Patient Self-Determination Act

February 24, 2020 | Aging Services Risk Management


The Patient Self-Determination Act (PSDA) (42 CFR § 489.100-104) is a federal law passed by Congress in 1990 after a series of cases involving the withdrawal of life-supporting care when the wishes of the patient regarding such care were unknown (Larson and Eaton). The issue had been controversial for two decades; two prominent court cases involved legally incompetent patients who were not actively dying and whose wishes were the subject of debate (In the Matter of Karen Quinlan; Cruzan v. Director, Missouri Department of Health). Clarity was needed in a world where patients can be kept alive almost indefinitely even without any hope of recovery.

The PSDA is surprisingly simple, given the complexity of the issues it addresses. Providers (including hospitals, long-term care facilities, and other institutional providers, but not individual physicians) are required to provide written information that advises adult patients of their right "to make decisions concerning their medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate, at the individual's option, advance directives" (42 CFR § 489.102ai). In addition, the provider must advise the patient of the organization's policies on this subject, including any limitation on the provision of care. It must " (A) clarify any differences between institution-wide conscience objections and those that may be raised by individual physicians; (B) identify the state legal authority permitting such objection; and (C) describe the range of medical conditions or procedures affected by the conscience objection" (42 CFR § 489.102(aii).

Implementing the requirements of the PSDA is not a one-and-done task. The law imposes ongoing requirements on healthcare facilities. Facilities must document in a "prominent" location within the patient's medical record whether the patient has an advance directive (42 CFR § 489.102a). They may not condition the provision of care or otherwise discriminate based on whether the patient has executed an advance directive (42 CFR § 489.102a). Facilities must ensure compliance with state law and must inform the patient regarding how to file complaints about care (42 CFR § 489.102a).

They must also provide education to their staff on the requirements of the PSDA and the procedures around filing and honoring of advance directives (42 CFR § 489.102a), as well as to the community at large (42 CFR § 489.102a). The information must be presented to the patient when he or she is admitted to a hospital (42 CFR §...

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