Health Decisions Policy

Legal Advice on End-of-Life and Other Issues

The Attorney General's Office periodically writes legal opinions and letters of advice on the Health Care Decisions Act, related matters affecting the care of patients with advanced illness, and other health care issues. These opinions and advice letters are arranged by topic below and chronologically within each topic. If an opinion or advice letter concerns more than one issue, it will be listed more than once. You can also locate material on a specific topic by using the site search feature at the top of the page. Please note that an Opinion of the Attorney General reflects the final position of the Attorney General’s Office on the questions addressed in the opinion. An advice letter reflects the views of the lawyer who wrote it.

I. Patient’s informed consent

A. Application to life-sustaining treatments

1. Opinion to Rosalie Abrams, Director, Office on Aging (1988): Informed consent and treatment refusals. The opinion concludes that a competent, terminally ill patient may refuse life-sustaining treatments.

2. Opinion to Delegate Joan Pipkin and to Rosalie Abrams, Director, Office on Aging (1990): Effect of Cruzan decision. The opinion confirmed that a competent patient’s right to refuse life-sustaining treatments was not affected by Cruzan v. Director, Missouri Dep. of Health, 497 U.S. 261 (1990).

3.  Letter to Dr. Harold Bob (2008): Effect of treatment refusal in Life-Sustaining Treatment Options Form. This letter explains why a competent patient’s instruction against the use of CPR and a ventilator does not foreclose a health care agent or surrogate from later consenting to suspension of a DNR/DNI order during palliative surgery.

B. Relationship to oral advance directive

1. Opinion to Rosalie Abrams, Director, Office on Aging (1994): Informed consent as distinct from advance directive. The opinion concluded that a formerly competent patient’s decision to decline CPR was valid, although not made in an oral advance directive, if it was the product of a concrete informed consent process. The opinion’s analysis on this point was later adopted by the Court of Appeals in Wright v. Johns Hopkins Health Systems Corp., 353 Md. 568 (1999).

2. Letter to Jean Seiferth (2000): Informed consent and oral advance directives. The letter explains when a patient’s statement about end-of-life care falls within the informed consent doctrine and when it should be reflected in an advance directive.

C. Minors

1. Opinion to Delegate James Hubbard (1995): Emancipated and mature minors. The opinion, written in the context of minors in correctional facilities, discusses the circumstances under which minors may consent to medical treatment.

II. Advance directives

A. Nature and scope

1. Letter to Jean Seiferth (2000): Informed consent and oral advance directives. The letter explains when a patient’s statement about end-of-life care falls within the informed consent doctrine and when it should be reflected in an advance directive.

2. Letter to Peter Rabins and Patrick Triplett (2004): Appointing a health care agent. The letter explains why a general power of attorney, focused on financial matters, usually is not valid as an advance directive appointing a health care agent.

3. Opinion to Brian Hepburn, Executive Director of the Mental Hygiene Administration (2006): Voluntary admission to mental health facility. The opinion discusses the circumstances under which a health care agent's request for voluntary admission of a patient may be accepted by a mental health facility.

4. Letter to Harry Baumohl (2006): Religiously oriented advance directive. The letter advises that a "medical directive" document conforming to the tenets of Conservative Judaism is legally valid.

B. Content

1. Opinion to Governor William Donald Schaefer (1993): “End-stage condition.” The opinion examines the legislative history of the Health Care Decisions Act to explain the meaning of “end-stage condition.”

2. Letter to Trey Sunderland, M.D. (1995): Research Participation: The letter describes the circumstances under which a proxy decision maker (health care agent or surrogate) may give permission for a patient to become a subject in a clinical trial or other medical research.

3. Letter to Anita Tarzian (2003): Living wills and surrogate decision making. This letter discusses when a living will type of advance directive, containing treatment instructions, is binding on a surrogate and when a surrogate may consider factors other than the living will in deciding about the use of life-sustaining treatments.

4. Letter to Anita Tarzian (2005): Living wills and health care agents. The letter discusses the relationship between a living will type of advance directive and the authority of a health care agent, specifically about two issues: when the agent wants to rely on patient comments that vary from the living will, and when a life-sustaining treatment is intended for comfort care.

