By Nathan A. Kottkamp, Partner, McGuireWoods LLP
With the costs of healthcare continuing to rise, and with care at the end-of-life constituting a disproportionate share of total healthcare dollars spent in the U.S., the role of advance directives is among the hotly debated topics in the national conversation about healthcare. As discussed below, research suggests that engaging in discussions about end-of-life wishes may result in cost-savings as a result of better coordinated care. Ultimately, the key reason to honor advance directives is not in the potential for cost-savings, but rather the potential to provide improved quality of care.
In every jurisdiction in the United States, patients are authorized to express their healthcare wishes in the event of situations that render them unable to speak for themselves. Although the legal foundation for such "advance directives" dates back to the 1960s, the right to create a written advanced directive was not solidified until 1990 with the passage of the Federal Patient Self-Determination Act, which was, in large part, a response to the case of Nancy Cruzan. The Federal Patient Self-Determination Act confirms the fact that autonomy is one of the core ethics in American healthcare, if not the dominant ethic. Consistent with this, when patients are able to speak for themselves, informed consent is a fundamental prerequisite to providing care. When patients are unable to speak for themselves, the American medical and legal system still strives to ensure that patients' autonomy is respected--with the use of advance directives.
The following provides an overview of advance directives, the applicable legal requirements for addressing advance directives, best practices, and several practical considerations.
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Nathan A. Kottkamp is an attorney in McGuireWoods health care practice group in Richmond, Virginia. He has a Masters degree in bioethics, and serves on several hospital ethics committees. Mr. Kottkamp is the founder and chair of the National Healthcare Decisions Day initiative.