0001| HOUSE BILL 1202
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| J. "ANDY" KISSNER
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO HEALTH; PROVIDING FOR AN INDIVIDUAL'S RIGHT TO MAKE
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0012| HEALTH-CARE DECISIONS; PROVIDING GUIDELINES FOR ADVANCE HEALTH-
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0013| CARE DIRECTIVES; AMENDING AND REPEALING SECTIONS OF THE NMSA
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0014| 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 24-7A-1 NMSA 1978 (being Laws 1995,
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0018| Chapter 182, Section 1) is amended to read:
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0019| "24-7A-1. DEFINITIONS.--As used in the Uniform
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0020| Health-Care Decisions Act:
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0021| A. "advance health-care directive" means an
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0022| individual instruction or a power of attorney for health care
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0023| made, in either case, while the individual has capacity;
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0024| B. "agent" means an individual designated in a
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0025| power of attorney for health care to make a health-care
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0001| decision for the individual granting the power;
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0002| C. "capacity" means an individual's ability to
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0003| understand and appreciate the nature and consequences of
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0004| proposed health care, including its significant benefits, risks
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0005| and alternatives to proposed health care and to make and
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0006| communicate an informed health-care decision. A determination
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0007| of lack of capacity shall be made only according to the
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0008| provisions of Section [11 of the Uniform Health-Care Decisions
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Act] 24-7A-11 NMSA 1978;
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0010| D. "emancipated minor" means a person under the
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0011| age of eighteen who has never been married, who is on active
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0012| duty in the armed forces or who is between the ages of sixteen
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0013| and eighteen and has been declared by court order to be
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0014| emancipated;
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0015| [D.] E. "guardian" means a judicially appointed
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0016| guardian or conservator having authority to make a health-care
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0017| decision for an individual;
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0018| [E.] F. "health care" means any care,
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0019| treatment, service or procedure to maintain, diagnose or
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0020| otherwise affect an individual's physical or mental condition;
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0021| [F.] G. "health-care decision" means a decision
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0022| made by an individual or the individual's agent, guardian or
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0023| surrogate, regarding the individual's health care, including:
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0024| (1) selection and discharge of health-care
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0025| providers and institutions;
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0001| (2) approval or disapproval of diagnostic
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0002| tests, surgical procedures, programs of medication and orders
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0003| not to resuscitate; [and]
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0004| (3) directions relating to life-sustaining
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0005| treatment, including withholding or withdrawing life-sustaining
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0006| treatment and the termination of life support; and
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0007| [(3)] (4) directions to provide, withhold
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0008| or withdraw artificial nutrition and hydration and all other
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0009| forms of health care;
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0010| [G.] H. "health-care institution" means an
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0011| institution, facility or agency licensed, certified or
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0012| otherwise authorized or permitted by law to provide health care
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0013| in the ordinary course of business;
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0014| [H.] I. "health-care provider" means an
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0015| individual licensed, certified or otherwise authorized or
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0016| permitted by law to provide health care in the ordinary course
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0017| of business or practice of a profession;
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0018| [I.] J. "individual instruction" means an
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0019| individual's direction concerning a health-care decision for
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0020| the individual, made while the individual has capacity;
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0021| K. "life-sustaining treatment" means any medical
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0022| treatment or procedure without which the individual is likely
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0023| to die within a relatively short time, as determined to a
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0024| reasonable degree of medical certainty by the primary
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0025| physicians;
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0001| [J.] L. "person" means an individual,
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0002| corporation, business trust, estate, trust, partnership,
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0003| association, joint venture, government, governmental
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0004| subdivision, agency or instrumentality or any other legal or
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0005| commercial entity;
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0006| [K.] M. "physician" means an individual
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0007| authorized to practice medicine or osteopathy;
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0008| [L.] N. "power of attorney for health care"
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0009| means the designation of an agent to make health-care decisions
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0010| for the individual granting the power, made while the
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0011| individual has capacity;
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0012| [M.] O. "primary physician" means a physician
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0013| designated by an individual or the individual's agent, guardian
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0014| or surrogate to have primary responsibility for the
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0015| individual's health care or, in the absence of a designation or
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0016| if the designated physician is not reasonably available, a
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0017| physician who undertakes the responsibility;
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0018| P. "principal" means an adult who, while having
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0019| capacity, has made a power of attorney for health care by which
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0020| he delegates his right to make health-care decisions for
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0021| himself to an agent;
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0022| [N.] Q. "qualified health-care professional"
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0023| means a health-care provider who is a physician, physician
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0024| assistant, nurse practitioner, nurse, psychologist or social
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0025| worker;
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0001| [O.] R. "reasonably available" means readily
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0002| able to be contacted without undue effort and willing and able
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0003| to act in a timely manner considering the urgency of the
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0004| patient's health-care needs;
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0005| [P.] S. "state" means a state of the United
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0006| States, the District of Columbia, the commonwealth of Puerto
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0007| Rico or a territory or insular possession subject to the
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0008| jurisdiction of the United States;
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0009| [Q.] T. "supervising health-care provider"
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0010| means the primary physician or, if there is no primary
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0011| physician or the primary physician is not reasonably available,
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0012| the health-care provider who has undertaken primary
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0013| responsibility for an individual's health care; [and]
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0014| [R.] U. "surrogate" means an individual, other
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0015| than a patient's agent or guardian, authorized under the
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0016| Uniform Health-Care Decisions Act to make a health-care
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0017| decision for the patient; and
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0018| V. "ward" means an adult or emancipated minor for
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0019| whom a guardian has been appointed."
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0020| Section 2. Section 24-7A-3 NMSA 1978 (being Laws 1995,
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0021| Chapter 182, Section 3) is amended to read:
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0022| "24-7A-3. REVOCATION OF ADVANCE HEALTH-CARE DIRECTIVE.--
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0023| A. An individual, while having capacity, may revoke
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0024| the designation of an agent [only] either by a signed
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0025| writing or by personally informing the supervising health-care
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0001| provider. If the individual cannot sign, a written revocation
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0002| must be signed for the individual and be witnessed by two
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0003| witnesses, each of whom has signed at the direction and in the
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0004| presence of the individual and of each other.
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0005| B. An individual, while having capacity, may revoke
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0006| all or part of an advance health-care directive, other than the
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0007| designation of an agent, at any time and in any manner that
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0008| communicates an intent to revoke.