5. Letter to Gina Shaffer (2005): Living wills and the use of antibiotics. This letter explains why antibiotic treatment is included within a living will's instruction that life-sustaining treatment not be used.

6. Letter to Howard Sollins (2007) Living wills, health care agents, and status pending transfer: The letter discusses the situation presented when a patient's living will expresses a clear wish to forgo tube feeding, yet the health care agent insists that it be provided indefinitely pending transfer of the patient.

C. Execution and Documentation

1. Letter to Jean Seiferth (2000): Summaries of advance directives. The letter discusses the situation if a hospital asks a patient to summarize an advance directive when the patient did not bring a copy.

2. Letter to Sigrid Haines (2004): Copies of advance directives. The letter explains why an unaltered copy of an advance directive is the equivalent of the originally executed document.

3. Letter to Suni Bangali (2007) Foreign advance directives: This letter explains why a properly signed and witnessed advance directive executed in a foreign country is valid in Maryland.

4. Letter to Brian H. Childs, Ph.D. (2007) Documentation of oral advance directive: This letter discusses the flow of information about an oral advance directive between hospital and nursing home.

 

D. Facility noncompliance

1. Letter to Delegate J. Anita Stup (2002): Facility policy about noncompliance with advance directives. The letter, which concerns the policy of an ambulatory surgical center to perform CPR in all cases of cardiac arrest, explains that a facility has some latitude under the Health Care Decisions Act to decline to follow patient instructions.

2. Letter to Howard Sollins (2007) Living wills, health care agents, and status pending transfer: The letter discusses the situation presented when a patient's living will expresses a clear wish to forgo tube feeding, yet the health care agent insists that it be provided indefinitely pending transfer of the patient.

 

III. Surrogate decision making

A. Authority to act

1. Opinion to Governor William Donald Schaefer (1993): Guardian as surrogate. The opinion discusses the status of a court-appointed guardian as surrogate.

2. Letter to Trey Sunderland, M.D. (1995): Research Participation: The letter describes the circumstances under which a proxy decision maker (health care agent or surrogate) may give permission for a patient to become a subject in a clinical trial or other medical research.

3. Letter to Patricia Younger (2003): Surrogates and DNR orders. This letter addresses a nursing home’s questions about identifying a surrogate, documentation of the resident’s condition, and entry of a DNR order.

4. Letter to Gary Raffel (2003): Incapacity not yet certified. The letter discusses decision making on behalf of an obviously incapacitated nursing home resident prior to the resident’s incapacity having been formally certified.

5. Letter to Herbert Hubbard (2005): Decisions on Patient's Plan of Care form. The letter confirms that a surrogate’s decision-making authority about life-sustaining treatments has not been expanded by the Patient’s Plan of Care form.

6. Letter to Dr. Harold Bob (2005): Patient's Plan of Care form and surrogate authority. The letter analyzes how the Act's requirement on certification of condition affects a surrogate's completion of the form and the entry of physician orders to implement surrogate decisions about feeding tube use.

7.Letter to Howard Sollins (2007): "Specially empowered" guardian. This letter explains why a guardian who has been empowered by court order to decide about the use of life-sustaining medical treatments without need for additional, specific court approval nevertheless remains subject to the decision-making criteria and limitations applicable to surrogates.

8. Letter to Dr. Harold Bob (2008): Effect of treatment refusal in Life-Sustaining Treatment Options Form. This letter discusses the relationship between a surrogate’s “do not hospitalize” instruction on the form and certification of condition.

9. Letter to Nancy Pineles (2008): Employee of service provider as surrogate. This letter addresses the circumstances under which an employee of a service provider may quality as a surrogate for an individual with a developmental disability.

10. Letter to Howard Sollins (2008). Domestic partner as surrogate. This letter explains that facilities have discretion about confirming and documenting a domestic partner's status as a surrogate.

B. Exceptions to authority

1. Letter to Howard Sollins (2004): Emergency room evaluations. The letter considers the scope of the provision denying surrogates the power to authorize “treatment for a mental disorder.”

C. Successor surrogate

1. Letter to Martha Ann Knutson (2005): Designation of successor. The letter explains why a surrogate does not have authority to designate a successor surrogate but also describes the way in which a family, by mutual agreement, can make one of their number the sole surrogate.

