Healthcare providers generally are required to have an adult
patient’s consent before they can administer any type of medical care,
which raises the question: Who has the authority under Utah state law to
make medical decisions on behalf of an unconscious (or otherwise
incapacitated)
adult patient. In treating patients with
COVID-19, this concern is particularly relevant, as an intubated patient
will be sedated and unable to participate in their own medical
decision-making. Therefore, it is critical that healthcare providers
determine who holds such authority under the applicable state laws.
Under Utah law, an adult with the capacity to make healthcare decisions (“
Capacity”) retains the right to make healthcare decisions on their behalf.
1
Their decisions, however expressed or indicated, will always supersede
any prior decisions or healthcare directives they may have made.
2
Also under Utah law, an adult is presumed to have Capacity, which means
the ability to make an informed decision about receiving or refusing
healthcare, when they have (i) the ability to understand the nature,
extent, or probable consequences of health status and healthcare
alternatives; (ii) the ability to make a rational evaluation of the
burdens, risks, benefits, and alternatives of accepting or rejecting
healthcare; and (iii) the ability to communicate a decision.
3
To overcome the presumption that a particular patient has Capacity, a physician, APRN, or physician assistant
4 who has personally examined the adult patient must perform each of the following:
- find that the patient lacks Capacity;
- record the finding in the patient’s medical chart and indicate whether the patient is likely to regain Capacity; and
- make a reasonable effort to communicate the determination to the
patient, other healthcare providers, or healthcare facilities that the
medical provider would routinely inform of such a finding, and any known
surrogate decision maker (e.g., an appointed agent, guardian or a Default Surrogate Decision-Maker (defined below)).5
Once the determination is made that an adult patient lacks Capacity (an “Incapacitated Patient”), the question then arises:
Who has the authority to make medical decisions on behalf of the Incapacitated Patient?
First, to determine who can make medical decisions on behalf of an Incapacitated Patient (a “
Surrogate Decision-Maker”), one should determine if the Incapacitated Patient formerly designated an individual to act on their behalf in such situation
6 (an “
Agent”) or, alternatively, if the Incapacitated Patient has a court-appointed legal guardian.
7
Either an Agent or legal guardian would be the proper Surrogate
Decision-Maker, with an Agent having priority over a legal guardian.
8
In the absence of an Agent or legal guardian (including an Agent that
is unavailable or unwilling to act on the Incapacitated Patient’s
behalf), Utah law designates who can act as a “
Default Surrogate Decision-Maker.”
9
The following family members (as long as they are over 18 years of age,
have Capacity themselves, are available, and have not been disqualified
by the Incapacitated Patient
10 or a court) can act as a Surrogate Decision-Maker, according to the following hierarchy, in
descending order of priority:
- the patient’s spouse, unless the patient is divorced or legally separated;
- a child;
- a parent;
- a sibling;
- a grandchild; or
- a grandparent.11
A person listed above may not act as the Surrogate Decision-Maker if a
person of a higher priority class is able and willing to act as the
Surrogate Decision-Maker.
If no family member listed above is available or willing to act as
the Surrogate Decision-Maker, a non-family member can act as the
Surrogate Decision-Maker if they: (i) are at least 18 years of age, (ii)
have Capacity, (iii) have exhibited special care and concern for the
patient; (iv) know the patient and the patient's personal values; and
(v) are reasonably available to act as a Surrogate Decision-Maker.
12
In those cases where there is more than one individual of the highest
priority class that has assumed the role as a Surrogate Decision-Maker (
e.g.,
three adult children) and there is a disagreement between them about
healthcare decisions, the provider must following the majority decision.
13
If an Incapacitated Patient does not have any family or friends
available to act as their Surrogate Decision-Maker, Utah law is silent
on who would then become the most appropriate decision-maker. However,
it can be helpful to look to other state laws as guidance for this
determination. For example, a few states allow clergy or other religious
members to act as a Surrogate Decision-Maker.
14 Other states
allow a treating or attending physician, provided there is consultation
with and concurrence by a second physician.
15 Alternatively, some states allow healthcare decisions to be made following a consultation with the hospital’s ethics committee.
16
Regardless of the approach taken, hospitals should create a uniform
policy to be followed in such a situation and take care to follow and
document that process. This is especially important when making
decisions on behalf of critically ill or terminally ill Incapacitated
Patients.
Last, Surrogate Decision-Makers must make healthcare decisions in
accordance with the Incapacitated Patient’s current preferences (if
known), their written or oral healthcare directions (
e.g.,
Living Will, statements previously made by patient prior to losing
Capacity, or other advanced healthcare directive), or by using the
substituted judgment standard.
17 The substituted judgment
standard essentially requires a Surrogate Decision-Maker to consider the
preferences of any adult patient who previously had Capacity to make
their own decisions.
18 Moreover, Utah law provides that a
court-appointed legal guardian of an adult Incapacitated Patient must
comply with the patient’s advanced healthcare directive and may not
revoke the Incapacitated Patient’s advanced healthcare directive,
without court involvement.
19
Healthcare providers should cooperate with Surrogate Decision-Makers
and ordinarily also must comply with decisions made by the
highest-ranking Surrogate Decision-Maker.
20 However, when the
decision of a Surrogate Decision-Maker contravenes the known wishes of
the Incapacitated Patient (e.g., Living Will, other written documents or
statements made by patient prior to losing Capacity), the provider
should carefully weigh the facts and evidence. Generally, the patient’s
wishes should be honored.