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0009| C. A health-care provider, agent, guardian or
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0010| surrogate who is informed of a revocation shall promptly
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0011| communicate the fact of the revocation to the supervising
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0012| health-care provider and to any health-care institution at
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0013| which the patient is receiving care.
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0014| D. The filing of a petition for or a decree of
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0015| annulment, divorce, dissolution of marriage or legal separation
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0016| revokes a previous designation of a spouse as agent unless
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0017| otherwise specified in the decree or in a power of attorney for
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0018| health care. A designation revoked solely by this subsection
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0019| is revived by the individual's remarriage to the former spouse,
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0020| by a nullification of the divorce, annulment or legal
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0021| separation or by the dismissal or withdrawal, with the
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0022| individual's consent, of a petition seeking annulment, divorce,
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0023| dissolution of marriage or legal separation.
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0024| E. An advance health-care directive that conflicts
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0025| with an earlier advance health-care directive revokes the
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0001| earlier directive to the extent of the conflict."
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0002| Section 3. Section 24-7A-4 NMSA 1978 (being Laws 1995,
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0003| Chapter 182, Section 4) is amended to read:
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0004| "24-7A-4. OPTIONAL FORM.--The following form may, but
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0005| need not, be used to create an advance health-care directive.
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0006| The other sections of the Uniform Health-Care Decisions Act
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0007| govern the effect of this or any other writing used to create
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0008| an advance health-care directive. An individual may complete
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0009| or modify all or any part of the following form:
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0010| "OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE
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0011| Explanation
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0012| You have the right to give instructions about your own
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0013| health care. You also have the right to name someone else to
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0014| make health-care decisions for you. This form lets you do
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0015| either or both of these things. It also lets you express your
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0016| wishes regarding the designation of your primary physician.
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0017| THIS FORM IS OPTIONAL. Each paragraph and word of this
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0018| form is also optional. If you use this form, you may
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0019| [strike] cross out, complete or modify all or any part of
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0020| it. You are free to use a different form. [You do not have to
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sign any form.] If you use this form, be sure to sign it and
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0022| date it.
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0023| PART 1 of this form is a power of attorney for health
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0024| care. Part 1 lets you name another individual as agent to make
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0025| health-care decisions for you if you become incapable of making
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0001| your own decisions or if you want someone else to make those
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0002| decisions for you now even though you are still capable. You
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0003| may also name an alternate agent to act for you if your first
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0004| choice is not willing, able or reasonably available to make
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0005| decisions for you. Unless related to you, your agent may not
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0006| be an owner, operator or employee of a health-care institution
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0007| at which you are receiving care.
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0008| Unless the form you sign limits the authority of your
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0009| agent, your agent may make all health-care decisions for you.
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0010| This form has a place for you to limit the authority of your
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0011| agent. You need not limit the authority of your agent if you
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0012| wish to rely on your agent for all health-care decisions that
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0013| may have to be made. If you choose not to limit the authority
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0014| of your agent, your agent will have the right to:
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0015| (a) consent or refuse consent to any care,
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0016| treatment, service or procedure to maintain,
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0017| diagnose or otherwise affect a physical or
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0018| mental condition;
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0019| (b) select or discharge health-care providers and
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0020| institutions;
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0021| (c) approve or disapprove diagnostic tests,
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0022| surgical procedures, programs of medication and
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0023| orders not to resuscitate; and
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0024| (d) direct the provision, withholding or withdrawal
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0025| of artificial nutrition and hydration and all
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0001| other forms of health care.
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0002| PART 2 of this form lets you give specific instructions
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0003| about any aspect of your health care. Choices are provided for
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0004| you to express your wishes regarding [the provision,
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withholding or withdrawal of treatment to keep you alive]
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0006| life-sustaining treatment, including the provision of
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0007| artificial nutrition and hydration, as well as the provision of
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0008| pain relief. Space is also provided for you to add to the
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0009| choices you have made or for you to write out any additional
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0010| wishes.
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0011| PART 3 of this form lets you designate a physician to have
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0012| primary responsibility for your health care.
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0013| After completing this form, sign and date the form at the
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0014| end. It is recommended but not required that you request two
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0015| other individuals to sign as witnesses. Give a copy of the
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0016| signed and completed form to your physician, to any other
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0017| health-care providers you may have, to any health-care
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0018| institution at which you are receiving care and to any
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0019| health-care agents you have named. You should talk to the
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0020| person you have named as agent to make sure that he or she
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0021| understands your wishes and is willing to take the
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0022| responsibility.
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0023| You have the right to revoke this advance health-care
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0024| directive or replace this form at any time.
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0025| * * * * * * * * * * * * * * * * * * * * *
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0001| PART 1
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0002| POWER OF ATTORNEY FOR HEALTH CARE
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0003| (1) DESIGNATION OF AGENT: I designate the
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0004| following individual as my agent to make health-care decisions
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0005| for me:
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0006| _____________________________________________________________
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0007| (name of individual you choose as agent)
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0008| _____________________________________________________________
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0009| (address) (city) (state) (zip code)
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0010| _____________________________________________________________
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0011| (home phone) (work phone)
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0012| If I revoke my agent's authority or if my agent is not
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0013| willing, able or reasonably available to make a health-care
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0014| decision for me, I designate as my first alternate agent:
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0015| _____________________________________________________________
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0016| (name of individual you choose as first alternate agent)
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0017| _____________________________________________________________
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0018| (address) (city) (state) (zip code)
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0019| _____________________________________________________________
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0020| (home phone) (work phone)
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0021| If I revoke the authority of my agent and first alternate
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0022| agent or if neither is willing, able or reasonably available to
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0023| make a health-care decision for me, I designate as my second
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0024| alternate agent:
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0025| _____________________________________________________________
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0001| (name of individual you choose as second alternate agent)
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0002| _____________________________________________________________
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0003| (address) (city) (state) (zip code)
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0004| _____________________________________________________________
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0005| (home phone) (work phone)
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0006| (2) AGENT'S AUTHORITY: My agent is authorized to
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0007| obtain and review medical records, reports and information
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0008| about me and to make all health-care decisions for me,
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0009| including decisions to provide, withhold or withdraw artificial
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0010| nutrition, hydration and all other forms of health care to keep
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0011| me alive, except as I state here:
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0012|
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0013|
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0014|
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0015| (Add additional sheets if needed.)
