SB598 (2020) Detail

Adding physician assistants to the law governing advance directives.


SB 598  - AS INTRODUCED

 

 

2020 SESSION

20-2740

01/10

 

SENATE BILL 598

 

AN ACT adding physician assistants to the law governing advance directives.

 

SPONSORS: Sen. Sherman, Dist 24; Sen. Bradley, Dist 3; Sen. Gray, Dist 6; Rep. Salloway, Straf. 5; Rep. Marsh, Carr. 8; Rep. Schapiro, Ches. 16; Rep. Ticehurst, Carr. 3; Rep. Guthrie, Rock. 13

 

COMMITTEE: Health and Human Services

 

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ANALYSIS

 

This bill adds physician assistants to the law governing advance directives.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

20-2740

01/10

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty

 

AN ACT adding physician assistants to the law governing advance directives.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Advance Directives; Purpose and Policy.  Amend RSA 137-J:1 to read as follows:

I.  The state of New Hampshire recognizes that a person has a right, founded in the autonomy and sanctity of the person, to control the decisions relating to the rendering of his or her own medical care.  In order that the rights of persons may be respected even after such persons lack the capacity to make health care decisions for themselves, and to encourage communication between patients and their attending physicians, PAs, or APRNs, the general court declares that the laws of this state shall recognize the right of a competent person to make a written directive:

(a)  Delegating to an agent the authority to make health care decisions on the person's behalf, in the event such person is unable to make those decisions for himself or herself, either due to permanent or temporary lack of capacity to make health care decisions;

(b)  Instructing his or her attending physician, PA, or APRN to provide, withhold, or withdraw life-sustaining treatment, in the event such person is near death or is permanently unconscious.

2  Advance Directives; Definitions.  Amend RSA 137-J:2, IV to read as follows:

IV.  "Attending physician, PA, or APRN" means the physician, physician assistant, or advanced practice registered nurse, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient.  If more than one physician, physician assistant, or advanced practice registered nurse shares that responsibility, any one of those physicians, physician assistants, or advanced practice registered nurses may act as the attending physician, PA, or APRN under the provisions of this chapter.

3  Advance Directives; Definitions..  Amend RSA 137-J:2, XIII-XXII-a to read as follows:

XIII.  "Life-sustaining treatment" means any medical procedures or interventions which utilize mechanical or other medically administered means to sustain, restore, or supplant a vital function which, in the written judgment of the attending physician, PA, or APRN, 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: medically administered nutrition and hydration, mechanical respiration, kidney dialysis, or the use of other external mechanical or technological devices.  Life sustaining treatment may include drugs to maintain blood pressure, blood transfusions, and antibiotics.  "Life-sustaining treatment" shall 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.

XIV.  "Living will" means a directive which, when duly executed, contains the express direction that no life-sustaining treatment be given when the person executing said directive has been diagnosed and certified in writing by the attending physician, PA, or APRN to be near death or permanently unconscious, without hope of recovery from such condition and is unable to actively participate in the decision-making process.

XV.  "Medically administered nutrition and hydration" means invasive procedures such as, but not limited to the following: Nasogastric tubes; gastrostomy tubes; intravenous feeding or hydration; and hyperalimentation.  It shall not include the natural ingestion of food or fluids by eating and drinking.

XVI.  "Near death" means 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, as determined by 2 physicians, or a physician and a PA, or a physician and an APRN, only postpone the moment of death.

XVII.  "Permanently unconscious" means 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 an appropriate neurological assessment by a physician in consultation with an APRN or PA.

XVIII.  "Physician" means a medical doctor licensed in good standing to practice in the state of New Hampshire pursuant to RSA 329.

XVIII-a.  " Physician assistant" or "PA" means a physician assistant licensed in good standing to practice in the state of New Hampshire pursuant to RSA 328-D.

XIX.  "Principal" means a person 18 years of age or older who has executed an advance directive pursuant to the provisions of this chapter.

XX.  "Qualified patient" means a patient who has executed an advance directive in accordance with this chapter and who has been certified in writing by the attending physician or APRN to lack the capacity to make health care decisions.

