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安寧照顧會訊 第(HFT Newsletter)期

20 Things You Should Know about the Patient Self-Determination Act (PSDA)      [ 下載 PDF ]

by HFT secretariat


 

The Legislative Yuan passed the third reading of Patient Self-Determination Act on Dec. 18th 2015. This is the first Act specifically dedicated to Patient’s autonomy right, and also the first national act that is centered on patient’s rights of knowing, choosing and deciding, which literally hands the medical decision right back on patient’s hand.

As long as you are above 20 with full competence, you are ready to make your own advance medical decision. In the future, when you found yourself in situation like advance illness or persistent vegetative state…, you can choose whether you wish to prolong life via medical interference or not. In view of public’s unfamiliarity with this Act and tends to confuse with the current Hospice Palliative Care Act, here we have gathered the 20 most common Q&As for you at a glance.


[Q1] Why do I need PSDA?

Every life is uniquely valuable, and every decision made regarding your life should be respected and protected. This is the reason why PSDA came into being.

PSDA is the first patient-centered act. It is clearly stated in the act that every patient has the right to know, to choose and to decide personal medical decisions. For those who have made their decisions and later fall into a coma or become too ill to make decisions, their autonomous wills will be protected by the law and carried out.

You can also make your medical decisions through an Advance Directive (AD) when your health condition deteriorates and meets the five clinical statuses (e.g., end of life stage, persistent vegetative state, and etc.). You can decide if you wish to prolong your life through medical interference or if you choose to receive palliative care to ensure a quality death.

Through this expression of patients’ medical choice, autonomy and dignity are being respected while the right of a good death is being protected. Patients, family members and the medical team can all learn to understand the patients’ true desires via the Advance Care Planning (ACP). This will help achieve the harmony between doctor-patient relationships, and also alleviate the grief and loss. By returning the right of decision-making back to the patients, this also eases the guilt for the bereaved and helps them to realize they are helping their loved ones by supporting their decisions.

In addition, PSDA provides medical professionals a clear legal basis to follow when the five clinical status mentioned in the act are encountered.

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[Q2] Why does it take 3 years for PSDA to be effective?

Even though PSDA has already passed, it will still need a three-year buffer before it becomes fully effective. On the one hand, the three-year time frame is to help the public learn more about this act, so that people can be equipped with more knowledge to protect their own rights. On the other hand, the time gives the public and private sectors appropriate time to discuss how execution should be regulated. 

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[Q3] What is the difference between PSDA and the current Hospice Palliative Care Act (HPCA)?

Hospice Palliative Care Act only protects the right of medical decisions of the terminally ill patients; however, PSDA has added four new targets. Additionally, when signing the current Letter of Intent, HPCA requires only the patient and two witnesses; whereas the Advance Directive mentioned in PSDA will require an Advance Care Planning consultation process provided by the medical institute and registered in the National Health Insurance system. (See Table 1)


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[Q4] Why not just amend the existing HPCA to protect the right of a good death rather than create a new act (PSDA)?

HPCA focuses on terminally ill patients only, and PSDA focuses on the medical right of every citizen in all medical circumstances.

Currently, HPCA does not provide a sound protection to the patient’s right to know, to choose, and to decide. Furthermore, both the Medical Care Act and HPCA state “If a terminally ill patient, who has become unconscious or failed to express his/her will clearly, has not signed the letter of intent … his/her close relative may replace the patient’s will by signing a consent form”. Thus, the signed consent form is not necessarily the patient’s will.

In contrast, PSDA legislation will protect the patient’s right to know, to choose and to decide, even if the patient falls into a coma and is unable to clearly express his/her will; thus, the patient’s will is still being carried out.

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[Q5] Why is there a need to protect the right to know? 

The current Medical Care Act states: “Medical care institutions shall explain … to the patient or his/her legal agent, spouse, kin, or interested party, and must obtain his/her consent….” This seemingly appropriate statement actually hinders the medical team from explaining the patient’s condition to himself/herself, and often does not reveal the whole truth. Both having a patient who does not know his own health condition and family members who are not able to have a meaningful conversation with the patients are not only a waste of extremely valuable and short remaining time, but also a failure to provide for the patient to fulfill his last wishes. Although this Medical Care Act arose out of the love to patients, it has often ended up wasting precious time and causing regrets to both the living and the dead.

