Indiana Makes Significant Changes
to End of Life Health Care Decisions
and Medical Consent Laws
Originally Published July 2018
By: Courtney David Mills, RBE Attorney
O
n 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
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Riley Bennett Egloff LLP - October 2018
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.
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.
2.
3.
4.
5.
6.
7.
8.
A judicially appointed guardian;
A spouse;
An adult child;
A parent;
An adult sibling;
A grandparent;
An adult grandchild;
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.
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
RBELAW.com
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