Ask the Expert: Legal and Ethical Question Regarding Refusal of CPR

Q: My parents are in an independent living home in Virginia.  I recently read a story about a nurse who refused to give CPR to a dying woman at a California independent living home. Was she legally right to refuse giving CPR and could this happen in Virginia?

A: The unfortunate story that occurred at Glenwood Gardens in California is disturbing on many levels and raises important legal and ethical questions for debate and review.

Starting with the issue of the facility type first, Glenwood Gardens and the place where your parents are staying are Independent Living facilities. Independent living facilities may consist of fully contained apartments or even stand-alone residences and are sometimes called retirement communities. Some facilities have communal dining rooms and provide housekeeping and laundry services, and while many have emergency call buttons in the apartments, typically there are no nurses or medical professionals on staff. The residents are presumed to be able to fully care for themselves.

In Virginia, Independent Living facilities are not licensed and not subject to any of the licensing regulations that apply to assisted living facilities. The facilities are therefore free to create their own policies regarding handling of emergencies.

In the Glenwood Gardens situation, there is conflicting information regarding whether the facility employee is a licensed nurse or not. If she is a licensed nurse her duties and obligations may be different than if she is not. In addition, her obligations may also depend on whether her position with the company was specifically as a nurse who was expected to render medical care to residents. Since this is an Independent Living facility it is unlikely that the course and scope of her position, even if she was a nurse, would include rendering emergency medical assistance.

Virginia, like many states, does have “Good Samaritan” laws (Code of Virginia – Section 8.01-225) to protect those who render emergency medical or nonmedical care at the scene of an emergency from civil liability resulting from any act or omission. However, these laws do not compel medical personnel to act in such situations, but simply provide encouragement to act.

This sad incident brings to light many ethical and legal issues. Choosing the best senior living situation can be tricky. Understanding the different types of facilities, their licensing, and the services provided is paramount to meeting the resident’s and family’s expectations. When choosing a facility it is important to understand the facility’s policies on emergency management. Also, before you decide on the best living situation for yourself or a loved one, make sure your Advance Medical Directives are complete and available when needed. This will ensure, in most cases, that your loved ones desires are communicated to physicians and loved ones, and that they take your preferred course of action regarding all forms of medical treatment.

An Advance Medical Directive (also called a Medical Power of Attorney or a Health Care Power of Attorney) authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. This document includes provisions that used allow you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements. Your Advance Medical Directive should also set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains. Our proprietary Four Needs Advance Medical Directive(TM) contains all of these elements plus our proprietary Long-Term Care Directive, which addresses a host of issues that might arise if you wind up needing Long-Term Care.

In order to be easily accessible when needed, your Advance Medical Directive should be registered with an electronic archive service that can immediately fax the document to any desired destination. This firm will provide such registration service to you at no charge unless you would prefer that the document not be registered. Don’t have a Advance Medical Directive or planning in place? Call The Fairfax and Fredericksburg Elder Law Firms of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.