Competent Individuals have the right to make decisions about their own care. Simply because family or others are involved in a Resident's life, they do not have a right to medical records or to make decisions concerning care unless the Resident gives them authorization.

1. Decision Making Generally

Always consult first with a Resident known to be competent. If the Resident is competent and able to communicate, the Resident's express consent to, or refusal of treatment will be honored even if the Resident's family disagrees with the decision, and even if the Resident expressed a different decision on a prior occasion or in an Advance Directive. When a Resident refuses treatment, staff will discuss with the Resident the health and safety consequences of the treatment and any available therapeutic alternatives.

Although a Resident is presumed to have decision-making capacity, sometimes capacity is questionable. The Facility requires a clinically appropriate method of capacity assessment, as determined by a physician, to resolve issues of questionable capacity.

2. Informed Consent Generally

Under the informed consent doctrine, a competent Resident may consent to or refuse medical treatment after a discussion with his or her health care provider regarding the nature, benefits, risks of, and alternatives to such treatment. This concept presupposes that there is a reason a health care provider is seeking the Resident's informed consent, i.e. the Resident currently has a medical condition that presents an issue about such treatment and there is a need for a prompt decision about the issue. Under these circumstances, if the Resident provides explicit instructions for a particular type or types of treatment, these instructions survive any subsequent incapacity. The decision, reflecting direction from the Resident gained through the informed consent process, remains valid, without an additional Advance Directive or surrogate approval, so long as the clinical circumstances have not materially changed since the Resident's decision.

Conversely, if a Resident makes a statement or instruction regarding medical treatment that is general in nature, or if the Resident makes a statement or instruction regarding treatment for a medical condition that the Resident does not currently have, the statement or instruction cannot be considered a product of informed consent. These open-ended, general statements are a useful expression of the Resident's preferences that an Agent or Surrogate should take into account. However, for these comments, not learned through the informed consent process, to be considered to have future directive effect after the Resident is incapacitated, they must be reflected in a written or oral Advance Directive in accordance with Section I.B below.

The Maryland Attorney General's Office has issued an advice letter describing the distinctions between informed consent and oral advance directives, available here:
www.marylandadvancedirectives.com/pdf/advice-seifarth-042500.pdf

3. Do Not Resuscitate Requests

A Resident with intact decision making abilities may refuse to give the Facility consent to perform cardiopulmonary resuscitation (CPR). When a competent Resident makes an informed choice not to be resuscitated, the Facility will obtain and document a Do Not Resuscitate (DNR) order.⁴ In a hospital or other inpatient facility, a DNR order may be authorized by the Resident's Attending Physician, Nurse Practitioner or Physician Assistant.⁵ A MIEMSS EMS/DNR Order should be completed by the Attending Physician or Nurse Practitioner on behalf of the Resident, in accordance with Section IX below. A Physician Assistant may not sign a MIEMSS EMS/DNR Order. Thus, where a Physician Assistant has authorized a facility-based DNR order that should be coupled with a MIEMSS EMS/DNR order, the Facility will require the MIEMSS EMS/DNR form to be sent to the appropriate Physician or Nurse Practitioner. A Physician Assistant may not give a verbal DNR order to an EMS crew, although a Physician or Nurse Practitioner may do so. A DNR order only addresses the response to a cardiopulmonary arrest; by itself, it is not a basis to withhold or withdraw other life-sustaining procedures.

Care planning includes the Facility's discussion with a competent Resident regarding the potential for cardiac or pulmonary arrest and the desired code status. Should the Resident code in the brief period that it takes to obtain the DNR order from the Attending Physician, Nurse Practitioner or, if appropriate, Physician Assistant, the Facility will honor the Resident's wishes by refraining from attempting CPR. Besides obtaining the physician's, Nurse Practitioner's or Physician Assistant order, the Facility will additionally suggest that the Resident memorialize this decision by requesting the Resident obtain an Advance Directive following the procedures discussed in Section I.B. below.

