Bill H.4597

FILED ON: 4/30/2024

HOUSE . . . . . . . . . . . . . . . No. 4597

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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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. The General Laws are hereby amended by inserting after chapter 201F the following chapter:-

Chapter 201G. Surrogate Decision Making

Section 1. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:—

“Attending physician”, the physician, selected by or assigned to a person, who has primary responsibility for treatment and care of the person. Where more than one physician shares that responsibility, any such physician may act as the attending physician.

''Capacity to make health care decisions'', the ability to understand the nature and consequences of health care decisions, including benefits, risks and alternatives to proposed medical treatment, and to reach an informed decision.

“Incapacitated person”, a person who lacks capacity to make health care decisions.

"Unavailable”, a person is unavailable if: (i) their existence is not known;(ii) they have not been able to be contacted by telephone or mail; or (iii) they lack decisional capacity, refuse to serve as surrogate decision maker or fail to respond in a manner that indicates an informed choice about the health care decision at issue.

Section 2. (a) Except as otherwise provided in this chapter, after consultation with health care providers, and after full consideration of diagnosis, prognosis, benefits, risks and alternatives, a person designated as surrogate decision maker pursuant to subsection (d) may make health care decisions on behalf of an incapacitated person: (i) in accordance with the surrogate decision maker’s assessment of the person’s wishes, including the person’s religious and moral beliefs; or (ii) if the person’s wishes are unknown, in accordance with the surrogate decision maker’s assessment of the person’s best interests. In the event an unrevoked health care proxy pursuant to chapter 201D is invalid due to a technical deficiency or is not applicable to the person’s condition, or in the event that an operative Medical Order for Life Sustaining Treatment (“MOLST”) or similar medical order form, is not applicable to the person’s condition, that document may be used as evidence of a person’s wishes.

(b) In determining whether a person has the capacity to make health care decisions, the attending physician shall interview the person, review their medical records and, where appropriate, consult with health care providers and skilled nursing or intermediate care facilities. The attending physician may also interview family members, friends and other individuals having recent care and custody of the person.

(c) When a person is determined to lack the capacity to make health care decisions, the attending physician shall make a reasonable inquiry as to the availability and authority of a health care proxy, guardianship or MOLST or similar medical order form. Where there is no effective health care proxy or guardianship, the attending physician shall make a reasonable inquiry as to the availability of a potential surrogate decision maker meeting the requirements of subsection (d). For purposes of this section, a reasonable inquiry shall include, but not be limited to, reviewing the person’s medical records, examining their personal effects and contacting family members and potential health care agents, alternate health care agents or guardians. No person shall be civilly liable or subject to professional discipline for violating a person’s right to privacy or confidentiality as a result of making such an inquiry except for willful or wanton misconduct.

(d) An attending physician may designate, as an incapacitated person’s surrogate decision maker, a competent person over 18 years of age who has exhibited special care and concern for the person, who is familiar with the person’s personal values, reasonably available and willing to serve. Consideration may be given, in order of descending preference, for designation as surrogate decision maker, to: (i) the person’s spouse, unless legally separated; (ii) the person’s adult child; (iii) the person’s parent;(iv) the person’s adult sibling; and (v) any other person who satisfies the requirement of this subsection. The attending physician shall require any person claiming the right to act as surrogate decision maker to provide a written declaration, sworn under penalties of perjury, stating facts and circumstances reasonably sufficient to establish their claimed authority, which shall be recorded in the incapacitated person’s medical records.

