Testimony In Support of Senate 783 and House 3093, an Act Improving Medical Decision Making, before the Joint Committee Judiciary

The Massachusetts Medical Society (MMS) wishes to be recorded in strong support of Senate bill 783 and, An Act Improving Medical Decision Making.  We thank Senator Brownsberger and Representative Markey for sponsoring this important piece of legislation.

Patients have a fundamental right to make decisions relating to their medical treatment; this right survives a patient’s loss of decisional capacity. The law thus provides important mechanisms for medical decision-making for incapacitated patients. In Massachusetts, the gold standard is the health care proxy, which provides an agent with full medical decision-making authority for a patient, subject to some important patient protections. For patients lacking a health care proxy, medical decision-making is a cumbersome, expensive, and often lengthy process often involving going to court for appointment of a medical guardian. Care can be delayed for weeks before courts affirm a medical guardian.   

In 2009 Massachusetts adopted the guardianship portion of the Uniform Probate Code. The result is a process whereby providers treating patients without health care proxies often have to seek judicial appointment of a medical guardian for ordinary care decisions for incapacitated patients, and they must return to courts for additional approvals on certain subsequent decisions such as transfers to nursing homes. This bill would seek to improve medical decision-making processes for incapacitated patients by creating guidelines whereby their attending physicians could appoint surrogate decision-makers for non-extraordinary medical decisions for patients lacking health care proxies or MOLST forms. Nothing in this bill would change the process for any patient with a health care proxy or any patient with a MOLST form. This would be an alternative option for certain cases headed down the path towards judicial appointment of a medical guardian. If for example, a patient presents to a local hospital incapacitated due to a stroke, and that person has not executed a health care proxy, an attending physician could appoint per this new process a family member or close friend as the surrogate decision maker—according the criteria laid forth in the statute—to make most medical decisions so long as they conform to the protections laid out in the bill. 

This bill has contains several amendments from last session’s version. This bill makes clear that the authority of a duly appointed surrogate decision maker via this legislation would include the ability to make decisions related to admissions to nursing facilities, but it would not provide the ability to make decisions related to transfers to inpatient mental health facilities. Because of the court decision Rogers v. Commissioner of the Department of Mental Health and statutory developments related to substituted judgment decisions, we think it is prudent to carve out authority to make decisions regarding these mental health facility admissions so that we do not create a situation where a surrogate decision maker could authorize a transfer to a mental health facility, but would not be able make decisions regarding the care provided at such a facility. This bill also limits the authority of the surrogate decision-maker to make “extraordinary decisions”- those interpreted by Massachusetts law of being of most severity. In those cases, judicial appointment of a medical would remain the legal process. Additionally, we propose the addition of procedural safeguards for patients who actively refuse care while lacking decisional capacity.

We now have growing evidence that this bill would work. Two major academic teaching hospitals have now looked at this bill, and gone back through charts where they had to seek judicial appointment of medical guardians. The chart review showed that when hospitals had to go through judicial guardianship appointments, half of the guardians who were appointed by the court matched the criteria for the proposed statute, demonstrating that this bill would cut red tape and significantly reduce time and resources of the courts with the same positive results for hundreds of guardianship cases at hospitals every year.

Specifically, this bill would reduce the several-day-delay that takes place when hospital attorneys need to seek judicial appointment of medical guardians. In the instance of a patient ready to move to a skilled nursing facility, for example, keeping them unnecessarily in a hospital bed wastes money, and it keeps the patient in an acute care hospital where the team that will provide rehabilitation does not have access to the patient. 

In sum, we urge your support of this bill, which we believe will significantly improve the medical decision-making processes for patients without health care proxies.

Lastly, the Medical Society notes that this bill would only work for patients who are fortunate enough to have family or close friends that are capable of serving as a surrogate decision-maker for them. We know that this would still leave a vulnerable subset of patients without proper surrogates. For these reasons, we also support House bill 3027, An Act to establish the office of adult guardianship and decisional support services, which would create an office to facilitate a network of skilled, trained, volunteers to serve as surrogate decision-makers. We believe that this would complement our bill nicely, and together they would substantially improve medical decision-making in the Commonwealth.

Currently, only six other states in the country do not have a priority list of surrogates for incapacitated patients without health care proxies. We believe that this would be an important step towards promoting safe, prompt, and efficient authorization of proper medical care for patients who lack capacity.

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