New Hampshire’s new “Surrogate Decision Maker Law” took effect on January 1st. This law amends RSA 137-J — the state’s advance directive statute — and creates a hierarchical list of family members/friends who may make health care decisions for patients in certain situations for a limited time period. It’s important that home care and hospice agencies understand the new law, adjust their internal policies regarding health care decisions, and understand any policy changes at referring hospitals.
The Advanced Directive procedure is nothing new to the granite state. For almost 25 years, New Hampshire law has afforded competent adults the right to execute a Durable Power of Attorney for Health Care document (also known as a “DPOAHC” or an “Advance Directive”). However, only one-third of New Hampshire’s citizens take advantage of this opportunity.
Through a Durable Power document, a person may designate an “Agent” to make health care decisions should he or she become incapacitated in the future (either temporarily or permanently) to make health care decisions for himself or herself. The DPOAHC is “activated” by a physician or Advanced Practice Registered Nurse only when and if that physician or nurse practitioner determines that the person has become incapacitated. Once the DPOAHC takes effect, the health care provider is required by law to confer with the Agent who has been hand selected by the patient.
Some of the significant changes in the new legislation are highlighted below. A detailed side-by-side comparison the new and former statutes may be found at www.healthynh.com.
Updated Definitions include:
- Near death – An incurable condition caused by injury, disease, or illness which is such that death is imminent and the application of life-sustaining treatment would, to a reasonable degree of medical certainty, only postpone the moment of death. These criteria must be determined and documented by two physicians or by a physician and an ARNP. (RSA 137-J: 2, XVI.)
- New statute: Previously, this term was referred to as “terminal condition” and the criteria could only be determined by the attending physician in consultation with another physician. Adds “to a reasonable degree of medical certainty” to account for variation and change in diagnostic/prognostic capabilities of medicine. (RSA 137-H: 2, VI)
- Permanently unconscious – A lasting condition, indefinitely without improvement, in which thought, awareness of self and environment, and other indicators of consciousness are absent as determined by an appropriate neurological assessment by a physician in consultation with the attending physician or ARNP. (RSA 137-J:2, XVII)
- New statute: Determination of “permanently unconscious” did not previously require a neurological assessment. (RSA 137-H: 2, VII)
- Life-sustaining treatment – Any medical procedures or interventions that use mechanical or other medically administered means to sustain, restore, or replace a vital function which, in the written judgment of the attending physician or ARNP, would serve only to artificially postpone the moment of death, and where the person is near death or is permanently unconscious. “Life-sustaining treatment” includes, but is not limited to the following: mechanical respiration, kidney dialysis or the use of other external mechanical or technological devices. Life-sustaining treatment also may include blood transfusions, antibiotics and drugs to maintain blood pressure. “Life-sustaining treatment” does not include the administration of medication, natural ingestion of food or fluids by eating and drinking, or the performance of any medical procedure deemed necessary to provide comfort or to alleviate pain. (RSA 137-J: 2, XIII)
- New statute: Removes the requirement for a consulting physician, and adds ARNPs as providers who can determine whether a proposed treatment would “artificially postpone the moment of death.” Provides additional examples of what are and are not life-sustaining treatments. (RSA 137-H:2, II and former 137-J:1, VIII)
- Medically administered nutrition and hydration – Invasive procedures such as, but not limited to the following: Nasogastric tubes; gastrostomy tubes; intravenous feeding or hydration; and hyperalimentation. It does not include the natural ingestion of food or fluids by eating and drinking.(RSA 137-J:2, XV)
- New statute: Previously was termed, “artificially administered nutrition and hydration.” Combines the language from the former Living Will and DPOAH statutes, referring to “natural ingestions of food or fluids by eating or drinking” rather than to “sustenance.” (RSA 137-H: 2, VIII and former 137-J: 1, II)
Health Care Provider’s Responsibilities
- Advanced Registered Nurse Practitioners (ARNPs), in addition to physicians, now can perform many of the activities related to advance directives that previously required a physician, including certification and documentation of a person’s capacity to make health care decisions and the authority to write DNR orders. (e.g. RSA 137-J:5, II and RSA 137-J:26) (Note, however, that a principal may exclude or strike references to ARNPs and the powers granted to ARNPs in his or her advance directive, and such a decision by the principal must be honored. RSA 137-J:14, III)
Scope of Agent’s Health Care Responsibilities
- As with the prior DPOAH statute, the agent has the authority to make any and all health care decisions on the principal’s behalf that the principal could make only when the principal does not have capacity to make health care decisions, unless otherwise prohibited by law. Lack of capacity must be certified in writing by the principal’s attending physician or ARNP and the agent’s name must be noted and placed in the principal’s medical record.(RSA 137-J:5 Cf. Former RSA 137-J:2)
- Also, as with the previous law, the attending physician or ARNP must make reasonable efforts to inform the principal of any proposed treatment or any proposal to withdraw or withhold treatment. If the principal objects to the proposed plan, even though he or she lacks capacity and an advance directive is in effect, treatment may not be given or withheld over his/her objection. (RSA 137-J:5, IV Cf. Former RSA 137-J:2, IV)
- The new statute provides an exception to this, however, if the principal’s advance directive includes the following statement initialed by the principal: “Even if I am incapacitated and I object to treatment, treatment may be given to me against my objection.” For example, a person with stage1 dementia who does not know how the disease will progress may want to give his or her agent additional authority to use his or her best judgment to make health care decisions on his or her behalf, even if the person objects to the treatment. In order for the agent to override the principal’s objections related to life sustaining treatment or medically administered hydration or nutrition, the principal’s DPOAH must expressly grant authority to the agent to make such decisions (see the next bullet). Note that this “override” provision applies only to treatment, and it does not preclude the principal from changing his or her mind about his or her selection of health care agent. It also is important to note that in a situation where a principal (who lacks capacity to make health care decisions) objects to proposed treatment, a family member, health care provider or other interested party may still petition the Probate Court to appoint a legal guardian for the principal, and/or to determine the principal’s capacity to make health care decisions. Furthermore, health care providers are not required to provide or withhold/withdraw treatment that would not be contrary to accepted medical practice.