(e) Where there are multiple possible surrogate decision makers at the same priority level, the attending physician shall, after a reasonable inquiry, designate as surrogate decision maker the person who reasonably appears to be best qualified. The following criteria shall be considered in determining the person best qualified to serve as the surrogate decision maker:

(1) whether the proposed surrogate decision maker reasonably appears better able to make decisions either in accordance with the known wishes of the incapacitated person or in accordance with the person’s best interests;

(2) the proposed surrogate decision maker’s regular contact with the incapacitated person prior to and during the incapacitating illness, condition or treatment;

(3) the proposed surrogate decision maker’s demonstrated care and concern for the incapacitated person;

(4) the proposed surrogate decision maker’s availability to visit the incapacitated person during their illness, treatment or recovery; and

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

(f) The attending physician may designate as surrogate decision maker a person who is ranked lower in priority if, in their judgment, that individual is best qualified, as described in subsection (e), to serve as the incapacitated person’s surrogate decision maker. The attending physician shall document in the incapacitated person’s medical records their reasons for selecting a surrogate decision maker in exception to the priority order provided in subsection (d).

(g) The following persons may not serve as a surrogate decision maker: (i) any person who is the subject of a protective order or other court order that directs them to avoid contact with the incapacitated person; (ii) any person whom the incapacitated person has expressed objection to; (iii) a treating health care provider of the incapacitated person; (iv) an employee of a treating health care provider not related to the incapacitated person; (v) an owner, operator or administrator of a health care facility serving the incapacitated person who is not related to the incapacitated person; or (6) an employee of an owner, operator or administrator of a health care facility serving the incapacitated person who is not related to that person. A surrogate decision maker’s authority shall terminate at any time upon the express objection of the incapacitated person.

(h) After a surrogate decision maker has been designated, the name, address, telephone number, and relationship of that person to the incapacitated person shall be recorded in their medical record. Their authority is effective upon recordation.

(i) Unless the incapacitated person regains capacity to make health care decisions, a surrogate decision maker designation under this section is effective only during the episode of treatment or illness when the designation is made, or for 90 days, which period is shorter.

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

(k) Any surrogate decision maker who is revoked, terminated or becomes unavailable for any reason may be replaced by applying the provisions of subsections (d) through (g) in the same manner as for the initial choice of surrogate decision maker.

(l) In the event an individual of a higher priority to a designated surrogate decision maker becomes available and willing to serve, the individual with higher priority may be designated by the attending physician if such designation satisfies the requirements of this section.

(m) Notwithstanding any general or special law to the contrary, the surrogate decision maker shall have the same right to receive any and all medical information necessary to make informed decisions regarding the incapacitated person’s health care, including any and all confidential medical information that the incapacitated person would be entitled to receive.

Section 3. (a) Health care provider and employees thereof shall have the right to rely on any decision or direction by the surrogate decision maker 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 the incapacitated person. Any person dealing with the surrogate decision maker may presume in the absence of actual knowledge to the contrary that the acts of the surrogate decision maker conform to the provisions of this chapter.

(b) A health care provider or employee thereof who relies on and carries out a surrogate decision maker’s direction and who acts with due care in accordance with this chapter shall not be subject to any claim based on lack of personal consent or to criminal prosecution or discipline for unprofessional conduct; provided, however, that nothing in this chapter 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 decision maker and nothing in this chapter shall be deemed to alter the law of negligence as it applies to the acts of any surrogate decision maker or provider.

(c) No person acting as surrogate decision maker pursuant to a designation under this chapter shall be subject to criminal or civil liability for making a health care decision in good faith pursuant to this chapter.

Section 4. The health care provider or facility caring for the incapacitated person, any conservator, guardian, health care proxy, power or attorney or family member of the incapacitated person, the commissioner of public health, or any other interested person 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: (i) challenge a surrogate decision maker’s designation; (ii) have the surrogate decision maker removed on the ground that they are not reasonably available, willing or competent to fulfill their obligations under this chapter or is acting in bad faith; or (iii) override the surrogate decision maker’s decision about health care 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 2(a). In the event of a challenge to the surrogate decision makers designation, there shall be a rebuttable presumption that the selection of the surrogate decision maker was valid.

Section 5. This chapter shall not apply to instances in which the incapacitated person has an operative and unrevoked health care proxy under this chapter or has an operative MOLST or similar medical order form and the person’s condition falls fully within the coverage of the health care proxy and/or medical order form. In those instances, the health care proxy or medical order form shall be given effect according to its terms.