JCAHO to clarify policy on advance directives

Make patient's wishes clear

Watch for a clarification this spring from the Joint Commission on Accreditation of Healthcare Organizations on the subject of advance directives.

The Joint Commission's 1996 manual currently advises hospitals to try to document the substance of a patient's advance directive if that patient does not have his or her living will or durable power of attorney on hand while at the hospital. But this recommendation has caused confusion among risk managers and hospital administrators, points out Harold Bressler, JD, general counsel of the Joint Commission in Oakbrook Terrace, IL.

"People thought we were suggesting that the summary of the advance directive would suffice in essence to make the hospital assume that it actually had the advance directive," says Bressler.

The Joint Commission's intent was to advise health care facilities what to do when patients arrive at a hospital without the actual documents that comprise their advance directives.

In that situation, hospital should do either of the following two things, Bressler advises:

* Ask the patient whether he or she wants to make arrangements to have it brought to the hospital.

* Ask whether he or she wants to write a new one.

"The issue is not documenting the substance of some paper in a safe deposit box," Bressler explains. "The issue is documenting what the patient wants [to do with regard to the absent directives]. That's where the language may have caused confusion."

Under different states' laws, trying to document the substance of an advance directive may be tantamount to nothing more than verbal instructions, Bressler notes. Depending on state law on advance directives, verbal instructions may not be valid.

Attempting to document advance directives also is fraught with legal risk for hospitals if a patient's wishes are misconstrued, says Sue Dill, RN, JD, director of risk management and health policy for the Ohio Hospital Association in Columbus. The area has become highly litigious for hospitals, and legal experts are keeping a close eye on a case in Ohio and another in California in which hospitals misconstrued advance directives.

The risk of misconstruing a patient's wishes is heightened at many hospitals because the responsibility for asking about and/or documenting the substance of an advance directive often is the admitting clerk's. These documents often are highly clinical, thereby increasing the possibility for error, Dill points out. If a hospital does try to document the substance of a patient's advance directive, it should be done by someone with a clinical background.

The best way to effect a patient's wishes on medical care and to comply with the Joint Commission is to have forms available for the patient, Dill says. The Ohio Hospital Association worked with the Ohio State Bar Association to create a form that a patient can use on admission. The form is available at most Ohio hospitals now. *