SB74 (2021) Detail

Relative to advance directives for health care decisions.


SB 74  - AS INTRODUCED

 

 

2021 SESSION

21-0857

08/06

 

SENATE BILL 74

 

AN ACT relative to advance directives for health care decisions.

 

SPONSORS: Sen. Sherman, Dist 24; Sen. Bradley, Dist 3; Sen. Rosenwald, Dist 13; Sen. Whitley, Dist 15; Sen. Prentiss, Dist 5; Sen. Watters, Dist 4; Rep. Marsh, Carr. 8; Rep. Woods, Merr. 23

 

COMMITTEE: Health and Human Services

 

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ANALYSIS

 

This bill:

 

I.  Defines "attending practitioner" and "POLST."

 

II.  Redefines "near death" as "actively dying."

 

III.  Further defines the role of a surrogate.

 

IV.  Repeals the applicability of certain advanced 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

21-0857

08/06

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty One

 

AN ACT relative to advance directives for health care decisions.

 

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

 

1  Advance Health Care Directives.  Amend RSA 137-J:1-3 to read as follows:

137-J:1  Purpose and Policy

I.  The state of New Hampshire recognizes that [a person has] individual persons have the [a] right, founded in the autonomy and sanctity of [the] a person, to control the decisions relating to the rendering of [his or her] their 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] practitioners, 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] independently, either due to permanent or temporary lack of capacity to make health care decisions;

(b)  Stating the person’s wishes about end of life care and instructing [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.

II.  All persons have a right to make health care decisions and to refuse health care treatments, including the right to refuse cardiopulmonary resuscitation.  It is the purpose of the "Do Not Resuscitate" provisions of this chapter to ensure that the right of a person to self-determination relating to cardiopulmonary resuscitation is protected, and to give direction to emergency services personnel and other health care providers in regard to the performance of cardiopulmonary resuscitation.

III.  While all persons have a right to make a written directive, not all take advantage of that right, and it is the purpose of the surrogacy provisions of this chapter to ensure that health care decisions can be made in a timely manner by a person's next of kin or loved one without involving court action.  This chapter specifies a process to establish a surrogate decision-maker when there is no valid [advance directive] durable power of attorney for health care or a guardian, as defined in RSA 464-A, to make health care decisions.

IV.  While it is a time-honored tradition in this state to allow persons to execute a living will document that sets forth their basic values about end of life treatment, the state recognizes that it is optimal for a person to have an agent under a durable power of attorney for healthcare document or a surrogate decision-maker who can make decisions in real time and under then-existing conditions regarding health care decisions that best reflect the person’s basic values; therefore, this chapter specifies that the directives of a person’s living will shall be superseded by the agent or surrogate provided that the agent or surrogate takes into full account all of the basic values of the person as articulated orally and/or in writing by the person, including in the living will.  In the event that no agent or surrogate has been appointed, the basic values articulated in the living will shall prevail.

137-J:2  Definitions.  In this chapter:

I.  “Actively dying” 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 only postpone the moment of death, as determined by 2 physicians, or a physician and another medical practitioner who is not under the supervision of the certifying physician.

[I.] II.  "Advance directive" means a directive allowing a person to give directions about future medical care or to designate another person to make medical decisions if [he or she] the principal should lose the capacity to make health care decisions.  The term "advance directives" shall include living wills and durable powers of attorney for health care.

[II.] III. "Advanced practice registered nurse" or " APRN" means a registered nurse who is licensed in good standing in the state of New Hampshire as having specialized clinical qualifications.

[III.] IV.  "Agent" means an adult to whom authority to make health care decisions is delegated under an advance directive.

[IV.] V.  "Attending [physician, PA, or APRN] practitioner" 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] practitioner under the provisions of this chapter.

[V.] VI. "Capacity to make health care decisions" means 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.  The fact that a person has been diagnosed with mental illness, brain injury, or intellectual disability shall not mean that the person necessarily lacks the capacity to make health care decisions.

[VI.] VII.  "Cardiopulmonary resuscitation" means those measures used to restore or support cardiac or respiratory function in the event of a cardiac or respiratory arrest.

[VI-a.] VIII.  "Close friend" means any person [21] 18 years of age or older who presents an affidavit to the attending physician stating that [he or she] the individual is a close friend of the patient, is willing and able to become involved in the patient's health care, and has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious and moral beliefs.  The affidavit shall also state facts and circumstances that demonstrate such familiarity with the patient.

