STATE OF OKLAHOMA

1st Session of the 52nd Legislature (2009)

SENATE BILL 1010	By:	Laster

AS INTRODUCED

An Act relating to public health and safety; creating the Oklahoma Surrogate Decision Maker Act; providing short title; providing legislative findings; defining terms; permitting certain persons to make health care decisions in specified circumstances; specifying priority of persons to make health care decisions; requiring health care decisions to be made based on certain facts; requiring certain notifications; providing for certain objection; requiring certain information to be provided in specified circumstances; specifying contents of certain statement; directing the State Department of Health to maintain certain registry; requiring the Department to post registry on its website; requiring certain disclaimer; requiring certain documentation; providing for rights of surrogates; exempting certain health care providers from specified claims; providing for expedited judicial interventions in certain circumstances; providing for certain petition; requiring certain documentation; providing for emergency orders in certain circumstances; requiring certain preliminary hearing; providing for certain expedited appeal; providing for codification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152 of Title 63, unless there is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the “Oklahoma Surrogate Decision Maker Act”.
SECTION 2.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.1 of Title 63, unless there is created a duplication in numbering, reads as follows:
The Oklahoma Legislature finds that:
1.  Uncertainty and lack of clarity in state law concerning the making of private decisions concerning health care and hospice care when a patient without capacity lacks a guardian, health care proxy, or advance directive for health care causes unnecessary emotional distress to the individuals involved; and
2.  Enacting statutory guidelines regarding surrogate decision makers will bring improved clarity and certainty to the health care decision-making process and will substantially reduce the emotional distress to the individuals involved.
SECTION 3.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.2 of Title 63, unless there is created a duplication in numbering, reads as follows:
As used in the Oklahoma Surrogate Decision Maker Act:
1.  “Capacity” means the ability to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented, and to communicate that choice in an unambiguous manner;
2.  “Health care provider” means a person or entity that is licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession;
3.  “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved;
4.  “Reasonably available” means that a person is known to the health care provider and who, after a reasonable inquiry, is available within twenty-four (24) hours of the time the person is attempted to be contacted, except that for the purposes of subsection D of Section 4 of this act, the period shall be seventy-two (72) hours.  For purposes of this paragraph, a reasonable inquiry includes, but is not limited to, identifying the potential surrogates by examining the personal effects of the patient and the medical records of the attending physician.  If a potential surrogate is identified, an attempt to contact that person by telephone shall be made.  If the potential surrogate does not respond within twenty-four (24) hours of this attempt to contact him or her, he or she is not “reasonably available”, except that for purposes of subsection D of Section 4 of this act, the period shall be seventy-two (72) hours.
SECTION 4.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.3 of Title 63, unless there is created a duplication in numbering, reads as follows:
A.  If a patient eighteen (18) years of age or older has not executed or issued an advance directive for health care and has been determined to be incapable of making an informed decision regarding health care, including the provision, withholding, or withdrawal of life-sustaining treatment, by the attending physician and another physician who have examined the patient, the legal guardian of the patient or a health care surrogate may make a health care decision, including the decision to elect hospice care, for the patient.
B.  If such a patient does not have a legal guardian, a person, if reasonably available, from one of the following categories, in the following priority, may make a health care decision, including the decision to elect hospice care, for the patient:
1.  The spouse of the patient, unless the patient has no spouse, or is separated, or the spouse lacks capacity, or the location of the spouse is unknown, or the spouse is otherwise not reasonably available;
2.  An adult child with capacity;
3.  Either parent;
4.  An adult sibling with capacity; or
5.  A relative by blood or marriage.
C.  A surrogate shall make such decisions based on the known intentions, personal views, and best interests of the patient.  If evidence of the wishes of the patient is sufficient, those wishes shall control.  If there is not sufficient evidence of the wishes of the patient, the decisions shall be based on the reasonable judgment of the individual so deciding about the values of the patient and what the wishes of the patient would be based upon those values.  In cases of uncertainty, the presumption shall be for life.
D.  1.  When a surrogate decides to withhold or withdraw treatment, the implementation of which decision would, in reasonable medical judgment, likely result in or hasten the death of the patient, the attending physician or health care provider shall notify all reasonably available members of the classes described in paragraphs 1 through 4 of subsection B of this section.  Pending completion of this notification, such treatment shall be provided, except that surgery need not be initiated in the absence of a court order as provided for in subsection E of Section 7 of this act.  If a member or members of the classes so notified objects to the decision of the surrogate, the attending physician or health care provider shall provide the objecting member with the materials described in paragraph 2 of this subsection, and the treatment shall be provided for three (3) additional business days after the date on which the described materials are provided unless the objection is withdrawn, except that surgery need not be initiated in the absence of a court order as provided for in subsection E of Section 7 of this act.
