April 5, 2010
By Jerry Kopel
If I had the choice, when my time comes, I would want it to be in my
home, in my bed, circled by my family, while I close my eyes in sleep.
If that cannot happen, I should want to be in a hospice subject to HB
1122, sponsored by Reps. Ellen Roberts (R) Durango and Mike Merrifield
(D) El Paso and Sen. Suzanne Williams (D) Aurora.
However the bill contains a loophole wide enough to wipe out any backup
evidence. There is no collection of oral and written talks between
doctor, hospital worker and patient which can be reviewed. A change in
orders from the patient should be traced to discussions indicating an
actual change in position. All the doctor has to show is the doctor's
conclusion. This loophole is expanded on later in this column.
As stated in the bill's legislative declaration "Colorado law has
traditionally recognized the right of an adult or his or her authorized
surrogate decision-maker to accept or reject medical treatment and
artificial nutrition or hydration." The declaration often sets up
medical treatment and administration if the adult later lacks the
decisional capacity to provide informed consent to, withdraw from, or
There has to be a consistent method for identifying and communication of
critical treatment preferences to be or not to be followed. The use of
standardized forms will ensure those preference are clearly and
I normally oppose leaving legislative declarations within a substantive
bill. Just having a legislative declaration in the session laws and
referred to in the statute provides protection for the declaration. But
with HB 1122, I think the declaration has a place in the statute books.
The declaration here is for the benefit of the patient, not of the
The information in dealing with the hospital or hospice is easily
divided. The form is easy as to vital statistics that can be inserted.
That also includes any program where the adult is enrolled, name,
address and phone of adult's physician or other health aide. Signature
or mark of adult and if there is one, of surrogate decision maker.
The biggest danger to a patient is what any recent hospital patient will
tell you: The inability to receive and understand within a short period
of time exactly what the substantive printed forms you are told to sign
"guarantee" that you have had the information needed. As a recent
hospital patient I can tell you the effect is just the opposite.
Old forms of "living wills" may not include palliative or comfort care,
or transfer to a hospital with limited intervention or full treatment.
Lack of time to read and understand substantive issues should be a
defense to a claim by the institution.
Medical personnel who comply with the scope of treatment in the form are
immune from criminal or civil liability but not criminal immunity for
other criminal acts. In absence of an order not to initiate CPR, adult
consent to CPR will be presumed.
A health care facility that knows its care is based or not based on
moral conviction or religious beliefs of the provider shall provide
notice when reasonably possible prior to initiating medical treatment.
As soon as possible thereafter the institute must transfer the patient
to a place with a provider that meets the patient's requirement.
Suppose an adult has changed his or her mind. The bill provides for this
to be taken into consideration in reaching a decision as to the type of
treatment the adult will receive, or if in the provider's independent
medical judgment is medically appropriate. The provider consults with
the adult and the provider can revise an adult's executive order based
upon the adult's revision. This is where there is danger.
"The provider consults with the adult "and the adult has "decisional
capacity to consent to or refuse medical treatment." CRS 15-18.7-107 is
the revision and revocation of the scope of treatment. If the provider
consults with the adult the revisions are recorded on the form if it is
a clear communication. If the health worker is very involved in getting
the decision changed, an oral communication is all that is available as
the end result of the revision.
Language NEEDS to be added to provide for preserving any full or partial
oral discussion pro and con in transcript form. Any discussion of the
suggested changes should remain available to the family or surrogate of
the adult and who should not sign off until they are satisfied the
written revision flows from the full discussion. If it does not, the
family or surrogate should retain the authority to continue the
Should the bill be submitted to the vote by Colorado citizens? That
decision may be up to Williams.
Meanwhile there is an outside legislative move to amend the state
constitution to prohibit government from infringing on religious liberty
or organization, by way of a coalition called Colorado For Liberty. The
Anti-Defamation League regional director is concerned about a "hidden
agenda in the remarkably vague language."
(Jerry Kopel served 22 years in the Colorado House including eight as
the one person of Jewish faith.)