Massachusetts Medical Society: MMS Advocates for Improved Decision Making for Incapacitated Patients

MMS Advocates for Improved Decision Making for Incapacitated Patients


The MMS is pleased to have introduced a new bill in the state house this January, An Act Improving Medical Decision Making, aimed at improving the surrogate decision-making process for incapacitated patients. The bill is sponsored by Rep. Christopher Markey and Sen. Thomas Kennedy.

Patients have long had a fundamental right to make decisions relating to their medical treatment; this right survives a patient’s loss of decisional capacity. Various state and federal laws thus provide important mechanisms for surrogate medical decision making on behalf of incapacitated patients.

In Massachusetts, the gold standard is the health care proxy, which provides a proxy with full medical decision-making authority for a patient should they lose capacity, subject to some important patient protections.

Currently, providers treating patients without health care proxies are often required to seek judicial appointment of a medical guardian for care decisions for incapacitated patients, and they must return to the courts for additional sign-off on certain subsequent decisions such as transfers to nursing homes. This MMS bill would seek to improve medical decision-making processes for incapacitated patients by creating guidelines whereby their attending physicians could authorize surrogate decision makers for non-extraordinary medical decisions. Such reforms would maintain patient protections while also ensuring that surrogate decision makers can be appointed efficiently and consistently so as to minimize delay in medical decisions and to reduce unnecessary burdens to patients’ families and caregivers.

Importantly, the MMS bill does not interfere with the existing tools to facilitate surrogate decision making: a valid health care proxy or MOLST (Massachusetts Medical Orders for Life Sustaining Treatment) form take precedence over this process. However, for incapacitated patients lacking such advanced directives, judicial appointment of medical guardians would no longer always be necessary. Instead, the law allows the attending physician to appoint a surrogate decision maker — fol­lowing a hier­archy list of possible surrogates — who would then be authorized to make decisions for the incapacitated patient. The sur­rogate would not have authority to make extraordinary medical decisions subject to heightened “substituted judgment” standards in Massachusetts law.

The legislation provides for many patient protections once a surrogate decision maker has been appointed. Guidelines are provided to ensure that surrogates’ decisions conform as closely as possible to the patient’s wishes. Just as in the case of health care proxies or medical guardians, surrogate decision makers are required to take into account the patient’s personal, philosophical, religious and moral beliefs, and ethical values, to the best of their ability, in making surrogate decisions.

The bill has been assigned to the Joint Committee on Children, Families, and Persons with Disabilities. MMS plans to testify in support of the bill this spring.

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