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SPONSOR: |
Nava |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Amend Uniform Health Care Decisions Act |
SB |
578 |
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ANALYST: |
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APPROPRIATION
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Estimated
Additional Impact |
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Non-Rec |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to Relates
to: NMSA, 1978 §32A-6-1 through §32A-6-22; NMSA, 1978,
§45–5-201
through §45-5-212; NMSA, 1978 §
Responses
Received From
Department
of Health (DOH)
Health
Policy Commission (HPC)
SUMMARY
Synopsis
of Bill
SB 578 creates a gender-neutral voice to the Uniform Health
Care Decision Act, clarifies statutory references, specifically expands who may
act as surrogates and requires that surrogates make specific efforts to
determine the wishes and values of the principal for whom they act. Moreover,
the bill includes language to signal to a surrogate that they have the ability
to consent to life-sustaining treatment, provides the principal a mechanism to
voice who should evaluate them for capacity, and requires that the health care
professional evaluating capacity has training and expertise in mental illness
or developmental disability provided that is the basis for asserting such incapacity. Finally, the legislation changes the age of a
unemanciapted minor from 15 to 18 and provides duties for a Guardian ad Litem,
if appointed, for court proceeding allowed by the Uniform Health Care Decision
Act.
Significant
Issues
The
following comments were made by DOH:
·
Specific to 24-7A-2.A: The right for disabled adults/emancipated
minors to make advance health-care directives is established by statute and
does not require the insertion of specific language to single out the specified
population. This change only reduces the clarity of rights and responsibilities
given a disabled adult or emancipated minor.
·
Specific to 24-7A-5.C: Guardian and advocacy organizations, in
addition to individuals would be allowed to provide surrogate services.
·
SB 578 revisions will support the patient
and their interest and decisions regarding their healthcare. State-funded guardians (Long Term Service
arena) already have full decision-making authority. Protection and Advocacy
agencies typically are not most knowledgeable of the patient and therefore
should not have this capability.
·
SB
578, in effect, circumvents many of the safeguards built into the probate code
through its expansion of who may serve as a surrogate. It further creates provisions, which appear
to be internally inconsistent, specifically its proposed amendments to 24-7A-2
(A). While the process to set up a
surrogacy may be more available to people and less restrictive than a probate
code guardian, there will be less protections.
The current Uniform Health Care Decisions Act codified a method of
practice seen over centuries. If a
family member was ill and in need of assistance, and could not voice their own
wishes the family was consulted as the best means of achieving care for the
person. The proposed expansion allows
those without blood relation or close affinity to make important health care
decisions without process, clear and measurable notice to families, and court
monitoring of status (like the annual report to the court in a probate code
guardianship). Further, it creates
potential standing for corporate and organizational groups in matters that have
traditionally and appropriately been left to families and those of close
affinity.
SB 578 will provide a mechanism to assist
patients/ clients in a less restrictive manner and may make it easier for
families and other entities to act on behalf of an incapacitated person. The manner by which a surrogacy is put into
place is less time consuming and burdensome then probate code guardians, but as
pointed out by DOH, also establishes less checks and balances into the system
when allowing corporate and other organizations involvement.
In
the process of attaining a probate code guardianship, there are many
considerations including civil process and procedure, higher cost, longer
timelines, and more difficulty in “overturning” and restoring the rights of
persons, if they regain capacity, such processes can impact staff time.
ADMINISTRATIVE IMPLICATIONS
Training will be necessary to be certain
staff at health care facilities and programs is aware of the proposed
amendments. Forms and other documents
may have to be updated.
TECHNICAL ISSUES
On
page 4, line 13, there are end quotes at the end of 24-7A-2 (G); On page 12,
lines 21- 25, there is the use of the word, “individual”, in language added as
part of the amendment and throughout the rest of the document there appears to
be an effort to end the use of that word; On page 12, line 23 there is
reference to a person’s guardian, without clarification of what type of
guardian, and if a person had a guardian there may not be a need to determine
capacity, for the purposes of the Uniform Health Care Decisions Act.
OTHER SUBSTANTIVE ISSUES
The proposed expansions of who may serve
as surrogate would create fewer burdens, but in turn, would allow less
protection and oversight. The expansion
allows for non-family members, and those without close affinity, to have the
authority to make health care decisions, absent any court review. The clarification portions of SB 578,
including gender neutral language, statutory references, and “language
clean-up” are helpful, according to DOH, but not critical. The portion regarding the role of the GAL, is helpful. The
other additions/ clarifications are useful.
The added
language on page 9, line 2 that would allow parents or guardians of
un-emancipated minors to provide life-sustaining treatment, shows support for
families who provide most of the care for their special needs children.
SB 578 would require that the two qualified
health professionals evaluate the un-emancipated minor; a recommendation by DOH
is that one is credentialed to properly assess mental status and level of
functioning in un-emancipated minors.
The legislation works for the interests of both patients and
caregivers, as maintained by HPC, specifying in advance that care providers are
not duty-bound to exhaust all resources and means of treating an individual if
that individual makes it clear it is not their desire to receive such care.
On
Page 9 “24-7A-6.1 DECISIONS FOR UNEMANCIPATED MINORS, Section D, line 20,
change “another qualified health care professional” to specifically identify a
licensed psychiatrist or psychologist who is credentialed to properly assess
mental status and level of functioning.
DOH recommends taking out the expansion
language in 24-7A-2 (A) of who may serve, as it is unclear and dubious.
Add “ dated and time of
day of execution of the advanced directive” to page 2, line13 after the
word “signed.”
Change “primary
caregiver” on page3, line25 to “health-care provider” as per the definitions in
24-7A1.
Add “in writing” after “informing” on page5,
line 1.
Change the wording of “adult child” on page5, line 15 to
mean an individual who is the child of the person, but has attained the age of
majority.
Add “dated and timed” after signed on page 8,line4.
Change “primary care physician” on page9, line
19 to “health care provider.”
Change “primary physician on page12, line22 to
“health care provider.”
BD/prr:yr