46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO HEALTH CARE; AMENDING CERTAIN SECTIONS OF THE UNIFORM HEALTH-CARE DECISIONS ACT; CLARIFYING AGENT AND SURROGATE DUTIES; PROVIDING FOR NONPROFIT ORGANIZATIONS TO SERVE AS SURROGATES; CLARIFYING WHO SHALL DETERMINE CAPACITY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 24-7A-2 NMSA 1978 (being Laws 1995, Chapter 182, Section 2) is amended to read:

"24-7A-2. ADVANCE HEALTH-CARE DIRECTIVES.--

A. An adult or emancipated minor, while having capacity, has the right to make his or her own health-care decisions and may give an individual instruction. The individual instruction may be oral or written; if oral, it [must] shall be made by personally informing a health-care provider. The individual instruction may be limited to take effect only if a specified condition arises. If an adult or emancipated minor who is served in a community-based program for persons with mental illness, developmental disability or other long-term disability chooses to give an individual instruction, the individual instruction may, subject to the individual's consent, be included in the individual's service plan and be provided to the individual's health-care provider by the community-based program.

B. An adult or emancipated minor, while having capacity, may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power [must] shall be in writing and signed by the principal. The power remains in effect notwithstanding the principal's later incapacity under the Uniform Health-Care Decisions Act or Chapter 45, Article 5 [of the Uniform Probate Code] NMSA 1978. The power may include individual instructions. Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a health-care institution at which the principal is receiving care.

C. Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity.

D. Unless otherwise specified in a written advance health-care directive, a determination that [an individual] a person lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made according to the provisions of Section [11 of the Uniform Health-Care Decisions Act] 24-7A-11 NMSA 1978.

E. An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent made known to the agent [otherwise] by the principal. If the wishes of a principal who has been determined to lack capacity are unknown or unclear to the agent, and if the health-care decision that the agent must make is whether to consent to, withhold or withdraw life-sustaining treatment for the principal who is not in an emergency health-care situation, the agent shall make reasonable efforts to determine the principal's personal wishes, values and interests. Those efforts shall include, but are not limited to, communicating with the principal using methods appropriate to the principal's health-care situation. If the agent's reasonable efforts to communicate with the principal do not provide information satisfactory to the agent to make the health-care decision, the agent shall make reasonable efforts to communicate with the principal's closest family members, primary caregiver, if any, or other persons familiar with the principal, if the agent is aware of such persons and they are reasonably available. The agent shall then make the health-care decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal wishes, values and interests to the extent known to the agent, whether expressed directly by the principal or communicated by other persons.

F. A health-care decision made by an agent for a principal is effective without judicial approval.

G. A written advance health-care directive may include the [individual's] person's nomination of a guardian of the person."

Section 2. Section 24-7A-5 NMSA 1978 (being Laws 1995, Chapter 182, Section 5, as amended) is amended to read:

"24-7A-5. WHO MAY ACT AS SURROGATE--DECISIONS BY SURROGATE.--

A. A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined according to the provisions of Section 24-7A-11 NMSA 1978 to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

B. An adult or emancipated minor, while having capacity, may designate any [individual] person to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:

(1) the spouse, unless legally separated or unless there is a pending petition for annulment, divorce, dissolution of marriage or legal separation;

(2) [an individual] a person in a long-term relationship of indefinite duration with the patient in which the [individual] person has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the [individual] person and the patient consider themselves to be responsible for each other's well-being;

(3) an adult child;

(4) a parent;

(5) an adult brother or sister; or

(6) a grandparent.

C. If none of the [individuals] persons eligible to act as surrogate under Subsection B of this section 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. A nonprofit organization that provides state-funded guardianship services for persons with disabilities, or provides protection and advocacy services for persons with disabilities pursuant to federal law, may serve as a surrogate for a patient with developmental disabilities, mental illness or other long-term disabilities if the organization is familiar with the patient's wishes, interests and values and if the organization agrees to serve as the surrogate.

D. A surrogate shall communicate [his] the surrogate's assumption of authority as promptly as practicable to the patient, to members of the patient's family specified in Subsection B of this section who can be readily contacted and to the supervising health-care provider.