2.  The materials to be provided shall include a copy of the registry list of groups that have volunteered their readiness to provide counsel, mediation, or advocacy concerning medical treatment issues that is posted on the website maintained by the State Department of Health pursuant to paragraph 3 of this subsection and the following statement:
“When There Is a Disagreement about Medical Treatment:  The Surrogate Recommends Against Life-Sustaining Treatment That You Wish To Have Provided.
You have been given this information because you believe that a patient you are close to should be given life-sustaining treatment which the person who has initially been given authority to make health care decisions for the patient thinks should not be given.  This information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances.  It outlines the process for resolving disagreements about treatment among patients, families, and physicians.  It is based upon subsection D of Section 4 of the Oklahoma Surrogate Decision Maker Act, codified in Section 3152.3 of Title 63 of the Oklahoma Statutes.
When an adult patient is unable to make health care decisions and has not made wishes about those decisions clear through an “advance directive” or appointed someone else – a “health care proxy” – to make them, Oklahoma law lists an order of those who usually have authority to make health care decisions for the patient.  The highest available person on this list, who has the authority to make health care decisions for the patient, is called the “surrogate”.
First is a legal guardian, if one has been appointed.
Next is the person’s spouse, unless separated or not reasonably available.
Next is an adult child of the patient, if reasonably available.
Next is an adult sibling (brother or sister) of the patient, if reasonably available.
Finally, if none of these is reasonably available, is a relative by blood or marriage.
If the surrogate decides to withhold or withdraw treatment when this would likely result in or hasten the death of the patient, however, the health care provider must make a reasonable attempt to notify others on the list (except in the lowest category) to see if any object.  Other than surgery, the treatment must be given while the notification is being attempted.
When you object to the withholding or withdrawal of life-sustaining treatment from the patient, the patient must be provided the treatment (except surgery) for three additional business days after the day on which you receive this notice.  The purpose of this delay is to enable you, if you wish, to use a special court proceeding to contest the treatment withholding or withdrawal.
You are being given a list of groups that have volunteered their readiness to provide counsel, mediation, or advocacy concerning medical treatment issues.  You may wish to contact groups on the list or others of your choice to also get help.
You may file a petition with the appropriate district court on a variety of grounds asking it to order that life-sustaining treatment be given to the patient.  If you file the petition, the court will order that the treatment (except surgery) be continued until the court rules on the matter.  You may file an emergency motion to ask the court to order that surgery be performed.  Groups on the list you are being given may be able to assist you in locating a lawyer to represent you in court.”
3.  The State Department of Health shall maintain a registry listing the identity of and contact information for groups situated inside and outside this state that have voluntarily notified the Department that they may consider providing counsel, mediation, or advocacy concerning medical treatment issues.  The listing of a group in the registry shall not obligate a group to provide services to any particular patient or relative of a patient.  The State Department of Health shall post the current registry list on its website in a form appropriate for easy comprehension by patients and persons responsible for the health care decisions of patients and shall provide a clearly identifiable link from its home page to the registry page.  The registry list shall include the following disclaimer:
“This registry lists groups that have indicated to the State Department of Health their interest in providing counsel, mediation, or advocacy concerning medical treatment issues, and is provided for informational purposes only.  Neither the State Department of Health nor the State of Oklahoma endorses or assumes any responsibility for any representation, claim, or act of the listed groups.”
E.  A health care decision made by a surrogate shall be documented in the medical record of the patient and signed by the attending physician.
SECTION 5.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.4 of Title 63, unless there is created a duplication in numbering, reads as follows:
A surrogate shall have the same right as the patient to receive information relevant to the proposed health care and to receive, review, and consent to the disclosure of medical records.  Disclosure of information regarding contemplated health care to a person authorized to make a health care decision for an incapacitated person shall not be a waiver of any evidentiary privilege or of a right to assert confidentiality.
SECTION 6.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.5 of Title 63, unless there is created a duplication in numbering, reads as follows:
