cannot make a decision to withdraw or withhold life-sustaining treatment unless the patient advocate designation clearly gives the patient advocate that decision making authority.

Does the patient advocate need to ask the patient what he or she wants?

The patient advocate must take reasonable steps to follow the patient’s instructions that were given at a time when the patient had the capacity to make health care decisions.*  Also, the patient advocate must try to learn what the patient’s current wishes are.**  If it is not in the patient’s best interest to honor the patient’s instructions, then Michigan law does not require the patient advocate to do so.***
*MCL 70.5509(1).
**MCL 700.5511(1).
***MCL 700.5507(4)(6).

Can the patient disagree with the patient advocate’s decision?

Yes. The patient can override the patient advocate’s decision as follows: At any time, (1) a patient may override a decision to withdraw or withhold a life-­sustaining treatment* or (2) revoke the patient advocate designation thereby cancelling the patient advocate’s authority.** This is true even when the patient no longer has the capacity to make his or her health care decisions.*** This is true even when the patient no longer has the capacity to make his other health care decisions.
*MCL 700.5511(1).
**MCL 700.5510(1)(d).
*** Id.

What if the patient has a patient advocate and a guardian?

If the patient advocate designation is a legally valid document and it gives the patient advocate authority to make a particular health care decision, then the patient advocate has exclusive legal authority to do so. A guardian may not make a decision that the patient designated to the patient advocate.*
*MCL 700.5306(5).

What if the patient advocate is not available to make the decision?

If this happens, the person next in line to serve must be contacted.* That person will be named in the patient advocate designation. He or she is often referred to as the successor patient advocate.
*MCL 700.5507(2).

May a patient advocate name someone else to make health care decisions if or when the patient advocate is absent?

Not unless that is specifically and expressly allowed for in the patient advocate designation.*
* MCL 700.5509(g).

If the patient advocate is unable to unwilling to make a decision, then is he or she disqualified?

Yes, the patient advocate is by-­passed and the successor patient advocate is notified, if the patient advocate will not cooperate and make a decision in a timely manner.*
* The successor ordinarily steps up if the prior patient advocate will not sign an acceptance. MCL 700.5507(2). However, a medical provider is not obligated to follow the instructions of a patient advocate who is not in compliance with the statute. MCL 700.5511(3). The patient advocate must act in the patient’s best interest. If a patient advocate is not performing his duties, then MCL 700.5511(5) allows a provider to petition the probate court to remove the patient advocate.

Can a patient, patient advocate or guardian change a decision?

Yes. Any prior treatment decision may be revoked but the revocation must be documented. The medical facility’s staff will need to document in the patient’s medical chart the date and time of the revocation as well as the reasons for it.

Decisions to Withhold or Withdraw Life-­Sustaining Treatment in Nursing Homes

Life-­sustaining treatment means that the attending physician believes the patient will die within a relatively short time if the patient does not get the medical treatment or procedure.

What is CPR?

CPR (cardiopulmonary resuscitation) is a medical procedure that attempts to restart a patient’s heart or breathing after either or both have ceased. The simplest CPR is given with mouth-­to-­mouth breathing and forceful compressions of the patient’s chest. In a medical facility it often involves electric shocks (defibrillation); insertion of a tube down the throat into the windpipe (intubation); and placing the patient on a breathing machine (ventilator).

What is a decision to withhold or withdraw life-­sustaining treatment?

A treatment is withheld when the treatment was refused before it was provided to the patient. A treatment is withdrawn when a decision is made to remove the treatment after it has been started. Every adult patient has the right to refuse a treatment after being fully informed and understanding the probable consequences of such actions.

How does a nursing home carry out a decision to withhold a life-­sustaining treatment?

The attending physician directs staff not to provide certain medicines, treatments or procedures. There are several life-­‐sustaining treatments that may be separately considered. (1) DNI order. (Do Not Intubate) This is an order to not intubate the patient. It will prevent the patient from being connected to a ventilator. (2) DNR order. (Do Not Resuscitate) This is an order to not attempt CPR if the patient’s heart stops and/or breathing stops. (3) No artificial nutrition or hydration. This is an order to not provide tube feeding or IV fluids. Tube feeding is provided through a tube inserted in the patient’s stomach. IV fluids are provided through a tube inserted into the patient’s vein. (4) Other orders may also be written such as an order to not provide dialysis.

If an order is written to not provide life-sustaining treatment will all medical treatment be stopped?

No. The order is limited to the treatments that it specifically addresses. It could be a DNR order only and all other medical treatments must be provided.

When may a patient have a DNR order?

A patient or patient advocate may request a DNR order. A court may authorize a guardian to request of a DNR order. However, only the attending physician may write and place a DNR order in a patient’s medical chart.*
*Medline definitions. “DNR”. http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000473.htm. See also, Cleveland Clinic patient information page at http://my.clevelandclinic.org/healthy_living/healthcare/hic_do_not_resuscitate_orders_and_comfort_care.aspx

What happens to a DNR order if the patient leaves the nursing home?

