-- Last revised Monday, December 16, 2002, 10:30 AM --
Health Care Decisions for Adults Without Decisionmaking Capacity
The Commission's recommendation proposes a new Health Care
Decisions
Law to consolidate the Natural Death Act and the statutes governing the
durable power of attorney for health care, and provide comprehensive
rules relating to health care decisionmaking for incapacitated adults.
The proposed law, drawing heavily from the Uniform Health-Care Decisions
Act (1993), includes new rules governing individual health care
instructions, and provides a new optional statutory form of an advance
health care directive.
The guiding principle of the bill enacting the Commission's
recommendation is to effectuate the stated desires of the patient, as set out in an advance directive or, in the absence of an advance directive, as expressed to authorized surrogate decisionmakers. If the patient has not made his or her wishes known, health care decisions are to be made in the patient's best interest, as determined by the appropriate surrogate decisionmaker, taking into account the patient's personal values known to the surrogate. The Health
Care Decisions Law is intended to fulfill the incapacitated patient's
desires and best interest without resort to judicial proceedings, except
as a last resort.
The bill also codifies a number of duties of health care
providers and institutions to comply with health care instructions, and
to keep records relating to capacity determinations, surrogates, and
instructions. In addition, existing limitations on the authority of
agents, witnessing requirements, and the prohibition on mercy killing
and euthanasia, are continued in the new law.
Conforming changes in the procedure for obtaining court
authorization for medical treatment make clear that courts in
proper cases have the same authority as other surrogates to make health
care decisions, including withholding or withdrawal of life-sustaining
treatment. Similarly, the statute governing decisionmaking by
conservators for patients who have been adjudicated to lack the capacity
to make health care decisions are conformed to the standards governing
other health care surrogates.
The bill unifies the standards governing health care
decisionmaking for adults without decisionmaking capacity so that the
same rules apply whether the surrogate decisionmaker is (1) an agent
named in the patient's advance directive, (2) a family member or friend
acting as a surrogate decisionmaker, (3) a public guardian, or (4) a
court making health care decisions as a last resort.
The Commission's original recommendation, which is embodied
in the bill as introduced, included two important additional elements:
(1) a "family consent" statute (proposed Prob. Code § 4710 et seq.
),
and (2) a surrogate committee procedure for making necessary health care
decisions where the patient does not have an agent, conservator, or
other health care surrogate (proposed Prob. Code § 4720 et seq. ).
At
the suggestion of the Assembly Judiciary Committee staff, the Commission
agreed to remove these procedures for additional study.
