Bill H.3388

HOUSE DOCKET, NO. 3025 FILED ON: 1/18/2019

HOUSE . . . . . . . . . . . . . . . No. 3388

By Mr. Markey of Dartmouth, a petition (accompanied by bill, House, No. 3388) of Christopher M. Markey relative to health care decisions during periods of incapacity. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3093 OF 2017-2018.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act improving medical decision making.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1. Purpose:

The legislature hereby finds and declares that

A. The Commonwealth of Massachusetts recognizes the fundamental right of an adult to determine the nature and extent of health care the individual will receive, including treatment provided during periods of incapacity. While all persons have a right to make a written directive, not all take advantage of that right, and it is the purpose of the surrogacy provisions of this chapter to ensure that health care decisions can be made in a timely manner by a person’s next of kin, friend or other qualified individual without involving court action. This chapter specifies a process to establish a surrogate decision-maker when there is no valid advance directive or a guardian, as defined in c. 190B § 5-101, to make health care decisions.

Section 2. Definitions

Chapter 201D of the General Laws is hereby amended by inserting in Section 1 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 an informed choice among the treatment matters at issue.

(1)(b) “Attending physician”, a licensed physician in Massachusetts selected by or assigned to the person and who has primary responsibility for treatment and care of the person. If more than one physician shares that responsibility, the physician most familiar with the person’s status and condition may act as the attending physician under this Act.

(1)(c) “Incapacitated person” a person is incapacitated for decision-making regarding his or her health care if the person is unable to understand the nature and consequences of proposed medical treatment, including its risks and benefits, or is unable to express a preference regarding the treatment.

(1)(d) “Qualified individual” shall be an adult who has exhibited special care and concern for the person, who is familiar with the person’s personal values, who is reasonably available and who is willing to serve.

Section 3. Surrogate Decision Making

Chapter 201D of the General Laws is hereby amended by adding a new section 18, Surrogacy:

1. Applicability- This Section applies to “incapacitated persons” as defined in subsection 2 of this Act. This Section does not apply to instances in which the person has an operative and unrevoked Health Care Proxy under this Chapter 201D, or has an operative Medical Order for Life Sustaining Treatment (“MOLST”) form and the person’s conditions falls within the coverage of the health care proxy and/or MOLST form. In those instances, the Health Care Proxy or MOLST form shall be given effect according to its terms.

2. Decisions concerning medical treatment on behalf of a person without decisional capacity are lawful, without resort to the courts or legal process, if a person does not have a condition subject to GL 190B Section 5-306A (Substituted Judgment) and if decisions are made in accordance with one of the following paragraphs of this subsection and otherwise meets the requirements of this Section. A surrogate decision maker appointed pursuant to this Section has authority to make decisions regarding transfers and/or admission to a nursing facility. A surrogate decision maker appointed pursuant to this Section shall not have the authority to admit or commit a patient without decisional capacity to an inpatient mental health facility as defined in the regulations of the Department of Mental Health.

3. Court appointed guardianship for incapacitated persons, pursuant to GL 190B, remains a valid means of establishing a medical decision-maker.

4. Decisions concerning medical treatment on behalf of an incapacitated person may be made by surrogates in the order of priority provided in Section 9 in consultation with the attending physician. A surrogate decision maker shall make decisions for the person conforming as closely as possible to what the person would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the person’s philosophical, religious and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering and death. Where possible, the surrogate shall determine how the person would have weighed the burdens and benefits of initiating recommended medical treatment against the burdens and benefits of refusing treatment. In the event an unrevoked health care proxy is no longer valid due to a technical deficiency or is not applicable to the person’s condition, that document may be used as evidence of a person’s wishes. If the person’s wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the person’s best interests as determined by the surrogate decision maker. In determining the person’s best interests, the surrogate shall weigh the burdens on and benefits to the person of initiating recommended medical treatment against the burdens and benefits of refusing treatment and shall take into account any other information, including the views of family and friends, that the surrogate decision maker believes the person would have considered if able to act for herself or himself.

5. For purposes of this Section, a person lacks capacity to make a decision regarding his or her health care if the person is unable to understand the nature and consequences of a proposed medical treatment, including its risks and benefits, or is unable to express a preference regarding the treatment To make the determination regarding capacity, the physician shall interview the person, review the person’s medical records, and consult with skilled nursing or intermediate care facilities as appropriate. The physician may also interview individuals having recent care and custody of the person, as well as family members and friends of the person, if any have been identified.