[VII.] IX.  "Do not resuscitate identification" means a standardized identification necklace, bracelet, card, pink portable Do Not Resuscitate Order, POLST, or other written medical order that signifies that a "Do Not Resuscitate Order" has been issued for the principal.

[VIII.] X.  "Do not resuscitate order" or "DNR order" (also known as "Do not attempt resuscitation order" or "DNAR order") means an order that, in the event of an actual or imminent cardiac or respiratory arrest, chest compression and [ventricular] defibrillation will not be performed, the patient will not be intubated or manually ventilated, and there will be no administration of resuscitation drugs.

[IX.] XI.  "Durable power of attorney for health care" means a document delegating to an agent the authority to make health care decisions executed in accordance with the provisions of this chapter.  It shall not mean forms routinely required by health and residential care providers for admissions and consent to treatment.

[X.] XII.  "Emergency services personnel" means paid or volunteer firefighters, law-enforcement officers, emergency medical technicians, paramedics or other emergency services personnel, providers, or entities acting within the usual course of their professions.

[XI.] XIII.  "Health care decision" means informed consent, refusal to give informed consent, or withdrawal of informed consent to any type of health care, treatment, admission to a health care facility, any service or procedure to maintain, diagnose, or treat an individual's physical or mental condition except as prohibited in this chapter or otherwise by law.

[XII.] XIV.  "Health care provider" means [an individual or] a facility licensed, certified, or otherwise authorized or permitted by law to administer health care, for profit or otherwise, in the ordinary course of business or professional practice.

[XIII.] XV.  "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.] XVI.  "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] practitioner 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.] fulfill the following sets of criteria:

(a)  The person has permanently lost decision-making capacity;  and

(b)  The person is suffering from a condition that will lead to death; and

(c)  The burdens, risks, or complications of treatment are excessive as defined by that person; or

(d)  The person has permanently lost decision-making capacity, and

(e)  The person is near death or permanently unconscious, without hope of recovery from such condition.

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

[XVIII-a.] XX.  "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.

XXI.  “POLST” means a form that contains a set of medical orders designed for use with patients with serious illness or frailty.  This order set may contain DNR orders, and, although it may be completed in any state under similar title, the DNR and all other orders conform to New Hampshire law.

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

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

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

[XXII.] XXV.  "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.] XXVI.  "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] practitioner 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.

[XXIII.] XXVII.  "Witness" means a competent person 18 years or older who is present when the principal signs an advance directive.

137-J:3  Freedom From Influence; Notice Required.

I.  No health care provider or residential care provider, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital service plan shall charge a person a different rate because of the existence or non-existence of an advance directive, [or] do not resuscitate order, or POLST, or require any person to execute an advance directive or require the issuance of a do not resuscitate order as a condition of admission to a hospital, nursing home, or residential care home, or as a condition of being insured for, or receiving, health or residential care services.  Health or residential care services shall not be refused because a person is known to have executed an advance directive or have a do not resuscitate order.

II.  The execution of an advance directive pursuant to this chapter shall not affect in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance.  No policy of life insurance shall be legally impaired, modified or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from an insured person notwithstanding any term of the policy to the contrary.

[III.  Any health care provider or residential care provider which does not recognize DNR's or living wills shall post at every place of admission, a notice which shall be a minimum size of 8 1/2' x 11' stating the following in legible print:  "This hospital/facility does not honor Do Not Resuscitate (DNR) or Living Will documents." ]

2  Advance Directives.  Amend RSA 137-J:5-11 to read as follows:

137-J:5  Scope and Duration of Agent's and Surrogate's Authority.  

I.  Subject to the provisions of this chapter and any express limitations set forth by the principal in an advance directive, the agent or surrogate shall have the authority to make any and all health care decisions on the principal's behalf that the principal could make.

II.  An agent's [or surrogate's] authority under an advance directive or a surrogate's authority shall be in effect only when the principal lacks capacity to make health care decisions, as certified in writing or by electronic means by the principal's attending [physician, PA, or APRN] practitioner, 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 or by electronic means by the principal's attending [physician, PA, or APRN] practitioner, 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] practitioner for reasons based on the principal's religious or moral beliefs as specified in [his or her]  the principal's 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] practitioner shall make reasonable efforts to inform the principal, even if the principal has lost capacity, 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."]

