BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 891 A
Assembly Member Alquist B
As Amended July 8, 1999
Hearing Date: July 13, 1999 8
Government Code; Health and Safety Code; 9
Probate Code; Welfare and Institutions Code 1
GMO:cjt
SUBJECT
Health Care Decisions: Durable Power of Attorney
DESCRIPTION
This bill would repeal provisions of the codes related to
durable powers of attorney for health care and would repeal
the Natural Death Act which provides that a person has the
right to instruct his or her physician to withhold or
withdraw life-sustaining treatment in the event of a
terminal condition or permanent unconscious condition in a
written declaration (the so-called "living will"). The
repeal would take effect on July 1, 2000.
The bill would enact the Health Care Decisions Law, which
would provide for the creation, form, and revocation of
advance health care directives, and for the manner of
making health care decisions for patients without
surrogates.
BACKGROUND
The California Law Revision Commission is the sponsor of
this bill. Because there is no existing statutory law that
provides general rules governing decisionmaking relative to
medical treatment of incapacitated persons, the medical
profession and the bar have crafted guidelines now widely
used in the state. However, recent case law resulting from
the application of those guidelines has brought to light
the obvious need to create uniform statutory rules for
(more)
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determining succession to decisionmaking in the case of the
incapacitated person, especially one who has no appointed
surrogate.
The provisions of the proposed Health Care Decisions Law
(HCDL) are drawn heavily from the Uniform Health Care
Decisions Act (1993), and implements major parts of the
Commission's recommendation on Health Care Decisions for
Adults Without Decisionmaking Capacity. The new HCDL
consolidates the Natural Death Act and the durable power of
attorney for health care in a simplified and reorganized
statute. It includes new rules governing individual health
care instructions, and provides a new optional statutory
form of an advance health care directive.
CHANGES TO EXISTING LAW
1. Existing law provides for the creation of durable
powers of attorney for health care. A durable power of
attorney is a designation, made in advance of incapacity by
a competent person, of a person or persons who would make
decisions regarding specified matters, among them health
care decisions, that the person, if competent, could and
would make.
The Natural Death Act recognizes the right of a person to
make a written declaration, in advance of incapacity to
make health care decisions, instructing his or her
physician to withhold or withdraw life-sustaining treatment
in the event of a terminal condition or permanent
unconscious condition if that person is unable to make
those decisions for himself or herself.
This bill would repeal the above statutes.
2. Existing case law has provided, on a case-by-case
basis, guidelines for choosing who should make health care
decisions for those who did not make advance directives,
and how a surrogate chosen by the court or the family or
the treating physicians ought to be guided in making those
health care decisions.
This bill would enact the Health Care Decisions Law.
Specifically, this bill would:
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a) recast and reorganize provisions of the Natural Death
Act and durable powers of attorney for health care and
other related statutes;
b) specify that an individual having capacity may give an
advance health care instruction, as defined and may execute
a power of attorney that defines what decisionmaking
authority is granted and what limitations there may be to
such authority granted;
c) define a legally sufficient health care directive,
specify how a power of attorney that suffices as a health
care directive is to be limited, and specifies the powers
of an agent appointed by the principal of a power of
attorney for health care;
d) specify that an agent shall make a health care decision
in accordance with the principal's individual health care
instructions, if any, and other wishes to the extent known
to the agent, or otherwise in the best interest of the
principal, considering the principal's personal values
known to the agent;
e) specify that the agent designated by such power of
attorney to make health care decisions who is known to the
health care provider to be available and willing to make
such decisions shall have priority over any other person in
making health care decisions for the principal;
f) codify a number of duties of health care providers and
institutions to comply with health care instructions and to
keep records relating to capacity determinations,
surrogates, and instructions;
g) continue existing limitations on the authority of
agents and the prohibition on mercy killing;
h) make conforming changes in the procedure for obtaining
court authorization for medical treatment, clarifying that
courts in proper cases have the same authority as other
surrogates to make health care decisions, including
withholding or withdrawal of life-sustaining treatment;
i) make conforming changes to conservatorship statutes
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that govern health care decisions; and
j) unify the standards governing health care decisionmaking
for adults without decisionmaking capacity so that the same
rules apply whether the surrogate decisionmaker is (i) an
agent named in the patient's advance directive; (ii) a
family member or friend acting as a surrogate
decisionmaker; (iii) a public guardian, or (iv) a court
making health care decisions as a last resort.
