legal issues with advance directives

Health-Gen. Code Ann. EDITOR—Diggory and Judd highlight inconsistencies in understanding of the legal issues around advance directives and suggest that national guidelines would encourage trusts to develop local policies to improve understanding and compliance with the law.1 Enquiries to the BMA from doctors and lawyers show similar confusion about the legally binding nature of advance directives. Even unwitnessed documents are valid under the Uniform Act. The current legal position from which an advance directive operates is clarified. Charles P. Sabatino, National Advance Directives: One Attempt to Scale the Barriers, 1 NAELA Journal 131-164 (Spring 2005). Minneapolis MN 55401-1780 . Your directives outline your end-of-life wishes and include a healthcare power of attorney and a living will. There are two basic kinds of advance directives: living wills and health care powers of attorney. §20-17-214 (West 2007); Fla. Stat Ann. Code 1972, §§41-41-201 to 41-41-229 (West 2007); N.M. Stat. Colo. Rev. Code §2507 (West 2007); Haw. Stat. 70 N.J. 10, 355 A.2d 647, 663 (N.J. 1976) (based on federal and state constitutional right of privacy); see also, e.g., In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990); Rasmussen v. Fleming, 741 P.2d 674, 681-82 (Ariz. 1987); Bartling v. Superior Court, 209 Cal. These documents allow a person to give instructions about future medical care if an individual is unable to participate in medical decisions because of . Ann. No evaluative literature on how these notices function could be found. 42 U.S.C.A. See, e.g. Intensive care unit (ICU) use is a key pathway linking ACP with reduced medical expenditures ( Khandelwal et al., 2015 ). Ethics 55-56 (Spring 1994). Rather, the documents known as advance directives should be seen as a set of tools useful in the ongoing process of advance care planning.80. Code Ann. Rev. The majority of existing family consent laws provide a fixed hierarchy under which family members are authorized to act -- usually starting with one's spouse and then next-of-kin, proceeding through some degree of kinship. Rev. Charles P. Sabatino, supra note 88, at 153. §145B.17 [LW]; Mich. Comp. The majority of these patients are encountered in hospitals or nursing homes, and frequently have multiple chronic conditions that may require difficult decisions regarding major medical or life-sustaining treatments. Code Ann. §§765.101(1) and 765.101(11)(a) (West 2007); La. In addition, the report notes that some hospitals and nursing homes are beginning to develop innovative and patient-centered systems to address the needs of unbefriended patients. Federal law generally defers to state substantive law in this area, including the selection and authority of chosen and default surrogates. To address these ethical and legal issues arising from advance directives there is a need to educate the general population about the legal requirements and rights of the patient to accept or refuse a recommended treatment and advance directive. In their most comprehensive form, mental health advance directives allow individuals to bind themselves to psychiatric treatment in advance of needing it for the purpose of overcoming illness-induced refusals of treatment (sometimes called “Ulysses clauses”). Ann. Advance directives are legal documents that allow you to convey your decisions about end-of-life care ahead of time. National Conference of Commissioners on Uniform State Laws (NCCUSL), The Uniform Health Care Decisions Act (1993), http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uhcda.asp (accessed November 13, 2007). An official website of the United States government. It was concerns such as these that resulted in a legal model of advance care planning that focused on conventional legal formalities or procedural protections intended to protect vulnerable populations from harm, specifically the premature termination of life due to lack of understanding, or diminished capacity of, or undue influence upon, the signor of the living will. While focusing largely on philosophical issues the book devotes substantial attention to legal and policy questions and includes case studies throughout. §19a-576(b) & (c) (West 2007); 16 Del. §44-66-10 to -80 (2006); S.D. Rev. See http://www.abanet.org/aging, (accessed November 13, 2007). §144A.7 (West 2007); Ky. Rev. §40:1299.58.5 (West 2007); Mont. Examples have typically involved Jehovah's Witnesses blood transfusion cases.14, A right of privacy based primarily on the Due Process Clauses of the Fourteenth Amendment and on state constitutions. Stat. 40:1299.58.3(3) (West 2007); 18-A Me. Summary of the report from the Legal Services Corporation Office of Compliance and Enforcement . Then, Section V turns to a description of a possible next step in evolution, represented by the POLST paradigm. The office is open Monday through Friday from 8:30 a.m. to 5:00 p.m. to contact the Office of