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0016| (3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My
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0017| agent's authority becomes effective when my primary physician
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0018| and one other qualified health-care professional determine that
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0019| I am unable to make my own health-care decisions [unless I
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mark the following box]. If I [mark] initial this box
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0021| [ ], my agent's authority to make health-care decisions for
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0022| me takes effect immediately.
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0023| (4) AGENT'S OBLIGATION: My agent shall make
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0024| health-care decisions for me in accordance with this power of
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0025| attorney for health care, any instructions I give in Part 2 of
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0001| this form and my other wishes to the extent known to my agent.
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0002| To the extent my wishes are unknown, my agent shall make
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0003| health-care decisions for me in accordance with what my agent
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0004| determines to be in my best interest. In determining my best
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0005| interest, my agent shall consider my personal values to the
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0006| extent known to my agent.
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0007| (5) NOMINATION OF GUARDIAN: If a guardian of my
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0008| person needs to be appointed for me by a court, I nominate the
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0009| agent designated in this form. If that agent is not willing,
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0010| able or reasonably available to act as guardian, I nominate the
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0011| alternate agents whom I have named, in the order designated.
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0012| PART 2
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0013| INSTRUCTIONS FOR HEALTH CARE
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0014| If you are satisfied to allow your agent to
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0015| determine what is best for you in making end-of-life decisions,
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0016| you need not fill out this part of the form. If you do fill
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0017| out this part of the form, you may [strike] cross out any
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0018| wording you do not want.
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0019| (6) END-OF-LIFE DECISIONS: If I am unable to make
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0020| or communicate decisions regarding my health care, and IF (i) I
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0021| have an incurable or irreversible condition that will result in
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0022| my death within a relatively short time, OR (ii) I become
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0023| unconscious and, to a reasonable degree of medical certainty, I
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0024| will not regain consciousness, OR (iii) the likely risks and
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0025| burdens of treatment would outweight the expected benefits,
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0001| THEN I direct that my health-care providers and others
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0002| involved in my care provide, withhold or withdraw treatment in
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0003| accordance with the choice I have [marked] initialed below
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0004| in one of the following three boxes:
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0005| [ ] (a) [Choice] I CHOOSE NOT To Prolong Life
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0006| I do not want my life to be prolonged. [if (i) I
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have an incurable and irreversible condition that will result
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in my death within a relatively short time, (ii) I become
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unconscious and, to a reasonable degree of medical certainty, I
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will not regain consciousness or (iii) the likely risks and
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burdens of treatment would outweigh the expected benefits, OR]
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0012| I understand that "not prolonging my life" means that I do not
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0013| want any life-sustaining treatment, including any artificial
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0014| nutrition or hydration.
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0015| [ ] (b) [Choice] I CHOOSE To Prolong Life
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0016| I want my life to be prolonged as long as possible
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0017| within the limits of generally accepted health-care standards.
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0018| [ ] (c) I CHOOSE To Let My Agent Decide
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0019| My agent under my power of attorney for heath care
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0020| may make life-sustaining treatment decisions for me.
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0021| (7) ARTIFICIAL NUTRITION AND HYDRATION: If I have
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0022| [selected the above choice] chosen above NOT to prolong
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0023| life [under specified conditions], I also specify [that I
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_____ do or ____ do not want artificial nutrition and hydration
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provided to me] by marking my initials below:
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0001| [ ] I DO NOT want artificial nutrition OR
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0002| [ ] I DO want artificial nutrition.
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0003| [ ] I DO NOT want artificial hydration unless
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0004| required for my comfort OR
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0005| [ ] I DO want artificial hydration.
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0006| (8) RELIEF FROM PAIN: Regardless of the choices I
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0007| have made in this form and except as I state in the following
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0008| space, I direct that [treatment for easing] the best medical
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0009| care possible to keep me clean, comfortable and free of pain
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0010| or discomfort be provided at all times so that my dignity is
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0011| maintained, even if [it] this care hastens my death:
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0012| _____________________________________________________________
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0013| _____________________________________________________________
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0014| (9) OTHER WISHES: (If you wish to write your own
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0015| instructions, or if you wish to add to the instructions you
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0016| have given above, you may do so here.) I direct that:
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0017| _____________________________________________________________
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0018| _____________________________________________________________
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0019| (Add additional sheets if needed.)
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0020| PART 3
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0021| PRIMARY PHYSICIAN
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0022| (10) I designate the following physician as my
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0023| primary physician:
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0024| _____________________________________________________________
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0025| (name of physician)
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0001| _____________________________________________________________
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0002| (address) (city) (state) (zip code)
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0003| _____________________________________________________________
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0004| (phone)
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0005| If the physician I have designated above is not willing,
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0006| able or reasonably available to act as my primary physician, I
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0007| designate the following physician as my primary physician:
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0008| _____________________________________________________________
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0009| (name of physician)
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0010| _____________________________________________________________
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0011| (address) (city) (state) (zip code)
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0012| _____________________________________________________________
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0013| (phone)
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0014| * * * * * * * * * * * * * * * * * * * *
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0015| (11) EFFECT OF COPY: A copy of this form has the
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0016| same effect as the original.
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0017| (12) REVOCATION: I understand that I may revoke
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0018| this OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE at any time, and
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0019| that if I revoke it, I should promptly notify my supervising
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0020| health-care provider and any health-care institution where I am
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0021| receiving care and any others to whom I have given copies of
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0022| this power of attorney. I understand that I may revoke the
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0023| designation of an agent only by a signed writing or by
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0024| personally informing the supervising health-care provider.
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0025| (13) SIGNATURES: Sign and date the form here:
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0001| _____________________________ _____________________________
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0002| (date) (sign your name)
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0003| _____________________________ _____________________________
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0004| (address) (print your name)
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0005| _____________________________ ____________________________
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0006| (city) (state) (your social security number)
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0007| (Optional) SIGNATURES OF WITNESSES:
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0008| First witness Second witness
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0009| ____________________________ ____________________________
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0010| (print name) (print name)
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0011| ____________________________ ____________________________
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0012| (address) (address)
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0013| ____________________________ ____________________________
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0014| (city) (state) (city) (state)
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0015| ____________________________ ____________________________
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0016| (signature of witness) (signature of witness)
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0017| ____________________________ ____________________________
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0018| (date) (date)"."