D. Disputes among surrogates of equal rank

1. Opinion to Governor William Donald Schaefer (1993): Ethics committee process. The opinion discusses the Act’s provision on referring surrogate disputes to an ethics committee.

IV. Physician authority and obligations

A. Medically ineffective treatment

1. Opinion to Rosalie Abrams, Director, Office on Aging (1994): Attempted CPR. The opinion applies the Act’s definition of “medically ineffective treatment” to CPR.

2. Letter to Janicemarie Vinicky (1999): Criteria. The letter elaborates on the criteria for certification that CPR is medically ineffective, explaining when a physician must have consent to issue a DNR order and when a physician may do so independently.

3. Opinion to Secretary of Aging Sue Ward (2000): Tube feeding. The opinion applies the Act’s definition of “medically ineffective treatment” to the use of artificially administered nutrition and hydration.

4. Letter to Carl Jean-Baptiste, Jr. (2003): Lack of proxy. This letter explains why physicians may certify a treatment as medically ineffective even if there is no agent or surrogate to inform.

5. Letter to Anita Tarzian (2003): Medically ineffective treatment and guardianship. This letter explains that, once a guardian takes a reasonable step to notify the court of a certification that attempted CPR would be medically ineffective, the guardian need take no other action unless requested to do so by the court.

6. Letter to Herbert Hubbard (2005): Patient’s Plan of Care form. This letter confirms that a decision on the form for use of a life-sustaining treatment is subject to the Act’s provisions on medically ineffective treatment.

7. Letter to Virginia Hierholzer (2007): Prior determination of medically ineffective CPR. The letter discusses the situation when a patient under public guardianship is transferred to a nursing home with an EMS/DNR order that was entered because CPR was deemed medically ineffective.

 

B. Certification of condition or incapacity

1. Letter to Donna Dorsey (1999): Oral DNR orders in nursing homes. The letter explains why a physician’s oral DNR order is legally valid and may be implemented by nurses and other health care professionals.

2. Opinion to Secretary of Aging Sue Ward (2000): End-state dementia. The opinion explains how a physician can apply the definition of “end-stage-condition” to dementia.

3. Letter to Vanessa Rosengart (2001): Physician certifications. The letter discusses the relationship between the certification of a patient’s condition and the entry of a DNR order.

4. Letter to Kenneth Hooper (2002): “End-stage condition” and medically ineffective treatments. In discussing the definition of end-stage condition, the letter points out the distinction between treatments for the underlying condition and treatments for symptoms or secondary conditions.

5. Letter to Evan DeRenzo (2002): Status of physician’s order entered without Health Care Decisions Act certification. This letter discusses the legal situation in a case where the attending physician concluded that the patient was in an end-stage condition, implemented a surrogate's decision for DNR/DNI status, but failed to do the Act's two-physician certification. The letter explains that, while health care providers are expected to adhere to the Act and lose immunity if they do not, a failure to comply with its procedures does not automatically lead to liability.

6. Letter to Margaret Garrett (2007): Emergency treatment without consent. This letter advises that, for purposes of emergency treatment, the attending physician alone may determine that the patient lacks capacity. The concurrence of a second physician is not required.

C. Honoring patient objections to proxy decisions

1. Opinion to Brian Hepburn, Executive Director of the Mental Hygiene Administration (2006): Nature and effect of "express disagreement" by patient. The opinion explains that a patient need not have capacity to stop an action through an "expressed disagreement" with it and discuss what counts as such a disagreement.

D. Reporting to MVA

1. Letter to Dr. Thomas Finucane (2005): Physician reporting under the Maryland Vehicle Law. The letter discusses the authority of physicians to report certain medical disorders that might affect safe driving.

V. DNR Orders

A. Facility-based

1. Opinion to Rosalie Abrams, Director, Office on Aging (1994): Surrogate decision making about DNR orders. The opinion discusses surrogate authority and certification of the patient's condition, as applied to DNR orders.

2. Letter to Donna Dorsey (1999): Oral DNR orders in nursing homes. The letter explains why a physician’s oral DNR order is legally valid and may be implemented by nurses and other health care professionals.

