advance directives, legal



  1. Lark, Jude RN, BSN, CCRN
  2. Gatti, Cheryl RN, BSN, CCRN


The purpose for this article is to define the terms of the Advance Directive within the legal and medical community and then to explore the bioethical implications of the Advance Directive for the nurse. Over the last decade, a legal document has entered the arena of the health care facility: the Advance Directive. Today, not only is the critical care nurse responsible for technical handling of the ever-changing medical equipment, advances in medicine and nursing, and new pharmaceuticals, but this nurse is also responsible for being ever cognizant of a very important legal document called the Advance Directive.


Article Content

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body." - Judge Cardozo



The Advance Directive is a written document by acompetent person, regarding their health care preference. An Advance Directive may include a living will and/or a durable power of attorneyfor health care. A living will is a written directive regarding the course, continuation, or discontinuation of medical treatment in the event that a person becomes incompetent.


A durable power of attorney for health care is a written designation to authorize one or more person(s) to make health care decisions in the event of a person becoming incompetent to make their own decisions. A durable power of attorney for health care is not a durable power of attorney thatauthorizes another person to manage financial matters.


Informed consent is the legal obligation to provide full disclosure to a patient regarding potential risks and outcomes of tests and treatments.The obligation is operative in the development of the Advance Directive because the corollary is the right not to consent to treatment.


The discussion of patient choice and informed consent began long before the advent of sophisticated resuscitative methods and technology that allowed usto prolong life. In 1914, a judgment in Schoendorff v. Society of NewYork Hospital5 established the principle of patient choice and informed consent.


This case involved a woman who was admitted to the hospital, where it was determined that she suffered with a fibroid tumor. The woman stated that it was explained to her that the nature of the tumor could not be determined without an ether examination. She further states that she agreed to the examination but notified the physician that there was to be no operation.


She was transferred to the surgical ward and prepared for surgery; the following day, ether was administered and the tumor was removed. Her testimony was that this was done without her consent or knowledge. She further testified that she developed gangrene in her left arm and fingers, which needed to be amputated as a direct result of the operation. 5


The essence of the verdict is contained in the following statement: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." Furthermore, the professionals treating the patient are compelled to respect and follow health care decisions made by the competent adult. Herein lies the embryonic stage of the Advance Directive.


When cardiopulmonary resuscitation (CPR) started being used in the hospital setting, the patient that was clinically dead had the potential for reversal of that "state" and, therefore, had to make decisions regarding CPR in addition to decisions regarding traditional treatment modalities. This brought into light even more vividly the problem of determining quality of life and disease processes being reversible or irreversible.


In the 1970s, the issue of patient's rights came into being. In addition to dealing with issues such as privacy and confidentiality, the Patient's Bill of Rights addresses informed consent or refusal of treatment. The Patient's Bill of Rights was adopted by the American Hospital Association in 1973.


The Patient Self-Determination Act (PSDA) impacted health care institutions in 1991. Simply, it mandates that all patients must be given written information about their rights regarding decision making about the course oftheir medical care. In addition, patients must also be given information about the right to prepare an Advance Directive.


The critical care nurse plays a role in supporting her patients in making decisions regarding Advance Directives, or as a patient advocate ensuringa patient's wishes for health care are respected. Many times these decisions must be made when there is little time to delay treatment to sustain life.


Dilemmas often arise concerning resuscitative efforts, and the nurse isoften at the center. The American Nurses Association issued a position statement in 1992 that offers guidelines for resolving these dilemmas.They include the following:


* The choices and values of the competent patient should always be given highest priority, even when these wishes conflict with those of health care providers and families;


* The DNR (Do Not Resuscitate) decision should always be a subject of explicit discussion among the patient, the family, and the health care team and include consideration of the efficacy and desirability of CPR, a balancing of benefits and burdens to patients and therapeutic goals;


* DNR orders must be clearly documented, reviewed, and updated periodically to reflect changes in the patient's condition;


* There should be clear mechanisms in place within each health care facility for the resolution of disputes among health care professionals or among patients, families, and health care professionals concerning DNR orders;


* If it is the nurse's personal belief that her moral integrity is compromised by her professional responsibility to carry out a particular DNR order, she should transfer the responsibility for the patient's care to another nurse. 6



The American Association of Critical Care Nurses also issued a position statement in 1990 that outlines essential elements for nursing practice in reference to withdrawing/withholding life-sustaining treatment. 7 The statement has many of the elements contanied in the ANA statement.


We can cite many circumstances in our clinical practice where disputes regarding Advance Directives arise, either between patient and family, patient and physician, or physician and family. We offer two case scenarios that have very different outcomes.



