On March 13, 2018, the Indiana Governor signed House Bill 1119 into law after it was approved by unanimous votes in the Indiana Legislature.  HB1119 makes two significant changes to Indiana law concerning end-of-life health care decisions.    

The first change relates to Indiana’s law concerning Physician Orders for Scope of Treatment (a.k.a. Indiana’s “POST” Law; Indiana Code 16-36-6, et seq.)  Indiana’s POST Law was first enacted in 2013 and was designed to create a standardized State Form (State Form 55317) for individuals to designate their end-of-life medical intervention decisions in a form that is signed by the patient’s physician and treated as a physician order.  The form provides physician orders regarding CPR-code or no code status; level of medical intervention (comfort measures, limited additional interventions, or full intervention); use of antibiotics (for comfort only or full treatment); and use of medically-administered nutrition. The comfort measures level stipulates: “Patient prefers no transfer to the hospital for life-sustaining treatment; Transfer only if comfort needs cannot be met in current location.” Use of the POST form was designed to better identify and respect a patient’s preferences for treatment at life’s end. In 2018, the Indiana Legislature updated the POST Law to allow Nurse Practitioners and Physician Assistants (NPs and PAs) to work with patients who wish to complete a POST directive.  The updated law (effective on July 1, 2018) allows NPs and PAs to sign the form in lieu of the patient’s treating physician.  The update to Indiana’s POST Law is recognition that NPs and PAs are being heavily utilized as physician extenders in today’s health care system and such providers can assist patients with taking advantage of Indiana’s POST Law. 

The second change is arguably more significant and relates to medical consent by family members or friends when a patient is incapable of providing medical consent on his or her own behalf (e.g., if the patient is unconscious, sedated, or assessed as mentally incompetent).  For several decades, Indiana statutes have specified a list of individuals that could provide medical consent under such circumstances (including a spouse, a parent, an adult child, an adult grandchild, an adult sibling, or a grandparent).  However, Indiana law was previously silent on the hierarchy of such individuals in the medical consent process.  Such a process left health care providers in untenable situations in which family members disagreed as to medical intervention issues.  Hospitals would often seek appointment of a court-appointed guardian for the incapacitated patient to sort out disagreements amongst family members.  The appointment of a guardian often caused delay and confusion during an already difficult medical situation.  However, effective July 1, 2018, health care providers can rely on a priority order of hierarchy, found under I.C. § 16-36-1-5, for issues concerning medical consent.  Generally, the hierarchy specifies the following individuals for medical consent:

1. A judicially appointed guardian;
2. A spouse;
3. An adult child;
4. A parent;
5. An adult sibling;
6. A grandparent;
7. An adult grandchild;
8. The nearest other adult relative in the next degree of kinship;
9. A friend; or
10. The individual’s religious superior.

The updated law also creates certain exceptions to the hierarchy for spouses who are legally separated, and prohibits individuals from providing consent if they are subject to a protective order or the subject of a pending criminal charge in which the incapacitated patient is the alleged victim.  

The changes to Indiana’s medical consent laws and end-of-life POST directives are beneficial to both patients and health care providers.  By allowing PAs and NPs to assist patients with POST directives, patients faced with a terminal disease or other serious illness will have easier access to POST directives.  The new hierarchy for medical consent provides patients and providers clear guidelines for medical consent issues.  If patients have concerns about the hierarchy established under the updated law, such individuals are free to create an advanced healthcare directive (a.k.a. “living will”) with an alternative hierarchy that would supersede the generic hierarchy established under the new law.  Indiana’s updated law does not prohibit or overrule advanced healthcare directives – in fact, it encourages such arrangements.  As Indiana’s updated law is implemented in the coming months, health care providers and patients will benefit from the clarity provided by the updated law. 

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Posted July 03, 2018 by Courtney David Mills