South Florida Hospital News
Friday May 14, 2021

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May 2007 - Volume 3 - Issue 11


Competence, Caring and Compassion and Competency, Consent and Consequences

A Registered Nurse arrives at a local hospital. She checks on her patients who are often transferred from a nearby nursing home. Some of the nursing home arrivals are competent; some are not, and sometimes, it is not clear whether they are competent or not.

In this instance, the patient is 68 years of age with dementia and end stage COPD. He is awake and alert, oriented to person and place, but it is unclear whether he is capable of consenting to medical treatment. He is in mild respiratory distress and is deteriorating. His wife has her wits about her, but understandably cannot imagine life without her husband, rather than focusing on what her husband would want under these circumstances.

The patient has a living will and specifically made it known that he did not want ventilatory support if there were no reasonable prospect of recovery. The wife insists on aggressive measures. The nurse assumes the wife can consent, not knowing that the daughter is the health care surrogate, the one who the patient knew could make a tough decision on his behalf. The patient is intubated and placed on life support. Furious, the daughter contacts an attorney to discuss potential legal action.

Chapter 765, part of Floridaís Civil Rights Act, provides patients with the right to refuse treatment and self-determination in matters of death and dying. Also known as "Advance Directives," Chapter 765 sets forth procedures with regard to end of life care and who makes treatment decisions, how decisions are made if the patient is competent or incompetent and whether there is agreement among family members and the attending physicians. In these instances, the nurse must provide competent and compassionate care and consider the patientís competence and capacity to consent, and possible consequences.

A competent patient has the right to refuse treatment. Incompetent patients, although incapacitated, retain the right to direct end of life care. Terminology is carefully defined in Chapter 765. An "incompetent" patient is deemed to be physically or mentally unable to communicate a willing and knowing health care decision. End of life decisions, then, are made on the patientís behalf by a surrogate, proxy, attorney in fact, attending physician or court appointed guardian.

A "surrogate" is any competent adult expressly designated by a patient to make health care decisions in the event of incapacity. A "proxy" is any competent adult who has not been expressly designated to make treatment decisions but is authorized to do so. Typically, a proxy is someone who knows what the patient would want under the circumstances such as a spouse, close friend or relative. An "attorney in fact," is one designated to make various decisions, medical treatment being among them. In these instances, the nurse, too, has important obligations to honor the wishes of the dying.

Next month, we will discuss nursing responsibilities, possible legal consequences and patient advocacy.

Susan Rogers is Of Counsel with the Fort Lauderdale office of the statewide law firm, Broad and Cassel. She is a member of the Commercial Litigation and Health Law Practice groups and can be reached at (954) 764-7060 or
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