IV-a.  Consent to clinical trials or experimental treatments.  An agent or surrogate shall have the authority to consent to clinical trials or experimental treatments, authorized by an institutional review board, on behalf of a patient who does not have the capacity to provide their own consent to a clinical trial or experimental treatment so long as such clinical trial or experimental treatment is consistent with the relevant federal regulations, including 45 CFR part 46, subpart A (the “Common Rule”), and 21 CFR parts 50 and 56, as applicable.

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] practitioner 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].

[(e)  Notwithstanding the prohibition in subparagraph V(d), for any patient experiencing severe, advanced COVID-19 symptoms or COVID-19 complications who does not have the capacity to consent himself or herself to an experimental treatment, an agent or surrogate shall have the authority to consent to experimental treatments, authorized by an institutional review board, on the patient for COVID-19 symptoms or complications.

(1)  For an agent or surrogate to approve the use of an experimental treatment, approved by an institutional review board, the agent or surrogate must be informed of all risks and side effects and follow all institutional review board instructions regarding consent as if the agent or surrogate were the individual receiving the treatment, including the completion of all consent documentation required by the Food and Drug Administration.  An agent or surrogate shall not consent unless the following factors exist:

(A)  The patient is confronted by a life-threatening situation necessitating the use of the experimental treatment; and

(B)  Informed consent cannot be obtained from the patient because of an inability to communicate with, or obtain legally effective consent from, the patient; and

(C)  There is no alternate method of approved or generally recognized therapy available that provides an equal or greater likelihood of saving the life of the patient.

(2)  If a patient has a living will, the agent shall follow the directions of the living will.  In addition, if the agent or surrogate has actual knowledge that the patient wished to decline the experimental treatment, the agent or surrogate shall not have the authority to consent to treatment.]

137-J:6  Requirement to Act in Accordance With Principal's Wishes and Best Interests.  After consultation with the attending [physician, PA, or APRN] practitioner 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, in writing, 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.

137-J:7  [Physician, PA, APRN,] Practitioner and Heath Care Provider's Responsibilities.

I.  A qualified patient's attending [physician, PA, or APRN] practitioner, 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 or surrogate 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] practitioner, 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] who possesses 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] practitioner, 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] practitioner 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] practitioner who, because of personal beliefs or conscience, is unable to comply with the [advance directive] principal's living will and/or the agent's 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] practitioner 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] practitioner 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.

III.  [Medically administered nutrition and hydration and life sustaining treatment shall not be withdrawn or withheld under this chapter unless:

(a)  There is a clear expression of such intent in the directive;

(b)  The principal objects pursuant to RSA 137-J:5, IV; or

(c)  Such treatment would have the unintended consequence of hastening death or causing irreparable harm as certified by an attending physician and a physician knowledgeable about the patient's condition.

IV.]  When the direction of an agent or surrogate, or in the absence of an agent, surrogate, or instruction under a living will requires an act or omission contrary to the moral or ethical principles or other standards of a health care provider or residential care provider of which the principal is a patient or resident, the health care provider shall allow for the transfer of the principal and the appropriate medical records to another health care provider chosen by the principal or by the agent or surrogate and shall incur no liability for its refusal to carry out the terms of the direction by the agent or surrogate; provided, that, pending the completion of the transfer, the health care provider or residential care provider shall not deny health care treatment, nutrition, hydration, or life sustaining treatment which denial would with a reasonable degree of medical certainty result in or hasten the principal's death against the expressed will of the principal, the principal's advance directive, or the agent or surrogate; and further provided, that, the health care provider or residential care provider shall inform the agent or surrogate of its decision not to participate in such an act or omission.

137-J:8  Restrictions on Who May Act as Agent or Surrogate.  A person may not exercise the authority of an agent or a surrogate while serving in one of the following capacities:

I.  The principal's health care [provider] practitioner or [residential care provider] a person acting under the direct authority of the health care practitioner.

II.  A nonrelative of the principal who is an employee of the principal's health care provider or residential care provider.

137-J:9  Confidentiality and Access to Protected Health Information.  

I.  Health care providers, residential care providers, and persons acting for such providers or under their control, shall be authorized to;

(a)  Communicate to an agent or surrogate any medical information about the principal, if the principal lacks the capacity to make health care decisions, necessary for the purpose of assisting the agent or surrogate in making health care decisions on the principal's behalf.

