Chapter 2 – Patients’ Entitlements and Responsibilities

Policy

• California Correctional Health Care Services (CCHCS) shall promote the utilization of advance directives to determine patients’ health care preferences, including, but not limited to, treatment decisions regarding medications, surgeries, and life support treatments; however, patients are not required to complete an advance directive.

• The California Department of Corrections and Rehabilitation (CDCR) 7421, Advance Directive for Health Care, shall be utilized by staff whenever possible and especially when the patient is diagnosed with a serious medical condition or is admitted to a Correctional Treatment Center, Outpatient Housing Unit, Skilled Nursing Facility, hospice, or outside medical facility.

Purpose

• To define the process for incarcerated persons to complete an advance directive including identification of a power of attorney for health care and provision of instructions for future health care.

Responsibility

• Statewide

  • CCHCS and CDCR departmental leadership, at all levels of the organization, shall ensure administrative, custodial, and clinical systems are in place and appropriate resources are available so that care teams can successfully implement the advance directive policy.

• Regional

  • Regional Health Care Executives are responsible for adherence to this procedure at the subset of institutions within an assigned region.

• Institutional

  • The Chief Executive Officer, or designee, is responsible for the implementation, monitoring, and evaluation of this policy and procedure.

Procedure Overview

• CCHCS shall encourage all patients with health care decision-making capacity to complete an advance directive.  Completion of a CDCR 7421 is the preferred method for patients to communicate their wishes; however, other documentation, if able to be validated, provided by patients or their agent, also known as legally recognized decision-maker, shall be honored.

• A health care provider or institution may decline to comply with the preferences of the patient or the patient’s agent or legally recognized decision-maker for reasons of conscience or if the requested health care would be medically ineffective or contrary to generally accepted health care standards. In such cases, barring the need for emergent care, the primary care provider (PCP) shall discuss the case with institution and regional medical leadership and when appropriate present the case to the CCHCS Care Team Enhanced Conference for review and consultation.

Procedure

• Communication of Advance Directive Information to Patients

  • The CDCR 7421 shall be available to patients through the following:

    • The “Patient Orientation to Health Care Services Handbook” which includes information about advance directives.

    • The CDCR 7421 with the Patient Fact Sheet and Instructions which is included in the informational packet given to patients in Reception Centers.

  • Health care staff have professional obligations to discuss end-of-life decision-making and the goals of care with patients at clinically appropriate times. During these encounters, health care staff shall educate patients about their right to name an agent or legally recognized decision-maker and to specify their end-of-life preferences.

  • It is optional for a patient to complete a CDCR 7421.

  • Primary Care Team members shall document any discussion of advance directives with a patient in the Electronic Health Record System (EHRS). If a patient completes an advance directive, the PCP shall document the patient encounter and discuss the decisions that the patient is making regarding their future physical and mental health care. Health care providers shall determine and document effective communication when there is an exchange of health care information in accordance with the Health Care Department Operations Manual, Section 2.1.2, Effective Communication Documentation.

  • Advance directives and the goals of care (including progress notes, and Do Not Resuscitate orders, if applicable) shall be reviewed as a patient’s clinical situation changes.

• Initiation of Written Advance Directives

  • Patients shall be given an opportunity to complete or revise the CDCR 7421 at reception, annually, upon request, and upon admission to a CDCR health care setting including Correctional Treatment Center, Outpatient Housing Unit, Skilled Nursing Facility, or hospice or within 24 hours of being admitted to the hospital for a serious or critical medical condition.

  • Patients shall be given an opportunity to complete a CDCR 7421 when seen in a primary care clinic setting.

• Guidance for Completing CDCR 7421, Advance Directive for Health Care

  • Please note that parts one through three are optional and all are not required for a valid advance directive.

  • Part 1: Power of Attorney for Health Care

    • The patient may choose to appoint someone to make medical decisions for them if they become unable to make those decisions.

    • The agent or legally recognized decision-maker is not authorized to consent on behalf of the patient to any of the following:

      • Abortion.

      • Sterilization.

      • Psychosurgery.

      • Electroconvulsive treatment.

      • Commitment to or placement in a mental health treatment facility.

    • An agent’s refusal of recommended treatment may still be overridden by a court order, such as Penal Code 2602.

