Report Title:

Health Care Decisions; Surrogates

Description:

Provides process for the spouse or next of kin of incapacitated individuals to act as a surrogate in the absence of an advance health care directive.

HOUSE OF REPRESENTATIVES	H.B. NO.	682
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII

A BILL FOR AN ACT

Relating to Health care.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that recent highly publicized United States Supreme Court cases give reason to clarify existing Hawaii laws concerning health-care decisions for incapacitated patients.  Legal and bio-ethics scholars have expressed concern that the current Hawaii law concerning health-care decisions is vague at best, and at worst, unconstitutional.  The intent of this Act is to clarify the existing law by creating default rules that allow the spouse or next-of-kin to act as the surrogate for an incapacitated patient and to clarify the circumstances under which the surrogate may decide to withhold the patient's nutrition or hydration.

     SECTION 2.  Section 327E-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

     ""Persistent vegetative state" means a condition in which an individual exhibits motor reflexes but evinces no indications of significant cognitive function."

SECTION 3.  Section 327E-5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§327E-5[]]  Health-care decisions; surrogates.  (a)  [A patient] An adult or emancipated minor may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider.  In the absence of [such] a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient.

     (b)  A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.  Upon a determination that [a] an adult or emancipated minor patient lacks decisional capacity to provide informed consent to or refusal of medical treatment, the primary physician or the physician's designee shall make reasonable efforts to notify the patient of the patient's lack of capacity.  [The primary physician, or the physician's designee, shall make reasonable efforts to locate as many interested persons as practicable, and the primary physician may rely on such individuals to notify other family members or interested persons.] Any member of the following classes of the patient's family who is reasonably available, in descending order, may act as surrogate:

(1) The spouse, unless legally separated;

(2) An adult child;

(3) A parent; or

(4) An adult brother or sister.

     [(c)  Upon locating interested persons, the primary physician, or the physician's designee, shall inform such persons of the patient's lack of decisional capacity and that a surrogate decision-maker should be selected for the patient.

(d)  Interested persons shall make reasonable efforts to reach a consensus as to who among them shall make health-care decisions on behalf of the patient.  The person selected to act as the patient's surrogate should be the person who has a close relationship with the patient and who is the most likely to be currently informed of the patient's wishes regarding health-care decisions.  If any of the interested persons disagrees with the selection or the decision of the surrogate, or, if after reasonable efforts the interested persons are unable to reach a consensus as to who should act as the surrogate decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings pursuant to chapter 551.  Only interested persons involved in the discussions to choose a surrogate may initiate such proceedings with regard to the patient.]

(c)  If none of the individuals eligible to act as surrogate under subsection (b) is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may act as surrogate.

(d)  A surrogate shall communicate the surrogate's assumption of authority as promptly as practicable to the members of the patient's family specified in subsection (b) who can be readily contacted.

(e)  If more than one member of a class of the patient's family assumes authority to act as surrogate, and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class of the patient's family who have communicated their views to the supervising health-care provider.  If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority under subsection (b) are disqualified from making the decision, and members of the divided class may seek guardianship of the patient by initiating guardianship proceedings pursuant to chapter 551.

     [(e)] (f)  If any interested person, the guardian, or primary physician believes the patient has regained decisional capacity, the primary physician shall reexamine the patient and determine whether or not the patient has regained decisional capacity and shall enter a decision and the basis for [such] the decision into the patient's medical record and shall notify the patient, the surrogate decision-maker, and the person who initiated the redetermination of decisional capacity.

     [(f)] (g)  A surrogate who has been designated by the patient may make health-care decisions for the patient that the patient could make on the patient's own behalf.

     [(g)] (h)  A surrogate who has not been designated by the patient may make all health-care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient's medical records that the [provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future.] patient is in a persistent vegetative state.

     The surrogate who has not been designated by the patient shall make health-care decisions for the patient based on the wishes of the patient[,] or, if the wishes of the patient are unknown or unclear, [on] the patient's best interest.

     The decision of a surrogate who has not been designated by the patient regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability[,] or a patient's economic status.  A surrogate who has not been designated by the patient shall inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.

     [(h)] (i)  A health-care decision made by a surrogate for a patient is effective without judicial approval.

     [(i)] (j)  A supervising health-care provider shall require a surrogate to provide a written declaration under the penalty of false swearing stating facts and circumstances reasonably sufficient to establish the claimed authority."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

INTRODUCED BY:

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