XXI.  "Reasonable degree of medical certainty" means a medical judgment that is made by a physician, PA, or APRN who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

XXII.  "Residential care provider" means a "facility" as defined in RSA 161-F:11, IV, a "nursing home" as defined in RSA 151-A:1, IV, or any individual or facility licensed, certified, or otherwise authorized or permitted by law to operate, for profit or otherwise, a residential care facility for adults, including but not limited to those operating pursuant to RSA 420-D.

XXII-a.  "Surrogate decision-maker" or "surrogate" means an adult individual who has health care decision-making capacity, is available upon reasonable inquiry, is willing to make health care decisions on behalf of a patient who lacks health care decision-making capacity, and is identified by the attending physician, PA, or APRN in accordance with the provisions of this chapter as the person who is to make those decisions in accordance with the provisions of this chapter.

4  Advance Directives; Scope and Duration of Agent's Authority.  Amend RSA 137-J:5, II-V to read as follows:

II.  An agent's or surrogate's authority under an advance directive shall be in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician, PA, or APRN, and filed with the name of the agent or surrogate in the principal's medical record.  When and if the principal regains capacity to make health care decisions, such event shall be certified in writing by the principal's attending physician, PA, or APRN, noted in the principal's medical record, the agent's or surrogate's authority shall terminate, and the authority to make health care decisions shall revert to the principal.

III.  If the principal has no attending physician, PA, or APRN for reasons based on the principal's religious or moral beliefs as specified in his or her advance directive, the advance directive may include a provision that a person designated by the principal in the advance directive may certify in writing, acknowledged before a notary or justice of the peace, as to the lack of decisional capacity of the principal.  The person so designated by the principal shall not be the agent, or a person ineligible to be the agent.

IV.  The principal's attending physician, PA, or APRN shall make reasonable efforts to inform the principal of any proposed treatment, or of any proposal to withdraw or withhold treatment.  Notwithstanding that an advance directive or a surrogacy is in effect and irrespective of the principal's lack of capacity to make health care decisions at the time, treatment may not be given to or withheld from the principal over the principal's objection unless 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."

V.  Nothing in this chapter shall be construed to give an agent or surrogate authority to:

(a)  Consent to voluntary admission to any state institution;

(b)  Consent to a voluntary sterilization;

(c)  Consent to withholding life-sustaining treatment from a pregnant principal, unless, to a reasonable degree of medical certainty, as certified on the principal's medical record by the attending physician, PA, or APRN and an obstetrician who has examined the principal, such treatment or procedures will not maintain the principal in such a way as to permit the continuing development and live birth of the fetus or will be physically harmful to the principal or prolong severe pain which cannot be alleviated by medication; or

(d)  Consent to psychosurgery, electro-convulsive shock therapy, sterilization, or an experimental treatment of any kind.

5  Advance Directives; Requirement to Act in accordance With Principal's Wishes and Best Interests.  Amend RSA 137-J:6 to read as follows:

137-J:6  Requirement to Act in Accordance With Principal's Wishes and Best Interests.  After consultation with the attending physician, PA, or APRN and other health care providers, the agent or surrogate shall make health care decisions in accordance with the agent's or surrogate's knowledge of the principal's wishes and religious or moral beliefs, as stated orally or otherwise communicated by the principal, or, if the principal's wishes are unknown, in accordance with the agent's or surrogate's assessment of the principal's best interests and in accordance with accepted medical practice.

6  Advance Directives; Physician, PA, APRN, and Provider's Responsibilities.  Amend RSA 137-J:7, I-II to read as follows:

I.  A qualified patient's attending physician, PA, or APRN, or a qualified patient's health care provider or residential care provider, and employees thereof, having knowledge of the qualified patient's advance directive shall be bound to follow, as applicable, the dictates of the qualified patient's living will and/or the directives of a qualified patient's designated agent to the extent they are consistent with this chapter and the advance directive, and to the extent they are within the bounds of responsible medical practice.

(a)  An attending physician, PA, or APRN, or other health care provider or residential care provider, who is requested to do so by the principal shall make the principal's advance directive or a copy of such document a part of the principal's medical record.