PSDA, on the other hand, has a clear patient-centered position to protect patients’ right to know by stating that patients have the right to know the diagnosis, medical options, and the consequences and risks that follow. Only when patients do not strongly express objection can the medical team inform the patients’ personal medical information with other related parties.

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[Q6] What do medical options mean?

Medical options mean when patients are well informed with their own diagnosis, and understand the therapeutic guidelines, treatments, medications, prognoses and possible adverse reactions. It means the patients are ready to communicate with their medical team on how they want the treatment to be and in “dying well”.

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[Q7] What is the importance of legally protecting a patient’s right of decision-making? 

It is a common clinical scenario that medical professionals, family members, and patients will fight for the medical decision-making. The expressed will of patients is often seen as an act of weakness or desperation, leaving the patients underprivileged and vulnerable as people who are ill and unheard at the same time. PSDA stresses the importance of respecting patients’ right to decision-making, and reaching the consensus by having the medical professionals, family members, and patients sit down and discuss under the Advance Care Planning Consultation process. This will ensure the family members understand the patients’ will and help achieve the ideal final stages of life based on the patients’ view.

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[Q8] What do other advanced countries regulate in PSDA?

World Medical Association has repeatedly stated “Refusing medical treatment is the patient’s basic right and conforms to medical ethics”. Patient autonomy is not just an international trend, but also a universe value recognized by the international society. Here we will see the examples of the United States and Germany:

In the Cruzan case in 1990, the United States Supreme Court ruled in favor for the refusal of medical treatment, including feeding tubes that prolong life. In the same year, the Patient Self-Determination Act was passed by the United States Congress. This Act ensures the patient’s right to refuse medical treatment, provides Advance Directive as a legal status, assigns a medical surrogate agent for those who are not able to express themselves clearly.

In 1990, the Federal Court of Justice of Germany (BGH) ruled that as long as there is a written will (der mutmassliche Wille), the patient—even those who are incompetent—can still have the right to refuse artificial sustaining treatments such as feeding tubes. In 2003, BGH announced the legal enforcement of Patientenverfügung; and in 2009 amended Article 1901 in the German Civil Code (Bürgerliches Gesetzbuch) stating:

  1.  A person of full age can give his/her consent in written form to determine whether he/she would consent or refuse to any specific tests, treatments or medical interventions not yet directly immanent at the time of determination in advance (§ 1901a.1 BGB).
  2. The patient’s living will is effective regardless of the nature and stage of any illness of the person under custodianship (§ 1901a.3 BGB).
  3. The patient can refuse any kind of medical treatment, including those physicians deem valuable.
  4. The first priority of the appointed medical surrogate agent or court assigned custodian is to protect and fulfill the patient’s will.
  5. The patient’s expressed will and the medical surrogate agent’s decision should both be made under the premise that a proper and comprehensive medical professional advice is given (which makes ACP consultation important).
  6. The will expressed by the patient will be the most crucial and effective; the second most effective is the paper in Advance Directive-like form; and the third most effective is the presumed will on the basis of previous given oral or written statements, ethical or religious convictions and other personal values. Finally, the patient’s close relatives and other significant persons can make the decision based on the patient’s best interest. (§ 1901a.2 BGB) (§ 1901b.2 BGB)

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[Q9] Is PSDA a form of legalized euthanasia?

In 1987, the World Medical Association (WMA) distinguished the differences between patient autonomy and euthanasia. Be it euthanasia or physician assisted suicide; both are acts of deliberately ending the life of a patient via medication. Even though it is at the patient's own request or at the request of close relatives, euthanasia is deemed unethical.

In 1992, WMA reaffirmed physician-assisted suicide, like euthanasia, to be unethical; however, the right to decline medical treatment is considered a basic right for the patient. A physician will not be deemed to act unethically for respecting a patient’s right to decline medication, even if this results in death. Allowing natural death to occur is not considered unethical.


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[Q10] Does declining medical treatment mean suicide?

Declining medical treatment doesn’t necessarily bring immediate death, and thus, is not considered suicide. Take the well-known Quinlan case for instance. Karen Ann Quinlan, 21, attended a friend's birthday party at a local bar, where she collapsed and stayed in a coma after consuming alcohol and diazepam because she had eaten almost nothing for two days. Her parents requested that she be disconnected from her ventilator to prevent her from further suffering, and their appeal was granted by the New Jersey Supreme Court in 1976. When Quinlan’s ventilator was removed, she surprised many by continuing to breathe unaided, and was fed by artificial nutrition for nine more years until her death from respiratory failure in 1985. Her case highlighted the subject of “dying well”, and promoted the legislation of protecting the patient’s autonomy to refuse unwanted medical treatments and to die with dignity.

