Why is health law important?
During
the past several decades, major advances in medicine and rising health
care costs have led to new and difficult questions about medical care.
To be an informed health care consumer, you need a basic understanding
of your legal rights regarding medical treatment, advance health care
directives, access to medical records, emergency treatment, organ
donation, and experimental medical treatments. 
What rights do I have about the medical care I receive? The
legal doctrine of informed consent defines your right to decide whether
and how you will receive medical care. Informed consent means your
health care provider must appropriately explain the proposed treatment
to you and get your permission before treating you.
Do I have a right to refuse treatment? Yes.
Courts repeatedly have ruled that a competent adult patient has the
right to refuse treatment, even if the patient's family or doctors
disagree. You are the person who must decide.
What happens if I am not competent to choose my medical treatment? If
you lack the mental capacity to make an informed decision about medical
treatment, your physician or another person (a substitute
decisionmaker) ordinarily will decide for you. The substitute
decisionmaker could be your legal guardian if a judge has appointed
one, a family member, a close friend, or your health care "agent" if
you have named one in an advance directive (see below).
How would someone determine that I was not able to make my own decisions? When
a patient is unconscious, severely brain damaged, highly intoxicated,
or for other reasons cannot understand the available treatment options,
the patient clearly is incapacitated, or unable to make his or her own
decisions. However, if the patient has some understanding of what is
happening but judgment is clouded by factors such as fear or mental or
physical illness, then determining mental capacity is more difficult.
Wisconsin laws on advance directives (see below) define "incapacity" as
the inability to receive and evaluate information effectively or to
communicate decisions to such an extent that the individual is not able
to manage his or her health care decisions. Usually, the patient's
doctor initially determines incapacity, often with input from family
members. When the patient's doctor has doubts about the patient's
comprehension, he or she often consults with another health care
provider with appropriate expertise.
What is an advance directive? An
advance directive is a written instruction that you make while you are
mentally competent. The advance directive states how you want health
care decisions to be made for you if you become incapacitated.
Wisconsin laws recognize two forms of advance directives - the living
will and the health care power of attorney. A
living will (Declaration to Physicians) describes the kind of
life-sustaining care you would want if injury or illness leaves you in
a terminal condition (dying) or a persistent vegetative state
(permanent unconsciousness) with no hope of recovery. With
a health care power of attorney, you appoint someone to be your "agent"
to make all health care decisions - not just those involving life
support - for you if you lose the ability to make decisions for
yourself. You also may include a description of your treatment
preferences and special desires in this document, to help guide the
person making decisions for you. In this document you also may
authorize your agent to admit you to a nursing home or community-based
residential facility, and you may indicate your wish to donate body
parts after death.
Why should I have an advance directive? An
advance directive allows you to make your wishes clear to your family,
friends, and health care providers while you are still able to do so.
The advance directive helps prevent disagreements among your family
members about what treatment you should receive if you are
incapacitated.
Should I have both a living will and health care power of attorney? Perhaps.
Some people do not want to ask someone else to decide when and if
artificial life support should be withheld. Instead, they want to make
those decisions in advance by signing a living will. A
health care power of attorney is more powerful and flexible than a
living will. A health care power of attorney can be drafted so that
your health care agent has the authority to make a variety of medical
decisions for you, as opposed to a living will, which only directs when
artificial life support is to be withheld.
What if I have both a living will and a health care power of attorney? If
you have both a living will and a health care power of attorney, be
sure they are consistent. If there is any conflict between the two, the
health care power of attorney will overrule the living will.
When should I prepare an advance directive? Now.
While most people first think about preparing an advance directive when
they are admitted to a hospital or nursing home, it is a good idea to
think about doing so now - while your health permits you to do so.
How do I create a living will or health care power of attorney? For
both the living will and the health care power of attorney, you may use
the standard forms created by law and available in courthouses,
hospitals, nursing homes, and through the Wisconsin Department of
Health and Family Services. A Gift to Your Family, a consumer
guide developed by Wisconsin legal and medical professionals, also
contains forms for creating advance directives. The consumer guide is
available from the State Bar of Wisconsin. (Addresses are listed at the
end of this brochure.) You
may choose to have an attorney complete the standard forms or write an
individualized document for you. In any case, be sure to read the
instructions carefully and follow rules about who may serve as
witnesses and other requirements about how the document is to be
executed. Completing the document incorrectly may invalidate it when it
is most needed.