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0019| Section 4. Section 24-7A-5 NMSA 1978 (being Laws 1995,
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0020| Chapter 182, Section 5) is amended to read:
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0021| "24-7A-5. DECISIONS BY SURROGATE.--
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0022| A. A surrogate may make a health-care decision for
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0023| a patient who is an adult or emancipated minor if the patient
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0024| has been determined according to the provisions of Section [11
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of the Uniform Health-Care Decisions Act] 24-7A-11 NMSA 1978
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0001| to lack capacity and no agent or guardian has been appointed or
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0002| the agent or guardian is not reasonably available.
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0003| B. An adult or emancipated minor, while having
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0004| capacity, may designate any individual to act as surrogate by
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0005| personally informing the supervising health-care provider. In
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0006| the absence of a designation or if the designee is not
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0007| reasonably available, any member of the following classes of
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0008| the patient's family who is reasonably available, in descending
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0009| order of priority, may act as surrogate:
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0010| (1) the spouse, unless legally separated or
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0011| unless there is a pending petition for annulment, divorce,
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0012| dissolution of marriage or legal separation;
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0013| (2) an individual in a long-term relationship
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0014| of indefinite duration with the patient in which the individual
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0015| has demonstrated an actual commitment to the patient similar to
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0016| the commitment of a spouse and in which the individual and the
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0017| patient consider themselves to be responsible for each other's
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0018| well-being;
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0019| (3) an adult child;
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0020| (4) a parent;
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0021| (5) an adult brother or sister; or
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0022| (6) a grandparent.
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0023| C. If none of the individuals eligible to act as
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0024| surrogate under Subsection B of this section is reasonably
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0025| available, an adult who has exhibited special care and concern
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0001| for the patient, who is familiar with the patient's personal
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0002| values and who is reasonably available may act as surrogate.
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0003| D. A surrogate shall communicate his [or her]
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0004| assumption of authority as promptly as practicable to the
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0005| patient, [and] to members of the patient's family specified
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0006| in Subsection B of this section who can be readily contacted
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0007| and to the supervising health-care provider.
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0008| E. If more than one member of a class assumes
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0009| authority to act as surrogate and they do not agree on a
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0010| health-care decision and the supervising health-care provider
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0011| is so informed, the supervising health-care provider shall
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0012| comply with the decision of a majority of the members of that
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0013| class who have communicated their views to the provider. If
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0014| the class is evenly divided concerning the health-care decision
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0015| and the supervising health-care provider is so informed, that
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0016| class and all individuals having lower priority are
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0017| disqualified from making the decision.
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0018| F. A surrogate shall make a health-care decision in
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0019| accordance with the patient's individual instructions, if any,
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0020| and other wishes to the extent known to the surrogate.
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0021| Otherwise, the surrogate shall make the decision in accordance
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0022| with the surrogate's determination of the patient's best
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0023| interest. In determining the patient's best interest, the
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0024| surrogate shall consider the patient's personal values to the
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0025| extent known to the surrogate.
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0001| G. A health-care decision made by a surrogate for a
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0002| patient is effective without judicial approval.
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0003| H. A patient, at any time, may disqualify
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0004| [another] any person, including a member of the patient's
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0005| family, from acting as the patient's surrogate by a signed
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0006| writing or by personally informing a health-care provider of
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0007| the disqualification. A health-care provider who is informed
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0008| by the patient of a disqualification shall promptly communicate
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0009| the fact of disqualification to the supervising health-care
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0010| provider and to any health-care institution at which the
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0011| patient is receiving care.
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0012| I. Unless related to the patient by blood, marriage
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0013| or adoption, a surrogate may not be an owner, operator or
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0014| employee of a [residential long-term] health-care institution
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0015| at which the patient is receiving care.
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0016| J. A supervising health-care provider may require
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0017| an individual claiming the right to act as surrogate for a
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0018| patient to provide a written declaration under penalty of
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0019| perjury stating facts and circumstances reasonably sufficient
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0020| to establish the claimed authority."
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0021| Section 5. Section 24-7A-7 NMSA 1978 (being Laws 1995,
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0022| Chapter 182, Section 7) is amended to read:
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0023| "24-7A-7. OBLIGATIONS OF HEALTH-CARE PROVIDER.--
|
0024| A. Before implementing a health-care decision made
|
0025| for a patient, a supervising health-care provider shall
|
0001| promptly communicate to the patient the decision made and the
|
0002| identity of the person making the decision.
|
0003| B. A supervising health-care provider who knows of
|
0004| the existence of an advance health-care directive, a revocation
|
0005| of an advance health-care directive, a challenge to a
|
0006| determination of lack of capacity or a designation or
|
0007| disqualification of a surrogate shall promptly record its
|
0008| existence in the patient's health-care record and, if it is in
|
0009| writing, shall request a copy and, if one is furnished, shall
|
0010| arrange for its maintenance in the health-care record.
|
0011| C. A [primary physician] supervising health-care
|
0012| provider who makes or is informed of a determination that a
|
0013| patient lacks or has recovered capacity or that another
|
0014| condition exists [which] that affects an individual
|
0015| instruction or the authority of an agent, guardian or surrogate
|
0016| shall promptly record the determination in the patient's
|
0017| health-care record and communicate the determination to the
|
0018| patient and to any person then authorized to make health-care
|
0019| decisions for the patient.
|
0020| D. Except as provided in Subsections E and F of
|
0021| this section, a health-care provider or health-care
|
0022| institution providing care to a patient shall comply:
|
0023| (1) [comply] before and after the patient is
|
0024| determined to lack capacity, with an individual instruction of
|
0025| the patient made while the patient had capacity;
|
0001| (2) [comply] with a reasonable interpretation
|
0002| of that instruction made by a person then authorized to make
|
0003| health-care decisions for the patient; and
|
0004| (3) [comply] with a health-care decision for
|
0005| the patient [which] that is not contrary to an individual
|
0006| instruction of the patient and is made by a person then
|
0007| authorized to make health-care decisions for the patient, to
|
0008| the same extent as if the decision had been made by the patient
|
0009| while having capacity.
|
0010| E. A health-care provider may decline to comply
|
0011| with an individual instruction or health-care decision for
|
0012| reasons of conscience. A health-care institution may decline
|
0013| to comply with an individual instruction or health-care
|
0014| decision if the instruction or decision is contrary to a policy
|
0015| of the health-care institution [which] that is expressly
|
0016| based on reasons of conscience and if the policy was timely
|
0017| communicated to the patient or to a person then authorized to
|
0018| make health-care decisions for the patient.