Legal Affairs, call extension (718) 670-5991. Ann. A recent review of these limitations on surrogate decision making conducted by the ABA Commission on Law and Aging identified the following limitations occurring in varying frequency:77. ABA Commission on Law and Aging, Health Decisions Legislative Update, 2002 (unpublished legislative tracking report); also cited in Means to a Better End: A Report on Dying in America Today 70 (November 2002) http://www.rwjf.org/files/publications/other/meansbetterend.pdf (accessed November 13, 2007). Advance care directives differ between . These laws vary significantly in their scope of authority and other limitations, which will be discussed in Section VI below. §58-632 (2006); Ky. Rev. Each volume in the series presents an explanation of a specific legal issue in simple, clearly written text, making the Almanac a concise and perfect desktop reference tool. All volumes provide state-by-state coverage. An Advance Care Directive (Directive) is a legal document that a person with decision-making capacity makes about future health care decisions. It might involve talking to people who are important to you, such as a partner, your family or doctor. This review starts with a brief synopsis of the common law and constitutional underpinnings of advance directive policy in Section II. N.Y. Pub. Ann. Depending on where you live, a form may need to be signed by a witness or notarized. Stat. §166.163 (Vernon 2007). §§130A-465 to -471 (West 2007); Vt. Stat. A number of states require that the directive expressly address certain matters, such as nutrition and hydration, with specificity if it is the individual’s intent to authorize their withdrawal. Cent. §13.52.030 (West 2007); Ariz. Rev. This book will focus upon decisions to withhold or withdraw life-supporting treatment from incompetent patients. §449.830 (West 2007); N.H. Rev. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. §36-3231 (West 2007); Ark. Additional literature is summarized at http://www.polst.org (accessed November 14, 2007). Another way to understand the POLST paradigm is to compare it to out-of-hospital DNR orders. Ann. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Limited Scope of Authority. These three states chose to adopt only health care power of attorney legislation, but their laws also permit the maker to include any wishes, guidance, or other directions. Ann. Documentation of discussions is important, but should not be so complicated as to discourage the discussions themselves…Patients should be able to designate health care proxies through oral statements to physicians.86. §§327E-1 to 327E-16 (2007); 18-A Me. An advance directive is a legal document through which you provide your directions or wishes as to your medical care should you become unable to make or communicate your decisions about your medical treatment. Guardianship has not been seen as an effective solution for these situations in general unless there is a dispute or special concern that merits such review. Ann §1299.58.10(C) (West 2007) [LW]; Md. Advance directives are especially useful in medical emergency situations or near the end of a person's life. It does not create or change any substantive right to health care decision making. Stat. POLST paradigms can be implemented statewide and/or locally depending upon legal and clinical receptivity. Code §23-12-13 (2007); Wash. Rev. complete an advance directive. Another instructive measure of simplification is a trend toward the statutory recognition of oral advance directives documented in the patient’s record. For example, Florida law defines "Close personal friend" as “any person 18 years of age or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the attending or treating physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient's health care; and has maintained such regular contact with the patient so as to be familiar with the patient's activities, health, and religious or moral beliefs.” Fla. Stat Ann. These legal documents act as a living will that provides instructions regarding who should oversee your medical treatment. tit. §§41-41-203(s), -211, & -215(9); Mont. The privacy rule can be found at 45 CFR Parts 160 and 164, and extensive explanatory information about the rule is available at http://www.hhs.gov/ocr/hipaa. While no significant patterns of abuse have been identified in the research literature, the fact that these decisions do indeed involve life and death consequences, the protection of vulnerable persons will remain a challenge. Stat. The primary congressional foray into this subject is the Patient Self-Determination Act, enacted as part of the Omnibus Budget Reconciliation Act (OBRA) of 1990.60 The Act was a fairly modest amendment to federal Medicare and Medicaid law, but it was hoped that it would have an effect on the way most adults make and plan for health care decisions. Some were included in informed consent statutes enacted in the 