C. Planning Documents
1. Health Care Documents
a. Overview
Every person has the right to control his or her own person, free from restraint or interference by another. This concept is embodied in the requirement that a patient must give informed consent for medical treatment. Just as a patient has a right to consent to medical treatment; a patient has a right to refuse medical treatment. Courts look to several sources to find a right to forgo life-sustaining medical treatment: (1) the common-law right to be free from unwanted bodily intrusion and the corresponding right to informed consent; (2) the constitutionally implied right to privacy; (3) a constitutionally protected liberty interest; and (4) statutory law.
What if the patient is incompetent and cannot give consent? A physician may certainly render medical treatment without consent in an emergency. S.C. Code Ann. § 44-66-40. If a patient is incompetent or temporarily unconscious and no emergency exists, the physician or hospital may not proceed with an unauthorized medical procedure - to do so amounts to an assault and battery or a trespass against the person. In that instance the health care provider must obtain the permission of the patient's appointed agent or substitute decision maker under the Adult Health Care Consent Act. (S.C. Code Ann. § 44-66-10, et seq.). This statute sets forth the priority of persons who can act on behalf of the patient who is unable to express his or her wishes:
(1) a guardian appointed by the probate court;
(2) the person named as attorney-in-fact under a durable power of attorney, if the decision is within his scope of authority;
(3) the person given priority to make health care decisions by another statutory provision;
(4) the spouse of the incapacitated person unless they are separated;
(5) a parent or adult child of the incapacitated person;
(6) an adult sibling, grandparent, or adult grandchild of the person;
(7) a relative by blood or marriage who reasonably is believed to have a close personal relationship with the incapacitated person.
If there is a disagreement between two or more persons with equal priority, an interested person "may petition the probate court for an order determining what care is to be provided or for appointment of a temporary or permanent guardian." S.C. Code Ann. § 44-66-30(B).
The cases of In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976), Cruzan v. Director, Missouri Dep't of Health, 110 S.Ct. 2841 (1990), and In Re Schiavo, 780 So.2d 176, (Fla. Dist. Ct. App. 2001), brought to the forefront the competition between moral, legal, political, familial and religious beliefs in providing life sustaining treatment and in refusing unwanted medical treatment, including artificially delivered food and water. As a result, South Carolinians have two statutorily created options to deal with end-of-life health care decisions: the Death with Dignity Act set out in S.C. Code Ann. § 44-77-10, et seq., which authorizes a Declaration of a Desire for a Natural Death, often called a "Living Will", and the Health Care Power of Attorney statute, set out in S.C. Code Ann. § 62-5-504. This latter statute establishes procedures and guidelines for appointing an agent to make health care decisions when the patient is no longer competent to do so.
In South Carolina, the substituted judgment standard (also referred to as the subjective standard) applies to incompetent patients who were once competent. Under this test, the question is: what would the patient have decided regarding life-sustaining treatment if he or she had been able to make the decision? The Adult Health Care Consent Act incorporates this standard by directing the surrogate decision maker to "base those decisions on the patient's wishes to the extent that the patient's wishes can be determined. Where the patient's wishes cannot be determined, the person must base the decision on the patient's best interest." S.C. Code Ann § 44-66-30(F).
Obviously, if a patient has executed a Living Will or a Health Care Power of Attorney then the patient's wishes are known and these are the guidelines that the surrogate decision maker should use. Even if the patient has given no explicit directive, the surrogate may consider the patient's written or oral statements regarding medical treatment or life support as well as the patient's personality and values. The surrogate decision maker must examine all the evidence available and make the decision that the patient would make if he or she were competent.
If the patient's wishes are not known then the agent must make a good-faith determination of whether the withholding of life sustaining treatment would serve the incompetent patient's best interests. The Kentucky case of Woods v. Commonwealth sets out a nonexclusive list of factors to be considered in making this determination:
"(1) the patient's present level of physical, sensory, emotional, and cognitive functioning and the possibility of improvement thereof;
(2) any relevant statements or expressions made by the patient, when competent, as to his or her own wishes with a rebuttable presumption attaching to a valid living will or a designation of a healthcare surrogate;
(3) to the extent known, the patient's own philosophical, religious, and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death;
(4) the degree of physical pain caused by the patient's condition, treatment and termination of treatment;
(5) the degree of humiliation, dependence, and loss of dignity probably resulting from the condition or treatment;
(6) the life expectancy and prognosis for recovery with and without the treatment;
(7) the various treatment options and their risks, benefits, and side effects;
(8) whether any particular treatment would be proportionate or disproportionate in terms of the benefits gained; and
(9) the impact on the patient's family."
Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004).
The federal Patient Self Determination Act (which amended 42 U.S.C. § 1395cc and § 1396a and related provisions of the Social Security Act, effective December 1, 1991), requires hospitals, nursing homes, and other health care facilities that receive money from Medicare or Medicaid to give patients, on entry to the facility, written information about their rights under state law to accept or refuse medical treatment and their right to formulate advance directives for medical care, as well as written information about the provider's policies regarding implementation of such rights. Consequently many clients may already have executed documents that relate to health care decisions.
b. Death With Dignity Act (Living Will)
Since 1986, South Carolina has provided a statutory form called a "Declaration of Desire for a Natural Death" (Living Will). S.C. Code Ann. § 44-77-10, et seq. The original form dealt only with withdrawal of life support in the event of a terminal condition. The case of Cruzan v. Missouri Dept. of Health, 110 S.Ct. 2841 (1990), focused on two issues that had not been covered in the previous Living Will form: the withdrawal of life support from a patient who is in a state of permanent unconsciousness and the withdrawal of nutrition and hydration. In 1991, South Carolina law and the statutory form were amended. The newer form covers both of these points and allows the person executing the Living Will (called a Declarant) to make an election to provide or not provide nutrition and hydration if he or she is in a state of permanent unconsciousness or has a terminal condition.
Besides providing the form, the statute sets out specific execution requirements and requires that the documents be accompanied by an affidavit signed by two witnesses and notarized. There are restrictions on who can serve as a witness and a specific mandate that, if the document is to be signed by a patient in a hospital or skilled or intermediate care facility, an ombudsman designated by the South Carolina State Ombudsman's office must serve as one of the witnesses. The act also provides immunity from liability to those persons who, in good faith and in accordance with the statute, carry out the Declarant's wishes.
The form provides the Declarant the...