A health care provider who relies on and carries out the directions of a surrogate and who acts with due care and in accordance with the Oklahoma Surrogate Decision Maker Act shall not be subject to any claim based on lack of patient counsel or to criminal prosecution or discipline for unprofessional conduct.  Nothing in the Oklahoma Surrogate Decision Maker Act shall be deemed to protect a health care provider from liability for the negligence of the health care provider in the performance of the duties of the health care provider or in carrying out any instructions of the surrogate, and nothing in the Oklahoma Surrogate Decision Maker Act shall be deemed to alter the law of negligence as it applies to the acts of any surrogate or health care provider.
SECTION 7.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3152.6 of Title 63, unless there is created a duplication in numbering, reads as follows:
A.  Anyone described by paragraphs 1 through 5 of subsection B of Section 4 of this act, a current or former health care provider of the patient, or any other interested person who may reasonably be expected to be directly affected by the decision of the surrogate or proxy concerning any health care decision may seek expedited judicial intervention in the district court with jurisdiction over the residence of the patient or over the location in which the patient is being treated, if that person alleges that:
1.  The decision of the surrogate or proxy is not in accord with the standards established in Section 3101.16 of this title or subsection C of Section 4 of this act, as applicable, or otherwise is not in accord with this act or Sections 3101 through 3119 of this title;
2.  The advance directive of the patient is ambiguous, or the patient changed his or her mind after execution of the advance directive;
3.  The surrogate or proxy was improperly designated or appointed, or the designation of the proxy is no longer effective or has been revoked;
4.  The surrogate or proxy has failed to discharge duties, or incapacity or illness renders the surrogate or proxy incapable or discharging duties;
5.  The surrogate or proxy has abused powers; or
6.  The patient has sufficient capacity to make his or her own health care decisions.
B.  Any proceeding for expedited judicial intervention concerning medical treatment procedures may be brought by an interested adult person and shall be commenced by the filing of a verified petition which states:
1.  The name and address of the petitioner;
2.  The name and location of the person who is the subject of the petition, hereinafter referred to as the patient;
3.  The relationship of the petitioner to the patient;
4.  The names, relationship to the patient, and addresses if known to the petitioner, of:
a.	the spouse and adult children of the patient,
b.	the parents and adult siblings of the patient,
c.	if none of the above, the next of kin of the patient,
d.	any guardian and any court-appointed health care decision-maker,
e.	any person designated by the patient in an advance directive or other document to exercise the health care decision of the patient in the event of the incapacity of the patient,
f.	the administrator of the hospital, nursing home, or other facility where the patient is located, if any,
g.	the attending physician of the patient, and
h.	all other persons the petitioner believes may have information concerning the expressed wishes of the patient; and
5.  Facts sufficient to establish the need for the relief requested, including, but not limited to, facts to support the allegation that the patient lacks the capacity to make the requisite medical treatment decision.
C.  Any affidavits and supporting documentation, including any advance directive or designation of health care decision maker, shall be attached to the petition.  A preliminary brief shall argue the facts and law in support of the petition.
D.  Unless waived by the court, the petition, supporting documentation, and notice of the preliminary hearing shall be served on the persons listed in subparagraphs a through g of paragraph 4 of subsection B of this section who have not joined in the petition or otherwise consented to the proceedings.
E.  If the petition challenges a decision to withhold or withdraw treatment, the implementation of which decision would, in reasonable medical judgment, likely result in or hasten the death of the patient, the court promptly upon its filing shall issue an order requiring that the treatment be provided pending issuance of a decision following the preliminary hearing under subsection F of this section, except that surgery need not be initiated in the absence of a court order under this subsection.  Upon motion received before or after the filing of a verified petition and supporting documentation, the court, after such emergency hearing with such notice as in its sound discretion may appear warranted in the circumstances, shall rule whether emergency surgery is necessary to prevent the death or irremediable deterioration of the patient before a preliminary hearing can be held, and in the case of a negative ruling on a motion for such surgery, an expedited interlocutory appeal may be taken to the Oklahoma Supreme Court.
F.  A preliminary hearing on the petition shall be held within seventy-two (72) hours after the filing of the petition.  At that time the court shall review the petition and supporting documentation.  In its discretion, the court shall either:
1.  Rule on the relief requested immediately after the preliminary hearing; or
2.  Conduct an evidentiary hearing not later than four (4) days after the preliminary hearing and rule on the relief requested immediately after the evidentiary hearing.
G.  An expedited appeal shall be available to the Oklahoma Supreme Court from the final ruling of the district court.
SECTION 8.  This act shall become effective November 1, 2009.

52-1-337	JM	1/15/2009 3:02:26 PM