- For decisions regarding the withholding or withdrawal of medically administered nutrition and hydration, and/or to withhold or withdraw other life-sustaining treatment, the advance directive must include a clear expression of such intent, and for a DPOAH, the agent must be expressly granted such authority. (RSA 137-J:7, III and RSA 137-J:10, II) An exception, however, will apply if the proposed life-sustaining treatment or administration of medical nutrition and hydration would have the unintended consequence of hastening the principal’s death or causing irreparable harm, as certified by the attending physician and a physician knowledgeable about the patient’s condition. (RSA 137-J:7, IIIc and RSA 137-J:10, IIc)
Confidentiality and Access to Information
- The revised statute clarifies that health care providers, residential care providers, and persons acting for them or under their control, must share medical information with the principal’s agent when a DPOAH is in effect, and provide copies of advance directives to other providers as needed to facilitate the principal’s care. As with the prior law and consistent with the agent’s scope of authority to make health care decisions on the principal’s behalf, agents are permitted to execute consents and other necessary health care documents, and to review the principal’s medical information. (RSA 137-J:9, Cf former RSA 137-J:7)
- In order for an advance directive to be legally valid and enforceable in New Hampshire, it must be “substantially in the form” provided in the statute. (RSA 137-J:13) (Previously, a Living Will document was not required to be in the form set forth in the statute. RSA 137-H:3) The text on the forms, particularly for the DPOAH and its accompanying “Disclosure Statement” was revised to be more “consumer-friendly,” to address concerns that the language was too arcane or legalistic. (RSA 137-J:19-20 Cf RSA 137-J:14-15)
- It is important to note that a “General Power of Attorney” or a “Durable Power of Attorney” executed pursuant to RSA 506:6 that purports to give an agent authority regarding health care decisions is not sufficient to give the agent authority to make such decisions. It does not function as a DPOAH in New Hampshire and does not give that “agent” legal authority to make health care decisions. Moreover, such a document likely lacks the necessary language regarding authorization for withholding or withdrawing life-sustaining treatment and medically administered nutrition and hydration.
- Any advance directive created under prior New Hampshire law must still be honored under the new law. (RSA 137-J:16) As always, advance directives validly executed in other states or jurisdictions are valid in New Hampshire; the authority under such “foreign” documents, however, is restricted by the limitations in our advance directive statutes (e.g., requiring express authority for withholding or withdrawing medically administered nutrition and hydration). (RSA 137-J:17 Cf RSA 137-H:14a and former RSA 137-J:10)
Execution and Witnesses
- Whereas under the prior statutes, an advance directive required the signatures of two witnesses and a notary public, (RSA 137-H:4 and former RSA 137-J:5) now an advance directive must be signed by the principal in the presence of either: (RSA 137-J:14)
- Two or more witnesses, neither of whom can be the agent, the principal’s spouse or heir at law, or a person entitled to any part of the estate of the principal upon death of the principal under a will, trust, or other testamentary instrument or deed in existence or by operation of law, or attending physician or ARNP, or person acting under the direction or control of the attending physician or ARNP. No more than one such witness may be the principal’s health or residential care provider or such provider’s employee; OR
- A notary public or justice of the peace.
