By: Sigrid C. Haines
As we mark the one-year anniversary of Terri Schiavo’s death, most Maryland residents still have not completed any form of health care advance directive. This is a missed opportunity, since such forms provide patients with the ability to state their wishes about their health care in the event they are unable to make their own decisions.
Since the Maryland Health Care Decisions Act became law in 1993, Maryland has allowed for family members and friends to make decisions on behalf of incapacitated patients. A hierarchy of surrogate decision-makers is established under the law. In addition to immediate family members, surrogates can include those friends and less immediate family who certify that they know the patient’s wishes. To control or change that hierarchy and to express their wishes, Maryland residents can create two types of documents: 1) an advance directive appointing an agent; and/or 2) a living will.
These forms are often combined. Maryland law now contains one such model form, although many experts believe that the current Maryland model form is quite confusing. Also, as often happens over time, a few defects in the technical drafting of the Act have been identified.
As this newsletter goes to press, it appears to be highly likely that the Maryland legislature will approve revisions to the Act. Responding to certain issues raised by the Act, the Office of the Maryland Attorney General had proposed some revisions to the Act, particularly to the model advance directives, as well as to the types of practitioners who could determine the patient’s mental incapacity. The new model advance directive would be far clearer than the current model. It is designed to be completed in two parts: one part is an advance directive appointing an agent, and the second part allows patients to state preferences about specific treatments (i.e., a living will). Patients can complete either or both parts. The new form would also allow for choices to be made about organ donation and disposition of the body upon death. A technical correction is also proposed that would assume that other decision-makers may act only if the health care agent is unavailable (as had long been assumed but not actually stated in the law).
At this time, however, there are differences in the versions of the law passed by the Maryland Senate (SB 369) and House (HB 592). SB 369 allows physicians and nurse practitioners to make certain certifications, while HB 592 would maintain the existing law that only physicians can make the necessary certifications. (Since physicians and psychologists can currently make similar certifications for purposes of obtaining a guardianship, this inconsistency has proven confusing.) Both versions would take effect on October 1, 2006. Of course, to become law, both the House and Senate must pass identical versions of the bill and that passed bill must be signed by the Governor. While it seems very likely that the differences will be reconciled and signed by the Governor, it is not a certainty.
Another bill, HB 23, would have required the State to establish a central registry for advance health care directives. While this idea sounded appealing at first blush, a host of technical problems were quickly identified with this bill, such as how the State would receive notice of termination of the documents and how the necessary “secure electronic database” could be maintained and yet be sufficiently accessible to be useful. Accordingly, HB 23 received an unfavorable report from the applicable House reviewing committee. A similar bill, SB 236, has passed the Senate and, at press time, was awaiting a hearing in the House. This bill, if it passes and is signed by the Governor, would establish a voluntary registry for advance directives and allow annotations on drivers’ licenses that such documents exist. However, it presents some of the same technical issues as HB 23.
If you currently do not have a signed advance directive, there is no reason not to make one now. Our office will be glad to supply free model forms, or they can be obtained in English or in Spanish from the Office of the Maryland Attorney General at http://www.oag.state.md.us/Healthpol/adirective.pdf or by calling that Office at (410) 576-7000.
Sigrid C. Haines is Chair of the firm’s Health Care group. For more informationa about advance directives, contact her at (301) 657-0152 or schaines@lerchearly.com.
