W. Va. Code R. § 64-101-3 - Background

Current through Register Vol. XXXVIII, No. 51, December 23, 2021

West Virginia Health Care Decisions Act.

The West Virginia Health Care Decisions Act ("the Health Care Decisions Act") ( W.Va. Code §§ 16-30-1et. seq.), is intended to ensure that a patient's right to self-determination in health care decisions be communicated and protected; and to set forth a process for private health care decision making for incapacitated adults, including the use of advance directives, which reduces the need for judicial involvement and defines the circumstances under which immunity will be available for health care providers and surrogate decision makers who make health care decisions. W. Va. Code § 16-30-2. In enacting the Health Care Decisions Act, the Legislature sought to establish an effective method for private health care decision making for incapacitated adults, and to provide that the courts should not be the usual venue for making decisions. Id.

Physicians, licensed health care professionals, health care facilities or their employee may not be subject to criminal or civil liability for good-faith compliance with or reliance upon the directions of the medical power of attorney representative in accordance with the Health Care Decisions Act. W. Va. Code § 16-30-10. Additionally, a health care provider, health care facility or employee may not be subject to criminal or civil liability for good-faith compliance with or reliance upon the orders in a POST form. Id.

If a person with an order to withhold or withdraw life-prolonging intervention is transferred from one health care facility to another, the existence of the order must be communicated to the receiving facility prior to the transfer and the written order shall accompany the person to the receiving facility and remain effective until a physician at the receiving facility issues admission orders. W.Va. Code § 16-30-13.

When a person with a POST form is transferred from one health care facility to another, the health care facility initiating the transfer must communicate the existence of the POST form to the receiving facility prior to the transfer. Id. The POST form must accompany the person to the receiving facility and will remain in effect. Id.

Do Not Resuscitate Act

The Do Not Resuscitate Act ("the DNR Act") (W. Va. Code §§ 16-30C-1et. seq.), was enacted by the Legislature to protect the right of a person to self-determination relating to CPR. The intent of the Act is to give direction to emergency medical services personnel and other health care providers in regard to the performance of CPR.

The DNR Act provides that every person "shall be presumed to consent to the administration of CPR in the event of cardiac or respiratory arrest", unless a health care provider has actual knowledge of a DNR order or a completed POST form. W. Va. Code § 16-30C-5. "Actual knowledge" means the possession of information of the person's wishes communicated to the health care provider orally or in writing by the person, the person's medical power of attorney representative, the person's health care surrogate or other individuals resulting in the health care provider's personal cognizance of these wishes. W. Va. Code § 16-30-3(a). (italics added).

When presented with a DNR order or POST form, emergency medical services personnel must comply with the contents of the order or form. W. Va. Code § 16-30C-7. The DNR Act also provides for the revocation of a previous request for or consent to a DNR order when the person makes a written, oral or other act of communication to a physician or other professional staff of the health care facility, or destroys the order or POST form and removes any do not resuscitate identification. W.Va. Code § 16-30C-8(a) & (b).

A health care provider is not subject to criminal prosecution or civil liability for carrying out, in good faith, a do-not-resuscitate order or for actions taken in compliance with the standards and procedures contained in the Act. W. Va. Code § 16-30C-9(a). Additionally, a health care provider who witnesses a cardiac or respiratory arrest may not be subject to criminal prosecution or civil liability for providing CPR to a person for whom a DNR order has been issued, provided that the health care provider is:

(1) Reasonably and in good faith unaware of the issuance of a DNR order; or
(2) Reasonably and in good faith believed that consent to the DNR order had been revoked or canceled. W. Va. Code § 16-30C-9(b).

The e-Directive Registry

The e-Directive Registry is an electronic registry of advance directives and medical orders established and maintained by the West Virginia Center for End-of-Life Care (WVCEOLC) through the West Virginia Health Information Network (WVHIN). With the permission of patients or their legal agents, the electronic registry stores and makes available to treating health care providers advance directive forms, do-not-resuscitate cards, and POST forms, submitted to the registry.

The e-Directive Registry is a password-protected, Health Insurance Portability and Accountability Act (HIP AA) compliant on-line registry that makes accurate, relevant information about patients' advance directives and medical orders available in a medical crisis. It is accessible 24 hours a day, 7 days a week to health care providers, and ensures that patients' wishes will be respected throughout the continuum of health care settings.

Applicability of e-Directive Registry to the DNR Act

Neither the Health Care Decisions Act nor the DNR Act include a reference to the e-Directive Registry nor do they appear to contemplate an on-line database of advance directives and medical orders that is accessible by emergency medical services personnel while responding to an emergency medical services incident. Thus, there is a concern that the lack of an explicit acknowledgement in either Act, that information ascertained from documents stored on the e-Directive Registry and then communicated to emergency medical services personnel during online medical direction, constitutes actual knowledge of a DNR order or an order regarding level of medical intervention on a completed POST form.

Because there is a presumption that a person consents to the administration of CPR in the event of cardiac or respiratory arrest unless a health care provider has actual knowledge of a DNR order or a completed POST form, emergency medical services personnel have a duty to perform CPR unless he or she is in possession of information that results in the emergency medical services personnel's personal cognizance of the person's wishes regarding the patient's desire to be resuscitated and for level of medical intervention. As noted above, the definition of "actual knowledge" provides that a person's wishes regarding their desire to be resuscitated be communicated to the health care provider "orally or in writing." Consequently, it is unclear as to whether storage on the e-Directive Registry of a DNR order or a completed POST form, which is accessed by the Medical Command Center and orally communicated to emergency medical service personnel, constitutes "actual knowledge" for the purposes of the Health Care Decisions Act or the DNR Act.

Notes

W. Va. Code R. § 64-101-3

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