(b)  Any person having in his or her possession a duly executed advance directive or a revocation thereof, if it becomes known to that person that the principal executing the same is in such circumstances that the terms of the advance directive might become applicable (such as when the principal becomes a "qualified patient"), shall forthwith deliver an original or copy of the same to the health care provider or residential care provider with which the principal is a patient.

(c)  The principal's attending physician, PA, or APRN, or any other physician, PA, or APRN, who is aware of the principal's execution of an advance directive shall, without delay, take the necessary steps to provide for written verification of the principal's lack of capacity to make health care decisions (in other words, to certify that the principal is a "qualified patient"), and/or the principal's near death or permanently unconscious condition, as defined in this chapter and as appropriate to the principal's medical condition, so that the attending physician, PA, or APRN and the principal's agent may be authorized to act pursuant to this chapter.

(d)  If a physician, PA, or an APRN, because of his or her personal beliefs or conscience, is unable to comply with the terms of the advance directive or surrogate's decision, he or she shall immediately inform the qualified patient, the qualified patient's family, or the qualified patient's agent.  The qualified patient, or the qualified patient's agent or family, may then request that the case be referred to another physician, PA, or APRN.

II.  An attending physician, PA, or APRN who, because of personal beliefs or conscience, is unable to comply with the advance directive or the surrogate's decision pursuant to this chapter shall, without delay, make the necessary arrangements to effect the transfer of a qualified patient and the appropriate medical records that document the qualified patient's lack of capacity to make health care decisions to another physician, PA, or APRN who has been chosen by the qualified patient, by the qualified patient's agent or surrogate, or by the qualified patient's family, provided, that pending the completion of the transfer, the attending physician, PA, or APRN shall not deny health care treatment, nutrition, or hydration which denial would, within a reasonable degree of medical certainty, result in or hasten the qualified patient's death against the express will of the qualified patient, the advance directive, or the agent or surrogate.

7  Advance Directives; Withholding or Withdrawal of Life-Sustaining Treatment.  Amend RSA 137-J:10, I(a) and (b) to read as follows:

(a)  The principal's attending physician, PA, or APRN shall certify in writing that the principal lacks the capacity to make health care decisions.

(b)  Two physicians or a physician and an APRN or PA shall certify in writing that the principal is near death or is permanently unconscious.

8  Advance Directives; Withholding or Withdrawal of Life-Sustaining Treatment. Amend RSA 137-J:10, IV(a) to read as follows:

(a)  The consent to withhold or withdraw life-sustaining treatment from a pregnant principal, unless, to a reasonable degree of medical certainty, as certified on the principal's medical record by the attending physician, PA, or APRN and an obstetrician who has examined the principal, such treatment or procedures will not maintain the principal in such a way as to permit the continuing development and live birth of the fetus or will be physically harmful to the principal or prolong severe pain which cannot be alleviated by medication.

9  Advance Directives; Withholding or Withdrawal of Life-Sustaining Treatment.  Amend RSA 137-J:10, VII to read as follows:

VII.  Nothing in this chapter shall be construed to create a presumption that in the absence of an advance directive, a person wants life-sustaining treatment to be either taken or withdrawn.  This chapter shall also not be construed to supplant any existing rights and responsibilities under the law of this state governing the conduct of physicians, PAs, or APRNs in consultation with patients or their families or legal guardians in the absence of an advance directive.

10  Advance Directives; Execution and Witnesses.  Amend RSA 137-J:14 to read as follows:

137-J:14  Execution and Witnesses.

I.  The advance directive shall be signed by the principal in the presence of either of the following:

(a)  Two or more subscribing witnesses, neither of whom shall, at the time of execution, 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, PA, or APRN, or person acting under the direction or control of the attending physician, PA, or APRN.  No more than one such witness may be the principal's health or residential care provider or such provider's employee.  The witnesses shall affirm that the principal appeared to be of sound mind and free from duress at the time the advance directive was signed and that the principal affirmed that he or she was aware of the nature of the document and signed it freely and voluntarily; or

(b)  A notary public or justice of the peace, who shall acknowledge the principal's signature pursuant to the provisions of RSA 456 or RSA 456-A.

II.  If the principal is physically unable to sign, the advance directive may be signed by the principal's name written by some other person in the principal's presence and at the principal's express direction.

