Your Right to Care that Honors Your Wishes

The Patient Self-Determination Act (PSDA) is a law that was passed in 1990. The PSDA reaffirms the common-law right of self-determination as guaranteed by the Fourteenth Amendment of the United States Constitution. Basically, this means that you, as the person receiving care, have the right to make choices and decisions about the type of medical care and the extent of medical care that you would or would not want.

The Right To Be Treated and To Leave

In an emergency, a patient has a right to treatment, regardless of ability to pay. If a situation is likely to cause death, serious injury, or disability if not treated promptly, it is an emergency. Both public and private hospitals have a duty to administer medical care to a person experiencing an emergency. Hospitals cannot refuse to treat prospective patients on the basis of race, religion, or national origin, or refuse to treat someone with HIV or AIDS.

There is no universal right to be admitted to a hospital in a nonemergency. In those cases, admission rights depend on the specific hospital, but basing admission on ability to pay is severely limited by statutes, regulations, and judicial decision.

Once a patient has been duly admitted to a hospital, they have the right to leave at any time. This is so even if the patient has not paid the bill or if the patient wants to leave against all medical advice (with the exception of certain contagious diseases).

A doctor familiar with a patient’s condition determines when a patient is ready for discharge and signs a written order to that effect. If the patient disagrees with a decision to discharge, they have the right to demand a consultation with a different physician before the order is carried out. The decision to discharge must be based solely on the patient’s medical condition and not on nonpayment of medical bills.

Managed care organizations (such as Medicare Advantage) may deny authorization for expensive or experimental treatments or for treatments provided outside the network of approved physicians. Many states have enacted regulations that require a process for appealing the denial of benefits. 

The Right To Consent and Make Informed Consent

Consent must be voluntary, competent, and informed. Consent may be given verbally, in writing, or by one’s actions. Consent is inferred in cases of emergency or unanticipated circumstances.

To be voluntary, the consent process must:

• Be free from force, fraud, deceit, or coercion;
• Include the right to refuse or withdraw without influencing the patient’s future healthcare; and
• Include the right to ask questions and to negotiate aspects of treatment.

To be competent, a person must be able to understand the nature, extent, and consequences of a proposed course of treatment. Some factors may make a patient incapable of providing competent consent either temporarily or permanently. For example;

• Mental illness or retardation
• Alcohol or drug intoxication
• Altered mental status
• Brain injury
• Being too young to legally make decisions concerning healthcare

To have informed consent, the information must be presented in a language the patient can understand and must include:

• A description of the recommended treatment or procedure;
• A description of the risks and benefits—particularly exploring the risk of serious bodily disability or death;
• A description of alternative treatments and the risks and benefits of alternatives;
• The probable results if no treatment is undertaken;
• The probability of success and a definition of what the doctor means by success;
• The length and challenges of recuperation; and
• Any other information generally provided to patients in this situation by other qualified physicians.

The Right To Have Your Advance Directive Followed

The PSDA requires all healthcare agencies (hospitals, long-term care facilities, and home health agencies) receiving Medicare and Medicaid reimbursement to ask whether you have an advance directive.

Medical care providers are generally held to a pretty strict duty to comply with your recorded wishes that relate to your healthcare if you become incapacitated. In addition, if your healthcare directives or living will appoint someone as a legal agent in charge of your healthcare (called a healthcare agent), doctors and other medical providers are also under a duty to follow their orders and decisions about your care. Advance directives are legally recognized documents; however, there are some situations in which your doctor or medical care provider can go against the wishes that you have set forth in your healthcare directives. Healthcare providers can do so when:

• The directive sets forth decisions that go against the conscience of the doctor or individual medical services provider,
• The directive sets a policy that goes against the policies of the hospital or other medical institution based on reasons of conscience, or
• The directive includes decisions that would result in ineffective healthcare or asks healthcare providers to adopt healthcare standards that violate those of the provider, hospital or other medical institution.

However, even if these factors are present, this does not mean that your doctor or healthcare provider can simply ignore your healthcare directive. Instead, if your doctor or healthcare provider thinks that they will go against the wishes and directions set forth in your healthcare directive, or against the orders of your healthcare agent, they must immediately inform you or your agent. When this happens, you or your agent will have the option of taking steps to have you transferred to another doctor or medical facility where your wishes and instructions will be honored. If your doctor or medical care provider refuses to do so and still goes against your wishes and orders, the doctor may be liable for damages to you.

As more and more healthcare systems consolidate, religiously affiliated hospitals may dominate a region. The policies of these institutions may affect your access to care and whether your stated wishes will be followed. Be sure to ask your doctor or other healthcare providers if your specific advance directive or healthcare wishes will be honored. If not, you have the right to change doctors, pharmacists, hospitals, or any other providers.

The Right To Change Your Doctor, Hospital, or Hospice if You Wish

You have the right to change doctors, hospitals, and hospices if you wish. It is not useful to do this frivolously, but if you do not feel you are getting the care you want or need, you have that right. The discrete hospice benefit in standard Medicare states that:

• You can get hospice care for two 90-day benefit periods, followed by an unlimited number of 60-day benefit periods.
• You have the right to change your hospice provider once during each benefit period.

Some Medicare Advantage plans are now including hospice benefits in their offering. If you have specific needs regarding hospice, such as a religious affiliation, you should verify that your Medicare Advantage plan will include that hospice. In general, hospice has no religious affiliation and provides chaplains and other spiritual counselors from all faiths and no faith. However, for those interested, The National Institute for Jewish Hospice offers training and accreditation to provide services in a culturally sensitive way. Other hospices self-identify as being Catholic. If these specific services are important to you, plan ahead to be sure you get what you want.

It’s important to document your medical wishes, not only at end-of-life but also at any stage of life, in a way that is understandable and binding; CaringInfo is here to help you make sense of the types of documents you’ll need.