1960s and 1970s.48 These laws provided for family consent to treatment primarily as a way to ensure access to care. tit. Code §16-36-4-9 (West 2007); Minn. Stat. Caring Connections, a program of the National Hospice and Palliative Care Organization, is a national initiative to improve end-of-life care. §22-8A-4(h) (2007); Kan. Stat. Med. Recommendations for possible avenues of federal action are included in a separate document. In the event of being unable to speak for yourself, it outlines your end-of-life wishes and include a Healthcare Power of Attorney and a Living Will. §40/1 to 40/25 (West 2007); Iowa Code Ann. Stat. See e.g., Ala. Code 1975 §22-8A-11 and -6 (2007); Ky. Rev. However, states that have adopted the Uniform Act have almost always added more to the Act’s baseline requirements.59 Indeed, all states that have adopted it have added at least a witnessing requirement. Rev. Apart from legislative changes, one aspect of advance directive practice deserves notice. Stat. Code Ann. Ann. Ann. Ann. §§765.101(1) and 765.101(11)(a) (West 2007); Haw. Minnesota Disability Law Center . §127.635(3) (West 2007). Codified Laws §34-12C-1 to -8 (2007); Wash. Rev. Thus, the common law power had no utility as a planning tool for incapacity. The number of living will laws snowballed during the next ten years, so that by the end of 1986, 41 states had adopted living will laws.32 But it was not long before the shortcomings of living wills became apparent to policy makers, especially with respect to the narrow range of decisions it applied to. of Law & Social Change, 309-339 (1991-92). Ann. See, Naomi Karp & Erica Wood, Incapacitated and Alone: Health Care Decision-Making for the Unbefriended Elderly (ABA July 2003). Ann. Given information about their circumstances and their capacity to withstand medical interventions, patients, together with their physicians, need to formulate broad goals for medical care.” Muriel R. Gillick, A Broader Role for Advance Medical Planning, 123 Ann. Stat. Stat. §7.70.065 (West 2007). Advance Planning for Health Care Decisions. Ann. Ann. Found inside – Page 78... their treatment decisions made through an advance directive Provision of education for staff members and the community on ethical and legal issues concerning advance directives From the Omnibus Budget Reconciliation Act of 1990, ... Advanced Care Planning. §5421 & 5423 (West 2007) [combined act]; R.I. Gen. Laws §23-4.11-10(e) (2007) [LW] and §23-4.10-9(e) [DPA]; S.D. Code Ann. §13.52.030 (West 2007); Ariz. Rev. Code §4675(a) (West 2007); Conn. Gen. Stat. Then, Section V turns to a description of a possible next step in evolution, represented by the Physician Orders for Life Sustaining Treatment (POLST) paradigm. New to this Edition: • Professional boundaries and use of social media • Quality and safety initiatives in nursing practice, including Quality and Safety Education for Nurses (QSEN) concepts and content, Institute of Medicine (IOM) ... Because this is a legal tool that will often be signed and used without the advice of legal counsel, detailed standardized formalities are relied upon to ensure the voluntary, knowing, and competent execution of the transaction -- the same elements central to informed consent. Several U.S. Supreme Court cases identify a constitutional right of privacy,15 although none, not even the decision in Supreme Court’s Cruzan decision, discussed below, has extended the right of privacy to include refusals of life-sustaining treatment. §449.626 (West 2007); Ohio Rev. Code Ann. However, the task cannot be equated with giving informed consent to a particular treatment, because making a judgment about how one wants to be treated in a future hypothetical situation is by necessity far more value driven and far less fact driven than making a contemporaneous choice about a health care treatment for a condition about which the person has been fully informed.64 Therefore the focus of the voluntary, knowing, and competent act is on the transaction that creates the advance directive.65 Finally, another goal of standardization of forms is the enhancement of their recognition and compliance by health care providers. Ann. Care 378-384, at 380 (2006); The President’s Council on Bioethics, Taking Care: Ethical Caregiving in Our Aging Society at 214-216 (September 2005) at http://www.bioethics.gov/reports/taking_care/index.html (accessed November 13, 2007); James A. Tulsky, Beyond Advance Directives: Importance of Communication Skills at the End of Life, 294 JAMA 359-365 (July 20, 2005); Bernard Lo & Robert Steinbrook, Resuscitating Advance Directives, 164 Arch. While state advance directive law is far from the model advocated by Lo and Steinbrook, the growing prominence of a communications approach is reflected in incremental but real steps toward simplification of state law, especially with respect to mandatory forms or language. An official website of the United States government. See also PSDA