Quinlan is not a unique case. There are many other patients who refuse or remove life-sustaining treatments (LST) and do not pass away immediately clinically; or even if they pass away, it is not caused by the lack of LST, but often is the natural progression of the patients’ disease. Thus, declining medical treatment does not mean suicide.

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[Q11] When choosing not to receive any medical interference to maintain life, what else can be done instead?

Physicians and medical institutes, who respect patients’ decision to terminate, remove or refuse LST or tube feeding when under the five kinds of clinical statuses mentioned in PSDA, will still need to provide hospice and palliative care. Comfort care, pain management, psycho-social and spiritual care, and guidance will be provided to help patients express their gratitude, sorrow, affection and farewells to their loved ones, thereby ensuring their remaining days are filled with dignity and without regrets. 

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[Q12] When is it appropriate to start Advance Care Planning consultation?

A. When in a healthy state or with no life-threatening diseases:
Patients can have the general Advance Care Planning consultation to help obtain enough medical advice and PSDA information so as to make one’s own Advance Directive.
 
B. When in a serious illness:
Patients with full capacity can plan ahead by having Advance Care Planning consultation at appointed medical institutes to learn more about the future progress of one’s disease, and later decide or revise personal Advance Directive.

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[Q13] How does one register an Advance Directive?

Anyone over 20 years old with full capacity can create an Advance Directive with the following provisions:
A. Advance Care Planning consultation certification from an authorized medical institute;
B. Notarized by a notary public regarding the full capacity status in the presence of at least two witnesses;
C. Registered in the National Health Insurance.

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[Q14] Why must mandatory Advance Care Planning consultation be  received in order to create an  effective dvance medical directive?

In order to avoid any decisions made out of misinformed or improper medical resources when making an advance medical directive, a complete disease analysis along with the pros and cons and prognosis all need to be provided in order for the professional medical consultation to help patients make their best informed decision.

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[Q15] What is the difference between Advance Directive and the current Intention Letter (DNR)?


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[Q16] Does every hospital provide Advance Care Planning consultation?

For eligibility and requirements of the medical institutes that provide Advance Care Planning consultation and how its consultation team is made up, all the details will be discussed and announced with its execution regulations at a later time.

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[Q17] How do I assign a medical surrogate agent?

Anyone over 20 years old with full capacity can be assigned as a medical surrogate agent when both agreed to and signed in written form. However, when you are the beneficiary for the patient’s organ, it is not legal for you to be patient’s medical surrogate agent.

The medical surrogate agent you appoint will represent you to make every medical decision, and it is very important that you appoint a person who both understands your thoughts and values of life and is physically close to you so as to stay by your side when needed. Your relationship with your medical surrogate agent will need to be managed as well. For instance, you can review whether your medical surrogate agent still has your trust and share the same values with you or not, or you can always terminate your proxy at any time. 

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[Q18] How many medical surrogate agents can I appoint?

You can appoint more than one medical surrogate agent, and each agent can represent the patient’s will independently. But while expressing the patient’s will, they will need to show their identity to the medical institute or physician.

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[Q19] How do I let medical professionals know the medical treatments I have chosen?

The Advance Directive achieved through the process of Advance Care Planning Consultation will be registered in the National Health Insurance system to allow the medical institute to access and follow your selected medical treatments.

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[Q20] After I have made my Advance Directive, is it possible that if I still have a chance to be cured, an accident occurs that causes the doctor to give up on me?

No. PSDA clearly states that besides advance cancer patients, four categories of patients are entitled to decide whether they would terminate, remove or decline resuscitation treatment or feeding tubes. However, before enforcing this right, patients will need to be diagnosed by two specialist physicians, and consulted by the palliative team twice to make sure the patients’ clinical status applies to the Act, so as to make up the patient’s Advance Directive. The process is discreet and strict, so it is impossible for patients who still have a chance to be cured be given up on because of the Advance Directive.

PSDA has also regulated that medical institutes and physicians can only perform palliative and hospice care to patients who conform with Art.14 (1) the five clinical statuses and Art.14 (2) which has been diagnosed by two specialist physicians and consulted with the palliative team twice; otherwise, there should be no delay in providing proper emergency care or relevant required measures to patients.

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