Whenever the patient’s medical circumstances change, the patient’s DNR order is one of many physicians’ orders that are reviewed. The order may be renewed, modified or cancelled. If the patient moved to a different physician’s care, the new attending physician must re-­authorize the orders. A patient or decision-maker may request that the DNR order be entered again.

Is Michigan law different for hospitals and nursing homes when it comes to DNRs?

No. The law is the same but the care setting are very different for hospitals versus nursing homes. Hospitals provide acute care; nursing  homes provide care for patients coping with a chronic illness only. Michigan law is that only a patient, patient advocate or guardian may make health care decisions for a mentally incapacitated adult. If a hospital accepts family consent but a nursing home does not, then it is not because Michigan law for hospitals and nursing homes are different. Many nursing homes do not accept family consent to a DNR order. The State of Michigan inspects nursing homes and issues a citation for each DNR order that does not have the proper consent signatures.

What about the MI-­POST program? Is it changing Michigan law?

No. Only the legislature enacts changes to Michigan law. The MI-­POST program creates a physician’s order form to be filled out and placed in a medical chart. It gives instructions about life-‐sustaining treatments and it is immediately effective after the physician signs the order. The form is relatively new in Michigan. The Michigan legislature has yet to address it. Our state’s laws have not changed regarding advance directives and the patient’s right to make his or her own health care decisions.

When the patient is discharged home, is a DNR request in a Living Will sufficient?

No. Only a DNR that is in compliance with the Michigan Do Not Resuscitate Procedures Act is sufficient to stop EMS from providing CPR if they are called to a residence. The Michigan legislature enacted a law that created a DNR order for use outside of a hospital or nursing home. Therefore, this statutory document is the standard to be followed.

Decision-­Making Standards for Patient Advocates and Guardians

What does it mean for a surrogate to honor the patient’s wishes?

The patient has a right to make his or her own health care decisions. A surrogate must honor the patient’s right to do so by reasonably following the patient’s wishes.

Do guardians and patient advocates have the same decision making authority?

No. The patient appoints a patient advocate; the court appoints a guardian. Each surrogate’s boundaries are specified in the order or document that appoints them.
Generally, the patient advocate may rely on either oral or written instructions from the patient. Decisions regarding life sustaining medical treatment are an exception to the general rule, however. A patient advocate cannot refuse life sustaining medical treatment unless the patient advocate designation is clear on it. It must give the patient advocate the authority to refuse life sustaining medical treatment and it must acknowledge that the patient advocate’s decision could or would allow the patient to die. The Martin opinion interprets this part of the statute to also mean that the patient advocate designation must articulate the medical conditions under which the patient advocate’s authority may be exercised. An example might be: “If I am terminally ill, then please do not provide me with CPR or any other life sustaining medical treatment.”
A guardian may not refuse a life sustaining medical treatment for the ward absent an order from the court authorizing the decision. The decision may be based on clear and convincing evidence of the patient’s wishes or it may be based on an objective standard so long as the decision is consistent with the patient’s values and beliefs.*
* The Martin decision did not universally reject a guardian using an objective standard. The holding was limited to whether a guardian could use an objective standard for a conscious patient whose wishes were not clearly and convincingly stated in an advance directive. “Thus, while the facts of the present case do not require that we decide whether the state’s parens patriae authority may be expansive enough to encompass a best interest analysis….” Martin at 222. (emphasis added) The facts presented were not compelling enough for the Court to authorize use of an objective standard: “Thus, while the clearly expressed wishes of a patient, while competent, should be honored regardless of the patient’s condition, we find nothing that prevents the state from grounding any objective analysis on a threshold requirement of pain, terminal illness, foreseeable death, a persistent vegetative state, or affliction of a similar genre.” Martin at 223.

Can the family make this decision on the patient’s behalf?

Michigan law does not clearly give next of kin the authority to refuse life-­sustaining medical treatment.*
* Neither the Michigan Social Welfare Act nor the Michigan Dignified Death Act specifically addresses the how, when, where and which family member may refuse life sustaining medical treatment for an incompetent patient. When the legislature authorizes a family member to refuse a life-sustaining medical treatment for an incompetent patient, it does so with clarity. There is such a statute that other states have copied. It is helpful to examine it to understand what works and what does not work. The statute articulates the powers and duties of the surrogate; the priority of different family members to serve as a surrogate; and, what procedure the rest of the family should follow if the surrogate appears to be unable to perform his or her duties.

Must an Ethics Review Committee agree with a surrogate’s decision?

An Ethics Review Committee is advisory only. If the Ethics Review Committee does not support the surrogate’s decision, then the surrogate may move the patient to a different hospital or nursing home. The patient’s surrogate should ask if the hospital or nursing home has a medical futility policy. Medical care is considered futile if there is no reasonable hope that it will either benefit or cure the patient. Specifically, the surrogate may ask if there is an institutional policy that allows a doctor to write an order against providing a medical treatment to the patient, even though the patient’s surrogate requested it, because the Ethics Review Committee considers the treatment to be medically futile.

© 2013 Constance L. Brigman. All rights reserved. No portion may be copied or published in any media without the author’s express consent. The author has given exclusive permission to the State Bar of Michigan Probate and Estate Planning Council to edit and distribute all or portions of this work to the public in a brochure format.