Am I required to create an advance directive? No.
Federal law requires hospitals and other health care facilities to
inform patients about advance directives when they are admitted, but
health care providers cannot require you to have one. Health care
providers cannot withhold treatment or otherwise discriminate against
you based on whether or not you have an advance directive.
How long does my living will or health care power of attorney last? Both
the living will and the health care power of attorney last from the
time they are created until your death, unless they are revoked or
changed.
How do I revoke my living will or my health care power of attorney? Your
living will and health care power of attorney can be revoked or
changed, regardless of your mental or physical condition, at any time
if you do any of the following: - tear, burn, obliterate, or destroy the document or direct someone else to do so in your presence;
- write and sign a document canceling the directive (a revocation);
- verbally
express your intent to cancel the document in the presence of two
witnesses and notify your doctor of the revocation; or
- write a new document.
Who can I appoint as my agent in a health care power of attorney? Your
agent (the person who makes decisions for you) may be any adult except
for your health care provider, his or her employees, an employee of a
health care facility in which you are a patient or live, or a spouse of
any of these providers or employees - unless they also are your
relative. Most people name a family member or close friend to be their
agent. Be sure that the person you appoint is someone you trust and
with whom you feel comfortable discussing your treatment preferences,
because that person will have authority to make important decisions on
your behalf.
Is this person the same as my "attorney-in-fact," appointed in my durable power of attorney? No.
A general durable power of attorney, which usually applies to financial
matters, is not sufficient to appoint someone to make health care
decisions for you. Often, people appoint one agent for health care
decisions and another agent to handle financial matters.
Can my health care agent admit me to a nursing home? Your
health care agent can admit you to a nursing home for recuperative care
after a hospital stay for up to three months, unless the hospital stay
was for psychiatric care. If you live with your agent, he or she may
admit you to a nursing home for up to 30 days. However, your agent may
admit you to a nursing home for longer periods only if your health care
power of attorney document specifically authorizes it and if you are
not diagnosed as mentally ill or developmentally disabled at the time
of the proposed admission.
Where should I keep my advance directive? Keep
one copy of your advance directive in your physician's medical record
and at the hospital that would treat you. Keep one copy of your advance
directive with your other important papers. Let your loved ones and
agent know that you have an advance directive and give them a copy, or
tell them where to find it. You also may use a wallet card that says
that you have an advance directive and where it can be found.
What if I don't have an advance directive? If
you do not have an advance directive, a surrogate decisionmaker, in
consultation with your doctor, will make treatment decisions for you,
if you are unable to decide for yourself. In some cases a guardian may
be appointed. In other cases, your doctor will consult with the person
or persons who best know you and what treatment decisions you would
make, if you could. The persons making decisions often are a spouse,
adult child, adult sibling, or close friend.
What if I have a health care power of attorney document from another state? A
health care power of attorney document that was executed in accordance
with the laws of another state is valid and enforceable in Wisconsin.
However, the out-of-state document must authorize the designated agent
to make the same decisions that an agent designated in a Wisconsin
document could make. Also, the limits on a Wisconsin agent's authority
apply as well to agents appointed in out-of-state documents - so that,
for example, under either a Wisconsin document or an out-of-state
document, your agent could admit you to a nursing home for long periods
only if the document specifically authorizes it and you are not
diagnosed as mentally ill or developmentally disabled at the time of
the proposed admission.
How does my health care agent or other decisionmaker decide what to do? Your
agent or other decisionmaker is to make decisions that conform with
what you would do if you had the capacity to decide. Your best
protection in having your wishes honored is to communicate them
effectively to your agent. Factors that are important for your
decisionmaker are: - your personal, religious, and philosophical views;
- your views about health, illness, medical procedures, suffering, and death;
- the burdens and benefits of proposed treatment; and
- the terms and/or philosophy expressed in your advance directive.
If your wishes are unknown, your surrogate will decide based on what would further your best interests.