COMMENT
1. Stated need for the bill
According to the California Law Revision Commission, the
bill's guiding principle is to effectuate the stated
desires of the patient, as set out in an advance
directive or, in the absence of an advance directive, as
expressed to authorized surrogate decisionmakers. If the
patient has not made his or her wishes known, health care
decisions are to be made in the patient's best interest,
as determined by the appropriate surrogate decisionmaker,
taking into account the patient's personal values known
to the surrogate. The Health Care Decisions Law is
intended to fulfill the incapacitated patient's desires
and best interest without resort to judicial proceedings,
except as a last resort. [Letter from California Law
Revision Commission, 7/8/99.]
A series of cases dealing with health care decisions,
made by health care providers with guidance from
surrogates or family members or despite directives from
surrogates or family members, has brought the issue of
uniform standards or guidelines in implementing health
care directives and surrogate decisionmaking to the
forefront. [ See, for example, Duarte v. Chino Community
Hospital (1999) Daily Journal D.A.R. 5407; Barber v.
Superior Court (1983) 147 Cal. App. 3d 1006; Cobbs v.
Grant (1972) 8 Cal. 3d 229.] Further, in light of the
brewing potential conflict between advances in medical
treatment and care and demands for efficiencies by
managed health care systems, decisions regarding
life-sustaining treatment or other non-critical or
non-invasive treatment and care, left largely to the so
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far ad hoc application of consent guidelines developed by
health care providers and attorneys, have to be governed
by more consistent, statewide rules. [ For example, in
the 1980's, the Joint Committee on Biomedical Ethics of
the Los Angeles Medical Association (LACMA) and the Los
Angeles County Bar Association (LACBA) issued and has
since updated a pamphlet entitled "Guidelines: Forgoing
Life-Sustaining Treatment for Adult Patients."]
This bill is, therefore, necessary to create an organized
scheme to these rules, clarify the court's role in
appropriate cases, and assure a more consistent
application of these rules against the backdrop of
advances in medical treatment and care and managed health
care.
2. New advance health care directive: transitional rules
The bill provides a new Advance Health Care Directive
form that would replace the current Statutory Form
Durable Power of Attorney for Health Care in use since
1985 [ Keene Health Care Agent Act, Ch. 307, Stats. 1984]
and the declaration under the Natural Death Act (commonly
known as the "living will"] regarding withholding or
withdrawal of life-sustaining treatment.
Under this bill, all valid advance health care directives
executed before July 1, 2000 would remain valid. The
validity of durable powers of attorney for health care
executed on a printed form that was valid under prior law
would not be affected by this bill, whether or not the
durable power of attorney was executed prior to or after
July 1, 2000.
The Statutory Form provided in the bill would have fout
parts, and would provide an explanation of each part at
the beginning of the form, as well as instructions on
signing the form, acknowledgement by two witnesses or a
notary public, and providing copies to the person's
physician, health care providers, or other health care
agents.
Part One of the form would designate the person's agent
for making health care decisions, as well as alternates
in the event the agent's authority is revoked or the
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agent is not willing to make the health care decisions
authorized. It would state any limitations to the health
care decisions that the agent could make, the effective
date of such authorization, enumerates the agent's
obligations, and any authorizations to the agent for
post-death anatomical gifts. It would also allow the
person to nominate a conservator, if one were needed.
Part Two of the form would provide specific instructions
regarding health care, e.g., choice not to
prolong/prolong life, treatment for relief of pain, other
wishes.
Part Three of the form would provide for donation of
organs at death. This is an optional part, which, if the
person leaves blank, would mean no anatomical gifts would
be permitted.
Part Four of the form would be the designation of primary
physician and alternates.
The bill would require either two witnesses to the
signing of the Statutory Form, or an acknowledgement by a
notary public. A witness would be required to sign
specific statements that: 1) the person signing the Form
appears to be of sound mind and not to be under duress,
2) the witness is not appointed as an agent by the
directive, 3) the witness is not the person's health care
provider or employee of the health care provider or of
the residential care facility for the elderly where the
person is residing.
In addition, at least one of the witnesses would be
required to declare that he or she is not related to the
person executing the directive by blood or marriage or
adoption, and would not be entitled to receive any part
of the person's estate upon his or her death under an
existing will or by operation of law.
For those persons who are patients in a skilled nursing
facility, the facility's patient advocate or ombudsman
who would witness the Statutory Form would be required to
sign a statement that he or she is a patient advocate or
ombudsman as designated by the Department of Aging.
