An Act Improving Medical Decision-Making

Text of legislation filed by MMS for the 2015-16 session of the Massachusetts Legislature:

Section 1.

Purpose:

The Legislature hereby finds and declares that:

A. Patients have a fundamental right to make decisions relating to their medical treatment when they have decisional capacity, and a right to have medical decisions efficiently made by a surrogate decision maker when necessary.

B. Laws concerning medical decision-making for incapacitated persons lacking a valid health care proxy should maximize patient protection while also ensuring that surrogate decision makers can be appointed efficiently and consistently so as to minimize extraneous delay in medical decisions and unnecessary burdens to patients’ families and caregivers.

Section 2. Definitions

Chapter 190B of the General Laws is hereby amended by inserting in section 5-101, the following:

(1)(a)  “Available", that a person is not "unavailable". A person is unavailable if (i) the person's existence is not known, or (ii) the person has not been able to be contacted by telephone or mail, or (iii) the person lacks decisional capacity, refuses to accept the office of surrogate, or is unwilling to respond in a manner that indicates a choice among the treatment matters at issue.

(1)(b)  "Attending physician", a licensed physician in Massachusetts selected by or assigned to the patient and who has primary responsibility for treatment and care of the patient. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under this Act.

(1)(c)  "Close friend" means 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 attending physician stating that he or she (i) is a close friend of the patient, (ii) is willing and able to become involved in the patient's health care, and (iii) has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious and moral beliefs. The affidavit must also state facts and circumstances that demonstrate that familiarity.

Section 3. Surrogate Decision Making

 Chapter 190B of the General Laws is hereby amended by adding a new section 5-314 the following:-

1. Applicability- This Section applies to “incapacitated persons” as defined in section 5-101 of this chapter. This Section does not apply to instances in which the patient has an operative and unrevoked Health Care Proxy under Chapter 201D of these laws, or has an operative Medical Order for Life Sustaining Treatment (“MOLST”) form and the patient's condition falls within the coverage of the health care proxy and/or MOST form. In those instances, the health care proxy or MOLST form, as the case may be, shall be given effect according to its terms.

2. Decisions concerning medical treatment on behalf of a patient without decisional capacity are lawful, without resort to the courts or legal process, if the patient does not have a condition subject to Section 5-306A (Substituted Judgment) and if decisions are made in accordance with one of the following paragraphs in this subsection and otherwise meet the requirements of this Section:

3. Court appointed guardianship for incapacitated persons, as outlined in Section 5-301 et seq. of this chapter, is still a valid, alternative means of establishing a medical decision-maker.

4. Decisions concerning medical treatment on behalf of an incapacitated patient who lacks decisional capacity may be made in consultation with the attending physician, by surrogates in the order or priority provided in Section 5. A surrogate decision maker shall make decisions for the adult patient conforming as closely as possible to what the patient would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the patient’s personal, philosophical, religious and moral beliefs and ethical values relative to the purposes of life, sickness, medical procedures, suffering, and death. Where possible, the surrogate shall determine how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment against the burdens and benefits of treatment. In the event an unrevoked health care proxy is no longer valid due to a technical deficiency or is not applicable to the patient’s condition, that document may be used as evidence of a patient’s wishes. If the adult patient’s wishes are unknown and remain unknown after reasonable efforts to discern them or if the patient is a minor, the decision shall be made on the basis of the patient’s best interests as determined by the surrogate decision maker. In determining the patient's best interests, the surrogate shall weigh the burdens on and benefits to the patient of initiating or continuing life-sustaining treatment against the burdens and benefits of that treatment and shall take into account any other information, including the views of family and friends, that the surrogate decision maker believes the patient would have considered if able to act for herself or himself.

