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SPONSOR: |
McSorley |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Amend Uniform Health Care Decisions Act |
SB |
714 |
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ANALYST: |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to Relates to: NMSA, 1978 §32A-6-1 through §32A-6-22; NMSA, 1978,
§45–5-201 through §45-5-212;
NMSA, 1978 §
Responses
Received From
Department
of Health (DOH)
Health
Policy Commission (HPC)
SUMMARY
Synopsis
of Bill
SB 714 amends the Uniform Health Care Decision Act to
clarify who may act as surrogate and agent and their duties, requires that
surrogates make specific efforts to determine the wishes and values of the
principal for whom they act. The bill
includes language to signal to a surrogate that they have the ability to
consent to life-sustaining treatment. It
also provides the principal a mechanism to voice who should evaluate them for
capacity, requires that the health care professional evaluating capacity has
training and expertise in mental illness or developmental disability provided
that is the basis for asserting such incapacity, Finally, the bill changes the
age of a unemanciapted minor from 15 to 18 and provides duties for a Guardian
ad Litem, if appointed, for court proceeding allowed by the Uniform Health Care
Decision Act.
Significant
Issues
The
following comments were made by DOH:
·
Specific
to 24-7A-2.A: The right for disabled
adults/emancipated minors to make advance health-care directives is already
established by statute. This amendment provides special consideration for
persons with mental illness, developmental disability or other long-term
disability to give instructions about advanced health care directives.
·
Specific
to 24-7A-5.C: The amendment contained in
SB 714 expands who may provide surrogate services to include state funded
guardianship services, protection and advocacy services pursuant to federal
law.
·
SB
714 revisions will support the patient and their interest and decisions
regarding their healthcare. The bill
elaborates on the duties of an “agent” when the agent is not familiar with the
wishes and interests of an incapacitated individual but the agent must decide
whether to provide or withhold consent for life-sustaining treatment. The agent
would have to make a reasonable attempt to communicate to the individual, and
if that were not possible make reasonable attempts to talk with other people
who are familiar with the individual.
The agent then would make a decision based on the individual’s best
interests.
·
SB
714, in effect, the proposed expansion crosses a line previously established in
law and allows those without blood relation or other close affinity to make
important health care decisions without process, clear and measurable notice to
families, and court monitoring of status (like the annual report to the court
in a probate code guardianship) because it addresses circumstances where a surrogate
may be in order (e.g. to represent the individual when the guardian contradicts
the individuals wishes), no family member is available and an organization
already familiar with the individual is willing to serve in this capacity. It creates potential standing for corporate
and organizational groups in matters that have traditionally and appropriately
been left to families and those of close affinity.
The surrogate provisions regarding
non-family members are initiated only when family members identified in
Section24-7A-5B (2) are not available to act as a surrogate. The failsafe mechanism in SB 714 includes
provisions to establish duties of a surrogate when the surrogate is not
familiar with the individual for whom the surrogate will make a health care
decision; and requires the surrogate to make reasonable efforts to talk to the
individual before making a decision affecting their health care
SB 714 will provide a mechanism to assist
patients/ clients in a less restrictive manner and may make it easier for
families and other entities to act on behalf of an incapacitated person. The manner by which a surrogacy is put into
place is less time consuming and burdensome then probate code guardians, but as
pointed out by DOH, also establishes less checks and balances into the system
when allowing corporate and other organizations involvement.
In
the process of attaining a probate code guardianship, there are many
considerations including civil process and procedure, higher cost, longer
timelines, and more difficulty in “overturning” and restoring the rights of
persons, if they regain capacity, such processes can impact staff time.
ADMINISTRATIVE IMPLICATIONS
Training will be necessary to be certain
staff at health care facilities and programs is aware of the proposed
amendments. Forms and other documents
may have to be updated.
TECHNICAL ISSUES
On page 12, lines 21- 25, there is the use of
the word, “individual”, in language added as part of the amendment and
throughout the rest of the document there appears to be an effort to end the
use of that word; On page 12, line 23 there is reference to a person’s
guardian, without clarification of what type of guardian, and if a person had a
guardian there may not be a need to determine capacity, for the purposes of the
Uniform Health Care Decisions Act.
OTHER SUBSTANTIVE ISSUES
The clarification portions of SB 714,
including gender neutral language, statutory references, and “language
clean-up” are helpful, but not critical.
The portion regarding the role of the GAL, is
helpful. The other additions/
clarifications are useful.
Section
3 of the Bill clarifies that a parent or an un-emancipated minor with capacity
has the authority to consent to as well as withhold or withdraw life-sustaining
treatment. This section supports decision making by the individual and/or
families who provide most of the care for their special needs children.
Section
5 of the bill, relates to adults and is comparable to the provisions related to
minors. It allows the adult to request
that one of the health care professionals making a determination of capacity be
someone already familiar with the person, if that professional is readily
available and appropriately credentialed, and has training or expertise in the
field of the individual’ disability (e.g. mental illness or developmental
disabilities).
SB
714 would require that the two qualified health professionals evaluate the
un-emancipated minor, and that the minor or a parent/guardian could request that
one of these health care professionals be someone who is already knowledgeable
about or experienced with the minor, if that professional is “reasonably
available.”
Section
3 of SB 714 also corrects an inconsistency in the definition of “un-emancipated
minor. The current definition only
includes individuals under the age of 15; and as a result, minors between the
ages of 15 and 17 are left in limbo.
Add “ dated and time of
day of execution of the advanced directive” to page 2, line13 after the
word “signed.”
Change “primary
caregiver” on page3, line25 to “health-care provider” as per the definitions in
24-7A1.
Add “in writing” after “informing” on page5,
line 1.
Change the wording of “adult child” on page5, line 15 to
mean an individual who is the child of the person, but has attained the age of
majority.
Add “dated and timed” after signed on page 8,line4.
Change “primary care physician” on page9, line
19 to “health care provider.”
Change “primary physician on page12, line22 to “health
care provider.”
BD/sb