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| Rachel N. Jordan, an attorney |
Q: How has the law on making medical decisions for incapacitated patients changed?
A: When a patient is incapacitated and unable to provide informed consent, health care providers in the past have faced a great deal of uncertainty regarding who could make medical decisions on behalf of the patient. This particularly has been an issue when a patient hasn't designated a legal representative and the family members disagree on the best course of action. However, the Oklahoma Legislature recently passed legislation that provides hospitals and other health care providers with clear guidance on what to do in these situations. While not specifically covered, the new law appears to permit individuals who fit specific criteria to make decisions regarding affirmative health care treatment (such as authorizing surgery), as well as decisions to terminate treatment, including life-sustaining treatment (such as discontinuation of a ventilator).
Q: Who now can make decisions on behalf of incapacitated patients?
A: The new law states that when an adult patient is unable to provide consent due to the fact that he or she is persistently unconscious, incompetent or mentally or physically incapable of communicating, another individual that's available and willing may make health care decisions for the patient in the following order of priority: legally appointed guardian, health care proxy designated by the patient, attorney-in-fact with health care decision authority, spouse, adult child, parents, adult sibling, and other adult relative in order of kinship. If members of a class disagree (e.g., the patient has three children, and two consent and one doesn't), a majority within the class may decide. If the patient hasn't designated a legal representative, and no family members are available and willing to act on the patient's behalf, a close friend may provide the requisite consent if he or she signs an affidavit stating that he or she has maintained regular contact with the patient and is familiar with the patient's personal values. The affidavit should include specific facts and circumstances that document such contact. Finally, certain persons charged with and/or convicted of certain crimes or offenses (such as physical or verbal abuse or exploitation) are disqualified from acting on behalf of an incapacitated patient.
Q: What happens if the decision maker doesn't know the incapacitated person's wishes?
A: An individual making health care decisions pursuant to this statute must do so based on the known intentions, personal views and best interests of the patient. If there's sufficient evidence of the patient's wishes, those wishes must control. If there isn't sufficient evidence of the patient's wishes, the decisions must be based on the reasonable judgment of the individual deciding. In the event that either a provider or member of another class believes this standard has been violated, he or she may petition the court for a different health care decision.
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More clarity now available on making medical decisions for incapacitated patients
Hospitals are using guardianship for their own convenience.
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