Prior to providing, withholding or withdrawing treatment under authorization through an Advance Directive or from a surrogate decision maker, the Attending Physician and a second physician must certify in writing that the Resident is incapable of making an informed decision regarding the treatment. The method for assessing the capacity of a conscious Resident is left to the discretion of the physicians. Although other health care practitioners (for example, a psychologist) may not sign a certification, they may evaluate the Resident and provide relevant information that the physicians may take into account, provided that the physician personally examines and evaluates the Resident. If the Resident is unconscious or is unable to communicate by any means, only one certification is required. The following requirements relate to certification of incapacity:

1. Both certifications must be based on a personal examination of the Resident;
2. One of the examinations must take place within two (2) hours before making the certification;
3. If the Resident is unconscious, or unable to communicate by any means, the certification of a second physician is not required,
4. When authorization is sought for treatment of a mental illness, the second certifying physician must not be currently involved in treatment of the Resident;
5. The cost of an assessment to certify incapacity is considered a cost of the Resident's treatment.
   
   A form for certifying incapacity is at Attachment G. The Attending Physician and second physician, if necessary, signs this form which then becomes part of the Resident's medical record.

Before life-sustaining procedures may be withheld on the basis of an Advance Directive (where no Agent has been appointed) or on the instructions of a surrogate decision maker:

1. The Resident's Attending Physician and a second physician must certify that the Resident has an End-Stage Condition; OR
2. Two (2) physicians, one of whom is a neurologist, neurosurgeon or other physician who has expertise in the evaluation of cognitive functioning must, certify that the Resident is in a Persistent Vegetative State; OR
3. The Resident's Attending Physician and a second physician must certify that the Resident is in a Terminal Condition.

A form for certifying these medical conditions is at Attachment G.

If a Resident does not currently have an End-Stage Condition and is not currently in a Terminal Condition BUT, in the reasonable medical judgment of the two physicians, would be in either of these conditions following a cardiopulmonary arrest, certification may be made for purposes of implementing the Resident's Advance Directive or carrying out a surrogate's request for a DNR order.

The Maryland Attorney General's Office has issued an opinion discussing the clinical circumstances under which certification and entry of a DNR order are authorized under the Health Care Decisions Act, available here: www.marylandadvancedirectives.com/pdf/79oag218.pdf

1. The Attending Physician is responsible for assuring and coordinating the required certifications.
2. Certifications will be reviewed for current applicability prior to each instance when life-sustaining procedures are to be withheld or withdrawn on the authority of an Advance Directive (where there is no Agent) or on the authority of a surrogate.