By Erin M. Marshall , Founder and Managing Attorney| Firecrest Injury Law
Imagine that your mother has clearly documented her wishes not to receive certain life-sustaining treatments if she develops an irreversible medical condition. She has discussed those wishes with her family, appointed a health care agent, and provided her advance directive to her medical team.
But when a medical crisis occurs, the treatment she expressly refused is administered anyway.
Or imagine that a patient has designated a trusted person to make medical decisions, but hospital staff disregard that person’s authority and instead follow instructions from another family member.
These situations raise important questions about patient autonomy, informed consent, and the legal responsibilities of health care providers.
In New Mexico, advance health care directives are more than expressions of personal preference. They are recognized under state law and can carry significant legal consequences when improperly disregarded.
What Legal Protections Apply to Advance Health Care Directives in New Mexico?
New Mexico’s Uniform Health-Care Decisions Act, NMSA 1978, §§ 24-7A-1 through 24-7A-18, establishes a legal framework for health care decision-making.
The Act recognizes the ability of individuals to provide instructions about their medical care and appoint agents to make decisions when appropriate.
It also addresses the responsibilities of health care providers and institutions when responding to patient instructions and decisions made by authorized agents or surrogates.
The underlying principle is straightforward: Patients do not lose their right to make decisions about their medical treatment simply because they become unable to communicate.
When a patient has previously expressed legally recognized treatment preferences, those instructions can continue to guide care.
What Constitutes a Violation of an Advance Health Care Directive?
New Mexico’s Uniform Health-Care Decisions Act, NMSA 1978, §§ 24-7A-1 through 24-7A-18, establishes a legal framework for health care decision-making.
The Act recognizes the ability of individuals to provide instructions about their medical care and appoint agents to make decisions when appropriate.
It also addresses the responsibilities of health care providers and institutions when responding to patient instructions and decisions made by authorized agents or surrogates.
The underlying principle is straightforward: Patients do not lose their right to make decisions about their medical treatment simply because they become unable to communicate.
When a patient has previously expressed legally recognized treatment preferences, those instructions can continue to guide care.
What Constitutes a Violation of an Advance Health Care Directive?
A potential violation occurs when a health care provider fails to comply with a legally applicable patient instruction or an authorized health care decision without a lawful basis.
Examples may include:
Providing treatment a patient expressly refused
A patient may have documented a decision to decline particular interventions under specified medical circumstances.
If a provider administers those interventions despite an applicable directive, questions may arise about whether the patient’s right to refuse treatment was violated.
For example, resuscitating a patient despite a valid and applicable DNR order may raise serious legal and medical concerns.
However, whether a violation occurred depends on the actual instructions, applicable medical orders, clinical circumstances, and what the providers knew or reasonably should have known.
Disregarding the patient’s designated health care agent
A patient may appoint an agent to make health care decisions when the agent’s authority becomes effective.
If a medical team ignores an authorized agent and instead relies on someone without decision-making authority, the patient’s choices may be compromised.
Conflicts among family members can make these situations particularly difficult.
The existence of a family disagreement, however, does not automatically eliminate the legal authority of a properly designated agent.
Proceeding with treatment without legally required consent
Informed consent is a foundational principle of medical care.
When a patient lacks decision-making capacity, a legally authorized agent or surrogate may be responsible for making treatment decisions.
Proceeding with nonemergency treatment despite a valid refusal by an authorized decision-maker may raise questions about informed consent and compliance with New Mexico law.
The specific facts matter, including whether emergency exceptions or other legal requirements apply.
Can a Health Care Provider Refuse to Follow an Advance Directive?
Yes, under certain circumstances.
New Mexico law recognizes that providers are not necessarily required to provide every treatment requested by a patient or health care agent.
Under NMSA 1978, § 24-7A-7, providers may decline to comply with certain instructions or decisions, including where compliance would conflict with conscience-based objections or institutional policies expressly based on reasons of conscience, subject to statutory requirements.
Providers also are not required to furnish care that would be medically ineffective or contrary to generally accepted health care standards applicable to the provider or institution.
But the ability to decline a request is not unlimited.
The law establishes responsibilities for communicating a refusal and addressing the patient’s continuing care.
Depending on the circumstances, these responsibilities may include informing the patient or authorized decision-maker, providing appropriate continuing care, and making reasonable efforts to assist with transfer to another willing provider or institution.
A provider’s disagreement with a patient’s decision does not, by itself, mean the patient’s legally protected wishes can simply be ignored.
What Should Families Do When a Directive Is Not Being Honored?
When a patient is receiving unwanted treatment or an authorized decision-maker is being disregarded, time may be critical.
Families and health care agents should consider the following steps.
1. Clarify the patient’s wishes and legal authority
Locate the advance directive and any applicable medical orders.
Determine whether the document addresses the circumstances at issue and whether the designated agent currently has authority to make decisions.
A directive may contain specific conditions that must be met before particular instructions apply.
2. Communicate directly with the treating team
Request a discussion with the attending physician, nursing leadership, or other responsible medical professionals.
Explain the patient’s documented preferences and ask how those instructions are being incorporated into the treatment plan.
When there is a disagreement, ask the provider to identify the medical or legal reason for declining to follow the instruction.
3. Request assistance from patient advocacy or ethics resources
Hospitals may have patient advocates, risk management personnel, or ethics consultation services that can help address disagreements about treatment decisions.
An ethics consultation may be particularly useful when the disagreement involves prognosis, treatment goals, decision-making capacity, or conflicting interpretations of a patient’s wishes.