(b)  Provide copies of the principal's advance directives as necessary to facilitate treatment of the principal.

II.  Subject to any limitations set forth in the advance directive by the principal, an agent or surrogate whose authority is in effect shall be authorized, for the purpose of making health care decisions, to:

(a)  Request, review, and receive any information, oral or written, regarding the principal's physical or mental health, including, but not limited to, medical and hospital records.

(b)  Execute any releases or other documents which may be required in order to obtain such medical information.

(c)  Consent to the disclosure of such medical information to a third party.

137-J:10  [Withholding or Withdrawal of Life-Sustaining Treatment] Criminal Action Not Condoned or Presumed.

I.  [In the event a health care decision to withhold or withdraw life-sustaining treatment, including medically administered nutrition and hydration, is to be made by an agent or surrogate, and the principal has not executed the "living will" of the advance directive, the following additional conditions shall apply:

(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.

(c)  Notwithstanding the capacity of an agent or surrogate to act, the agent or surrogate shall make a good faith effort to explore all avenues reasonably available to discern the desires of the principal including, but not limited to, the principal's advance directive, the principal's written or spoken expressions of wishes, and the principal's known religious or moral beliefs.

II.  Notwithstanding paragraph I, medically administered nutrition and hydration and life-sustaining treatment shall not be withdrawn or withheld under an advance directive unless:

(a)  There is a clear expression of such intent in the directive;

(b)  The principal objects pursuant to RSA 137-J:5, IV; or

(c)  Such treatment would have the unintended consequence of hastening death or causing irreparable harm as certified by an attending physician and a physician knowledgeable about the patient's condition.

III.]  The withholding or withdrawal of life-sustaining treatment pursuant to the provisions of this chapter shall at no time be construed as a suicide or murder for any legal purpose.  Nothing in this chapter shall be construed to constitute, condone, authorize, or approve suicide, assisted suicide, mercy killing, or euthanasia, or permit any affirmative or deliberate act or omission to end one's own life or to end the life of another other than [either] to permit the natural process of dying [of a patient near death actively dying or the removal of life-sustaining treatment from a patient in a permanently unconscious condition as provided in this chapter].  The withholding or withdrawal of life-sustaining treatment in accordance with the provisions of this chapter, however, shall not relieve any individual of responsibility for any criminal acts that may have caused the principal's condition.

[IV.] II.  Nothing in this chapter shall be construed to condone, authorize, or approve:

(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] practitioner 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.

(b)  The withholding or withdrawing of medically administered nutrition and hydration or life-sustaining treatment from a mentally incompetent or developmentally disabled person, unless such person has a validly executed advance directive or such action is authorized by an existing guardianship or other court order, or, in the absence of such directive, authorization, or order, such action is taken in accordance with the standard protocol of a health care facility licensed under RSA 151 as applicable to its general patient population.

[V.] III.  Nothing in this chapter shall impair or supersede any other legal right or responsibility which any person may have to effect life-sustaining treatment in any lawful manner; provided, that this paragraph shall not be construed to authorize any violation of RSA 137-J:7, II [or III].

[VI.] IV.  Nothing in this chapter shall be construed to revoke or adversely affect the privileges or immunities of health care providers or residential care providers and others to provide treatment to persons in need thereof in an emergency, as provided for under New Hampshire law.

[VII.] V.  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.

137-J:11  Liability for Health Care Costs.  Liability for the cost of health care provided pursuant to the agent's or surrogate's decision shall be the same as if the health care were provided pursuant to the principal's decision.

3  Advanced Health Care Directives.  Amend RSA 137-J:12 to read as follows:

137-J:12  Immunity.

I.  No person acting as agent pursuant to an advance directive or acting as a surrogate shall be subjected to criminal or civil liability for making a health care decision on behalf of the principal in good faith pursuant to the provisions of this chapter and the terms of the advance directive if such person exercised such power in a manner consistent with the requirements of this chapter and New Hampshire law.

II.  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 civil or criminal liability or be deemed to have engaged in unprofessional conduct for:

(a)  Any act or intentional failure to act, if the act or intentional failure to act is done pursuant to the dictates of an advance directive, the directives of the principal's agent or surrogate, and the provisions of this chapter, and said act or intentional failure to act is done in good faith and in keeping with reasonable medical standards pursuant to the advance directive or a surrogacy and in accordance with this chapter; or

(b)  Failure to follow the directive of an agent or surrogate if the health care provider or residential care provider or other such person believes in good faith and in keeping with reasonable medical standards that such directive exceeds the scope of or conflicts with the authority of the agent or surrogate under this chapter or the contents of the principal's advance directive; provided, that this subparagraph shall not be construed to authorize any violation of RSA 137-J:7, II[ or III].