regulations at 42 CFR Parts 417, 430, 431, 434, 483, 484, and 489. Fla. Stat Ann. A good starting point in understanding this landscape is a realization that law and regulation are but one slice of the universe of variables that profoundly affect the experience of dying in America. And with the expansion of electronic medial records, the need for a separate electronic registry may diminish. of Trustees in 1957 (a battery case),8 and Natanson v. Kline in 1960 (a malpractice case).9 Through the 1960s and beyond, informed consent criteria became the subject of a great deal of state legislation and litigation.10 Today, the failure to obtain informed consent is typically an issue of negligence in medical malpractice claims, rather than of battery. Code Ann. Ann. However, Congress has taken action to mandate the availability of certain information and education under the 1990 Patient Self-Determination Act, described above; and to regulate access to health care information by others under HIPAA, as noted. Code §16-36-1-1 to -14 (West 2007); Mich. Comp. Source: Arizona Department of State Description: The Arizona Advance Directive Registry is a place to electronically store a copy of your advance directive so it will be available where and when it is needed 24/7.Access to our central database via computer helps expedite patient's health requests. The Order of Priority of Surrogates. Rev. This book replaces the successful Controversies in Health Law. MINNESOTA ADVANCE PSYCHIATRIC . At least eight private entities store advance directives, either as a stand-alone service or within a range of other services and products: Nine states have created their own advance directive registries, starting with Louisiana in 1991 and California in 1999, followed by North Carolina (2002), Arizona (2004), Montana and Vermont (2005) and Maryland, Idaho and Washington (2006).105 In addition, the Nevada legislature passed an advance directive registry bill in its 2007 legislative session.106 All are delegated to state agencies and all are or will be accessible online.107. Information on POLST developments in all the states is available at http://www.polst.org. I would like to advance some central ethical observations on the matter. 197-203 (February 1999); John M. Roe et al., Durable Power of Attorney for Health Care: A Survey of Senior Center Participants, Archives of Internal Medicine 152 (1992): 292-96. Code Ann. 18, §5276 (West 2007); Wis. Stat. Two, the patient’s wishes are incorporated into doctor’s orders that are recorded on a unique, visible (bright pink in Oregon) POLST form that serves as a cover sheet to the medical record and is reviewed periodically and as needed. ch. Wisconsin laws recognize two forms of advance directives - the living will and the health care power of attorney. This apparently includes developing or approving national educational materials, assisting states in developing state-specific documents, and mailing information to Social Security recipients. Code §23-06.4-03, §23.06.5-10(2) & (3) (2007); Vt. Stat. Ark. Ann. The protocols, in effect, created a kind of hybrid special advance directive and portable doctor’s order. Thus, the isolation of law and regulation as a strategy for behavior change requires a sense of humility in establishing expectations, lest we overstate the influence of law in the human experience of dying. J. Palliat. In most states, these are provided as optional models, but they may sometimes be seen as the only safe option to use. Rev. §§41-41-215(9) (West 2007). This wave of legislation took place roughly from the mid-1980s to the mid-1990s, with California again leading the pack with its 1983 law.38 By the end of 1988, only 12 states had such statutes, but by mid-1993, the District of Columbia and every state, except Alabama, had enacted some version of a statutory health care power of care statute.39 Alabama followed course in 1997.40, A third wave of legislation began in the early 1990s, triggered by a growing awareness of unwanted resuscitations of terminally ill patients living at home or in hospice, occurring when the expected medical crisis arises and someone on the scene calls 911. He may have become the victim of a sudden accident or a stroke or coronary. Many regard "pulling the plug" as an act akin to euthanasia, which is forbidden by both law and the medical code.31. Stat. The man had written an advance directive four years ago, before his advancing dementia had made communication difficult. Rev. N.C. Gen. Stat. An Advance Directive helps circumvent situations in which the family members or the doctor himself are required to make end-of-life medical decisions on behalf of the patient, which decisions may be conflicting with the views or the beliefs of the patient. The document indicating such consent may be referred to as “a living will,” “a declaration determining the termination of life,” “testament permitting death,” “declaration for bodily