|
0019| F. A health-care provider or health-care
|
0020| institution may decline to comply with an individual
|
0021| instruction or health-care decision that requires medically
|
0022| ineffective health care or health care contrary to generally
|
0023| accepted health-care standards applicable to the health-care
|
0024| provider or health-care institution. "Medically ineffective
|
0025| health care" means treatment that would not offer the patient
|
0001| any significant benefit, as determined by a physician.
|
0002| G. A health-care provider or health-care
|
0003| institution that declines to comply with an individual
|
0004| instruction or health-care decision shall:
|
0005| (1) promptly so inform the patient, if
|
0006| possible, and any person then authorized to make health-care
|
0007| decisions for the patient;
|
0008| (2) provide continuing care to the patient
|
0009| until a transfer can be effected; and
|
0010| (3) unless the patient or person then
|
0011| authorized to make health-care decisions for the patient
|
0012| refuses assistance, immediately make all reasonable efforts to
|
0013| assist in the transfer of the patient to another health-care
|
0014| provider or health-care institution that is willing to comply
|
0015| with the instruction or decision.
|
0016| H. A health-care provider or health-care
|
0017| institution may not require or prohibit the execution or
|
0018| revocation of an advance health-care directive as a condition
|
0019| for providing health care.
|
0020| I. The Uniform Health-Care Decisions Act does not
|
0021| require or permit a health-care institution or health-care
|
0022| provider to provide any type of health care for which the
|
0023| health-care institution or health-care provider is not
|
0024| licensed, certified or otherwise authorized or permitted by law
|
0025| to provide."
|
0001| Section 6. Section 24-7A-10 NMSA 1978 (being Laws 1995,
|
0002| Chapter 182, Section 10) is amended to read:
|
0003| "24-7A-10. STATUTORY DAMAGES.--
|
0004| A. A health-care provider or health-care
|
0005| institution that intentionally violates the Uniform Health-Care
|
0006| Decisions Act is subject to liability to the aggrieved
|
0007| individual for damages of [two thousand five hundred dollars
|
($2,500)] five thousand dollars ($5,000) or actual damages
|
0009| resulting from the violation, whichever is greater, plus
|
0010| reasonable [attorneys'] attorney fees.
|
0011| B. A person who intentionally falsifies, forges,
|
0012| conceals, defaces or obliterates an individual's advance
|
0013| health-care directive or a revocation of an advance health-care
|
0014| directive without the individual's consent or a person who
|
0015| coerces or fraudulently induces an individual to give, revoke
|
0016| or not [to] give or revoke an advance health-care directive
|
0017| is subject to liability to that individual for damages of [two
|
thousand five hundred dollars ($2,500)] five thousand dollars
|
0019| ($5,000) or actual damages resulting from the action,
|
0020| whichever is greater, plus reasonable [attorneys'] attorney
|
0021| fees.
|
0022| C. The damages provided in this section are in
|
0023| addition to other types of relief available under other law,
|
0024| including civil and criminal law and law providing for
|
0025| disciplinary procedures."
|
0001| Section 7. Section 24-7A-11 NMSA 1978 (being Laws 1995,
|
0002| Chapter 182, Section 11) is amended to read:
|
0003| "24-7A-11. CAPACITY.--
|
0004| A. The Uniform Health-Care Decisions Act does not
|
0005| affect the right of an individual to make health-care decisions
|
0006| while having capacity to do so.
|
0007| B. An individual is presumed to have capacity to
|
0008| make a health-care decision, to give or revoke an advance
|
0009| health-care directive and to designate [or disqualify] a
|
0010| surrogate.
|
0011| C. Unless otherwise specified in a written advance
|
0012| health-care directive, a determination that an individual lacks
|
0013| or has recovered capacity or that another condition exists that
|
0014| affects an individual instruction or the authority of an agent
|
0015| shall be made by two qualified health-care professionals, one
|
0016| of whom shall be the primary physician. If the lack of
|
0017| capacity is determined to exist because of mental illness or
|
0018| developmental disability, one of the qualified health-care
|
0019| professionals shall be a person whose training and expertise
|
0020| aid in the assessment of functional impairment.
|
0021| D. An individual shall not be determined to lack
|
0022| capacity solely on the basis that the individual chooses not to
|
0023| accept the treatment recommended by a health-care provider.
|
0024| E. An individual, at any time, may challenge a
|
0025| determination that the individual lacks capacity by a signed
|
0001| writing or by personally informing a health-care provider of
|
0002| the challenge. A health-care provider who is informed by the
|
0003| individual of a challenge shall promptly communicate the fact
|
0004| of the challenge to the supervising health-care provider and to
|
0005| any health-care institution at which the individual is
|
0006| receiving care. Such a challenge shall prevail unless
|
0007| otherwise ordered by the court in a proceeding brought pursuant
|
0008| to the provisions of Section [14 of the Uniform Health-Care
|
Decisions Act] 24-7A-14 NMSA 1978.
|
0010| F. A determination of lack of capacity under the
|
0011| Uniform Health-Care Decisions Act shall not be evidence of
|
0012| incapacity under the provisions of Article 5 of the Uniform
|
0013| Probate Code."
|
0014| Section 8. Section 24-7A-13 NMSA 1978 (being Laws 1995,
|
0015| Chapter 182, Section 13) is amended to read:
|
0016| "24-7A-13. EFFECT OF THE UNIFORM HEALTH-CARE DECISIONS
|
0017| ACT.--
|
0018| A. The Uniform Health-Care Decisions Act does not
|
0019| create a presumption concerning the intention of an individual
|
0020| who has not made or who has revoked an advance health-care
|
0021| directive.
|
0022| B. Death resulting from the withholding or
|
0023| withdrawal of health care in accordance with the Uniform
|
0024| Health-Care Decisions Act does not for any purpose:
|
0025| (1) constitute a suicide, a homicide or other
|
0001| crime; or
|
0002| (2) legally impair or invalidate a governing
|
0003| instrument, notwithstanding any term of the governing
|
0004| instrument to the contrary. "Governing instrument" means a
|
0005| deed, will, trust, insurance or annuity policy, account with
|
0006| POD (payment on death designation), security registered in
|
0007| beneficiary form (TOD), pension, profit-sharing, retirement,
|
0008| employment or similar benefit plan, instrument creating or
|
0009| exercising a power of appointment or a dispositive, appointive
|
0010| or nominative instrument of any similar type.