An elderly patient with end-stage COPD was brought to the Emergency Department in acute respiratory failure; she was hypoxic and unable to verbally communicate her wishes regarding intubation and mechanical ventilation. At the time of admission, she did not have her written Advance Directive.Subsequently, she was intubated and placed on a ventilator in accordance with hospital policy that states that emergency care will not be withheld while waiting to evaluate the written document.


She was admitted to the Intensive Care Unit and, with correction of thehypoxia, her mental status improved to the point where she could communicate her wishes, and her anger that she was intubated and on a ventilator!! A copy of her Advance Directive was forwarded to the unit from her physician's office. It had been carefully prepared and contained specific guidelines regarding nointubation, medications, or artificial nutrition to prolong her life.


In the initial phase of hospitalization, there was ongoing dialogue with the patient's family regarding respect of the informed choice their mother had made. However, the patient's family remained adamant in their refusal for the patient to be extubated as she had communicated to her doctors, nurses, and family. As the hospitalization progressed, the family then demanded the patient receive enteral feedings so that she could become stronger and begin to be weaned from the ventilator. The patient remained angry and depressed and required sedation in order to protect her from self-extubation.


The attending physician, although cognizant of his patient's wishes, felt bound by the family's beliefs that this was a potentially reversible disease process, and that they could not deny their mother a chance to return home.The nursing staff was frustrated in their role as patient advocate and, although they attempted to educate the family, their words fell on deaf ears.The protocol for conflict resolution was initiated. Social Service and Patient Relation resources were utilized. There were at least two Bio-Ethical Committee reviews done with recommendations; however, treatment could not be withheld until there was resolution. The patient failed multiple weaning trials and was transferredto a chronic ventilator unit.


Although the nursing staff were persistent in their efforts as patient advocate and educator, the patient's choices and values about end-of-life care were not followed.



The second case involved a dispute involving a physician who felt that his patient was not competent enough to make the decision regarding a "do not resuscitate" order and the withdrawal of hemodialysis. This was an elderly patient with an elevated BUN and creatinine, pointing to an origin of a chronic nature as opposed to acute. This patient's nurse knew, based on the patient's words and actions, that this was a competent patient who had an understanding of what his choices were regarding his medical management.Yet the physician insisted on disregarding the patient's pleas. The critical care nurse caring for this patient went to the nursing supervisor, who then referred the case to the chairperson of the Bio-Ethics committee. Eventually this case was considered in a court of law. The end result was that the patient's wishes were upheld by the judicial system and the hospital facility.Without the persistence of this critical care nurse acting as the patient's advocate, this final outcome would not have materialized.



These scenarios pose a host of legal, ethical, and professional issues forthe critical care nurse. The critical care nurse is first and foremost the patient's advocate. This includes the patient's right to decide what treatment modalities he or she will accept and the patient' s right to an Advance Directive or the selection of a health care proxy. The critical care nurse must now be aware, as the patient advocate, of the choice of each individual patient regarding his or her medical management or withholding of treatment.The critical care nurse must also have knowledge of the state statutes, relevant to the state that she or he practices, regarding the Advance Directive.


According to the New Jersey Health Care Statutes 26:2H-62, the Advance Directive prepared by a competent individual and witnessed appropriately is a legally binding document. 4 Then why are there so many controversies over the execution of the Advance Directive when the time comes to put the directive into action?


The first case scenario concerns a female who had her Advance Directive prepared and witnessed. There was no question by the family of her competency when she was completing her health care wishes. Yet when the critical moment came for the execution of her directive (i.e., not tobe kept alive by mechanical means if her condition was such that there would be no hope for quality of life), the family steps forward and announces to the physician and hospital that they do not want the directive upheld.This hospital opted to follow the family's arguments and not to follow the pleas of the now intubated patient. The following are examples of what the critical care nurse can do if faced with a similar situation.


The critical care nurse has a role as both the patient's and the family's advocate. If a heated discussion arises, such as the example in scenario one, the nurse must remember that the family is appropriately distraught by the actualization and they might not be ready for the eventuality of their loved one dying. Appropriate conflict resolution would be to enlist immediately the consult of one or more members of the attending staff.Letting the medical personnel address this issue allows the nurse to remain the advocate of patient care and the listener for the grieving family.The next step might be to contact the patient representative, social service, hospital administration, and the ethics committee-all of whom are well versed in the components of the Advance Directive.


If these avenues prove futile, and the patient's written word, expressions, and actions support the Advance Directive being upheld, there is one last legal route to take. According to the New Jersey Statute 26:2H-66, in the event of disagreement among the patient, health care representative, and attending physician concerning the patient's decision making capacity, a representative of the health care institution may seek resolution by a court of competent jurisdiction. 4 There is an emergent judge on call for issues such as this. Taking this action relieves the nurse, doctor, and the hospital from the pressure of executing the patient's final wishes when a dispute exists. The decision is now in the hands of a court-appointed judge. If the outcome is not in favor of the Advance Directive, then the case can be appealed.