If a Resident with a DNR order needs surgery under general anesthesia, the question of suspending the DNR order during and immediately after surgery will likely be posed. Given ordinary anesthesia procedures, maintaining the DNR order might preclude the surgery. If the Resident retains capacity, the question should be addressed and resolved by the Resident as part of the informed consent process preceding the surgery. If the Resident has lost capacity, the question should be addressed and resolved by the Resident's Agent or surrogate decision maker, taking into account the likely intent of the Resident when he or she requested DNR status.

The Maryland Attorney General's Office has issued an advice letter discussing the procedures to follow when a competent Resident refuses CPR, available here: www.marylandadvancedirectives.com/pdf/advice-stoner-072800.pdf

The Maryland Attorney General's Office has also issued an advice letter discussing the suspension of a DNR order, originally requested by a competent Resident, during palliative surgery, available here: www.marylandadvancedirectives.com/pdf/advice-bob-052808.pdf

If a Resident has, while competent, made an Advance Directive with instructions about health care decisions or appointing an Agent to make health care decisions on the Resident's behalf, the Facility will honor the Advance Directive.

A competent adult may decide about future health care issues by one or more of the following three (3) methods:

• Written Advance Directive with instructions about health care decisions;
• Written Advance Directive appointing an Agent to make health care decisions for the Resident;
• A witnessed oral statement to a physician leaving instructions or appointing an Agent.

1. Written Advance Directives with health care instructions:
1. Must be made by a competent individual;
2. May generally direct the provision of health care to the Resident, or the withholding or withdrawal of health care (including life-sustaining procedures but only if the Resident is in a terminal condition, in a I or has an end-stage condition) from the Resident under the circumstances specified;
3. May be in the form of a Living Will stating whether the individual wants life-sustaining procedures provided, withheld or withdrawn under certain specified conditions identified in the Living Will, i.e., is in a terminal condition, in a persistent vegetative state or has an end-stage condition.

(As discussed in Section I.A., in the situation of a code, where CPR could be life-sustaining, a prior request by a competent Resident not to be resuscitated if they should cease cardiac or respiratory function, memorialized by a valid DNR order, will be honored.)

2. Written Advance Directives appointing an Agent:
• Must be made by a competent individual,
• Appoints an Agent to make health care decisions under the circumstances specified in the Advance Directive;
• Gives the Agent decision making authority over all others except the competent Resident or a guardian of the person, if one has been appointed by the court;
• Can authorize the Agent to consent to, or refuse treatment for the Resident, even if the treatment is life-sustaining, so long as the document empowers the Agent to make the decision and the proper certifications are obtained in accordance with Section II. (Therefore, the agent could be empowered by the Resident to make DNR status decisions on behalf of the Resident.)
• If the Advance Directive provides specific instructions relating to Resident's treatment, the Agent must follow those instructions. However, some Advance Directives simply offer guidance to an Agent, but leave the decision to the Agent based on the situation presented at the time a decision has to be made. Only where the Resident's wishes are unknown or unclear, may the Agent make his or her own assessment of whether particular treatment serves the Resident's Best Interests;
• The Agent may not be a Disqualified Person unless that person also qualifies as a surrogate decision maker as defined in Section I.D. of this Policy, or the Disqualified Person was appointed by the Resident before the date on which the Resident received, or contracted to receive, health care from the facility.
3. Requirements for written Advance Directives:
• The written Advance Directive must be dated and signed by, or at the express direction of, the Resident;
• The written Advance Directive must be signed by two (2) competent witnesses:
• The health care agent appointed may not witness the document;
• At least one (1) witness may not knowingly be entitled to benefit financially from the Resident's death;
• A written Advance Directive does not have to be notarized;
• A Physician or Nurse Practitioner caring for the Resident may witness the document. The Facility's policy, is that Facility employees ( ) may, ( ) may not witness Advance Directives;⁶
• The witnesses are attesting to the apparent competence of the individual.⁷
4. Oral Advance Directives:
• An oral Advance Directive may be made by any competent individual to:
• Authorize the providing, withholding, or withdrawing of any life-sustaining procedure; or
• To appoint an Agent to make health care decisions.
• An oral Advance Directive has the same effect as a written Advance Directive if it meets the following requirements:
• The oral Advance Directive must be made in the presence of the Attending Physician or Nurse Practitioner and one (1) witness;
• The oral Advance Directive must be documented as part of the individual's medical record (See Attachment C oral Advance Directive Form for Attending Physician to complete); AND
• The oral Advance Directive must be dated and signed by the Attending Physician or Nurse Practitioner and the witness.
The Maryland Attorney General's Office has issued both an opinion and an advice letter explaining the difference between a competent individual's exercise of informed consent and an oral advance directive, available here:

www.marylandadvancedirectives.com/pdf/79oag218.pdf and here: www.marylandadvancedirectives.com/pdf/advice-seifarth-042500.pdf

5. Advance Directives become EFFECTIVE at either a time specified in the document, or if there is no instruction in the document, it becomes effective when the Attending Physician and a second physician certify, in writing, that the Resident is incapable of making an informed decision. (If the Resident is unconscious or unable to communicate by any means, certification by a second physician is not required.) See Certification form at Attachment H.
6. An Advance Directive may be REVOKED at any time by the Resident (but not by a family member or anyone else). Revocation may be accomplished by one of the following:
• A signed and dated writing;
• Physical cancellation or destruction of the document;
• An oral statement to a health care practitioner. If an Advance Directive is revoked by an oral statement, the health care practitioner and a witness to the oral revocation must document the substance of the oral revocation in the Resident's medical record; or
• Execution of a subsequent directive.

1. The Resident is responsible for notifying the Attending Physician of an existing Advance Directive.
2. Upon notice, the Attending Physician must promptly make a written Advance Directive a part of the medical record, or make the fact of an oral Advance Directive, including the date it was made and the name of the Attending Physician, a part of the medical record. (See Attachment C for oral Advance Directive form)
3. Prior to being honored, Advance Directives must be reviewed to assure that they conform to the requirements discussed above (including any certifications required for their effectiveness) and that their authority covers the Resident's current condition or circumstances. Advance Directives are presumed to have been made voluntarily.
4. Advance Directives made in another state will be honored if they are in compliance with Maryland's law. However, even if the out-of-state Advance Directive is substantially different from Maryland law, it will be honored if it was executed in compliance with the laws of the state in which it was made. Facilities may need to consult with Legal Counsel to determine if an out-of-state Advance Directive is valid.
5. The Attending Physician is responsible for obtaining certifications of incapacity, as required in Section I.B.5 above and in accordance with Section II.A. below.
6. The Resident is responsible for notifying an appointed Agent of the Agent's appointment. The Resident should be encouraged to discuss with the Agent the Resident's expectations and preferences about the matters within the scope of the Agent's authority.
7. Unless the Advance Directive provides for some other basis for decision making, an appointed Agent is to make decisions based on (a) the wishes of the Resident, if known; and (b) if the wishes are not known, the best interest of the Resident. Instructions on making these determinations are at Attachment B, and will be provided to the Agent.
8. An appointed Agent is permitted access to the medical record and has authority to authorize disclosure of the medical record, even if the Advance Directive does not contain explicit language dealing with access to and disclosure of medical records.
9. An appointed Agent is permitted to authorize admission and discharge of the Resident and to hire and fire health care providers.
10. If any Facility staff or physician becomes aware that an Advance Directive is revoked, that individual is responsible for notifying the Attending Physician, who must assure that the revocation of the Advance Directive is reflected in the medical record.

Sometimes a Resident does not have an Advance Directive, but becomes incapacitated. The following individuals or groups, in the specified order of priority, may make decisions about health care for a Resident IF:

• The Resident has been certified as incapable of making an informed decision (in accordance with Section II.A); and
• The Resident has not provided instructions in an Advance Directive; and
• The Resident has not appointed a health care Agent or the Resident's health care Agent is Unavailable.

• Priority Among Surrogate Decision Makers.

Individuals in a particular surrogate class are to be consulted to make decisions only if all individuals in the next higher class are Unavailable.