Who has access to medical information about me? Your
health care providers have an ethical and legal obligation to keep
medical information about you confidential. Without your authorization,
your health care professionals may release medical information about
you only under certain limited circumstances. Some of those
circumstances include: - reports of child abuse;
- when
agencies responsible for licensing and accrediting health care
facilities require records to perform their audit function;
- when a court orders disclosure; and
- when records are needed for billing, collection, or payment of claims.
If I suffer a medical emergency, will a hospital's emergency department treat me? Yes.
Hospitals have a duty to treat any patient who requires immediate
attention. Most hospitals have procedures to assess all patients who
come to the hospital for emergency treatment and either treat them or
stabilize and refer patients to an appropriate facility.
What happens if I suffer a medical emergency outside of a hospital but I do not wish to be resuscitated? Doctors
may issue a "Do-Not-Resuscitate" (DNR) order for certain adults who
have a terminal condition or who would not likely survive a
resuscitation attempt if they had cardiac or pulmonary failure outside
of a hospital setting. These patients receive DNR bracelets, which
direct emergency medical technicians (EMTs) and emergency room
personnel not to attempt resuscitation.
Who makes medical treatment decisions about my child? Generally,
you do. When a patient is under 18, consent to medical treatment is
obtained from the parent(s) or legal guardian. In most cases, parental
consent poses no problems; parents make judgments on their child's
behalf based on their perception of the child's best interests.
Exceptions apply in certain limited circumstances. For example, when a
child requires immediate medical care and his or her parents are not
available, the doctor may proceed to treat the child. Also, for certain
types of treatment, such as treatment for venereal disease, the law
authorizes patients under 18 to consent to treatment without informing
their parents.
Are there special precautions for use of experimental drugs and devices?
Yes.
In addition to obtaining the Food and Drug Administration's approval to
proceed with research involving a new drug or device, health care
providers also must obtain review and approval by an Institutional
Review Board (IRB). The IRB is a group of individuals who assure the
protection of patients' rights and welfare. If the IRB determines that
the risks of the research outweigh the benefits, it can modify or
disapprove the research. The IRB also ensures that information given to
people who are deciding whether or not to participate in the research
is thorough and accurate.
How do I arrange to donate body parts after my death?
You may give all or any part of your body for transplant, therapy, medical
or dental education, or research by signing the statement on your
driver's license or by stating these wishes in your will or in a
separate document. If you later change your mind, you may amend or
revoke your decision by signing a statement of amendment or revocation,
verbally amending or revoking it in the presence of two individuals, or
crossing out or amending the statement on your driver's license or will. You
also may use a health care power of attorney document to donate all or
part of your body upon your death. If you do use your health care power
of attorney document, any prior documents are revoked.
Where can I get more information?
Alzheimer's Association of Southeastern Wisconsin
6130 W. National Ave., Suite200
Milwaukee, WI 53214
(414) 479-8800
www.alzheimers-sewi.org
American Association of Retired Persons
601 E Street NW
Washington, DC 20049
(888) 687-2277
www.aarp.org
American Bar Association
Special Committee on Bioethics and the Law
740 15th Street NW, 9th Floor
Washington, DC 20005
(202) 662-1694
www.abanet.org
Center for the Study of Bioethics
Medical College of Wisconsin
8701 Watertown Plank Rd.
Milwaukee, WI 53226
(414) 456-8498
www.mcw.edu/bioethics
Elder Law Center/Coalition of Wisconsin Aging Groups
2850 Dairy Dr., Suite100
Madison, WI 53718
(608) 224-0606
www.cwag.org
State Bar of Wisconsin
P.O. Box 7158
Madison, WI 53707-7158
(800) 728-7788
www.legalexplorer.com
State Medical Society of Wisconsin
Office of the General Counsel
330 E. Lakeside St.
Madison, WI 53715
(800) 362-9080
www.wismed.org
Wisconsin Department of Health and Family Services
1 W. Wilson St.
Madison, WI 53702
(608) 266-1251
www.dhf.state.wi.us
Wisconsin Hospital Association
5510 Research Park Dr.
P.O. Box 259038
Madison, WI 53725
(608) 274-1820
www.wha.org
Last updated: August 2005 | 