|
0011| C. The Uniform Health-Care Decisions Act does not
|
0012| authorize mercy killing, assisted suicide, euthanasia or the
|
0013| provision, withholding or withdrawal of health care, to the
|
0014| extent prohibited by other statutes of this state.
|
0015| D. The Uniform Health-Care Decisions Act does not
|
0016| authorize or require a health-care provider or health-care
|
0017| institution to provide health care contrary to generally
|
0018| accepted health-care standards applicable to the health-care
|
0019| provider or health-care institution.
|
0020| E. The Uniform Health-Care Decisions Act does not
|
0021| authorize an agent or surrogate to consent to the admission of
|
0022| an individual to a mental health-care facility. If the
|
0023| individual's written advance health-care directive expressly
|
0024| permits treatment in a mental health-care facility, the agent
|
0025| or surrogate may present the individual to a facility for
|
0001| evaluation for admission.
|
0002| F. The Uniform Health-Care Decisions Act does not
|
0003| affect other statutes of this state governing treatment for
|
0004| mental illness of an individual [involuntarily committed]
|
0005| admitted to a mental health-care institution."
|
0006| Section 9. Section 24-7A-14 NMSA 1978 (being Laws 1995,
|
0007| Chapter 182, Section 14) is amended to read:
|
0008| "24-7A-14. JUDICIAL RELIEF.--On petition of a patient,
|
0009| the patient's agent, guardian or surrogate, a health-care
|
0010| provider or health-care institution involved with the
|
0011| patient's care, an individual described in Subsection B or C of
|
0012| Section [5 of the Uniform Health-Care Decisions Act or another
|
person having an interest in the patient's welfare] 24-7A-5
|
0014| NMSA 1978, the district court may enjoin or direct a
|
0015| health-care decision or order other equitable relief. A
|
0016| proceeding under this section is governed by the Rules of Civil
|
0017| Procedure for the District Courts."
|
0018| Section 10. Section 24-7A-16 NMSA 1978 (being Laws 1995,
|
0019| Chapter 182, Section 16) is amended to read:
|
0020| "24-7A-16. TRANSITIONAL PROVISIONS.--
|
0021| A. An advance health-care directive is valid for
|
0022| purposes of the Uniform Health-Care Decisions Act if it
|
0023| complies with the provisions of that act, regardless of when or
|
0024| where executed or communicated.
|
0025| B. The Uniform Health-Care Decisions Act does not
|
0001| impair a guardianship, living will, durable power of attorney,
|
0002| right-to-die statement or declaration or other advance
|
0003| directive for health-care decisions [which] that is in
|
0004| effect before July 1, 1995.
|
0005| C. Any advance directive, durable power of
|
0006| attorney for heath care decisions, living will, right-to-die
|
0007| statement or declaration or similar document that is executed
|
0008| in another state or jurisdiction in compliance with the laws of
|
0009| that state or jurisdiction shall be deemed valid and
|
0010| enforceable in this state to the same extent as if it were
|
0011| properly made in this state."
|
0012| Section 11. Section 30-47-8 NMSA 1978 (being Laws 1990,
|
0013| Chapter 55, Section 8) is amended to read:
|
0014| "30-47-8. TREATMENT IN COMPLIANCE WITH THE [RIGHT TO
|
DIE] UNIFORM HEALTH-CARE DECISIONS ACT.--
|
0016| A. Nothing in the Resident Abuse and Neglect Act
|
0017| shall be construed to preclude [withholding or withdrawing
|
treatment in accordance with the Right to Die] health care in
|
0019| accordance with the Uniform Health-Care Decisions Act, and it
|
0020| shall be an affirmative defense to any charge brought under the
|
0021| Resident Abuse and Neglect Act that the acts complained of were
|
0022| in accordance with the [Right To Die] Uniform Health-Care
|
0023| Decisions Act.
|
0024| B. To establish an affirmative defense under
|
0025| Subsection A of this section, the person shall show substantial
|
0001| compliance with the provisions of the [Right To Die] Uniform
|
0002| Health-Care Decisions Act."
|
0003| Section 12. Section 45-5-312 NMSA 1978 (being Laws 1975,
|
0004| Chapter 257, Section 5-312, as amended) is amended to read:
|
0005| "45-5-312. GENERAL POWERS AND DUTIES OF THE LIMITED
|
0006| GUARDIAN AND GUARDIAN.--
|
0007| A. If the court enters judgment pursuant to
|
0008| Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a
|
0009| limited guardian if it determines that the incapacitated person
|
0010| is able to manage some but not all aspects of his personal
|
0011| care. The court shall specify those powers that the limited
|
0012| guardian shall have and may further restrict each power so as
|
0013| to permit the incapacitated person to care for himself com-
|
0014|
|
0015| mensurate with his ability to do so. A person for whom a
|
0016| limited guardian has been appointed retains all legal and civil
|
0017| rights except those that have been specifically granted to the
|
0018| limited guardian by the court. The limited guardian shall
|
0019| exercise his supervisory powers over the incapacitated person
|
0020| in a manner that is the least restrictive form of intervention
|
0021| consistent with the order of the court.
|
0022| B. A guardian of an incapacitated person has the
|
0023| same powers, rights and duties respecting the incapacitated
|
0024| person that a parent has respecting his unemancipated minor
|
0025| child, except that a guardian is not legally obligated to
|
0001| provide from his own funds for the incapacitated person and is
|
0002| not liable to third persons for acts of the incapacitated
|
0003| person solely by reason of the guardianship. In particular and
|
0004| without qualifying the foregoing, a guardian or his replacement
|
0005| has the following powers and duties, except as modified by
|
0006| order of the court:
|
0007| (1) to the extent that it is consistent with
|
0008| the terms of any order by a court of competent jurisdiction
|
0009| relating to detention or commitment of the incapacitated
|
0010| person, a guardian is entitled to custody of the incapacitated
|
0011| person and may establish the incapacitated person's place of
|
0012| abode within or without New Mexico;
|
0013| (2) if entitled to custody of the
|
0014| incapacitated person, a guardian shall make provision for the
|
0015| care, comfort and maintenance of the incapacitated person and,
|
0016| whenever appropriate, arrange for his training and education.
