Can a Hospital Override Your Advance Directive in New Hampshire?

When a family arrives at a New Hampshire hospital with a legally executed advance directive and the medical team doesn't follow it, the reaction is usually panic. Did they do something wrong? Is the document invalid? Can the hospital just ignore their loved one's wishes?

The short answer: a hospital cannot simply disregard a valid advance directive. But there are specific, limited circumstances where a provider can decline to comply — and in every case, the law requires them to take action, not just refuse and walk away.

The Provider's Legal Obligation

Under RSA 137-J:12 and related provisions, healthcare providers in New Hampshire are legally obligated to follow a valid advance directive or the decisions of a properly designated healthcare agent. The statute grants providers comprehensive civil and criminal immunity when they act in good faith reliance on a directive — meaning they're protected for following your wishes, not for ignoring them.

If your advance directive is properly executed (signed with two qualified witnesses or a notary, under RSA 137-J:14), and your attending practitioner has certified your incapacity in writing, your healthcare agent's decisions carry the force of law.

When a Provider Can Decline

New Hampshire law recognizes one primary basis for a provider to decline: moral, ethical, or professional objection. If an attending practitioner has a genuine conscientious objection to carrying out your directive or your agent's decision — particularly around withdrawing life-sustaining treatment — they are not forced to comply personally.

But the obligation doesn't end there. The provider must:

1. Immediately inform the patient (or the patient's agent) of the objection
2. Facilitate a prompt transfer to another provider or facility that will comply

The key word is "prompt." A provider cannot use a conscientious objection to indefinitely delay or obstruct compliance. The patient's right to have their directive honored is preserved through the mandatory transfer requirement.

Situations Where the Directive Has Legal Limits

There are narrow statutory restrictions on what an agent can authorize, even with a valid advance directive:

Pregnancy limitation. Certain treatment decisions may be restricted if the patient is pregnant, depending on how the directive was drafted and the stage of pregnancy.

Food and water by mouth. An agent or surrogate cannot authorize withholding food or water that the patient can consume through normal eating and drinking. This is distinct from artificial nutrition (feeding tubes), which can be addressed in the Living Will and authorized or refused by the agent.

Comfort care floor. Healthcare providers must always provide reasonable comfort care, including pain management, hygiene, and dignity measures, regardless of what other treatments are withdrawn.

What to Do If a Hospital Refuses

If you believe a New Hampshire hospital is not following a valid advance directive:

Step 1: Confirm the document is on file. Ask the nurse or charge nurse to verify that the advance directive is in the patient's medical chart. If it was executed recently and not yet uploaded to the hospital's electronic medical records, provide a copy immediately.

Step 2: Request the attending physician. Ask the attending practitioner to explain why the directive is not being followed. If they cite a conscientious objection, request an immediate transfer to a willing provider.

Step 3: Contact the patient advocate. Every New Hampshire hospital has a patient advocate or ombudsman. They can mediate between the family and the medical team and escalate compliance issues.

Step 4: Invoke the ethics committee. For unresolved disputes, hospitals maintain ethics committees that review conflicts between patient preferences and clinical recommendations. Request a formal ethics consultation.

Step 5: Contact legal counsel. If the hospital refuses to transfer and continues to disregard a valid directive, this may constitute a violation of the patient's statutory rights. An elder law or healthcare attorney can intervene.

Prevention Is Better Than Enforcement

Most directive-related hospital conflicts stem from one of three preventable issues: the document isn't on file, the execution was flawed (wrong witnesses), or the directive is vague about the specific clinical scenario being faced.

The New Hampshire Advance Directive & Living Will Kit addresses all three — ensuring your document is properly executed, your treatment preferences are specific enough to guide clinical decisions, and your healthcare agent knows how to present the directive to medical staff.

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