III.  A principal's decision to exclude or strike references to PAs or APRNs and the powers granted to PAs or APRNs in his or her advance directive shall be honored.

11  Advance Directives; Revocation.  Amend RSA 137-J:15, II to read as follows:

II.  A principal's health or residential care provider who is informed of or provided with a revocation of an advance directive or surrogacy shall immediately record the revocation, and the time and date when he or she received the revocation, in the principal's medical record and notify the agent, the attending physician, PA, or APRN, and staff responsible for the principal's care of the revocation.  An agent or surrogate who becomes aware of such revocation shall inform the principal's health or residential care provider of such revocation.  Revocation shall become effective upon communication to the attending physician, PA, or APRN.

12  Advance Directives; Durable Power of Attorney; Disclosure Statement.  Amend RSA 137-J:19 to read as follows:

137-J:19  Durable Power of Attorney; Disclosure Statement.  The disclosure statement which must accompany a durable power of attorney for health care shall be in substantially the following form:

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING IT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

Except if you say otherwise in the directive, this directive gives the person you name as your health care agent the power to make any and all health care decisions for you when you lack the capacity to make health care decisions for yourself (in other words, you no longer have the ability to understand and appreciate generally the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care).  "Health care" means any treatment, service or procedure to maintain, diagnose or treat your physical or mental condition.  Your health care agent, therefore, will have the power to make a wide range of health care decisions for you.  Your health care agent may consent (in other words, give permission), refuse to consent, or withdraw consent to medical treatment, and may make decisions about withdrawing or withholding life-sustaining treatment.  Your health care agent cannot consent to or direct any of the following: commitment to a state institution, sterilization, or termination of treatment if you are pregnant and if the withdrawal of that treatment is deemed likely to terminate the pregnancy, unless the treatment will be physically harmful to you or prolong severe pain which cannot be alleviated by medication.

You may state in this directive any treatment you do not want, or any treatment you want to be sure you receive.  Your health care agent's power will begin when your doctor certifies that you lack the capacity to make health care decisions (in other words, that you are not able to make health care decisions).  If for moral or religious reasons you do not want to be treated by a doctor or to be examined by a doctor to certify that you lack capacity, you must say so in the directive and you must name someone who can certify your lack of capacity.  That person cannot be your health care agent or alternate health care agent or any person who is not eligible to be your health care agent.  You may attach additional pages to the document if you need more space to complete your statement.

Under no conditions will your health care agent be able to direct the withholding of food and drink that you are able to eat and drink normally.

Your agent shall be directed by your written instructions in this document when making decisions on your behalf, and as further guided by your medical condition or prognosis.  Unless you state otherwise in the directive, your agent will have the same power to make decisions about your health care as you would have made, if those decisions by your health care agent are made consistent with state law.

It is important that you discuss this directive with your doctor or other health care providers before you sign it, to make sure that you understand the nature and range of decisions which could be made for you by your health care agent.  If you do not have a health care provider, you should talk with someone else who is knowledgeable about these issues and can answer your questions.  Check with your community hospital or hospice for trained staff.  You do not need a lawyer's assistance to complete this directive, but if there is anything in this directive that you do not understand, you should ask a lawyer to explain it to you.

The person you choose as your health care agent should be someone you know and trust, and he or she must be at least 18 years old.  If you choose your health or residential care provider (such as your doctor, advanced practice registered nurse, or an employee of a hospital, nursing home, home health agency, or residential care home, other than a relative), that person will have to choose between acting as your health care agent or as your health or residential care provider, because the law does not allow a person to do both at the same time.

You should consider choosing an alternate health care agent, in case your health care agent is unwilling, unable, unavailable or not eligible to act as your health care agent.  Any alternate health care agent you choose will then have the same authority to make health care decisions for you.

You should tell the person you choose that you want him or her to be your health care agent.  You should talk about this directive with your health care agent and your doctor or advanced practice registered nurse and give each one a signed copy.  You should write on the directive itself the people and institutions who will have signed copies.  Your health care agent will not be liable for health care decisions made in good faith on your behalf.