E. If more than one member of a class 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 who have communicated their views to the 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] persons having lower priority are disqualified from making the decision.

F. A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent made known to the surrogate [otherwise] by the patient. If the wishes of a patient who has been determined to lack capacity are unknown or unclear to the surrogate, the surrogate shall make reasonable efforts to determine the patient's personal wishes, values and interests. Those efforts shall include, but are not limited to, reasonable efforts to communicate with the patient using methods appropriate to the patient's health-care situation; and, if the health-care decision that the surrogate must make is to consent to, withhold or withdraw life-sustaining treatment for a patient who is not in an emergency health-care situation, the surrogate shall make reasonable efforts to communicate with the patient's closest family members, primary caregiver, if any, or other individuals familiar with the patient, if the surrogate is aware of such persons and they are reasonably available. The surrogate shall then make the health-care decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal wishes, values and interests to the extent known to the surrogate, whether expressed directly by the patient or as communicated by other persons.

G. A health-care decision made by a surrogate for a patient shall not be made solely on the basis of the patient's preexisting physical or medical condition or preexisting or projected disability.

H. A health-care decision made by a surrogate for a patient is effective without judicial approval.

I. A patient, at any time, may disqualify any person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing a health-care provider of the disqualification. A health-care provider who is informed by the patient of a disqualification shall promptly communicate the fact of disqualification to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

J. Unless related to the patient by blood, marriage or adoption, a surrogate may not be an owner, operator or employee of a health-care institution at which the patient is receiving care.

K. A supervising health-care provider may require [an individual] a person claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority."

Section 3. Section 24-7A-6.1 NMSA 1978 (being Laws 1997, Chapter 168, Section 13) is amended to read:

"24-7A-6.1. DECISIONS FOR UNEMANCIPATED MINORS.--

A. Except as otherwise provided by law, a parent or guardian of an unemancipated minor may make that minor's health-care decisions.

B. A parent or guardian of an unemancipated minor shall have the authority to provide, withhold or withdraw life-sustaining treatment for the unemancipated minor, subject to the provisions of this section and the standards for surrogate decision-making for adults provided for in the Uniform Health-Care Decisions Act.

C. Subject to the provisions of Subsection B of this section, if an unemancipated minor has capacity sufficient to understand the nature of that unemancipated minor's medical condition, the risks and benefits of treatment and the contemplated decision to provide, withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority to consent to, withhold or withdraw life-sustaining treatment.

D. For purposes of Subsection C of this section, a determination of the mental and emotional capacity of an unemancipated minor shall be determined by two qualified health-care professionals, one of whom shall be the unemancipated minor's primary physician or, at the request of the minor or the minor's parent or guardian, another qualified health-care professional who has personal knowledge of and experience with the minor and is reasonably available, and the other of whom shall be a physician [that] who works with unemancipated minors of the minor's age in the ordinary course of that physician's health-care practice. If the unemancipated minor lacks capacity due to mental illness or developmental disability, one of the qualified health-care professionals shall be a person [whose] with training and expertise [aid in the assessment of functional impairment] in mental illness or developmental disability, as applicable. Nothing in this subsection shall require a health-care institution to permit a health-care professional to provide health-care services for or within the institution if the health-care professional is not otherwise credentialed or authorized to do so.

E. If [the] an unemancipated minor's primary physician has reason to believe that a parent or guardian of [an] the unemancipated minor, including a non-custodial parent, has not been informed of a decision to withhold or withdraw life-sustaining treatment, the primary physician shall make reasonable efforts to determine if the uninformed parent or guardian has maintained substantial and continuous contact with the unemancipated minor and, if so, shall make reasonable efforts to notify that parent or guardian before implementing a decision.

F. If there is disagreement regarding the decision to withhold or withdraw life-sustaining treatment for an unemancipated minor, the provisions of Section 24-7A-11 NMSA 1978 shall apply.

G. For purposes of this section, "unemancipated minor" means a person [at or] under the age of [fifteen] eighteen who is not an emancipated minor."

