BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 891| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 891 Author: Alquist (D) Amended: 9/1/99 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 5-2, 7/13/99 AYES: Burton, Escutia, O'Connell, Sher, Schiff NOES: Haynes, Wright NOT VOTING: Morrow, Peace SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 62-17, 6/1/99 - See last page for vote SUBJECT : Health care decisions: durable power of attorney SOURCE : California Law Revision Commission DIGEST : This bill repeals 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 enacts 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 CONTINUED AB 891 Page 2 care decisions for patients without surrogates. Senate Floor Amendments of 8/30/99 add double jointing language. Senate Floor Amendments of 9/1/99 add technical language to avoid chaptering out problems. ANALYSIS : 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 repeals the above statutes. 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 enacts the Health Care Decisions Law. Specifically, this bill: 1.Recasts and reorganizes provisions of the Natural Death Act and durable powers of attorney for health care and other related statutes. 2.Specifies that an individual having capacity may give an advance health care instruction, as defined and may execute a power of attorney that defines what AB 891 Page 3 decisionmaking authority is granted and what limitations there may be to such authority granted. 3.Defines 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. 4.Specifies 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. 5.Specifies 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. 6.Codifies 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. 7.Continues existing limitations on the authority of agents and the prohibition on mercy killing. 8.Makes 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. 9.Makes conforming changes to conservatorship statutes that govern health care decisions. 10.Unifies the standards governing health care decisionmaking for adults without decisionmaking capacity so that the same rules apply whether the AB 891 Page 4 surrogate decisionmaker is (a) an agent named in the patient's advance directive, (b) a family member or friend acting as a surrogate decisionmaker, (c) a public guardian, or (d) a court making health care decisions as a last resort. This bill is double-jointed with AB 1677 (Assembly Committee on Consumer Protection) 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 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 four 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 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. AB 891 Page 5 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 requires 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 State Department of Aging. These requirements for witness statements parallel what is currently in Probate Code Section 4771 (Statutory Form Durable Power of Attorney for Health Care). 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 AB 891 Page 6 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, that designation must be promptly recorded in the patient's health care recorded and 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. 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 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. Codifying Health Care Provider Duties and Responsibilities; Recordkeeping This bill codifies 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 also requires health care providers to comply with patients' health care instruction with reasonable interpretation of that instruction by the patient's AB 891 Page 7 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. 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 provides that these damages are cumulative and not exclusive of any other remedies provided by law. Thus, a whole family of 10 aggrieved by 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 also subjects 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 are cumulative and not exclusive of any other remedies provided by law. The Court as Surrogate The bill continues existing law relating to the court's role as health care decisionmaker, in the absence of AB 891 Page 8 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. 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 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 9/2/99) California Law Revision Commission (source) California Medical Association California Association of Catholic Hospitals California Catholic Conference California Health Care Association ARGUMENTS IN SUPPORT : The California Law Revision Commission states: AB 891 Page 9 "The guiding principle of the bill is to effectuate the stated desires of the patient, as set out in an advance directive or, in the absence of a directive, as made known to the surrogate decisionmaker. 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 Decision Law is intended to fulfill the incapacitated patient's desires and best interest without resort to judicial proceedings, except as a last resort. "The bill also codifies 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. "In addition, existing limitations on the authority of agents and the prohibition of mercy killing and euthanasia, are continued in the new law. "Conforming changes in the procedure for obtaining court authorization for medical treatment would make clear 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. Similarly, the statute governing decisionmaking by conservators for patients who have been adjudicated to lack the capacity to make health care decisions are conformed to the standards governing other health care surrogates." ASSEMBLY FLOOR : AYES: Aanestad, Ackerman, Alquist, Aroner, Bock, Calderon, Cardenas, Cardoza, Cedillo, Corbett, Correa, Cox, Cunneen, Davis, Dickerson, Ducheny, Dutra, Firebaugh, Florez, Floyd, Frusetta, Gallegos, Granlund, Havice, Hertzberg, Honda, Jackson, Keeley, Knox, Kuehl, Lempert, Longville, Lowenthal, Machado, Maddox, Maldonado, Mazzoni, Migden, Nakano, Olberg, Oller, Robert Pacheco, Rod Pacheco, Papan, Reyes, Romero, Scott, Shelley, Soto, Steinberg, Strom-Martin, Thomson, Torlakson, Vincent, Washington, Wayne, Wesson, Wiggins, Wildman, Wright, AB 891 Page 10 Zettel, Villaraigosa NOES: Ashburn, Baldwin, Bates, Battin, Baugh, Briggs, Campbell, House, Kaloogian, Leach, Leonard, Margett, McClintock, Pescetti, Runner, Strickland, Thompson NOT VOTING: Brewer RJG:cm 9/2/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****