EVEN AFTER YOU HAVE SIGNED THIS DIRECTIVE, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF AS LONG AS YOU ARE ABLE TO DO SO, AND TREATMENT CANNOT BE GIVEN TO YOU OR STOPPED OVER YOUR CLEAR OBJECTION.  You have the right to revoke the power given to your health care agent by telling him or her, or by telling your health care provider, orally or in writing, that you no longer want that person to be your health care agent.

YOU HAVE THE RIGHT TO EXCLUDE OR STRIKE REFERENCES TO APRNS IN YOUR ADVANCE DIRECTIVE AND IF YOU DO SO, YOUR ADVANCE DIRECTIVE SHALL STILL BE VALID AND ENFORCEABLE.

Once this directive is executed it cannot be changed or modified.  If you want to make changes, you must make an entirely new directive.

THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS IT IS SIGNED IN THE PRESENCE OF A NOTARY PUBLIC OR JUSTICE OF THE PEACE OR TWO (2) OR MORE QUALIFIED WITNESSES, WHO MUST BOTH BE PRESENT WHEN YOU SIGN AND WHO WILL ACKNOWLEDGE YOUR SIGNATURE ON THE DOCUMENT.  THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

___The person you have designated as your health care agent;

___Your spouse or heir at law;

___Your attending physician, PA, or APRN, or person acting under the direction or control of the attending physician, PA, or APRN;

ONLY ONE OF THE TWO WITNESSES MAY BE YOUR HEALTH OR RESIDENTIAL CARE PROVIDER OR ONE OF YOUR PROVIDER'S EMPLOYEES.

13  Advance Directives; Durable Power of Attorney and Living Will.  Amend RSA 137-J:20, II to read as follows:

II.  LIVING WILL

Declaration made this ___ day of __________, 20___.

I, __________, being of sound mind, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below, do hereby declare:

If at any time I should have an incurable injury, disease, or illness and I am certified to be near death or in a permanently unconscious condition by 2 physicians or a physician and an APRN or PA, and 2 physicians or a physician and an APRN or PA have determined that my death is imminent whether or not life-sustaining treatment is utilized and where the application of life-sustaining treatment would serve only to artificially prolong the dying process, or that I will remain in a permanently unconscious condition, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, the natural ingestion of food or fluids by eating and drinking, or the performance of any medical procedure deemed necessary to provide me with comfort care.  I realize that situations could arise in which the only way to allow me to die would be to discontinue medically administered nutrition and hydration.

(Initial below if it is your choice)

In carrying out any instruction I have given under this section, I authorize that even if all other forms of life-sustaining treatment have been withdrawn, medically administered nutrition and hydration continue to be given to me. ______

In the absence of my ability to give directions regarding the use of such life-sustaining treatment, it is my intention that this declaration shall be honored by my family and health care providers as the final expression of my right to refuse medical or surgical treatment and accept the consequences of such refusal.

I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.

Signed this ___ day of __________, 2___.

Principal's Signature: ____________________

[If you are physically unable to sign, this directive may be signed by someone else writing your name, in your presence and at your express direction.]

THIS LIVING WILL DIRECTIVE MUST BE SIGNED BY TWO WITNESSES OR A NOTARY PUBLIC OR A JUSTICE OF THE PEACE.

We declare that the principal appears to be of sound mind and free from duress at the time the living will is signed and that the principal affirms that he or she is aware of the nature of the directive and is signing it freely and voluntarily.

Witness: _______________ Address: ____________________

Witness: _______________ Address: ____________________

STATE OF NEW HAMPSHIRE

COUNTY OF ____________________

The foregoing living will was acknowledged before me this ___ day of __________, 20___, by __________ (the "Principal"). ____________________  

Notary Public/Justice of the Peace  

My commission expires:  

14  Advance Directives; Civil Action.  Amend RSA 137-J:22, II to read as follows:

II.  A copy of any such action shall be given in hand to the principal's attending physician, PA, or APRN and, as applicable, to the principal's health care provider or residential care provider.  To the extent they are not irreversibly implemented, health care decisions made by a challenged agent shall not thereafter be implemented without an order of the probate court or a withdrawal or dismissal of the court action; provided, that this paragraph shall not be construed to authorize any violation of RSA 137-J:7, II or III.

