Guest speaker Thaddeus Mason Pope discussed how COVID-19 has spurred a renewed focus on protecting patient rights and tackling bigger perennial issues at the intersection of technology and healthcare decision-making. He argued that technological innovation in healthcare communication and decision making is a conspicuous silver lining of the COVID-19 pandemic. Professor Pope considered how COVID-19 has altered the way in which clinicians communicate with patients and how patients make and record healthcare decisions. As a result of many COVID-19 patients losing decision-making capacity, there is a renewed interest in advance care planning. To accommodate this demand and facilitate legal formalities during a time of social distancing, many jurisdictions now permit remote witnessing and remote notarisation. Growing numbers of individuals are supplementing these written documents with video instructions. Beyond advance directives, clinicians are using visually sophisticated decision aids to assure that patients understand the risks, benefits, and alternatives to proposed treatment. Professor Pope questioned whether lawmakers would permit these changes to persist after the pandemic. However, he ultimately concluded that technological tools help increase value-concordant care. “They help assure that patients get the treatment they want and avoid the treatment they do not want. But we need legal reform to guarantee implementation of these innovations after the pandemic ends” Video - https://www.youtube.com/watch?v=qJctSfjtpk4&feature=emb_logo

1. Patient Rights and Healthcare
Decision Making after COVID-19
Transformations & Future Directions
Thaddeus Mason Pope, JD, PhD, HEC-C
QUT Global Law, Science and Technology
Seminar Series (November 20, 2020)

2. Thank you

5. • Delight QUT logo

6. Introduction

8. with coronavirus

11. “We are at war”

14. W.A. Premier
Mark
McGowan

15. PM Scott Morrison

17. Conveys sense
of urgency
Turns an issue into the issue

18. Build on this
metaphor

21. In what ways has
COVID-19 changed how
clinicians communicate
with patients?

22. Ways it changed how
patients make & record
healthcare decisions?

23. Will these changes
persist after
the pandemic

24. Roadmap

26. World War II
innovation

27. COVID-19
innovation

28. ACP
PDA

29. Making it
permanent

30. World War II

33. War drives
technological
innovation

37. Penicillin

38. • Pait with still today quantas

39. Pressurized cabin

40. • Pait with still today quantas

41. • Microwave
• Duck tape
cavity magnetron

44. Bletchley Park

45. world’s first programmable digital electronic computer

51. “necessity is
the mother
of invention”

53. WWII innovations
still used today

54. COVID-19

55. Same
true?

56. Innovations?
Will they persist?

61. Telehealth

63. • Pic on growth what it is
• Not just temporary

65. Plan use
after
pandemic

66. Telehealth

68. Tools for medical
decision-making

69. COVID-motivated
innovations

70. Persist after
pandemic

71. Value
discordant
healthcare

72. 1. Get treatment that
do not want
2. Don’t get treatment
that do want
or

73. Overtreatment
Undertreatment

74. Happens to patients
with decision-
making capacity

75. Happens more
with incapacitated
patients

76. Cannot tell us
what they want
and do not want

78. Key tool to mitigate
value discordant
treatment for
incapacitated patients

79. Advance
directive

81. Advance
Directives

82. Before
COVID-19

88. 99497
99498

89. Systematic review
of 150 studies
800,000 people

97. “Don’t forget,
you’re going
to die.”

100. Media death

102. Since
COVID-19

103. Advance directive
completion

115. 1000%

117. Not just
more ADs

118. COVID
specific

123. Innovation

127. Who can witness
How can witness

130. “None of the following
persons may act as a
witness ... the patient’s
health care provider …”
Cal. Prob. Code 4674

131. ratinale

136. • VA flex

137. “remove … bar on …
employees serving as
witness … unnecessary
burden to completion of
advance directives”

138. Flexibility
Not only who
But also how

153. More flexible
Who can witness
How can witness

160. Temporary
Permanent

162. th

163. Video AD

170. Validity
Meaning

171. Validity

172. Someone claims
patient lacked capacity
to complete the AD

173. 2020

174. Arline Lester
91-yo

175. Kyle

176. Wants mother removed
from life-sustaining
treatment per her 1991
advance directive

178. Says mother executed
a new advance directive
on Nov. 13, 2019 and
wants to live

179. Later in time
ADs revoke
earlier ADs

180. But … is the
newer AD
valid?

181. Did Arline have
capacity to
complete?

182. video
helped

184. Sumner
Redstone
92yo

186. September 3
AD names agent
“companion”

187. Manuela
Herzer

188. October 16
AD names
new agent

190. No capacity
to execute
new AD

193. Validity requires not
only capacity but also
voluntariness

194. Someone claims
patient coerced
to sign AD

196. Videos
help prove
AD validity

197. Capacity
Voluntariness

198. Meaning

199. What did the
patient want?

200. Did she want it
under these
circumstances?

201. Will case
J Patient Saf 2017;13: 51–

205. Temporary
New normal

207. Patient  clinician
AD
Video AD

208. Clinician  patient

209. Patient
Decision
Aids

210. What are
PDAs?

211. Evidence based
educational tools

213. Before
encounter

215. During
encounter

216. • Pic of option grid

217. Present options
clearly &
graphically

220. 220
Medical
care

233. 233
Not only for
medical care

234. 234
Where
to live

237. Do PDAs
work?

239. Robust evidence
shows PDAs are
highly effective

240. 130
RCTs

241. 30,000 patients
50 conditions

244. big
benefits

245. Improved
knowledge

246. More accurate
expectations
more accurate perception of risks

247. More value
congruent
choice

248. Higher
patient
satisfaction

249. Less
decisional
conflict

250. Less
patient
anxiety

251. 251
Great
evidence

252. What’s the
problem?

253. Few clinicians use PDAs

255. Australia
Canada
Denmark
Germany
Netherlands
Norway
Taiwan
UK
USA

256. “More work has been
done on SDM in
the US than in any
other country.”

258. “not incorporated
in mainstream care”

259. Been trying tools
Now covid shows
New normal

261. Temporary
Permanent

262. Conclusion

263. How has COVID-19
changed how patients
make & record
healthcare decisions?

264. Advance directives
Allow clinician witness
Allow remote witness
Allow remote notary
More videotaped

265. How has COVID-19
changed how
clinicians communicate
with patients?

266. More use
of PDAs

267. Value
concordant
care

268. Just as WWII innovations
persisted after that war,
we must assure these
innovations persist after
the pandemic

269. 269
Thaddeus Mason Pope, JD, PhD, HEC-C
Mitchell Hamline School of Law
875 Summit Avenue
Saint Paul, Minnesota 55105
T 651-695-7661
C 310-270-3618
E Thaddeus.Pope@mitchellhamline.edu
W www.thaddeuspope.com
B medicalfutility.blogspot.com