Alaska Supreme Court Rejects Hospital Excuse for Disregarding Advance Directive

I have been tracking a growing number of cases in which healthcare providers negligently or intentionally disregarded a patient's advance directive. Increasingly, courts and other regulators have been imposing liability or other sanctions for this conduct. This week, the Supreme Court of Alaska issued an opinion permitting just such a case to move forward. 

In 2013, Bret Bohn was admitted to the state's largest hospital, Providence Alaska Medical Center. Bohn had an advance directive appointing his parents as his agents. But clinicians disagreed with the decisions that Bret's parents were making on his behalf. So, clinicians followed a treatment plan to which neither Bret nor his parents consented. (That resulted in other guardianship litigation and media coverage not at issue here.)

In the trial court, Providence successfully argued that it has immunity under the Uniform Health Care Decisions Act because it had a good faith belief that Bret's parents lacked authority to act on his behalf. Since Bret's parents were declining prescribed medications, Providence did not think they were acting in his best interest.

The supreme court rightly rejected this argument. If clinicians could ignore an agent (with immunity) anytime they disagree with the agent's decisions, much of the purpose of the UHCDA would be undermined. Such a reading would turn the immunity provision into, as the court notes, "the subsection that ate the statute.” 

One is reminded of the Canterbury court's famous caution to read the therapeutic privilege exception to informed consent narrowly. "The physician's privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs."

Yes, clinicians may and should refuse to follow "bad" surrogates who appear to act contrary to patient wishes or best interests. I have defended that. But the burden or proof is high.