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.