These resources do not replace legal representation, but they may help resolve an urgent conflict.
4. Document the events
Keep a clear record of what happened, including:
- The patient’s instructions and relevant advance directive provisions.
- The names of providers and other individuals involved.
- Dates and times of important conversations or treatment decisions.
- Any explanation provided for declining to follow the directive.
- Treatments administered despite an objection.
- Any resulting injury, complication, or other harm.
Preserve relevant correspondence and copies of documents provided to the medical team.
5. Obtain relevant medical records
Medical records may help establish what providers knew about the patient’s wishes, what treatment was administered, and the reasons documented for particular decisions.
Important records may include physician orders, nursing notes, consent forms, advance directives included in the chart, and communications concerning the patient’s decision-making capacity.
6. Seek legal advice when necessary
If a disagreement cannot be resolved or the patient has suffered harm, an attorney experienced in New Mexico medical negligence and patient rights may be able to evaluate the circumstances.
Legal review can be especially important when the dispute involves irreversible treatment decisions, serious injuries, or the death of a patient.
Can a Violation of an Advance Directive Lead to a Medical Malpractice Claim?
Potentially, but not every disagreement or failure to follow an advance directive constitutes actionable medical malpractice.
A legal claim depends on the circumstances, including the applicable duty, the conduct of the provider, causation, the nature of the harm, and any statutory protections or limitations.
New Mexico’s Uniform Health-Care Decisions Act addresses compliance with health care decisions and provides certain immunities for actions taken in good faith and in accordance with the Act.
Depending on the facts, a case may raise issues involving professional negligence, informed consent, unauthorized treatment, or other recognized legal theories.
For example, if a provider administers treatment that a patient validly refused, the legal analysis may involve more than whether the treatment was technically performed according to medical standards.
It may also require examining whether the treatment was authorized in the first place.
An attorney can review the medical records, applicable directives, and governing law to determine whether a viable claim exists.
How Can You Reduce the Risk That Your Advance Directive Will Be Disregarded?
The most effective advance directive is one that is clear, accessible, and understood by the people who may be called upon to implement it.
Consider these practical safeguards:
- Use clear language. Avoid vague instructions that leave important treatment preferences uncertain.
- Choose an agent who understands your wishes. Your agent should be prepared to communicate with medical professionals and advocate for your decisions.
- Discuss your preferences with your providers. Make sure your medical team understands the circumstances in which your instructions should apply.
- Include the directive in your medical records. Do not assume that every hospital or provider automatically has access to the document.
- Review your directive after major changes. Changes in health, relationships, or personal preferences may warrant revisions.
- Discuss emergency medical orders when appropriate. If you have a serious illness or specific preferences about resuscitation, ask your provider whether additional medical orders are necessary.
Most importantly, communicate with the people who may need to make decisions for you.
A document that no one knows exists may provide little practical protection during an emergency.
Patient Autonomy and the Evolution of End-of-Life Rights in New Mexico
New Mexico’s legal protections for medical decision-making exist within a broader history of debate over individual autonomy and end-of-life care.
In Morris v. Brandenburg, patients and physicians challenged the application of New Mexico’s assisted suicide statute to physician aid in dying.
The litigation raised fundamental questions about the relationship between individual liberty, medical ethics, state regulation, and decisions at the end of life.
In 2016, the New Mexico Supreme Court declined to recognize physician aid in dying as a fundamental right under the state constitution.
The Legislature subsequently enacted the Elizabeth Whitefield End-of-Life Options Act in 2021, establishing a statutory framework for medical aid in dying for qualifying terminally ill adults.
Medical aid in dying and advance health care directives involve distinct legal processes, but both are part of New Mexico’s evolving approach to patient choice.
Advance directives apply much more broadly. They can protect a patient’s treatment preferences during a medical crisis, regardless of whether the patient has a terminal illness.
The central question is not whether every patient would make the same medical decision.
It is whether the health care system respects decisions that patients are legally entitled to make.
When Medical Care Disregards Patient Rights
Families often face difficult decisions when a loved one is seriously ill or nearing the end of life.
Those decisions become even more painful when patients’ documented wishes appear to have been ignored.
At Firecrest Injury Law, we represent individuals and families in medical negligence matters involving serious injuries and failures in medical care.
Our approach recognizes that appropriate medical treatment involves more than clinical decisions. It also requires attention to informed consent, communication, and the patient’s legal rights.
If you believe a health care provider disregarded a valid advance directive or an authorized medical decision and caused harm, we can evaluate the circumstances and discuss potential legal options.
Schedule a Consultation with Firecrest Injury Law at 505-900-8183.
About the Author
Erin M. Marshall is the founder and managing attorney of Firecrest Injury Law in Albuquerque, New Mexico. Before becoming an attorney, she spent more than 20 years working in health policy, legislative advocacy, and community organizing. From 2012 to 2016, she served as New Mexico Campaign Manager for Compassion & Choices, supporting community education and organizing surrounding Morris v. Brandenburg. Her work included collaboration with plaintiffs, physicians, witnesses, and legal teams on questions of patient autonomy and end-of-life rights.
Attorney Advertising / Disclaimer: This article is provided for general educational purposes and is not a substitute for individualized medical advice or legal advice. Reading this article or contacting Firecrest Injury Law, LLC or the New Mexico Civil Rights Advocacy Group, LLC does not create an attorney-client relationship. This firm does not represent you unless we have a formal signed agreement. Civil rights claims are fact-specific and may be subject to deadlines, defenses, immunities, and other legal requirements.