15  Advance Directives; Presumed Consent to Cardiopulmonary Resuscitation; Health Care Providers and Residential Care Providers Not Required to Expand to Provide Cardiopulmonary Resuscitation.  Amend RSA 137-J:25, I(c) to read as follows:

(c)  A person who lacks capacity to make health care decisions is near death and admitted to a health care facility, and the person's agent is not available and the facility has made diligent efforts to contact the agent without success, or the person's agent is not legally capable of making health care decisions for the person, and the attending physician, PA, or APRN and a physician knowledgeable about the patient's condition, have determined that the provision of cardiopulmonary resuscitation would be contrary to accepted medical standards and would cause unnecessary harm to the person, and the attending physician, PA, or APRN has completed a do not resuscitate order; or

16  Advance Directives; Issuance of a Do Not Resuscitate Order; Order to be Written by the Attending Physician or APRN.  Amend RSA 137-J:26 to read as follows:

137-J:26  Issuance of a Do Not Resuscitate Order; Order to be Written by the Attending Physician, PA, or APRN.

I.  An attending physician, PA, or APRN may issue a do not resuscitate order for a person if the person, or the person's agent, has consented to the order.  A do not resuscitate order shall be issued in writing in the form as described in this section for a person not present or residing in a health care facility.  For persons present in health care facilities, a do not resuscitate order shall be issued in accordance with the policies and procedures of the health care facility and in accordance with the provisions of this chapter.

II.  A person may request that his or her attending physician, PA, or APRN issue a do not resuscitate order for the person.

III.  An agent may consent to a do not resuscitate order for a person who lacks the capacity to make health care decisions if the advance directive signed by the principal grants such authority.  A do not resuscitate order written by the attending physician or APRN for such a person with the consent of the agent is valid and shall be respected by health care providers and residential care providers.

IV.  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 do not resuscitate order, an attending physician, PA, or APRN may issue a do not resuscitate order for a person who lacks capacity to make health care decisions, who is near death, and who is admitted to a health care facility if a second physician who has personally examined the person concurs in the opinion of the attending physician, PA, or APRN that the provision of cardiopulmonary resuscitation would be contrary to accepted medical standards and would cause unnecessary harm to the person.

V.  For persons not present or residing in a health care facility, the do not resuscitate order shall be noted on a medical orders form or in substantially the following form on a card suitable for carrying on the person:

Do Not Resuscitate Order

As attending physician, PA, or APRN of __________ and as a licensed physician, physician assistant or advanced practice registered nurse, I order that this person SHALL NOT BE RESUSCITATED in the event of cardiac or respiratory arrest.

This order has been discussed with __________ (or, if applicable, with his/ her agent,) __________, who has given consent as evidenced by his/her signature below.

Attending physician, PA, or APRN Name

Attending physician, PA, or APRN Signature

Address

Person Signature

Address

Agent Signature (if applicable)

_________________________

Address ____________________

VI.  For persons residing in a health care facility, the do not resuscitate order shall be reflected in at least one of the following forms:

(a)  Forms required by the policies and procedures of the health care facility in compliance with this chapter;

(b)  The do not resuscitate card as set forth in paragraph V; or

(c)  The medical orders form in compliance with this chapter.

17  Advance Directives; Compliance With a Do Not Resuscitate Order.  Amend RSA 137-J:27, I(a)-(c) to read as follows:

(a)  A do not resuscitate order completed by the attending physician, PA, or APRN on a form as specified in RSA 137-J:26;

(b)  A do not resuscitate order for a person present or residing in a health care facility issued in accordance with the health care facility's policies and procedures in compliance with the chapter; or

(c)  A medical orders form on which the attending physician, PA, or APRN has documented a do not resuscitate order in compliance with this chapter.

18  Advance Directives; Protection of Persons Carrying Out in Good Faith a Do Not Resuscitate Order; Notification of Agent by Attending Physician or APRN Refusing to Comply With Do Not Resuscitate Order; Revocation of Do Not Resuscitate Order.  Amend RSA 137-J:28 and 137-J:29 to read as follows:

137-J:28  Protection of Persons Carrying Out in Good Faith a Do Not Resuscitate Order; Notification of Agent by Attending Physician, PA, or APRN Refusing to Comply With Do Not Resuscitate Order.

