West Virginia Code of State Rules › Agency 64 - Health › Title 64 - LEGISLATIVE RULE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES › Series 64-101 - Use of the E-Directives Registry by Emergency Medical Services › Section 64-101-3 - Background

Current through Register Vol. XLI, No. 28, July 12, 2024
West Virginia Health Care Decisions Act.
The West Virginia Health Care Decisions Act ("the Health Care
				  Decisions Act") (
W.Va. Code
§§ 16-30-1
et.
				  seq.),
is intended to ensure that a patient's right to
				  self-determination in health care decisions be communicated and protected; and
				  to set forth a process for private health care decision making for
				  incapacitated adults, including the use of advance directives, which reduces
				  the need for judicial involvement and defines the circumstances under which
				  immunity will be available for health care providers and surrogate decision
				  makers who make health care decisions.
W. Va. Code
§
				  16-30-2. In enacting the Health Care Decisions Act, the Legislature sought to
				  establish an effective method for private health care decision making for
				  incapacitated adults, and to provide that the courts should not be the usual
				  venue for making decisions.
Id.
Physicians, licensed health care professionals, health care
				  facilities or their employee may not be subject to criminal or civil liability
				  for good-faith compliance with or reliance upon the directions of the medical
				  power of attorney representative in accordance with the Health Care Decisions
				  Act.
W. Va. Code
§ 16-30-10. Additionally, a health care
				  provider, health care facility or employee may not be subject to criminal or
				  civil liability for good-faith compliance with or reliance upon the orders in a
				  POST form.
Id.
If a person with an order to withhold or withdraw
				  life-prolonging intervention is transferred from one health care facility to
				  another, the existence of the order must be communicated to the receiving
				  facility prior to the transfer and the written order shall accompany the person
				  to the receiving facility and remain effective until a physician at the
				  receiving facility issues admission orders.
W.Va. Code
§
				  16-30-13.
When a person with a POST form is transferred from one health
				  care facility to another, the health care facility initiating the transfer must
				  communicate the existence of the POST form to the receiving facility prior to
				  the transfer.
Id.
The POST form must accompany the person to
				  the receiving facility and will remain in effect.
Id.
Do Not Resuscitate Act
The Do Not Resuscitate Act ("the DNR Act")
(W. Va.
				  Code
§§ 16-30C-1
et. seq.),
was enacted by
				  the Legislature to protect the right of a person to self-determination relating
				  to CPR. The intent of the Act is to give direction to emergency medical
				  services personnel and other health care providers in regard to the performance
				  of CPR.
The DNR Act provides that every person "shall be presumed to
				  consent to the administration of CPR in the event of cardiac or respiratory
				  arrest", unless a health care provider has actual knowledge of a DNR order or a
				  completed POST form.
W. Va. Code
§ 16-30C-5. "Actual
				  knowledge" means the possession of information of the person's wishes
				  communicated to the health care provider
orally or in writing
by the person, the person's medical power of attorney representative, the
				  person's health care surrogate or other individuals resulting in the health
				  care provider's personal cognizance of these wishes.
W. Va.
				  Code
§ 16-30-3(a).
(italics added).
When presented with a DNR order or POST form, emergency
				  medical services personnel must comply with the contents of the order or form.
W. Va. Code
§ 16-30C-7. The DNR Act also provides for the
				  revocation of a previous request for or consent to a DNR order when the person
				  makes a written, oral or other act of communication to a physician or other
				  professional staff of the health care facility, or destroys the order or POST
				  form and removes any do not resuscitate identification.
W.Va.
				  Code
§ 16-30C-8(a) & (b).
A health care provider is not subject to criminal prosecution
				  or civil liability for carrying out, in good faith, a do-not-resuscitate order
				  or for actions taken in compliance with the standards and procedures contained
				  in the Act.
W. Va. Code
§ 16-30C-9(a). Additionally, a
				  health care provider who witnesses a cardiac or respiratory arrest may not be
				  subject to criminal prosecution or civil liability for providing CPR to a
				  person for whom a DNR order has been issued, provided that the health care
				  provider is:
(1) Reasonably and in
				good faith unaware of the issuance of a DNR order; or
(2) Reasonably and in good faith believed
				that consent to the DNR order had been revoked or canceled.
W. Va.
				Code
§ 16-30C-9(b).
The e-Directive Registry
The e-Directive Registry is an electronic registry of advance
				  directives and medical orders established and maintained by the West Virginia
				  Center for End-of-Life Care (WVCEOLC) through the West Virginia Health
				  Information Network (WVHIN). With the permission of patients or their legal
				  agents, the electronic registry stores and makes available to treating health
				  care providers advance directive forms, do-not-resuscitate cards, and POST
				  forms, submitted to the registry.
The e-Directive Registry is a password-protected, Health
				  Insurance Portability and Accountability Act (HIP AA) compliant on-line
				  registry that makes accurate, relevant information about patients' advance
				  directives and medical orders available in a medical crisis. It is accessible
				  24 hours a day, 7 days a week to health care providers, and ensures that
				  patients' wishes will be respected throughout the continuum of health care
				  settings.
Applicability of e-Directive Registry to the DNR
				  Act
Neither the Health Care Decisions Act nor the DNR Act include
				  a reference to the e-Directive Registry nor do they appear to contemplate an
				  on-line database of advance directives and medical orders that is accessible by
				  emergency medical services personnel while responding to an emergency medical
				  services incident. Thus, there is a concern that the lack of an explicit
				  acknowledgement in either Act, that information ascertained from documents
				  stored on the e-Directive Registry and then communicated to emergency medical
				  services personnel during online medical direction, constitutes actual
				  knowledge of a DNR order or an order regarding level of medical intervention on
				  a completed POST form.
Because there is a presumption that a person consents to the
				  administration of CPR in the event of cardiac or respiratory arrest unless a
				  health care provider has actual knowledge of a DNR order or a completed POST
				  form, emergency medical services personnel have a duty to perform CPR unless he
				  or she is in possession of information that results in the emergency medical
				  services personnel's personal cognizance of the person's wishes regarding the
				  patient's desire to be resuscitated and for level of medical intervention. As
				  noted above, the definition of "actual knowledge" provides that a person's
				  wishes regarding their desire to be resuscitated be communicated to the health
				  care provider "orally or in writing." Consequently, it is unclear as to whether
				  storage on the e-Directive Registry of a DNR order or a completed POST form,
				  which is accessed by the Medical Command Center and orally communicated to
				  emergency medical service personnel, constitutes "actual knowledge" for the
				  purposes of the Health Care Decisions Act or the DNR Act.