III.  Nothing in this section shall be construed to establish immunity for the failure to exercise due care in the provision of services or for actions contrary to the requirements of this chapter or other laws of the state of New Hampshire.

IV.  For purposes of this section, "good faith" means honesty in fact in the conduct of the transaction concerned.

4  Advance Health Care Directives; Use of Statutory Forms.  Amend RSA 137-J:13, I to read as follows:

I.  Every person wishing to execute an advance directive shall be provided with a disclosure statement substantially in the form set forth in RSA 137-J:19 prior to execution.  The principal shall be required to sign a statement acknowledging [that he or she has received] the personal receipt of the disclosure statement and [has read and understands] an understanding of its contents.

5  Advance Health Care Directives; Execution and Witnesses; Revocability.  Amend RSA 137-J:14-15 to read as follows:

137-J:14  Execution and Witnesses.

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

(a)  Two or more subscribing witnesses, neither of whom shall, at the time of execution, be the agent or surrogate, 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] practitioner, or person acting under the direction or control of the attending [physician, PA, or APRN] practitioner.  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, either in person or electronically, 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] awareness 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 or by electronic means 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.]

137-J:15  Revocation.

I.  An advance directive or surrogacy as applicable consistent with the provisions of this chapter shall be revoked:

(a)  By written revocation delivered to the agent [or surrogate] or to a health care provider or residential care provider expressing the principal's intent to revoke, signed and dated by the principal; by oral revocation in the presence of 2 or more witnesses, none of whom shall be the principal's spouse or heir at law; or by any other act evidencing a specific intent to revoke the power, such as by burning, tearing, or obliterating the same or causing the same to be done by some other person at the principal's direction and in the principal's presence;

(b)  By execution by the principal of a subsequent advance directive; or

(c)  By the filing of an action for divorce, legal separation, annulment or protective order, where both the agent and/or the surrogate, and the principal are parties to such action, except when there is an alternate agent designated, in which case the designation of the primary agent shall be revoked and the alternate designation shall become effective.  Re-execution or written re-affirmation of the advance directive following a filing of an action for divorce, legal separation, annulment, or protective order shall make effective the original designation of the primary agent under the advance directive.

(d)  [Repealed.]

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] the revocation was received, in the principal's medical record and notify the agent, the attending [physician, PA, or APRN] practitioner, 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] practitioner.

6  Advance Health Care Directives; Reciprocity.  Amend RSA 137-J:17 to read as follows:

137-J:17  Reciprocity.  A DNR, POLST, durable power of attorney for health care, [An advance directive,] living will, or similar document executed in another state, and valid according to the laws of the state where it was executed, shall be as effective in this state as it would have been if executed according to the laws of this state.

7  Advance Health Care Directives.  RSA 137-J:19-20 are repealed and reenacted 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:

A DURABLE POWER OF ATTORNEY FOR HEALTH CARE IS A LEGAL DOCUMENT.  YOU SHOULD KNOW THESE FACTS BEFORE SIGNING IT.

• This form allows you to choose who you want to make decisions about your health care when you cannot make decisions for yourself.  This person is called your “agent”.  An alternate can and should be chosen in case your agent is unable.

• Agents must be 18 years old or older.  They should be someone you know and trust.  They cannot be anyone who is caring for you at a health care or residential care setting.  

• This form is an “advance directive” that defines a way to make medical decisions in the future,  when you are not able.  It is not a medical order (e.g., it is not in and of itself a DNR (do not resuscitate order).  

• You will always make your own decisions until you request someone else to, or your medical practitioner examines you and certifies that you can no longer understand or make a decision for yourself.  At that point, your “agent” becomes the person who can make decisions for you.  If you get better, you will make your own healthcare decisions again.

• With few exceptions(*), your agent can make all health care decisions for you unless you write down (or check off) what you do not want your agent to be able to choose for you.  This includes agreeing to start or stop medical treatment, including near the end of your life.  

• Your agent must try to make the best decisions for you, based on what you have said or written in the past.  Talk to your agent about your wishes.  On the form you can write down wishes, values, or goals about your care.