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These requirements for witness statements parallel what
is currently in Probate Code Section 4771 (Statutory Form
Durable Power of Attorney for Health Care).
3. Health care surrogates
In the absence of an advance health care directive or an
executed durable power of attorney for health care
appointing an agent, this bill would allow a patient to
designate an adult as a surrogate to make health care
decisions, by personally informing the supervising health
care provider. If the designation is made orally, the
designation is good only during the course of treatment
or illness or during the stay in the health care facility
when the designation was made.
For oral designations of a surrogate, there is no
requirement that the supervising health care provider
make a contemporaneous recordation of the designation,
whether in writing (in the patient's medical file, for
example) or by recording (tape recording).
SHOULD THIS REQUIREMENT BE IMPOSED?
The surrogate appointed by the patient in this case would
be required to make health care decisions in accordance
with the patient's individual health care instructions,
if known, and other wishes known to the surrogate.
Otherwise, the surrogate would be bound to make these
decisions on the basis of the patient's best interest,
considering the patient's personal values known to the
surrogate.
This provision would, proponents state, ensure that as
much as possible the incapacitated patient's desires and
values are considered.
In addition, this bill would allow a patient with
capacity to disqualify another person, including a member
of the patient's family, from acting as a surrogate by a
signed writing or by personally informing the supervising
health care provider of the disqualification. Again,
this would extend the goal of fulfilling the wishes of
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the patient, including removing those who might not be in
the patient's good graces at the time, from any position
of making health care decisions.
4. Codifying health care provider duties and
responsibilities; recordkeeping
This bill would codify rules and practices currently
followed by health care providers relating to health care
decisions and recordkeeping of advance health care
directives, agent designations, surrogate
disqualifications, patient capacity recoveries, power of
attorney revocations and other relevant observations or
information.
It would also require health care providers to comply
with patients' health care instruction with reasonable
interpretation of that instruction by the patient's
designated agent, and to comply with a health care
decision made by the patient's authorized agent as if the
decision was made by the patient while having capacity.
A health care provider could decline to comply only for
reasons of conscience, and a health care institution
could decline to comply only if the instruction or
decision is contrary to the institution's expressed
policy and if the policy was timely communicated to the
patient or the person authorized to make the health care
decision for the patient.
5. New civil liability
Under this bill, a health care provider or institution
that intentionally violates the Uniform Health Care
Decisions Act would be subject to liability to an
aggrieved person for damages of $2,500 or actual damages
resulting from the violation, whichever is greater, plus
attorney's fees. It is not clear who an "aggrieved
person" may be. The person could be the patient himself
or herself, or the agent, or any other surrogate or
surrogates.
In addition, the bill would provide that these damages
are cumulative and not exclusive of any other remedies
provided by law. Thus, a whole family of 10 aggrieved by
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the health provider's intentional violation could, under
this bill, each sue for $2,500 and then sue again for
something like "intentional infliction of emotional
distress" damages.
The bill would also subject anyone who intentionally
falsifies, forges, conceals, alters, obliterates, or
defaces an individual's health care directive without the
individual's consent, or who fraudulently induces such
individual to give, revoke, or not to give an advance
health care directive, to damages of $10,000 or actual
damages resulting from the action, whichever is greater,
plus reasonable attorney's fees. These damages would be
cumulative and not exclusive of any other remedies
provided by law.
6. The court as surrogate
The bill would continue existing law relating to the
court's role as health care decisionmaker, in the absence
of surrogates, or in petitions filed in the event of a
dispute about the health care decision made by a person
with a durable power of attorney, or the authority of an
attorney in fact under such durable power of attorney.
7. Issues to be addressed later
When introduced, this bill contained the commission's
original recommendations which included two additional
elements: (1) a "family consent" statute and (2) a
surrogate committee procedure for making necessary health
care decisions where the patient does not have an agent,
conservator, or other health care surrogate. These
sections were deleted at the suggestion of the Assembly
Committee on Judiciary, for further study and
recommendations. Essentially the problem raised was a
one-size-fits-all approach to health care decisions for
patients with no surrogates or agents, whether the
decision is for a life threatening condition or a routine
treatment or care.
Support: None Known
Opposition: None Known
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HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Asm. Jud. (Ayes 10. Noes 3.)
Asm. Appr. (Ayes 17. Noes 4.)
Asm. Flr. (Ayes 62. Noes 17.)
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