SENATE BILL 233

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Gregg Schmedes

 

 

 

 

 

AN ACT

RELATING TO HEALTH CARE; AMENDING SECTIONS OF THE UNIFORM HEALTH-CARE DECISIONS ACT RELATING TO ORDERS NOT TO RESUSCITATE FOR UNEMANCIPATED MINORS.

 

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

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

     "24-7A-1. DEFINITIONS.--As used in the Uniform Health-Care Decisions Act:

          A. "advance health-care directive" means an individual instruction or a power of attorney for health care made, in either case, while the individual has capacity;

          B. "agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power;

          C. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care and to make and communicate an informed health-care decision. A determination of lack of capacity shall be made only according to the provisions of Section 24-7A-11 NMSA 1978;

          D. "emancipated minor" means an individual between the ages of sixteen and eighteen who has been married, who is on active duty in the armed forces or who has been declared by court order to be emancipated;

          E. "guardian" means a judicially appointed guardian or conservator having authority to make a health-care decision for an individual;

          F. "health care" means any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition;

          G. "health-care decision" means a decision made by an individual or the individual's agent, guardian or surrogate, regarding the individual's health care, including:

                (1) selection and discharge of health-care practitioners and institutions;

                (2) approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate;

                (3) directions relating to life-sustaining treatment, including an order not to resuscitate or other direction withholding or withdrawing life-sustaining treatment and the termination of life support; and

                (4) directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care;

          H. "health-care institution" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business;

          I. "health-care practitioner" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession;

          J. "individual instruction" means an individual's direction concerning a health-care decision for the individual made while the individual has capacity;

          K. "life-sustaining treatment" means any medical treatment or procedure without which the individual is likely to die within a relatively short time, as determined to a reasonable degree of medical certainty by the primary care practitioner;

          L. "order not to resuscitate" means a physician's order that resuscitative measures shall not be provided to a person under a physician's care in the event that the individual is found with cardiopulmonary cessation. An "order not to resuscitate" includes a physician order written as "do not resuscitate", "do not allow resuscitation", "do not allow resuscitative measures", "DNAR", "DNR", "allow natural death" or "AND";

          [L.] M. "person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity;

          [M.] N. "physician" means an individual authorized to practice medicine or osteopathy;

          [N.] O. "power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power, made while the individual has capacity;

          [O.] P. "primary care practitioner" means a health-care practitioner designated by an individual or the individual's agent, guardian or surrogate to have primary responsibility for the individual's health care;

          [P.] Q. "principal" means an adult or emancipated minor who, while having capacity, has made a power of attorney for health care by which the adult or emancipated minor delegates the right to make health-care decisions for the adult or emancipated minor to an agent;

          [Q.] R. "protected person" means an adult or emancipated minor for whom a guardian has been appointed;

          [R.] S. "qualified health-care professional" means a health-care practitioner who is a physician, physician assistant, nurse practitioner, nurse, psychologist or social worker;

          [S.] T. "reasonably available" means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs;

          [T.] U. "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or a territory or insular possession subject to the jurisdiction of the United States;

          [U.] V. "supervising health-care practitioner" means the primary care practitioner, or if there is no primary care practitioner or if the primary care practitioner is not reasonably available, the health-care practitioner who has undertaken primary responsibility for an individual's health care; [and

          V.] W. "surrogate" means an individual, other than a patient's agent or guardian, authorized under the Uniform Health-Care Decisions Act to make a health-care decision for the patient; and

          X. "unemancipated minor" means an individual who is under eighteen years of age and who:

                (1) is not on active duty in the armed forces; and

                (2) has not been declared by court order to be emancipated."

     SECTION 2. Section 24-7A-6.1 NMSA 1978 (being Laws 1997, Chapter 168, Section 13, as amended) is amended to read:

     "24-7A-6.1. LIFE-SUSTAINING TREATMENT FOR UNEMANCIPATED MINORS--ORDERS NOT TO RESUSCITATE.--

          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 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 withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority 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 care practitioner and the other of whom shall be a health-care practitioner that works with unemancipated minors of the minor's age in the ordinary course of that health-care practitioner's 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 training and expertise aid in the assessment of functional impairment.