    • The agent or legally recognized decision-maker is directed to make all health care decisions for the patient in accordance with any instructions they have indicated in the advance directive or in any way made known to the agent or legally recognized decision-maker.  If the patient’s wishes are not known, the agent or legally recognized decision-maker is directed to make health care decisions in accordance with what the agent or legally recognized decision-maker determines to be in the best interest of the patient.  In determining the best interest of the patient, the agent or legally recognized decision-maker shall consider the personal values of the patient. If a decision-maker does not appear to be acting in the patient’s best interest, refer to Probate Code 4734-4736.

    • The agent’s authority is effective only when it has been determined and documented by the CME, or designee, that the patient lacks health care decision-making capacity and ends if determination is made that the patient has regained health care decision-making capacity, unless otherwise indicated in a power of attorney for health care.

  • Part 2: Instructions for Health Care

    • This section provides an opportunity for the patient to give instructions for future health care.  The patient may provide specific health care instructions using additional sheets if necessary.

    • An advance directive shall only be applicable if a patient is unable to communicate their preferences at the time of treatment, unless otherwise indicated by the patient.

  • Part 3: Donation of Organs at Death

    • A patient may choose to donate organs or other tissues. If a patient chooses to donate, they may specify that it can be any organ, tissue, or part or may specify only certain organs, tissues, or parts.

    • If a patient chooses to donate, they can decide if the donated organs, tissues, or parts may be used for transplant, therapy, research, or education.

  • Part 4: Patient Signature and Witnesses

    • The patient’s signature is required, along with the date the CDCR 7421 was completed.  If the patient is physically unable to sign the CDCR 7421, another adult may sign for them at the patient’s direction.

    • The advance directive can be witnessed in one of two ways:

      • Two witnesses may sign the document; or

      • A Notary Public may notarize the document.  As there is limited availability of notary services within the institutions, CCHCS approves the use of two witnesses to facilitate patients completing advance directives.

    • Witnesses within a CDCR institution:

      • A CCHCS health care employee may serve as a witness to the patient’s signature if they are not currently directly involved in the patient’s health care (e.g., a Licensed Vocational Nurse working as a medication nurse in another unit, building or yard or a physical therapist who visits the unit but is not treating the patient who is completing the form).

      • A CDCR or CCHCS administrative employee including, but not limited to, an Office Assistant, Office Technician, Health Program Specialist, or Health Records Technician.

      • A CDCR Custody Officer.

    • Individuals who may not serve as witnesses:

      • The patient’s current PCP or other health care staff directly involved in the patient’s care.

      • Anyone who is serving as an agent or legally recognized decision-maker.

    • When a patient is in a CDCR or outside Skilled Nursing Facility, an additional witness (patient advocate or ombudsman) in addition to the two witnesses or notary, must sign the CDCR 7421 to ensure the patient is not signing under duress.

• Evidence of an Advance Directive

  • If a patient completed an advance directive prior to entry into an institution, the valid “outside” advance directive shall be forwarded to Health Information Management (HIM) to be scanned to the document type Advance Directive.

  • When a CDCR 7421 has been completed, the original shall be forwarded to HIM to be scanned to the document type Advance Directive.  The scanned document shall be placed in the Miscellaneous Patient Care folder in the Notes tab.  The primary care team shall provide the patient one copy of the CDCR 7421 for the patient and one copy for each agent or legally recognized decision-maker (no more than four copies).

  • Providers shall note in the Problem List that a CDCR 7421 has been completed.

  • It is the patient’s responsibility to forward copies of the advance directive to notify the agent(s) or legally recognized decision-maker(s) that they may be called upon to make future health care decisions for the patient.  Health care staff shall notify the agent or legally recognized decision-maker if the agent or legally recognized decision-maker is needed to make health care decisions for the patient.

  • A copy of the CDCR 7421 shall accompany the patient when transported to an outside hospital for emergency care or admission or transfer to other health care facilities.

• Revocation or Amendment of an Advance Directive

  • Patients may amend or revoke any aspect of the CDCR 7421 at any time either orally or in writing. If the patient:

  • Wishes to amend their CDCR 7421, they shall complete a new CDCR 7421 as soon as practicable.

  • Gives verbal instructions to amend their CDCR 7421, the health care staff who received the instructions shall document them in a progress note, and a new CDCR 7421 shall be completed as soon as practicable.

• Determining Health Care Decision-Making Capacity

  • Patients are presumed to have health care decision-making capacity unless a determination has been made to the contrary.