3. Letter to Dr. Thomas Finucane (2000): Liability risk and DNR orders. The letter outlines a physician's liability risk as related to entry of a DNR order, especially under circumstances not covered by the Health Care Decisions Act.

4. Letter to Fran Stoner (2000): Nursing home resident’s refusal of CPR. This letter explains why a nursing home should not perform CPR on a resident who has refused it, even if a physician’s DNR order is not yet on the chart.

5. Letter to Dr. Harold Bob (2005): Oral DNR orders in hospitals. The letter explains why hospitals may not have a policy that bars the use of oral DNR orders by telephone.

6. Letter to Dr. Robert Roby (2006). Use of EMS/DNR orders for inpatients. The letter explains that a hospital or other health care provider may honor an EMS/DNR order wherever in a facility a patient may be; reliance is not limited to outpatient settings.

B. EMS/DNR

1. Opinion to Dr. Robert Bass (1995): Program authority. This opinion confirms the legal authority for the State emergency medical services agency to issue a palliative care/do not resuscitate protocol.

2. Letter to Katherine Kemper (2002): Copies of EMS/DNR orders. The letter explains that, effective January 1, 2002, a photocopy or faxed copy of an EMS/DNR order is valid and that a faxed copy may be used for a physician’s or other signature.

3. Letter to Vanessa Bishop (2003): Scope of EMS/DNR Orders. The letter explains that an EMS/DNR order only addresses the use of interventions related to cardiopulmonary arrest, not other therapeutic interventions.

4. Letter to Dr. Robert Roby (2006). Use of EMS/DNR orders for inpatients. The letter explains that a hospital or other health care provider may honor an EMS/DNR order wherever in a facility a patient may be; reliance is not limited to outpatient settings.

C. Pediatric

1. Opinion to Delegate J. Anita Stup (1994): Public schools’ obligations and DNR. The opinion analyzes the issues raised when a terminally ill child who is still able to attend public school has a DNR order.

VI. Artificial nutrition and hydration (tube feeding)

A. Relationship to oral feeding

1. Opinion to Secretary of Aging Sue Ward (2000): Reasonable efforts requirement. The opinion discusses the Act’s provision on feeding by mouth.

B. Decision making through advance directive or by proxy

1. Opinion to Secretary of Aging Sue Ward (2000): Authority to forego. The opinion discusses the various means by which the use of tube feeding may be decided.

2. Letter to Dr. Harold Bob (2005): Patient's Plan of Care form and surrogate authority. The letter analyzes how the Act's requirement on certification of condition affects a surrogate's completion of the form and the entry of physician orders to implement surrogate decisions about feeding tube use.

3. Letter to Howard Sollins (2007) Living wills, health care agents, and status pending transfer: The letter discusses the situation presented when a patient's living will expresses a clear wish to forgo tube feeding, yet the health care agent insists that it be provided indefinitely pending transfer of the patient.

 

C. Medically ineffective treatment

1. Opinion to Secretary of Aging Sue Ward (2000): Physician authority. The opinion applies the Act’s definition of “medically ineffective treatment” to tube feeding.

VII. Pain and symptom management

A. Regulatory issues

1. Letter to Becky Sutton (1999): Pain management for terminally ill nursing home residents. The letter discusses a nursing home's regulatory obligation to provide medically appropriate pain management. The letter also reassures nursing homes that the medically indicated use of morphine and other opioids is lawful.

2. Letter to Becky Sutton (2006): Prescribing of methadone. The letter explains why a physician may prescribe methadone for pain management purposes without adhering to the special requirements applicable to the use of methadone in addiction treatment.

B. Assisted suicide prohibition

1. Letter to all State’s Attorneys (2000): Assisted suicide and symptom management. This letter, from the Attorney General to each local prosecutor, explains why Maryland’s Assisted Suicide Act does not apply to medically appropriate measures to relieve pain and other symptoms. It sets out guidelines to help prosecutors avoid misconstruing proper efforts to manage symptoms as assisted suicide.

VIII. Organ donation

A. Method

1. Letter to Marion Borowiecki (2003): Organ donor designation on a driver’s license. This letter explains why a license designation is legally sufficient as consent for an organ donation.