|
0017| He shall take reasonable care of the incapacitated person's
|
0018| clothing, furniture, vehicles and other personal effects and
|
0019| commence conservatorship proceedings if other property of the
|
0020| incapacitated person is in need of protection;
|
0021| (3) if no agent is entitled to make health-
|
0022| care decisions for the incapacitated person under the
|
0023| provisions of the Uniform Health-Care Decisions Act, then the
|
0024| guardian shall make health-care decisions for the incapacitated
|
0025| person in accordance with the provisions of that act. In
|
0001| exercising heath-care powers, a guardian may consent or
|
0002| withhold consent that may be necessary to enable the
|
0003| incapacitated person to receive or refuse medical or other
|
0004| professional care, counsel, treatment or service. That
|
0005| decision shall be made in accordance with the values of the
|
0006| incapacitated person, if known, or the best interests of the
|
0007| incapacitated person if the values are not known;
|
0008| (4) if no conservator for the estate of the
|
0009| incapacitated person has been appointed, the guardian may
|
0010| institute proceedings to compel any person under a duty to
|
0011| support the incapacitated person or to pay sums for the welfare
|
0012| of the incapacitated person; and
|
0013| [(5) if the incapacitated person is certified
|
as terminally ill or in an irreversible coma under the
|
procedures described in Section 24-7-5 NMSA 1978, a guardian
|
may consent to the physician removing or withholding
|
maintenance medical treatment, as defined in Section 24-7-2
|
NMSA 1978, if the guardian concludes that the incapacitated
|
person, if competent, would have chosen the termination of that
|
treatment; and
|
(6)] (5) the guardian shall exercise his
|
0022| supervisory powers over the incapacitated person in a manner
|
0023| that is least restrictive of his personal freedom and
|
0024| consistent with the need for supervision.
|
0025| C. Any guardian of an incapacitated person for whom
|
0001| a conservator also has been appointed shall control the care
|
0002| and custody of the incapacitated person and is entitled to
|
0003| receive reasonable sums for his services and for room and board
|
0004| furnished to the incapacitated person. The guardian may
|
0005| request the conservator to expend the incapacitated person's
|
0006| estate by payment to third persons or institutions for the
|
0007| incapacitated person's care and maintenance."
|
0008| Section 13. REPEAL.--Sections 24-7-1 through 24-7-10 and
|
0009| 45-5-106 NMSA 1978 (being Laws 1977, Chapter 287, Sections 1
|
0010| through 8, Laws 1984, Chapter 99, Section 6, Laws 1977, Chapter
|
0011| 287, Sections 9 and 10, and Laws 1993, Chapter 301, Section 27,
|
0012| as amended) are repealed.
|
0013| Section 14. EFFECTIVE DATE.--The effective date of the
|
0014| provisions of this act is July 1, 1997.
|
0015|
|
0016| State of New Mexico
|
0017| House of Representatives
|
0018|
|
0019| FORTY-THIRD LEGISLATURE
|
0020| FIRST SESSION, 1997
|
0021|
|
0022|
|
0023| March 4, 1997
|
0024|
|
0025|
|
0001| Mr. Speaker:
|
0002|
|
0003| Your CONSUMER AND PUBLIC AFFAIRS COMMITTEE, to
|
0004| whom has been referred
|
0005|
|
0006| HOUSE BILL 1202
|
0007|
|
0008| has had it under consideration and reports same with
|
0009| recommendation that it DO PASS, amended as follows:
|
0010|
|
0011|
|
0012| 1. On page 1, line 13, strike "AND REPEALING" and insert in
|
0013| lieu thereof ", REPEALING AND ENACTING".
|
0014|
|
0015| 2. On page 2, lines 10 and 11, strike "under the age of
|
0016| eighteen" and insert in lieu thereof "between the ages of sixteen
|
0017| and eighteen".
|
0018|
|
0019| 3. On page 2, lines 12 and 13, strike "is between the ages
|
0020| of sixteen and eighteen and".
|
0021|
|
0022| 4. On page 3, line 24, strike "physicians" and insert in
|
0023| lieu thereof "physician".
|
0024|
|
0025| 5. On page 4, line 16, after "adult" insert "or emancipated
|
0001| minor".
|
0002|
|
0003| 6. On page 12, line 19, strike "outweight" and insert in
|
0004| lieu thereof "outweigh".
|
0005|
|
0006|
|
0007| 7. On page 13, lines 5 through 8, strike all underscored
|
0008| material.
|
0009|
|
0010| 8. On page 15, line 17, strike "only" and insert in lieu
|
0011| thereof "either".
|
0012|
|
0013| 9. On page 18, between lines 19 and 20, insert the
|
0014| following new subsection:
|
0015|
|
0016| "G. A health-care decision made by a surrogate for a
|
0017| patient shall not be made solely on the basis of the patient's
|
0018| pre-existing physical or medical condition or pre-existing or
|
0019| projected disability.".
|
0020|
|
0021| 10. Reletter the succeeding subsections accordingly and
|
0022| adjust all cross-references to correspond with these amendments.
|
0023|
|
0024| 11. On page 31, between lines 24 and 25, insert the
|
0025| following new sections:
|
0001|
|
0002| "Section 13. A new section of the Uniform Health-Care
|
0003| Decisions Act is enacted to read:
|
0004|
|
0005| "[NEW MATERIAL] DECISIONS FOR UNEMANCIPATED MINORS.--
|
0006|
|
0007| A. Except as otherwise provided by law, a parent or
|
0008| guardian of an unemancipated minor may make that minor's health-
|
0009| care decisions.
|
0010|
|
0011| B. A parent or guardian of an unemancipated minor
|
0012| shall have the authority to withhold or withdraw life-sustaining
|
0013| treatment for the unemancipated minor, subject to the provisions
|
0014| of this section and the standards for surrogate decision making
|
0015| for adults provided for in the Uniform Health-Care Decisions Act.
|
0016|
|
0017| C. Subject to the provisions of Subsection B of this
|
0018| section, if an unemancipated minor has capacity sufficient to
|
0019| understand the nature of that unemancipated minor's medical
|
0020| condition, the risks and benefits of treatment and the
|
0021| contemplated decision to withhold or withdraw life-sustaining
|
0022| treatment, that unemancipated minor shall have the authority to
|
0023| withhold or withdraw life-sustaining treatment.