  • Health care decision-making capacity:

    • Determinations are the responsibility of the PCP.  For patients with concerns regarding mental health, the PCP may contact a mental health clinician to complete the advance directive.

    • May vary, and the patient may have capacity for some decisions and not for others.

    • Should be evaluated in relation to the matter at hand, the patient’s ability to understand the personal impact of their choices, and the ability to reason about those choices relative to their personal values.

  • If a patient is determined to not have health care decision-making capacity for a given decision, the PCP shall document this in a progress note.

• Initiation of Non-Written Advance Directives or Orally-Designated Surrogates

  • A patient with capacity may provide oral instructions to create an advance directive.  A health care provider shall document the patient’s preferences in the EHRS and facilitate the completion of a written CDCR 7421 as soon as possible.

  • A patient with capacity may orally designate a surrogate to make health care decisions only by personally informing the supervising health care staff, or designee, of the health care facility, who shall document such designation in the EHRS. Unless the patient specifies a shorter time period, this appointment is only effective during the course of treatment, illness, stay in the health care facility, or for 60 calendar days, whichever period is shorter.

• Decision Making Priority if Patient Lacks Decision-Making Capacity

  • If a patient is determined to not have health care decision-making capacity, the following health care decision-makers can make decisions on the patient’s behalf regarding the issue(s) for which the patient lacks decision-making capacity, in the following descending order of priority.

  • The surrogate that was previously designated by the patient via process outlined in Section (e)(7)(B) above.

  • An agent previously named in an advance directive or health care power of attorney.

  • The guardian or conservator of the patient who has the authority to make physical and mental health care decisions for the patient.

• Patients Lacking Decision-Making Capacity Without a Legally Recognized Decision-Maker

  • If an exigent health care event occurs to a patient who lacks health care decision-making capacity and that patient does not have a legally recognized decision-maker, a health care provider, or designee of the institution, may choose a surrogate to make health care decisions for the patient, pursuant to Probate Code 4712.

  • Designation of a surrogate in this manner does not replace the need for a court-appointed decision-maker should the patient continue to require support with medical decision-making, in which case the primary care team shall initiate the Penal Code 2604 process no later than 60 days after the exigency.

Policy

• California Correctional Health Care Services (CCHCS) shall honor and make available to all patients the California Department of Corrections and Rehabilitation (CDCR) 7465, Physician Orders for Life Sustaining Treatment (POLST).

Purpose

• This policy accompanies the CDCR 7465 and complements the CDCR 7421, Advance Directive for Health Care.

Responsibility

• The Chief Executive Officer, or designee, of each institution is responsible for the implementation, monitoring, and evaluation of this policy and procedure.

Procedure Overview

• Physician Orders for Life Sustaining Treatment (POLST) is a legally recognized mechanism by which patients can provide specific instructions for their end-of-life care, including requests regarding resuscitation. It is appropriate to consider obtaining and/or completion of a POLST for patients that are elderly, frail, have serious medical or surgical conditions, or who have less than six months life expectancy. Key provisions of the CDCR 7465 POLST are as follows:

  • The CDCR 7465 POLST is required to be signed by a Primary Care Provider (PCP) and the individual or the individual’s surrogate. Health care staff may discuss the form with the patient and help prepare the form, but the POLST must be signed by a PCP.

  • Health care providers are required to honor the provisions of the POLST.

  • Health care providers have statutory immunity from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction to a health care provider who relies in good faith on the request and honors a POLST form that appears valid.

• California Correctional Health Care Services (CCHCS) shall ensure effective communication is achieved and documented when there is an exchange of health care information in accordance with the Health Care Department Operations Manual, Section 2.1.2, Effective Communication Documentation.

Procedure

• Completing the CDCR 7465

  • CCHCS encourages staff to promote a patient’s use of the CDCR 7465 whenever appropriate.

  • Health care staff has professional obligations to discuss end of life decision-making and goals of care, as well as patients’ right to name a legally recognized decision-maker and to specify their end of life preferences. This discussion should occur at clinically appropriate times with patients who are elderly, frail, have serious medical or surgical conditions, or who have less than six months life expectancy. The PCP is responsible for using language and communication methods that are appropriate and effective for the specific patient. It is often a good practice for PCPs to engage their patients in end of life preference discussions as soon as patients meet the criteria.