5. When a patient becomes an incapacitated patient, the health care provider must make a reasonable inquiry as to the availability and authority of a health care proxy. When no health care proxy is available, the health care provider must make a reasonable inquiry as to the availability of possible surrogates listed in items (1) through (4) of subsection 5. For purposes of this Section, a reasonable inquiry includes, but is not limited to, identifying a member of the patient's family or other health care agent by examining the patient's personal effects or medical records. If a family member or other health care agent is identified, an attempt to contact that person by telephone must be made within 24 hours after a determination by the provider that the patient lacks decisional capacity. No person shall be liable for civil damages or subject to professional discipline based on a claim of violating a patient's right to confidentiality as a result of making a reasonable inquiry as to the availability of a patient's family member or health care agent, except for willful or wanton misconduct.
   
   

6. The surrogate decision makers, as identified by the attending physician, are then authorized to make decisions for incapacitated patients and do not have condition subject to Section 5-306A (Substituted Judgment):
   (1) the patient's guardian;
   (2) the patient's spouse;
   (3) any adult son or daughter of the patient;
   (4) either parent of the patient;
   (5) any adult brother or sister of the patient;
   (6) any adult grandchild of the patient;
   (7) a close friend of the patient;
   (8) the patient's guardian of the estate.
   
   

7. The health care provider shall have the right to rely on any of the above surrogates if the provider believes after reasonable inquiry that neither a health care proxy nor a surrogate of higher priority is available.

   1. Where there are multiple surrogate decision makers at the same priority level in the hierarchy, it shall be the responsibility of those surrogates to make reasonable efforts to reach a consensus as to their decision on behalf of the patient regarding the forgoing of life-sustaining treatment. If 2 or more surrogates who are in the same category and have equal priority indicate to the attending physician that they disagree about the health care matter at issue, a majority of the available persons in that category (or the parent with custodial rights) shall control, unless the minority (or the parent without custodial rights) initiates guardianship proceedings in accordance with Section 5-303 under this Chapter. No health care provider or other person is required to seek appointment of a guardian.

   2. After a surrogate has been identified, the name, address, telephone number, and relationship of that person to the patient shall be recorded in the patient's medical record.

   3. Any surrogate who becomes unavailable for any reason may be replaced by applying the provisions of Section 5-302 in the same manner as for the initial choice of surrogate.

   4. In the event an individual of a higher priority to an identified surrogate becomes available and willing to be the surrogate, the individual with higher priority may be identified as the surrogate.  

   5. The surrogate decision maker shall have the same right as the patient to receive medical information and medical records and to consent to disclosure.

   6. Any surrogate shall have the authority to make decisions for the patient until removed by the incapacitated patient, appointment of a guardian of the person, or the patient's death.

8. Every health care provider and other person (a "reliant") shall have the right to rely on any decision or direction by the surrogate decision maker (the "surrogate") that is not clearly contrary to this Chapter, to the same extent and with the same effect as though the decision or direction had been made or given by a patient with decisional capacity. Any person dealing with the surrogate may presume in the absence of actual knowledge to the contrary that the acts of the surrogate conform to the provisions of this Act. A reliant will not be protected who has actual knowledge that the surrogate is not entitled to act or that any particular action or inaction is contrary to the provisions of this Act.

   1. A health care provider (a "provider") who relies on and carries out a surrogate's directions and who acts with due care and in accordance with this Act shall not be subject to any claim based on lack of patient consent or to criminal prosecution or discipline for unprofessional conduct. Nothing in this Act shall be deemed to protect a provider from liability for the provider's own negligence in the performance of the provider's duties in carrying out any instructions of the surrogate, and nothing in this Act shall be deemed to alter the law of negligence as it applies to the acts of any surrogate or provider.

   2. A surrogate who acts or fails to act with due care and in accordance with the provisions of this Act shall not be subject to criminal prosecution or any claim based upon lack of surrogate authority or failure to act. The surrogate shall not be liable merely because the surrogate may benefit from the act, has individual or conflicting interests in relation to the care and affairs of the patient, or acts in a different manner with respect to the patient and the surrogate's own care or interests.