Karen Okada - POA Contradicts Advance Directive

Karen Okada has been a patient at Hawaii's Queen's Medical Center since August 8, 2012.  Clinicians diagnosed her as being in a persistent vegetative state.  She has a 1998 advance directive stating that she does not want her dying "artificially prolonged."  But she also has a separate POA appointing her brother, and the brother does not want Karen's feeding tube removed.  The hospital petitioned Circuit Judge Patrick Border to order Karen's feeding tube removed in accordance with Karen's advance directive.  (Star Advertiser)



The judge said that he will probably not rule until late October.  The Hospital's attorney rightly noted that such a delay will give the surrogate exactly what he wants, since Karen may die before the court ruling.  The Hospital's attorney told the judge, "it's a fait accompli.  They've gotten whatever they need, whatever they wanted from the beginning."  This is often the result in futility disputes.  Judges typically order treatment to continue pending the outcome of the proceedings.  Since the proceedings take longer than the rest of the patient's life, the surrogates win de facto even though there is never an adjudication on the merits.



On August 15, the Queen's Ethics Committee found that "continuing to provide antibiotic treatment and nutritional supplementation is in violation of Ms. Okada's instructions . . . and such treatment should be discontinued."  I would like to look at the court papers, because I do not understand why the Hospital asked for permission from the court.  They should have just acted on the Ethics Committee determination.  Here are just four reasons:  





First, Hawaii Revised Statute § 663-1.7(b) provides: "There shall be no civil liability for "any acts done in the furtherance of the purpose for which the . . . ethics committee . . . was established."  The resolution of a surrogate-advance directive conflict is a core ethics committee function.  The Legislature determined that the HEC determination is sufficient.  The issue need not go to court.



Second,  Hawaii Revised Statute § 327E-9 provides immunity for "declining to comply with a health-care decision of a person based on a belief that the person then lacked authority."  Since the surrogate is contradicting express written instructions, the hospital has at least a "belief" that he is acting outside the scope of his authority.  They can and should just (politely) ignore him.    



Third, Hawaii Revised Statute § 327E-7(f) provides that "a health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards."  The hospital could ignore BOTH the advance directive AND the surrogate and just follow the recommended treatment plan, because any other plan would be inappropriate.



Fourth, Hawaii Revised Statute § 327E-9 provides immunity for complying with 327E-7(f).