BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 891|
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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
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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
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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
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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.
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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
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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
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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
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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:
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"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,
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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
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