Naming of Multiple Agents
- The new statute clarifies that, if a principal lists more than one person as the agent in a DPOAH, the agents have authority in priority by the order they are listed on the document. If another method of joint agency is desired by the principal (for example, all agents must agree on any action taken), the principal must expressly state the method in the DPOAH. (RSA 137-J:18)
- The principal, or any person who is a near relative of the principal, or who is a responsible adult who is directly interested in the principal by personal knowledge and acquaintance (this includes guardians, social workers, physicians, or clergy members), may file an action in Probate Court to:
- Request that the authority granted to the agent under a DPOAH be revoked because the petitioner believes that the principal was not of sound mind or was under duress, fraud, or undue influence when the advance directive was executed; (RSA 137-J:22, Ia Cf former RSA 137-J:16) OR
- Challenge the right of an agent to act, and request the appointment of a guardian for the purpose of making healthcare decisions, if for example, the petitioner believes that the agent is not acting according to the known wishes of the principal, or in the principal’s best interest if his/her wishes are unknown. (RSA 137-J:22, Ib)
DO NOT RESUSCITATE ORDERS
Under the prior law, there was no express provision authorizing the use of Do Not Resuscitate (“DNR”) orders. The prior definition of “life-sustaining treatment” specifically included cardiopulmonary resuscitation as an example of such treatment; (see former RSA 137-J: 1, VII) arguably, therefore, the only legally authorized means to withhold or withdraw CPR was to: (a) obtain the express consent of the patient; (b) invoke the terms of an advance directive that expressly authorized the withholding or withdrawing of life-sustaining treatment; or (c) obtain a court order. The updated RSA 137-J includes a new subsection to provide clear statutory authority to DNR orders, the use of which has been a common and accepted practice in the medical community for many years.Presumed Consent to Cardio-Pulmonary Resuscitation (RSA 137-J: 25) In the event of cardiac or respiratory arrest, every person is presumed to consent to cardiopulmonary resuscitation (“CPR”), except when:
- A DNR order has been issued for that person, OR
- A completed advance directive for that person is in effect stating the person does not want CPR or their agent under a DPOAH determines that the person would not want CPR under the circumstances, OR
- The person’s attending physician or ARNP issues a DNR order, pursuant to RSA 137-J:26, IV (as explained in the section below); OR
- A person is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner.
Issuance of a Do Not Resuscitation Order (DNR) (RSA 137-J: 26)
- A Living Will or DPOAH is not a prerequisite for a DNR order; all matters pertaining to the availability of and parameters for DNR orders apply to all persons regardless of whether or not a person has executed an advance directive.
- An attending physician or ARNP may issue a DNR order for a person if the person, or the person’s agent under a DPOAH, has consented to the order.
- An agent may consent to a DNR order for a person who lacks the capacity to make health care decisions, if the principal’s DPOAH grants the agent the authority to make decisions regarding withholding or withdrawing life-sustaining treatment.
- If an agent is not reasonably available and the facility has made diligent efforts to contact the agent without success, or the agent is not legally capable of making a decision regarding a DNR order, an attending physician or ARNP may issue a DNR order for a person who lacks capacity to make health care decisions. This may only occur if the person is near death and is admitted to a health care facility, and only if a second physician who has personally examined the person concurs with the opinion of the attending physician or ARNP that CPR would be contrary to accepted medical standards and would cause harm or pain and suffering.
- If the person is present in a health care facility, the DNR order must be written either on a form consistent with that facility’s policy and procedures, on a DNR “card” that complies with NH law, or on a medical order form that complies with NH law. (RSA 137-J:26, V)
Protection of Persons Carrying Out in Good Faith a Do Not Attempt Resuscitation Order (RSA 137-J: 28)
- No health care provider or residential care provider, or any other person acting for the provider or under the provider’s control, can be held criminally or civilly liable, or be deemed to have engaged in unprofessional conduct, for complying with a valid DNR order.
- Nobody (including health care providers) who witnesses a cardiac or respiratory arrest can be held criminally or civilly liable for performing cardiopulmonary resuscitation on a person that has a DNR order, provided that the person performing CPR is unaware of the DNR order or believed that the DNR order had been revoked or canceled.
- If a physician or ARNP refuses to issue a DNR order or comply with a DNR order because of his or her personal beliefs or conscience, he or she must immediately inform the patient, the patient’s family, or the patient’s agent. The patient, family, or agent may then request a referral to another physician or ARNP.
Revocation of a DNR Order (RSA 137-J: 29)
- A person in a health care facility can revoke his or her DNR order at any time by making either or other act of communication to the attending physician, ARNP, or other professional staff of the facility.
Portability of DNR Orders (RSA 137-J: 31)
- If a person with a DNR order is transferred from one health care facility to another health care facility, the facility initiating the transfer must communicate the existence of a DNR order to the receiving facility prior to the transfer. The written DNR order—on a Portable-DNR order form or on a DNR card – remains effective until a physician at the receiving facility issues admission orders.
There is a significant statewide education program underway to help inform health providers, other professionals and the public about this new law. A broad range of people with health care experience, legal knowledge and consumer education developed the materials for the education program. The Foundation for Healthy Communities plants to assess health care quality improvement issues once the law is fully implemented.
Until the enactment of House Bill 1434, and RSA 137-J, the only people who were legally authorized to make healthcare decisions for an incapacitated adult were: 1) An Agent appointed under a Durable Power of Attorney for Health Care document; or 2) a Guardian appointed by the New Hampshire Probate Court.Most people were shocked to learn that they (as a spouse, adult child, or other close family member) otherwise had no authority under New Hampshire law to make health care decisions for an incapacitated loved one. The process of designating an “Agent” — or multiple “Agents” — under a Durable Power of Attorney for Health Care document is explained on the state’s website at http://www.healthynh.com/publications.html.