  • PCPs shall document all discussions with a patient regarding the CDCR 7465 in the health record.

  • The PCP shall be responsible for determining whether a patient has the capacity to make medical decisions. The PCP shall request a psychiatric consultation or obtain the assistance of the Chief Medical Executive (CME), or designee, when there is a question concerning a patient’s capacity to make medical decisions. Determination of diminished capacity shall be documented in the health record. If a patient lacks medical decision-making capacity, their legally recognized decision-maker shall make the decision on behalf of the patient.

  • The PCP shall seek the concurrence and consent of the legally recognized decision-maker before completing a CDCR 7465. In the event the patient is unable to communicate informed health care decisions or lacks the capacity to make health care decisions and has not designated a legally recognized decision-maker either orally or via a written Advance Directive for Health Care, the PCP, CME, or designee, and Regional Health Care Executive shall work with the CCHCS Office of Legal Affairs to identify appropriate steps to obtain legal authority for appointment of a legally recognized decision-maker.

• Distribution and Filing

  • Blank CDCR 7465 forms shall be available in all health care settings.

  • The current original unrevoked POLST is scanned to POLST document in the electronic health records. The CDCR 7465 is double-sided and both sides shall be scanned.

  • Any revoked POLST original or copy shall be lined out and marked “revoked-void” and scanned to POLST document type and noted in the Banner Bar of the health record.

  • A copy of the CDCR 7465 shall accompany the patient when transported to the hospital and when transferred to other health care facilities.

• Conflict Resolution and Special Situations

  • In the event a patient requests medical treatment contrary to generally accepted medical standards, or if the requested medical care would be medically ineffective, or for reasons of conscience, the health care provider or institution (for institutions there must be a pre-existing institutional policy) may decline to comply with the preferences of the patient or the patient’s legally recognized decision-maker. In such cases, the PCP shall discuss the case with institution and regional medical leadership and when appropriate, present the case to the CCHCS Ethics Committee for review and consultation.

  • If the patient requests “Do Not Attempt Resuscitation/Do Not Resuscitate (DNR)” status on Section A of the CDCR 7465 it is understood that every effort shall be made to relieve the patient’s suffering and maintain comfort. Specifically, a “Do Not Attempt Resuscitation/DNR” order does not imply that other therapeutic measures necessary to promote comfort will be withheld (e.g., palliative treatment for pain, dyspnea, major hemorrhage, or other medical conditions).

  • Terms such as “slow code” and “chemical code” are inappropriate and shall not be used. In the absence of a CDCR 7465 specifying “Do Not Attempt Resuscitation/DNR,” full Cardio Pulmonary Resuscitation shall be initiated for any patient experiencing cardiac and/or respiratory arrest unless otherwise indicated.

  • If there is suspicion that a patient’s cardiorespiratory arrest is not a part of a natural or expected death, then resuscitation shall be attempted despite the presence of a CDCR 7465 stating no attempt at resuscitation. This would include a patient suspected of attempted suicide or possibly suffering harm by another.

  • The PCP shall be responsible for discussing with the patient and/or legally recognized decision-maker as appropriate and documenting in the health record whether the POLST/DNR orders are to be maintained or suspended during anesthesia and surgery. This decision shall be communicated to the surgeon prior to the date of the procedure by the PCP. If the surgeon refuses to honor the patient’s wishes, a referral to another surgeon willing to do so should be generated by the PCP and the CME, or designee, should be notified. The surgical team and the patient shall determine in advance of the procedure specifically when the POLST/DNR orders are to be suspended and reinstated.

• Honoring POLST Orders Completed Outside of the Institution

  • If a patient with a completed POLST transfers to or from another CDCR institution or outside health care facility, the receiving institution/facility shall accept the sending institution’s POLST orders.

• Documenting the Code Status of a Critically Ill Patient Who Has No POLST or Advance Directive

  • Completion of a CDCR 7465 is not always possible. If DNR status is clinically indicated and in keeping with the patient’s wishes, providers may write DNR orders in the absence of a CDCR 7465.

    • For DNR orders without an accompanying CDCR 7465, a supervising physician not directly involved in the care of the patient shall document his/her concordance in the health record.

    • A DNR order written without a POLST means only that the patient is not to receive resuscitative measures in the event of a full arrest. Any other limits on medical interventions, such as “do not intubate” or “no blood products,” must be specifically ordered.