• If you also have a living will that has different instructions for your medical care, your medical practitioner will follow what your agent chooses based on your Durable Power of Attorney for Healthcare form.  

• You can revoke your advance directive at any time as long as you have decision-making capacity by telling a medical practitioner or your agent or by writing it down.

• You do not need a lawyer to complete this form, but you should talk to a lawyer if you have legal questions about it.  

• You must sign this form in the presence of 2 witnesses or a notary to be fully valid.  The witnesses cannot be your agent, spouse, heir, or your attending medical practitioner or anyone who works directly under them.  Only one witness can be employed by your health or residential care provider.

• Give copies of the completed form to your agent, your lawyer, and your medical providers.

* Exceptions: Your agent may not stop you from eating or drinking as you want.  They also cannot agree to voluntary admission to a state institution; voluntary sterilization; withholding life-sustaining treatment if you are pregnant, unless it will severely harm you; or psychosurgery.

137-J:20  Advance Directive; Durable Power of Attorney and Living Will; Form. An advance directive in its individual "Durable Power of Attorney for Health Care" and "Living Will" components shall be in substantially the following form:

I.  DURABLE POWER OF ATTORNEY

I choose the following person(s) as agent(s) to make health care decisions for me if I cannot make health care decisions for myself.

(If you choose more than one person, they will become your agent in the order written, unless you write “joint agency”.)

A.  Choosing your agent:  I, __________, DOB, appoint ___________ of _________

Alternate, if the person above if not able, willing, or available: _____________, DOB,   ____ of _______

If no one listed above can make decisions for you, a surrogate will be assigned in the order written in law (spouse, child, parent, sibling….).  If there is no surrogate, a court appointed guardian will be assigned.   

B.  Limiting your Agent’s Choices:

Your agent will be able to make any decisions about your medical care that you could normally make, unless you set limits as you write below.

Limits  you wish to place on your agent:

______________________________________________________________________________

______________________________________________________________________________

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

Signed this _____day of ________. 20___.   Signature: ________________

Notary

Witnesses

II.  LIVING WILL

This directive states your wishes if you cannot make your own decisions.  

Declaration made this _____day of __, 20__

1.  I, ____________, wish my life prolonged as long as possible by whatever reasonable means possible, no matter what burdens, costs or complications may occur.  Signed this __________day of ______, 20__.  Signature, DOB ____.

OR

2.  I, __________, want to be allowed to die naturally.  I do not want attempts to prolong my life by medical treatment if the following criteria are met:

A.  I cannot make my own decisions and I will not become able to make my own decisions AND

B.  I suffer from a condition that will lead to my death AND

C.  My condition and its treatment has become excessively burdensome for me and will not get better AND/OR

D.  I become permanently unconscious or am actively dying (medical treatment will only prolong my dying)

To help my decision maker(s), these are situations I believe would be excessively burdensome:

(Initial before each statement that would be excessively burdensome for you)

____ if I am unable to recognize my family or friends now or in the foreseeable future

____ if I suffer ongoing symptoms such as pain or shortness of breath despite best medical treatment and there is no reasonable chance the symptoms will go away

Other situations that I would consider excessively burdensome:

__________________________________________________________________________________________________________________________________________________________________________

In these situations, I want comfort care only.  I understand that stopping or starting treatments to achieve my comfort, including stopping hydration and nutrition, may be a way to allow me to die.  In order for this living will to become active, 2 attending practitioners must certify that the above criteria have been met.  Another medical practitioner means your nurse practitioner or your physician assistant who is not under the direct authority of the certifying physician.

Decisions about what will happen in the future are based on ‘a reasonable degree of medical certainty’ by a medical practitioner.

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

Signed this ___ day of _______, 20__.  Signature ______________, DOB ___.

___________________

Notary Public/Justice of the Peace

My commission expires:

Witness

8  Advance Health Care Directives; Civil Action.  Amend RSA 137-J:22 to read as follows:

137-J:22  Civil Action.

I.  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, including, but not limited to a guardian, social worker, physician, or member of the clergy, may file an action in the probate court of the county where the principal is located at the time:

(a)  Requesting that an agent by an advance directive be revoked on the grounds that the principal was not of sound mind or was under duress, fraud, or undue influence when the advance directive was executed, and shall have all the rights and remedies provided by RSA 564-E:116 which shall apply to directives executed under this chapter and persons acting pursuant to this chapter.