6. When a person becomes an incapacitated person, 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 shall make a reasonable inquiry as to the availability of possible surrogates listed in items (A) through (E) of Subsection 9. For purposes of this Section, a reasonable inquiry includes, but is not limited to, identifying a member of the person’s family or other health care agent by examining the person’s personal effects or medical records. If one or more family members or health care agents or alternate health care agents are identified, the health care provider shall attempt to contact them. No person shall be liable for civil damages or subject to professional discipline based on a claim of violating a person’s right to confidentiality as a result of making a reasonable inquiry as to the availability of a person’s family member or health care agent or alternate health care agent except for willful or wanton misconduct.

7. The person’s surrogate shall be an adult who has exhibited special care and concern for the person, who is familiar with the person’s personal values, who is reasonably available, and who is willing to serve.

8. A health care provider shall require an individual claiming the right to act as surrogate for the person to provide a written declaration under penalty of perjury, stating facts and circumstance reasonably sufficient to establish the claimed authority.

9. Consideration may be given, in order of descending preference for serve as a surrogate, to:

A. The person’s spouse, unless legally separated;

B. The person’s adult child;

C. The person’s parent;

D. The person’s adult sibling;

E. Any other adult who satisfies the requirement of subdivision 7.

10. Where there are multiple possible surrogate decision makers at the same priority level, the attending physician or the advanced practice nurse practitioner shall, after a reasonable inquiry, select as the surrogate the person who reasonably appears to be best qualified. The following criteria shall be considered in the determination of the person best qualified to serve as the surrogate:

a. Whether the proposed surrogate reasonably appears to be better able to make decisions either in accordance with the known wishes of the person or in accordance with the person’s best interests;

b. The proposed surrogate’s regular contact with the person prior to and during the incapacitating illness;

c. The proposed surrogate’s demonstrated care and concern;

d. The proposed surrogate’s availability to visit the incapacitated person during his or her illness; and

e. The proposed surrogate’s availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process

11. The attending physician may select a proposed surrogate who is ranked lower in priority if, in his or her judgment, that individual is best qualified, as described in subsection 10, to serve as the incapacitated person’s surrogate. The attending physician shall document in the incapacitated person’s medical records his or her reasons for selecting a surrogate in exception to the priority order provided in subsection (9) of this Section.

12. In the event of a challenge, there shall be a rebuttable presumption that the selection of the surrogate was valid. Any person who challenges the selection shall have the burden of proving the invalidity of that selection.

13. The following persons may not serve as a surrogate: (i) No person who is the subject of a protective order or other court order that directs that person to avoid contact with the person shall be eligible to serve as the person’s surrogate. (ii) No person shall be identified as surrogate over the express objection of the person, and a surrogacy shall terminate if at any time a person for whom a surrogate has been appointed expresses objection to the continuation of the surrogacy. (iii) A treating health care provider of the person who is incapacitated; (iv) an employee of a treating health care provider not related to the person who is incapacitated; (v) an owner, operator or administrator of a health care facility serving the person who is not related to the person who is incapacitated; or (6) any person who is an employee of an owner, operator or administrator of a health care facility serving the person who is incapacitated who is not related to that person.

14. Unless the principal regains health decision-making capacity, or specifies a shorter period, a surrogate designation under this Section is effective only during the episode of treatment or illness when the surrogate decision is made, or for 90 days, which period is shorter.

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

16. Any surrogate who becomes unavailable for any reason may be replaced by applying the provisions of Subsections 7 through 13 of this Section, in the same manner as for the initial choice of surrogate.

17. 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 by the attending physician if such identification satisfied the requirements of subsections 7 through 13 of this Section.

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

19. No physician shall be required to identify a surrogate, and may, in the event a surrogate has been identified, revoke the surrogacy if the surrogate is unwilling or unable to act.

20. 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 Section, to the same extent and with the same effect as though the decision or direction had been made or given by a person 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 Section. 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 provision of this Section.

21. A health care provider (a “provider) who relies on and carries out a surrogate’s directions and who acts with due care in accordance with this Section shall not be subject to any claim based on lack of personal 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 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.

22. A surrogate who acts or fails to act with due care and in accordance with the provision 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 interest in relations to the care and affairs of the person, or acts in a different manner with respect to the person and the surrogate’s own care or interests.

23. The health care providers, staff, and/ or facility caring for the patient without decisional capacity, the conservator, members of the patient without decisional capacity’s family, a close friend of the patient without decisional capacity, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, with respect to any dispute arising under this chapter, including, but not limited to, a proceeding to:

a. have the surrogate decision maker removed on the ground that the surrogate decision maker is not reasonably available, willing or competent to fulfill his or her obligations under this chapter or is acting in bad faith; or

b. override the surrogate decision maker’s decision about health care treatment on the grounds that: the decision was made in bad faith or the decision is not in accordance with the standards set forth in section five.

Name:	District/Address:	Date Added:
Christopher M. Markey	9th Bristol	1/18/2019