Section 4. Section 24-7A-9 NMSA 1978 (being Laws 1995, Chapter 182, Section 9, as amended) is amended to read:

"24-7A-9. IMMUNITIES.--

A. A health-care provider or health-care institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or health-care institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) complying or attempting to comply with a health-care decision of a person apparently having authority as agent, guardian or surrogate to make a health-care decision for a patient, including a decision to provide, withhold or withdraw health care or make an anatomical gift;

(2) declining to comply with a health-care decision of a person based on a belief that the person then lacked the authority to make that health-care decision;

(3) complying or attempting to comply with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated;

(4) declining to comply with a health-care directive as permitted by Subsection E or F of Section

24-7A-7 NMSA 1978; or

(5) complying or attempting to comply with any other provision of the Uniform Health-Care Decisions Act.

B. [An individual] A person acting as agent, guardian or surrogate under the Uniform Health-Care Decisions Act is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith."

Section 5. Section 24-7A-11 NMSA 1978 (being Laws 1995, Chapter 182, Section 11, as amended) is amended to read:

"24-7A-11. CAPACITY--HOW CAPACITY DETERMINED.--

A. The Uniform Health-Care Decisions Act does not affect the right of [an individual] a person to make health-care decisions while having capacity to do so.

B. [An individual] A person is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive and to designate a surrogate.

C. Unless otherwise specified in a written advance health-care directive, a determination that [an individual] a person lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made by two qualified health-care professionals, one of whom shall be the individual's primary physician or, at the request of the individual or the individual's guardian, another qualified health-care professional who has personal knowledge of and experience with the individual and is reasonably available. At least one of the two qualified health-care professionals shall be a physician. If the lack of capacity is determined to exist because of mental illness or developmental disability, one of the qualified health-care professionals shall be a person [whose] with training and expertise [aid] in [the assessment of functional impairment] mental illness or developmental disability, as applicable. Nothing in this subsection shall be construed to require a health-care institution to permit a health-care professional to provide health-care services for or within the institution if the health-care professional is not otherwise credentialed or authorized to do so.

D. [An individual] A person shall not be determined to lack capacity solely on the basis that the [individual] person chooses not to accept the treatment recommended by a health-care provider.

E. [An individual] A person, at any time, may challenge a determination that the [individual] person lacks capacity by a signed writing or by personally informing a health-care provider of the challenge. A health-care provider who is informed by the [individual] person of a challenge shall promptly communicate the fact of the challenge to the supervising health-care provider and to any health-care institution at which the [individual] person is receiving care. Such a challenge shall prevail unless otherwise ordered by the court in a proceeding brought pursuant to the provisions of Section 24-7A-14 NMSA 1978.

F. A determination of lack of capacity under the Uniform Health-Care Decisions Act shall not be evidence of incapacity under the provisions of Chapter 45, Article 5 [of the Uniform Probate Code] NMSA 1978."

Section 6. Section 24-7A-14 NMSA 1978 (being Laws 1995, Chapter 182, Section 14, as amended) is amended to read:

"24-7A-14. JUDICIAL RELIEF.--

A. On petition of a patient, the patient's agent, guardian or surrogate, a health-care provider or health-care institution involved with the patient's care [an individual] or a person described in Subsection B or C of Section 24-7A-5 NMSA 1978, the district court may enjoin or direct a health-care decision or order other equitable relief. A proceeding [under] pursuant to this section is governed by the Rules of Civil Procedure for the District Courts.

B. If a guardian ad litem is appointed for a patient by the court, the guardian ad litem shall:

(1) meet with and, if possible, interview the patient prior to the hearing;

(2) communicate with persons involved with or knowledgeable about the patient, such as relatives, caregivers, health-care professionals or others;

(3) examine whether procedures called for under the Uniform Health-Care Decisions Act have been followed;

(4) represent the patient's wishes, if known; and

(5) if the patient's wishes are unclear or unknown, represent the patient's best interest."

Section 7. Section 24-7A-17 NMSA 1978 (being Laws 1995, Chapter 182, Section 17) is amended to read:

"24-7A-17. SHORT TITLE.--[Sections 1 through 17 of this act] Chapter 24, Article 7A NMSA 1978 may be cited as the "Uniform Health-Care Decisions Act"."