autonomy,” “declaration for ending treatment,” “body trust,” or other similar reference.28. The primary model for a flexible combined advance directive and default surrogate law has been the Uniform Health-Care Decisions Act.58 The Uniform Act was promulgated as a national model by the National Conference of Commissioners on Uniform State Laws in 1993, and recognized by the ABA in 1994. With respect to the latter issue, a 2005 legislative study on the need for a state registry by the State Advisory Council on Quality Care at the End of Life concluded: Before deciding whether it is worthwhile to create an advance directive registry, especially given the substantial start-up and ongoing costs, the Maryland General Assembly should consider the likelihood that there will be national or statewide use of electronic medical records in the near future. §700.5507 (West 2007); N.D. Westchester County Med. Advance directives are legal documents that let health providers know your choice on end of life care. Ann. Rev. The result, as elaborated below, is a landscape that has predominantly emphasized standardized legal formalities and restrictions, with procedural requirements or limitations intended to serve as protections against abuse or error. Finally, the Act required the U.S. Department of Health and Human Services (HHS) to undertake a public education campaign. For more information, see http://www.agingwithdignity.org (accessed on November 13, 2007). Following an examination of the legal issues surrounding Advance Directives, complemented with a critical analysis of several legal systems in which Advance Directives are applied, recommendations have been put 4 forward in favour of concrete actions towards achieving legal certainty, by legislating upon Advance Directives as part of the . It might involve talking to people who are important to you, such as a partner, your family or doctor. Cent. The Act provides a comprehensive, sample form with options for instructions, appointment of an agent, organ donation, an option to name a primary physician, and it recognizes default surrogates in the absence of an advance directive. There are two main types of advance directives: the living will and healthcare power of attorney. 18, §5271(b) & (c) (West 2007). Handling of Disagreements. Stat. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The President’s Commission favored their use for health care decision making in their 1983 report, but the Commission also voiced a common concern for the potential of abuse inherent in these statutes: These statutes do not have rigorous procedures because they were enacted primarily to avoid the expense of full guardianship or conservatorship proceedings when dealing with small property interests. Legal formalities are intended to impress upon the parties the seriousness of a transaction and the potential consequences of the transaction. §54.1-2986 (West 2007). Section III examines the incremental evolution of the relevant statutory law, followed by an analysis of a fundamental paradigm shift in public policy in Section IV. When asking about Advance Directives many will ask what is that due to they have a lack of knowledge. N.C. Gen. Stat. Specifically, 33 states with living will, durable power of attorney for health care, or combined statutes expressly include non-pre-emption language, similar to the following examples from Florida and Illinois:1, The provisions of this chapter are cumulative to the existing law regarding an individual's right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor, competent or incompetent person, or a patient's family may have under the common law, federal Constitution, state constitution, or statutes of this state.2, Nothing in this Act shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of death delaying procedures in any lawful manner. §5-805 (West 2007); Md. The Assistant Secretary for Planning and Evaluation (ASPE) is the principal advisor to the Secretary of the U.S. Department of Health and Human Services on policy development, and is responsible for major activities in policy coordination, legislation development, strategic planning, policy research, evaluation, and economic analysis. Ethics, L & Aging 87 (1995); Marshall B. Kapp, Surrogate Decision-Making for the Unbefriended: Social and Ethical Problem, Legal Solution? See e.g., Okla. Stat. Following each case study, the author applies a range of concepts introduced in the beginning of the book to the relevant case study, thus integrating theory with a case-based approach. A small but growing number of states have recognized that patient wishes, no matter how communicated, must be methodically factored into or translated into the medical decision making engine. Larson & T.A. §765.101(c) (West 2001). An advance directive is a document in which a person uses to make provisions for health care decisions in case that person becomes unable to make such decisions. Stat. Public Law 104-191 (1996). §§127.800 to 127.897 (West 2007). Stat. Each witness must state in an affidavit that: the witness is not related to the principal by blood, marriage, or adoption, either as a spouse, lineal ancestor, descendant of the parents of the principal, or spouse of any of them; not directly financially responsible for the principal's medical care; not entitled to any portion of the principal's estate upon his decease under a will of the principal then existing or as an heir by intestate succession; not a beneficiary of a life insurance policy of the principal; and not appointed as health care agent or successor health care agent in the health care power of attorney; and that no more than one witness is an employee of a health facility in which the principal is a patient, no witness is the attending physician or an employee of the attending physician, or no witness has a claim against the principal's estate upon his decease.75, Limitations on who may serve as agent or proxy. 1255 (1994). §35-22-406 (2007). Rev. §§16-30-16(a) (West 2007) [combined act]. Health-Gen. Code Ann., §5-605 (West 2007); Miss. §1, a-571 (West 2007); D.C. Code §21-2210 (2007); Ga. Code Ann. Found inside – Page 64National Academy of Elder Law Attorneys 1577 Spring Hill Road, Suite 220 Vienna, VA 22182 Phone: 703-942-5711 Website: ... www.nlrc.aoa.gov *Provides information about legal issues and legal resources National Senior Citizens Law Center ... www.mndlc.org. A decision to remove Karen's life-support system could prompt new suits by parents seeking to end the agony of incurably afflicted children, or by children seeking to shorten the suffering of aged and terminally ill parents. Ann. §765.106 [combined act]; Ga. Code Ann. Code Ann. Introduction What is an advance directive? The .gov means it’s official. In this book, Penelope Weller considers the relationship between human rights and mental health law, and the changing attitudes which have led to the recognition of a right to demand treatment internationally. §2133.08 (West 2007); Okla. Stat. Code Ann. The commonly used names for living wills are: Advance Health Care Directive One way to exercise your rights as a patient is to prepare an advance directive. Twelve states include limitations that prohibit a surrogate from consenting to medical interventions that are especially consequential or controversial, such as sterilization or abortion or psycho-surgery. §15-18.5-101 to -1033 (West 2007); Conn. Gen. Stat. [Health and Safety] Code Ann. At the same time, although it is but one piece, it is perceived as a very powerful variable in the big picture. Several additional states that lack language similar to the above are modeled upon the Uniform Health Care Decisions Act,4 which provides such broad flexibility in the recognition of any form of advance directive -- written and oral -- that non-pre-emption language is unnecessary.5 The recognition that advance directive laws create no new substantive rights and, instead, provide only elective pathways for implementing existing rights is an important threshold principle with which to begin a review of the legal landscape, for it sets these laws in their proper legal context. §449.680 (West 2007) [LW]; N.H. Rev. §311.625(1) (West 2007); Or. Several states have included family/surrogate consent within comprehensive state health decisions statutes, as explained below. 755 Ill. Comp. 170 ( Cal.App health conditions are more likely to compete unsuccessfully with other Social groups for access to surrogates... 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Information on POLST developments in all the states is available at http: //www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uhcda.asp ( accessed November 14, 289. Laws provide an answer to that question the above evolution of advance directives in some cases, a of. In Theory, one aspect of advance directives: living wills and durable power attorney., these laws neither create substantive rights nor constitute the exclusive legal authority defining our making! Policy questions and concerns regarding advance directives across state lines accessed November 13, 2007 ) ; Code... Are connecting to the law legal issues with advance directives the author situations or near the end of:. Depending on where you live, a patient may not refuse treatment can not be blithely discarded §§41-41-205 1... Tell your wishes to family, friends, and continuum of voluntariness and decisional capacity pose challenges... Patient and family health and Human Services, the hospital may offer the patient is to prepare these allow... Physicians who fail to adhere to their patients & # x27 ; re unable to for. On November 13, 2007 ) ; Vt. Stat about end-of-life care ahead of time to! You draft an advance directive C. Min, in part at 42 CFR Parts 417 430..., durable power of attorney for health care power of attorney for health decisions.

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