1. Guardian of the person, if one has been appointed;
2. The Resident's spouse or Domestic Partner;
1. (1) The Facility's Policy with respect to a resident's spouse or Domestic Partner is the same — that is, in the absence of a challenge to the status of an individual as a resident's spouse or Domestic Partner, there is no requirement that the individual show any documentary proof of that status.⁸
3. An adult child of the Resident;
4. A parent of the Resident;
5. An adult brother or sister of the Resident;
6. A friend or other relative who presents to an Attending Physician an affidavit (such as the form at Attachment D) stating:
1. That the person is a relative or close friend of the Resident; AND
2. Giving specific facts and circumstances demonstrating that the person has maintained regular contact with the Resident sufficient to be familiar with the Resident's activities, health and personal beliefs.

The Attending Physician must place the affidavit in the medical record.

• Dispute Among Surrogates.

If surrogates with equal decision making priority disagree about a health care decision, the Attending Physician or the surrogate must refer the case to the Facility's Patient Care Advisory Committee. In other cases of disagreement (for example, between a surrogate with priority and another family member), referral to the Facility's Patient Care Advisory Committee might also be advisable.

• Restrictions on Surrogate Decisions.
1. Surrogate Decisions About Life-Sustaining Procedures.
1. Before any surrogate may authorize the withholding or withdrawal of life-sustaining procedures, two (2) physicians must certify to a reasonable degree of medical certainty that the Resident has an End-Stage Condition, is in a Persistent Vegetative State, or is in a Terminal Condition. Instructions for certification are at Section II.B.
2. Guardians of the person must have court permission to authorize the withholding or withdrawal of life-sustaining procedures, either through the court explicitly granting the guardian general authority to make such decisions, or through the guardian obtaining a specific court order for the decision to be made. (By itself, the appointment of a guardian to make health care decisions does not include authority to forgo life-sustaining procedures; however, a court can specifically grant such authority. The court document must be carefully reviewed for the scope of the guardian's authority.)
3. A General Power of Attorney (also called a Durable Power of Attorney) grants authority to make decisions involving financial matters, property, and the like. The person given authority under this kind of power of attorney document may make health care decisions only if he or she otherwise qualifies as a surrogate with priority under Maryland law.
2. Standards for Surrogate Decisions.

Any person authorized to make health care decisions for another must base the decision on:

1. The wishes of the Resident; or
2. If the wishes of the Resident are unknown or unclear, the Resident's best interest.
To assist in determining the Resident's wishes or best interest, the decision maker should be given the Guidance Sheet provided at Attachment B.
3. Decisions about life-sustaining procedures may not be based in whole or in part, on either the Resident's pre-existing, long-term mental or physical disability, or a Resident's economic disadvantage.
4. A surrogate may not authorize sterilization or treatment for a mental disorder.
5. The surrogate must inform the Resident, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.

1. An individual presenting himself or herself as a surrogate decision maker must identify his or her relationship to the Resident.
2. If the Facility has current contact information for an individual who would be at the same or higher priority class as an individual presenting himself or herself as a surrogate decision maker, the Facility will make reasonable efforts to inquire whether the other individual intends to act as a surrogate. However, persons who would qualify as surrogates of the same class may agree among themselves to designate one among them to act as surrogate. This agreement should be documented using the Agreement on Who Will Make Decisions at Attachment E and placed in the Resident's medical record.
3. When it is ascertained that a particular surrogate is the appropriate decision maker, the surrogate must inform the Resident, to the extent possible, of the proposed decision and the fact that the surrogate is authorized to make the decision about the procedure.
4. The surrogate will be provided with the surrogate consent form at Attachment F, and the Guidelines for Decision Making at Attachment B. Attachment F should be signed by the surrogate and a copy should be placed in the Resident's medical record.
5. The surrogate will be informed that CPR and artificial administration of nutrition and hydration are considered, among others, to be life-sustaining procedures.
6. The surrogate's informed consent for providing, or withholding or withdrawing treatment will be obtained by the Attending Physician.
7. Before accepting a surrogate's informed consent, the Attending Physician will obtain the required certifications of incapacity in accordance with Section II.A., below.
8. If the surrogate's decision relates to withholding or withdrawing life-sustaining procedures, the Attending Physician will assess the Resident's condition and, if appropriate, will obtain the required certification of condition in accordance with Section II.B., below.
   