|
0024|
|
0025| D. For purposes of Subsection C of this section, a
|
0001| determination of the mental and emotional capacity of an
|
0002| unemancipated minor shall be determined by two qualified health-
|
0003| care professionals, one of whom shall be the unemancipated
|
0004| minor's primary physician and the other of whom shall be a
|
0005| physician that works with unemancipated minors of the minor's age
|
0006| in the ordinary course of that physician's health-care practice.
|
0007| If the unemancipated minor lacks capacity due to mental illness
|
0008| or developmental disability, one of the qualified health-care
|
0009| professionals shall be a person whose training and expertise aid
|
0010| in the assessment of functional impairment.
|
0011|
|
0012| E. If the unemancipated minor's primary physician has
|
0013| reason to believe that a parent or guardian of an unemancipated
|
0014| minor, including a non-custodial parent, has not been informed of
|
0015| a decision to withhold or withdraw life-sustaining treatment, the
|
0016| primary physician shall make reasonable efforts to determine if
|
0017| the uninformed parent or guardian has maintained substantial and
|
0018| continuous contact with the unemancipated minor and, if so, shall
|
0019| make reasonable efforts to notify that parent or guardian before
|
0020| implementing a decision.
|
0021|
|
0022| F. If there is disagreement regarding the decision to
|
0023| withhold or withdraw life-sustaining treatment for an
|
0024| unemancipated minor, the provisions of Section 24-7A-11 NMSA 1978
|
0025| shall apply.
|
0001| G. For purposes of this section, "unemancipated
|
0002| minor" means a person at or under the age of fifteen."
|
0003|
|
0004| Section 14. A new section of the Uniform Health-Care
|
0005| Decisions Act is enacted to read:
|
0006|
|
0007| "[NEW MATERIAL] PROHIBITED PRACTICE.--
|
0008|
|
0009| A. No insurer or other provider of benefits regulated
|
0010| by the New Mexico Insurance Code or a state agency shall require
|
0011| a person to execute or revoke an advance health-care directive as
|
0012| a condition for membership in, being insured for or receiving
|
0013| coverage or benefits under an insurance contract or plan.
|
0014|
|
0015| B. No insurer may condition the sale, procurement or
|
0016| issuance of a policy, plan, contract, certificate or other
|
0017| evidence of coverage, or entry into a pension, profit-sharing,
|
0018| retirement, employment or similar benefit plan, upon the
|
0019| execution or revocation of an advance health-care directive; nor
|
0020| shall the existence of an advance health-care directive modify
|
0021| the terms of an existing policy,
|
0022| plan, contract, certificate or other evidence of coverage of
|
0023| insurance.
|
0024|
|
0025| C. The provisions of this section shall be enforced
|
0001| by the superintendent of insurance under the New Mexico Insurance
|
0002| Code."".
|
0003|
|
0004| 12. Renumber the succeeding sections accordingly and adjust
|
0005| all cross-references to correspond with these amendments.,
|
0006|
|
0007|
|
0008| and thence referred to the APPROPRIATIONS AND FINANCE
|
0009| COMMITTEE.
|
0010|
|
0011| Respectfully submitted,
|
0012|
|
0013|
|
0014|
|
0015|
|
0016|
|
0017| Gary King, Chairman
|
0018|
|
0019|
|
0020| Adopted Not Adopted
|
0021|
|
0022| (Chief Clerk) (Chief Clerk)
|
0023|
|
0024| Date
|
0025|
|
0001| The roll call vote was 6 For 0 Against
|
0002| Yes: 6
|
0003| Excused: Rios, Sandel, Vigil, King
|
0004| Absent: None
|
0005|
|
0006|
|
0007| 118116.1
|
0008| G:\BILLTEXT\BILLW_97\H1202
|
0009|
|
0010| FORTY-THIRD LEGISLATURE
|
0011| FIRST SESSION, 1997
|
0012|
|
0013|
|
0014| March 16, 1997
|
0015|
|
0016| Mr. President:
|
0017|
|
0018| Your PUBLIC AFFAIRS COMMITTEE, to whom has been
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0019| referred
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0020|
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0021| HOUSE BILL 1202, as amended
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0022|
|
0023| has had it under consideration and reports same with
|
0024| recommendation that it DO PASS, and thence referred to the
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0025| JUDICIARY COMMITTEE.
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0001|
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0002| Respectfully submitted,
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0003|
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0004|
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0005|
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0006|
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0007| __________________________________
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0008| Shannon Robinson, Chairman
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0009|
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0010|
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0011|
|
0012| Adopted_______________________ Not
|
0013| Adopted_______________________
|
0014| (Chief Clerk) (Chief Clerk)
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0015|
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0016|
|
0017| Date ________________________
|
0018|
|
0019|
|
0020| The roll call vote was 6 For 0 Against
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0021| Yes: 6
|
0022| No: 0
|
0023| Excused: Adair, Boitano, Vernon
|
0024| Absent: None
|
0025|
|
0001|
|
0002|
|
0003|
|
0004| H1202PA1
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0005|
|
0006| FORTY-THIRD LEGISLATURE
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0007| FIRST SESSION, 1997
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0008|
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0009|
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0010| March 18, 1997
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0011|
|
0012| Mr. President:
|
0013|
|
0014| Your JUDICIARY COMMITTEE, to whom has been referred
|
0015|
|
0016| HOUSE BILL 1202, as amended
|
0017|
|
0018| has had it under consideration and reports same with
|
0019| recommendation that it DO PASS.
|
0020|
|
0021| Respectfully submitted,
|
0022|
|
0023|
|
0024|
|
0025|
|
0001| __________________________________
|
0002| Fernando R. Macias, Chairman
|
0003|
|
0004|
|
0005|
|
0006| Adopted_______________________ Not
|
0007| Adopted_______________________
|
0008| (Chief Clerk) (Chief Clerk)
|
0009|
|
0010|
|
0011| Date ________________________
|
0012|
|
0013|
|
0014| The roll call vote was 5 For 3 Against
|
0015| Yes: 5
|
0016| No: Payne, Stockard, Vernon
|
0017| Excused: None
|
0018| Absent: None
|
0019|
|
0020|
|
0021| H1202JU1
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0022|
|