Healthcare Accreditation Certification Program Newsletter
March 2020


Patient Rights - Part Four

By: Traci Curtis RCP, HACP
In September of 2011, CMS revised the Conditions of Participation regarding patient rights. In Part 4 of this series, we'll discuss the patient's right addressing advance directives.
CMS defines an advance directive as "a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State), relating to the provision of health care when the individual is incapacitated." The patient (inpatient or outpatient) has the right to formulate advance directives and to have hospital staff implement and comply with their advance directive. Both CMS and its accrediting organizations will assess your hospital's policies and practices to assure that a patient's right to formulate an advance directive is protected. Here are the key requirements:

Inform Patients about Advance Directives

Your hospital must provide patients with a written notice of its policies regarding the right to formulate advance directives. If the patient is incapacitated or otherwise unable to communicate, the hospital should provide this information to the individual's family or surrogate decision maker.
Not only does this information need to be provided to inpatients at the time of admission, CMS also expects this information to be provided to outpatients (or their representatives) who are in the emergency department, on observation status, or who are undergoing same-day surgery. In these settings, the information should be presented at the time of registration.

Determine if the Patient has an Advance Directive

Your hospital will need to determine whether or not a patient has executed an advance directive. This needs to be documented in the patient's medical record. If the patient states they have a directive, but do not have it with them, the patient should be instructed to bring in the directive, and said instruction documented in the patient's medical record. While it is not required, many hospitals will ask the patient to describe the contents of their written directive and document this information if the actual directive is not available.

Be Aware of Psychiatric Advance Directives

A psychiatric advance directive is akin to a traditional advance directive for health care. This type of advance directive might be prepared by an individual who is concerned that at some time he or she may be subject to involuntary psychiatric commitment or treatment. In accordance with State law, a psychiatric advance directive should be accorded the same respect and consideration that a traditional advance directive for health care is given. Hospitals should carefully coordinate how the choices of a patient balance with the rights of other patients, staff and individuals in the event that a dangerous situation arises.

Honor the Patient's Directive if Possible

CMS will expect your hospital to honor a patient's advance directive unless doing so would violate State law or what is called "conscious objection" by the hospital. Hospitals are expected to describe the range of medical conditions or procedures affected by the conscience objection. It should be noted that this provision allowing for certain conscience objections to implementing an advance directive is narrowly focused on the directive's content related to medical conditions or procedures. For example, a Catholic hospital could refuse to honor a patient's directive for assisted suicide since such actions would violate the hospital's corporate conscience.
This provision does not allow a hospital or individual physician or practitioner to refuse to honor those portions of an advance directive that designate an individual as the patient's representative and/or support person, given that such designation does not concern a medical condition or procedure.

Educate Staff & the Community about Advance Directives

Your hospital should educate its physicians and clinical staff about your policies on advance directives and the patient's right thereto. Education should be provided at time of hire and at least every three years thereafter (once in an accreditation survey cycle). In addition, remember to educate your community as well. Providing brochures in registration and waiting areas is one way of demonstrating compliance in this area.
Following these guidelines will help assure that your hospital's approach to advance directives protects a patient's rights and your compliance to standards and regulations.
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