21 Utah law specifies that a
healthcare provider does not have to comply with the decisions of the
Surrogate Decision-Maker if, in the opinion of the healthcare provider,
they have evidence that the Surrogate Decision-Maker’s instructions are
inconsistent with the Incapacitated Patient’s healthcare instructions.
22
Healthcare providers also can refuse to follow the decisions of
Surrogate Decision-Makers when, in the opinion of the healthcare
provider, (i) the Surrogate Decision-Maker lacks Capacity themselves (
e.g.,
mental illness, dementia, disability), or (ii) for a patient that has
always lacked Capacity, the Surrogate Decision-Maker’s instructions are
inconsistent with the best interest of the adult.
23
Additionally, a healthcare provider can decline to follow the decisions
of the Surrogate Decision-Maker for reasons of conscience.
24
In cases where a healthcare provider refuses to follow the wishes of the
Surrogate Decision-Maker, among other things, the healthcare provider
must communicate their decisions, attempt to resolve the conflict (where
possible), and provide continuing care until the issue is resolved or
the patient can be transferred.
25
While it can be difficult for healthcare providers and facilities to
wade through complicated scenarios involving Incapacitated Patients and
decisions of Surrogate Decision-Makers, Utah law offers significant
protections. A healthcare provider or facility that acts in good faith,
consistent with generally accepted healthcare standards, and in
accordance with the provisions contained in the Advance Health Care
Directive Act will not be subject to civil or criminal liability or
professional disciplinary action for providing or refusing to provide
care to Incapacitated Patients.
26
Protecting patients’ rights to direct their own healthcare treatment
requires that providers thoughtfully approach situations where a
patient’s Capacity is at issue. Healthcare facilities should establish
processes to (i) evaluate and document the Capacity of patients; (ii)
determine the valid Surrogate Decision-Makers for Incapacitated
Patients; (iii) verify that decisions by Surrogate Decision-Makers do
not contravene any prior patient healthcare directives; and (iv) give
providers an effective avenue for raising concerns that may arise
related to Surrogate Decision-Makers and their treatment decisions.
1U.C.A. § 75-2a-109(1).
2U.C.A. § 75-2a-109(2).
3U.C.A. §§ 75-2a-104, 75-2a-103(13).
4The physician assistant must be permitted to make
determinations of Capacity under their delegation of services agreement
with their supervising physician. U.C.A. § 75-2a-104(6).
5U.C.A. §§ 75-2a-104(2), 75-2a-103(23). It should also be
noted that under Utah law, a patient can challenge the determination
that they lack Capacity by submitting written notice or orally informing
the healthcare provider that the patient disagrees with the finding. In
such case, the healthcare provider must treat the patient as having
Capacity unless a court deems otherwise. U.C.A. § 75-2a-104(3).
6Designation of an agent can occur via a written document
executed by the adult patient (e.g., Living Will, Medical Power of
Attorney) or a witnessed oral statement.
See U.C.A. § 75-2a-103(2).
7U.C.A. §§ 75-2a-111(1), 75-2a-112(2).
8U.C.A. § 75-2a-108
9An adult patient, even if found to lack Capacity, can
disqualify a family member or friend from acting as their Surrogate
Decision-Maker by personally informing a witness of the disqualification
(
e.g., telling a nurse or provider), providing a signed
writing, or informing the individual trying to act as a Surrogate
Decision-Maker. U.C.A. § 75-2a-108(5).
10U.C.A. § 75-2a-108(1).
11U.C.A. § 75-2a-108(2). However, if the provider has
reasonable doubts about an individual’s right to act as a Surrogate
Decision-Maker (
e.g., someone claiming to be the spouse of an
individual and the provider doubts such statement), the healthcare
provider may require the person to provide a sworn statement giving
facts and circumstances reasonably sufficient to establish the claimed
authority, or seek a ruling from the court. U.C.A. § 75-2a-108(6).
12U.C.A. § 75-2a-108(4).
13See, e.g., TX Health & Safety Code § 313.001.
14See, e.g., A.R.S. § 36-3231. Note, however, that some states disqualify the patient’s healthcare providers. Tenn. Code Ann. § 68-11-1806.
15See, e.g., A.R.S. § 36-3231.
16U.C.A. § 75-2a-110(1).
17"Substituted judgment" requires the surrogate to consider:
(a) specific preferences expressed by the adult when the adult had the
capacity to make healthcare decisions; and at the time the decision is
being made; (b) the surrogate's understanding of the adult's healthcare
preferences; (c) the surrogate's understanding of what the adult would
have wanted under the circumstances; and (d) to the extent that the
preferences described in (a) through (c) are unknown, the best interest
of the adult. U.C.A. § 75-2a-103(22).
18U.C.A. § 75-2a-112(1).
19U.C.A. § 75-2a-115(4)(a).
20U.C.A. § 75-2a-115(4)(a)(ii).
21U.C.A. § 75-2a-115(4)(b)(i)(C). A healthcare provider may
seek a ruling from a court if they have evidence that a surrogate is
making decisions that are inconsistent with an adult patient's wishes or
preferences. U.C.A. § 75-2a-108(1)(d).
22U.C.A. § 75-2a-115(4)(b).
23Id.
24U.C.A. § 75-2a-115(4)(c)–(e).
25U.C.A. § 75-2a-115(3).
Full Article & Source:
Medical Decision-Making for Incapacitated Adult Patients Under Utah Law