I.  No health care provider or residential care provider, or any other person acting for the provider or under the provider's control, shall be subjected to criminal or civil liability, or be deemed to have engaged in unprofessional conduct, for carrying out in good faith a do not resuscitate order authorized by this chapter on behalf of a person as instructed by the person, or the person's agent, or for those actions taken in compliance with the standards and procedures set forth in this chapter.

II.  No health care provider or residential care provider, or any other person acting for the provider or under the provider's control, or other individual who witnesses a cardiac or respiratory arrest shall be subjected to criminal or civil liability for providing cardiopulmonary resuscitation to a person for whom a do not resuscitate order has been issued; provided, that such provider or individual:

(a)  Reasonably and in good faith is unaware of the issuance of a do not resuscitate order; or

(b)  Reasonably and in good faith believed that consent to the do not resuscitate order has been revoked or canceled.

III.(a)  Any attending physician, PA, or APRN who, because of personal beliefs or conscience, refuses to issue a do not resuscitate order at a person's request or to comply with a do not resuscitate order issued pursuant to this chapter shall take reasonable steps to advise promptly the person or agent of the person that such attending physician or APRN is unwilling to effectuate the order.  The attending physician, PA, or APRN shall thereafter at the election of the person or agent permit the person or agent to obtain another attending physician, PA, or APRN.

(b)  If a physician, PA, or APRN, because of his or her personal beliefs or conscience, is unable to comply with the terms of a do not resuscitate order, he or she shall immediately inform the person, the person's agent, or the person's family.  The person, the person's agent, or the person's family may then request that the case be referred to another physician, PA, or APRN, as set forth in RSA 137-J:7, II and III.

137-J:29  Revocation of Do Not Resuscitate Order.

I.  At any time a person in a health care facility may revoke his or her previous request for or consent to a do not resuscitate order by making either a written, oral, or other act of communication to the attending physician, PA, or APRN or other professional staff of the health care facility.

II.  At any time a person residing at home may revoke his or her do not resuscitate order by destroying such order and removing do not resuscitate identification on his or her person.  The person is responsible for notifying his or her attending physician, PA, or APRN of the revocation.

III.  At any time an agent may revoke his or her consent to a do not resuscitate order for a person who lacks capacity to make health care decisions who is admitted to a health care facility by notifying the attending physician, PA, or APRN or other professional staff of the health care facility of the revocation of consent in writing, or by orally notifying the attending physician, PA, or APRN in the presence of a witness 18 years of age or older.

IV.  At any time an agent may revoke his or her consent for a person who lacks capacity to make health care decisions who is residing at home by destroying such order and removing do not resuscitate identification from the person.  The agent is responsible for notifying the person's attending physician, PA, or APRN of the revocation.

V.  The attending physician, PA, or APRN who is informed of or provided with a revocation of consent pursuant to this section shall immediately cancel the do not resuscitate order if the person is in a health care facility and notify the professional staff of the health care facility responsible for the person's care of the revocation and cancellation.  Any professional staff of the health care facility who is informed of or provided with a revocation of consent pursuant to this section shall immediately notify the attending physician, PA, or APRN of such revocation.

VI.  Only a physician, physician assistant, or advanced practice registered nurse may cancel the issuance of a do not resuscitate order.

19  Advance Directives; Do Not Resusitate Identification.  Amend RSA 137-J:33 to read as follows:

137-J:33  Do Not Resuscitate Identification.  Do not resuscitate identification as set forth in this chapter may consist of either a medical condition bracelet or necklace with the inscription of the person's name, date of birth in numerical form and "NH Do Not Resuscitate" or "NH DNR" on it.  Such identification shall be issued only upon presentation of a properly executed do not resuscitate order form as set forth in RSA 137-J:26, a medical orders form in which a physician, physician assistant, or advanced practice registered nurse has documented a do not resuscitate order, or a do not resuscitate order properly executed in accordance with a health care facility' s written policy and procedure.

20  Advance Directives; Surrogate Decision-making.  Amend RSA 137-J:35 to read as follows:

137-J:35  Surrogate Decision-making.