The second scenario, in which the physician questioned the competency of the patient's wish for a "do not resuscitate" order and the discontinuance of hemodialysis, demonstrated the power of one nurse who stood by her patient and appropriately followed the steps for conflict resolution. The nurse first discussed her views and her understanding of the patient's wishes with the physician. When the nurse realized that this doctor would not bend on his opinion, the aide of the nursing supervisor was enlisted.


The nursing supervisor finally contacted the hospital administrator and the chairperson of the Bio-Ethics Committee. When these steps did not convince the physician of the competency and sincerity of the patient's decision, the Bio-Ethics Committee did enlist the aid of the court-appointed judge who did rule in favor of the patient.


The New Jersey Health Care Statutes, along with many other states, also mandate that the health care institutions shall institute the inquiry and education of the Advance Directive upon a patient's admission to the hospital.It is a given that the Advance Directive is not for everyone, but the law states that the option and education is now provided so that the consumer can make an educated decision about their medical care or withholding of medical treatment.


The emergency room nurse might be anxious about the legal consequences of resuscitating a patient who has an Advance Directive that was not made known to the emergency care personnel. The health care representative shall not be subject to criminal or civil liability for any actions performed ingood faith. This protects all professionals who work in the area of emergency care, including paramedics, firefighters, nurses, and doctors. What constitutes a criminal offense is when the Advance Directive is willfully concealed, canceled, altered, or modified. Remember, emergency care should never be withheld pending the inquiry of an Advance Directive. Care and resuscitative measures must be given unless formally stated otherwise.



As more and more patients are living longer, and medical technology is advancing each day, it becomes crucial to educate and inform patientsof their rights regarding their own medical treatments. The Advance Directive is not for everyone, but the PSDA and the New Jersey HealthCare Statutes mandate that we give each patient, upon admission, the opportunity to explore their options with their medical care or withholding of medical treatment.


Although we have not witnessed this in our background experiences, a nurse orother health care professional may decline to participate in the withholding or withdrawing of medical treatment if it contradicts the nurse's personal and/or professional convictions. 4 Just as the concept of the Advance Directive is not for every patient, it is also not for every critical care nurse. There will be no legal ramifications if a nurse finds it impossibleto care for a patient who has an Advance Directive. This is a very personal, moral, and ethical decision for the critical care nurse. The responsibility isthe timely and appropriate transfer of care to another nurse who can treat and respect the personal directives of this patient.



The critical care nurse is bound by duty to protect the patient's rights, including the patient's decision concerning treatment or withdrawal of medical care. The Advance Directive is a legally binding document writtenby a competent adult and should be carried out as such in the health care facility. Although the directive may not be consistent with the nurse's beliefs, it is the patient's legal right to make an informed decision about his or her medical care, and the hospital facility is legally bound to carry out the wishes of such a directive.


Conflicts will arise regarding the Advance Directive because of the moral and ethical beliefs of family members who might not be in agreement with their loved one. Some of the common reasons for dispute over the document includethe formality of the directive, the question of what was meant by "quality of life," the question of competency, appropriateness of the witness, and/or consistency of the decision by the patient.


The critical care nurse must be knowledgeable of the institution's policies and procedures on conflict resolutions regarding the Advance Directive. Most hospitals have policies and procedures in place to follow if such conflicts arise. However, if after taking the appropriate steps for conflict resolution, the issue has not been alleviated; there is always an emergent judge who can objectively make a decision following the inquiry by an official representative of the health care facility.


The responsibility of the critical care nurse is to ensure that the exploration of the Advance Directive takes place at the time of admission and that the patient's decisions are respected and upheld in the hospital setting.




1. Rosenstein and Romano PC. The Rights of the Critically Ill. Cambridge, MA: Ballinger; 1996.


2. O'Mara RJ. Ethical dilemmas with advance directives: living wills and do not resuscitate orders. Critical Care Nursing Quarterly. 1987:10(2):17-28.


3. Elpern EH, Yellen SB, Burton LA. A preliminary investigation of opinions and behaviors regarding advance directives for medical care. American Journal of Critical Care. 1993.


4. New Jersey Permanent Statutes. Title 26 Health and Vital Statistics, 26:2H-62-75. Rights, responsibilities of health care professionals, 1991. [Context Link]


5. Schoendorff v. Society of New York Hospital. 211 NY 125, 105, NE 92 (1914). [Context Link]


6. American Nurse Association. Position Statement on Nursing Care and Do-Not-Resuscitate Decisions. Washington, DC; 1992. [Context Link]


7. American Association of Critical Care Nurses. Position Statement: Withholding or Withdrawing Life-Sustaining Treatment. Laguna Niguel, CA; 1990. [Context Link]


8. Ott B. Advance directives: the emerging body of research. Critical Care Nurse. 1999;8(1).