   In some circumstances, certification of condition will be required to carry out a "Do Not Hospitalize" (DNH) order requested by a surrogate on behalf of a resident who lacks capacity. This occurs, for example, where a resident develops a condition or ailment that would become life-threatening if left untreated and, in the medical judgment of the Attending Physician, the only means to prevent the patient's death is a hospital-based treatment. For example, an infection, pneumonia, dehydration or other conditions may, in the ordinary progression, place the patient at risk of death. In such circumstances, the Facility should hospitalize the resident unless the DNH order is based on a certification of condition in accordance with Section II.B., below because the failure to hospitalize the patient at the direction of a surrogate is a request to withhold life-sustaining care. On the other hand, where one of the clinically appropriate treatment options is to provide care in a setting other than a hospital, the Facility can effectuate the DNH order and treat the resident at the Facility in accordance with the surrogate's orders. The action to not hospitalize in this circumstance would not be withholding of a life-sustaining procedure; rather, it is the carrying out of the surrogate's choice between two life-sustaining procedures.
   
   

   The Maryland Attorney General's Office has issued an advice letter discussing the effectuation of a DNH order in accordance with surrogate decision-making, which is available here: www.marylandadvancedirectives.com/pdf/advice-sollins-061008.pdf

9. If the surrogate is a friend or "other relative" the Attending Physician will obtain the required affidavit and provide a copy to the Facility. See the form Affidavit at Attachment D.
10. If the surrogate is a guardian, a copy of the guardianship document will be requested and reviewed in order to verify that it is a guardianship of the person and that it authorizes the guardian to make the decision contemplated. The Facility recognizes that a guardian must have special court authorization for the provision or withholding of treatment which involves a substantial risk to life in a particular situation or in all situations.

In some circumstances, Residents become unable to make their own decisions. The capacity to understand information presented can be lost either temporarily or permanently through illness, the effects of medication, grief or other causes. Under the law, when a court determines that an individual is not capable of making his or her own health care (or other) decisions, the court may appoint a legal guardian to act for the individual. The authority of the guardian to act for a Resident will be contained in a document approved by the court that identifies the kinds of decisions that can be made. In general, guardians may give or withhold informed consent for any health care decision, such as consent to surgery or dialysis, in the same capacity as the Resident.

Guardians of the person must have court permission to authorize the withholding or withdrawal of life-sustaining procedures, either through the court expressly granting the guardian general authority to make such decisions (see discussion below), or through the guardian obtaining a specific court order for the decision to be made. The general appointment of a guardian to make health care decisions, does not automatically include authority to make decisions to withhold or withdraw life-sustaining procedures. However, a court can expressly grant such general authority or approve a specific request by a guardian to withhold or withdraw life-sustaining treatment. Therefore, the court document must be carefully reviewed to determine whether the scope of the guardian's authority:

1. Includes a general grant of authority to direct the withholding or withdrawal of life-sustaining procedures (see discussion below), or
2. A grant of authority only for a specific action, i.e., withholding this specific procedure, or
3. Excludes any grant of authority to direct the withholding or withdrawal of life-sustaining procedures because the court document is silent on the subject.

The Maryland Attorney General's Office has issued an advice letter explaining the type of authority a court may grant in advance to a guardian who would otherwise qualify as a surrogate and the conditions under which life-sustaining treatment may be withheld or withdrawn by such a guardian. This type of guardian only has such advanced approval to withhold or withdraw life-sustaining treatment where the patient is certified, in accordance with Section II.B below, to be in a terminal condition, persistent vegetative state, or end-stage condition. The advice letter is available here: www.marylandadvancedirectives.com/pdf/advice-sollins-050907.pdf