I.  When a patient lacks capacity to make health care decisions, the physician, PA, or APRN shall make a reasonable inquiry pursuant to 137-J:7 as to whether the patient has a valid advance directive and, to the extent that the patient has designated an agent, whether such agent is available, willing and able to act.  When no health care agent is authorized and available, the health care provider shall make a reasonable inquiry as to the availability of possible surrogates listed under this paragraph.  A surrogate decision-maker may make medical decisions on behalf of a patient without court order or judicial involvement in the following order of priority:

(a)  The patient's spouse, or civil union partner or common law spouse as defined by RSA 457:39, unless there is a divorce proceeding, separation agreement, or restraining order limiting that person's relationship with the patient.

(b)  Any adult son or daughter of the patient.

(c)  Either parent of the patient.

(d)  Any adult brother or sister of the patient.

(e)  Any adult grandchild of the patient.

(f)  Any grandparent of the patient.

(g)  Any adult aunt, uncle, niece, or nephew of the patient.

(h)  A close friend of the patient.

(i)  The agent with financial power of attorney or a conservator appointed in accordance with RSA 464-A.

(j)  The guardian of the patient's estate.

II.  The physician, PA, or APRN may identify a surrogate from the list in paragraph I if the physician, PA, or APRN determines he or she is able and willing to act, and determines after reasonable inquiry that neither a legal guardian, health care agent under a durable power of attorney for health care, nor a surrogate of higher priority is available and able and willing to act.  The surrogate decision-maker, as identified by the attending physician, PA, or APRN, may make health care decisions for the patient.  The surrogacy provisions of this chapter shall take effect when the decision-maker names are recorded in the medical record.  The physician, PA, or APRN shall have the right to rely on any of the above surrogates if the physician, PA, or APRN believes after reasonable inquiry that neither a health care agent under a durable power of attorney for health care or a surrogate of higher priority is available or able and willing to act.

21  Advance Directives; Determining Priority Among Multiple Surrogates.  Amend RSA 137-J:36, I to read as follows:

I.  Where there are multiple surrogate decision-makers at the same priority level in the hierarchy, it shall be the responsibility of those surrogates to make reasonable efforts to reach a consensus as to their decision on behalf of the patient regarding any health care decision.  If 2 or more surrogates who are in the same category and have equal priority indicate to the attending physician, PA, or APRN that they disagree about the health care decision at issue, a majority of the available persons in that category shall control, unless the minority or any other interested party initiates guardianship proceedings in accordance with RSA 464-A.  There shall not be a recognized surrogate when a guardianship proceeding has been initiated and a decision is pending.  The person initiating the petition for guardianship shall immediately provide written notice of the initiation of the guardianship proceeding to the health care facility where the patient is being treated.  This process shall not preempt the care of the patient.  No health care provider or other person shall be required to seek appointment of a guardian.

22  Advance Directives; Limitations of Surrogacy.  Amend RSA 137-J:37, II-IV to read as follows:

II.  No physician, PA, or APRN shall be required to identify a surrogate, and may, in the event a surrogate has been identified, revoke the surrogacy if the surrogate is unwilling or unable to act.

III.  A physician, PA, or APRN may, but shall not be required to, initiate guardianship proceedings or encourage a family member or friend to seek guardianship in the event a patient is determined to lack capacity to make health care decisions and no guardian, agent under a health care power of attorney, or surrogate has been appointed or named.

IV.  Nothing in this chapter shall be construed to require a physician or APRN to treat a patient who the physician, PA, or APRN reasonably believes lacks health care decision-making capacity and for whom no guardian, agent, or surrogate has been appointed.

23  Effective Date.  This act shall take effect January 1, 2021.

Links

SB598 at GenCourtMobile
SB598 Discussion

Action Dates

Date Body Type
Feb. 18, 2020 Senate Hearing

Bill Text Revisions

SB598 Revision: 7851 Date: Jan. 6, 2020, 3:36 p.m.

Docket

Date Status
Jan. 8, 2020 To Be Introduced 01/08/2020 and Referred to Health and Human Services; SJ 1
Feb. 18, 2020 Hearing: 02/18/2020, Room 101, LOB, 02:00 pm; SC 7