          E. If the unemancipated minor's primary care practitioner has reason to believe that a parent or guardian of an unemancipated minor, including a non-custodial parent, has not been informed of a decision to withhold or withdraw life-sustaining treatment, the primary care practitioner 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. An order not to resuscitate or similar physician's order shall not be instituted, either orally or in writing, unless at least one parent or legal guardian of a patient or resident who is an unemancipated minor or prospective patient or resident who is an unemancipated minor has first been informed of the physician's intent to institute an order not to resuscitate and a reasonable attempt has been made to inform the other parent if the other parent is reasonably available and has custodial or visitation rights. This information shall be provided both orally and in writing unless, in reasonable medical judgment, the urgency of the decision requires reliance on only providing the information orally. The provision of this information shall be contemporaneously recorded in the patient's medical record, specifying by whom and to whom the information was given, the date and time of its provision and whether it was provided in writing as well. When only one parent has been informed, the nature of reasonable attempts to inform the other parent or the reason why such attempts were not made shall also be contemporaneously recorded in the patient's medical record.

In the case of an unemancipated minor who, pursuant to Subsection C of Section 24-7A-11 NMSA 1978, is found to lack capacity to consent to an order not to resuscitate, either parent of an unemancipated minor or the unemancipated minor's guardian may refuse consent for an order not to resuscitate or similar physician's order for the unemancipated minor, either in writing or orally. Any such refusal of consent must be contemporaneously recorded in the patient's medical record. An order not to resuscitate or similar physician's order shall not be instituted, either orally or in writing, if there has been such a refusal of consent except in accordance with a court order issued pursuant to Subsection I of this section.

          H. If the parents of an unemancipated minor patient lacking capacity to consent to an order not to resuscitate are unable to agree on whether to institute or revoke an order not to resuscitate or similar physician's order, either parent may institute a proceeding pursuant to Subsection I of this section to resolve the conflict based on a presumption in favor of the provision of cardiopulmonary resuscitation. Pending the final determination of these proceedings, including any appeals, an order not to resuscitate or similar physician's order shall not be implemented.

          I. A parent or guardian may petition a district court of the county in which an unemancipated minor patient who lacks capacity to consent to an order not to resuscitate resides or in which the patient is receiving treatment for an order enjoining a violation or threatened violation of this section or to resolve a conflict. Upon receiving such a petition, the district court shall issue an order fixing the date, time and place of a hearing on the petition and order that notice of the hearing shall be given to such persons as the court shall direct. A preliminary hearing may be held without notice if the court determines that holding that hearing without notice is necessary to prevent imminent danger to the unemancipated minor patient's life. In the court's discretion, a hearing may be conducted in a courtroom, a health-care institution or at some other suitable place.

          J. Upon the request of an unemancipated minor patient or resident or a prospective unemancipated minor patient or resident, a health-care institution or physician shall disclose in writing any policies relating to a patient or resident or the services a patient or resident may receive involving resuscitation or life-sustaining measures, including any policies related to treatments deemed non-beneficial, ineffective, futile or inappropriate, within the health-care institution. Nothing in this section shall require a health-care institution or physician to have a written policy relating to or involving resuscitation or life-sustaining or non- beneficial treatment for unemancipated minor patients or adult patients, residents or wards.

          K. If a petition to prohibit the institution of an order not to resuscitate fails, which petition was filed because at least one parent and the health-care institution providing care to an unemancipated minor patient were unable to agree on matters relating to an unemancipated minor patient's order not to resuscitate, and the court decides that continued life-sustaining treatment is futile, the health-care institution shall make every reasonable effort to allow a parent, upon the parent's request, to transfer the unemancipated minor patient from the care of the health-care institution to either another health-care institution that is willing to provide life-sustaining treatment or to the unemancipated minor patient's home."

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