Massachusetts Medical Society: Testimony in Support of An Act Improving Medical Decision Making

Testimony in Support of An Act Improving Medical Decision Making

The Massachusetts Medical Society (MMS) wishes to be recorded in strong support of House bill 3388 and Senate bill 843, An Act Improving Medical Decision Making.  We thank Representative Markey and Senator Brownsberger for sponsoring these important pieces of legislation.

Patients have a fundamental right to make decisions regarding their medical treatment.  This right survives a patient’s loss of decisional capacity.  Accordingly, the law of this Commonwealth provides important mechanisms for medical decision-making for incapacitated patients.  In Massachusetts, the gold standard for this medical decision-making process is to utilize a health care proxy, which provides a patient’s agent with full medical decision-making authority for the patient’s medical care, subject to important patient protections.  For patients lacking a health care proxy, medical decision-making is a cumbersome, expensive, and lengthy process, which often involves going to court for appointment of a medical guardian by the judiciary.  In such cases, care is delayed—sometimes for weeks—before the courts affirm a medical guardian.  In the meantime, requisite medical resources are allocated inefficiently, resulting in unnecessary health care expense and mismatched medical care.  In 2009, Massachusetts adopted the guardianship portion of the Uniform Probate Code.  The result of that action is a process by which providers treating incapacitated patients without a health care proxy are required to seek judicial appointment of a medical guardian for ordinary care decisions.  Furthermore, approvals of certain subsequent medical decisions, such as transfers to nursing homes, require additional involvement by the judiciary, which again delays patient care.  

This bill seeks to improve this medical decision-making process for incapacitated patients by creating guidelines whereby the attending physicians could appoint surrogate decision-makers for non-extraordinary medical decisions for patients lacking a health care proxy or a MOLST form.  Nothing in this bill would change the process for any patient with a health care proxy or a MOLST form.  This decision-making process would be an alternative option for certain cases headed down the path toward judicial appointment of a medical guardian.  If, for example, a patient presents to a local hospital incapacitated due to a stroke, and that patient has not identified a health care proxy, an attending physician could simply appoint a family member or close friend as the surrogate decision maker—according to the criteria laid forth in the statute—to make most medical decisions for the patient.  These decisions would be limited by the patient protections that are also provided by this bill. 

Importantly, this bill provides patient protections.  Specifically, it makes clear that the authority of a duly appointed surrogate decision maker would include the ability to make decisions related to admissions to nursing facilities, but it would not provide the surrogate with the ability to make decisions related to transfers to inpatient mental health facilities.  In response to the decision in  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 prohibits the surrogate decision-makers from making “extraordinary decisions” which are those interpreted by Massachusetts law to be of the highest severity.  In those cases, judicial appointment of a medical guardian would remain the required process.  We also propose the addition of procedural safeguards for patients who actively refuse care while lacking decisional capacity.

We now have growing evidence that this bill will work. Two major academic teaching hospitals have looked at this bill and gone back through medical charts in situations where they had to seek judicial appointment of medical guardians.  This 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 provided by the proposed statute.  These findings demonstrate that this bill will eliminate unnecessary judicial bureaucracy, and significantly reduce the use of valuable time and resources of the courts, while obtaining the same positive results in the hundreds of cases of patients requiring guardianship at Massachusetts 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 patients ready to move to skilled nursing facilities, 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 subsequent rehabilitation will not have access to the patient.

Currently, only four other states in the entire country do not have a default surrogate consent statute for incapacitated patients without a health care proxy.  We believe that this bill is an important step toward promoting safe, prompt, and efficient authorization of proper medical care for patients who lack capacity.

Accordingly, the Massachusetts Medical Society strongly urges your support of this bill, which we believe will significantly improve the medical decision-making procedures for patients without a health care proxy, saving valuable time and considerable expense in the process.

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