(b)  Challenging the right of any agent or surrogate who is acting or who proposes to act as such pursuant to this chapter and naming another person, who agrees to so act, to be appointed guardian over the person of the principal for the sole purpose of making health care decisions, as provided for in RSA 464-A.

II.  A copy of any such action shall be given in hand to the principal's attending [physician, PA, or APRN] practitioner 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 or surrogate 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].

III.  The probate court in which such a petition is filed shall hold a hearing as expeditiously as possible.

9  Advance Health Care Directives.  Amend RSA 137-J:25-29 to read as follows:

137-J:25  Presumed Consent to Cardiopulmonary Resuscitation; Health Care Providers and Residential Care Providers Not Required to Expand to Provide Cardiopulmonary Resuscitation.  

I.  Every person shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless one or more of the following conditions, of which the health care provider or residential care provider has actual knowledge, apply:

(a)  A do not resuscitate order in accordance with the provisions of this chapter has been issued for that person;

(b)  A completed advance directive for that person is in effect, pursuant to the provisions of this chapter, in which the person indicated[ that he or she does not wish] a wish not to receive cardiopulmonary resuscitation, or [his or her] the principal's agent or surrogate has determined that the person would not wish to receive cardiopulmonary resuscitation;

(c)  A person who lacks capacity to make health care decisions is [near death] actively dying and admitted to a health care facility, and the person's agent or surrogate is not available and the facility has made diligent efforts to contact the agent or surrogate without success, or the person's agent or surrogate is not legally capable of making health care decisions for the person, and the attending [physician, PA, or APRN] practitioner 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] practitioner has completed a do not resuscitate order; or

(d)  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 thereof.

(e)  The application of cardiopulmonary resuscitation would clearly be medically futile based on accepted medical standards.

II.  Nothing in this section shall be construed to revoke any statute, regulation, or law otherwise requiring or exempting a health care provider or residential care provider from instituting or maintaining the ability to provide cardiopulmonary resuscitation or expanding its existing equipment, facilities, or personnel to provide cardiopulmonary resuscitation.

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

I.  An attending [physician, PA, or APRN] practitioner may issue a do not resuscitate order for a person if the person, or the person's agent or surrogate, 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] A principal may request that their attending [physician, PA, or APRN] practitioner issue a do not resuscitate order for the [person] principal.

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, PA, or APRN] practitioner for such a person with the consent of the agent or surrogate is valid and shall be respected by health care providers and residential care providers.

IV.  If an agent or surrogate is not reasonably available and the facility has made diligent efforts to contact the agent or surrogate without success, or the agent or surrogate is not legally capable of making a decision regarding a do not resuscitate order, an attending [physician, PA, or APRN] practitioner may issue a do not resuscitate order for a person who lacks capacity to make health care decisions, who is [near death] actively dying, and who is admitted to a health care facility if a second physician or other medical practitioner who has personally examined the person concurs in the opinion of the attending [physician, PA, or APRN] practitioner 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 ____________________ ]  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 if applicable;

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

(c) A portable DNR (P-DNR); medical orders form documenting the patient’s name and signed by a physician or APRN and that clearly documents the DNR order; DNR bracelet or necklace worn by a patient, and inscribed with the patient’s name, date of birth (in numerical form), and “NH DNR” or “NH Do not resuscitate”; and POLST constitutes a DNR if it states “This will constitute a DNR Order, and no separate DNR Order will be required.”

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.] Portable DNR and POLST (that indicates Do Not Resuscitate) forms are transferable, valid medical orders throughout this state.

137-J:27 Compliance With a Do Not Resuscitate Order.  

I. Health care providers and residential care providers shall comply with the do not resuscitate order when presented with one of the following:

(a) A do not resuscitate order or POLST that indicates Do Not Resuscitate completed by the attending [physician, PA, or APRN] practitioner on a form as specified in RSA 137-J:26;

(b) A do not resuscitate order or POLST indicating Do Not Resuscitate 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 or POLST form on which the attending [physician, PA, or APRN] practitioner has documented a do not resuscitate order in compliance with this chapter.

(d) Do not resuscitate identification as set forth in RSA 137-J:33.

II. Pursuant to this chapter, health care providers shall respect written or verbal

do not resuscitate orders for persons in health care facilities, ambulances, homes, and communities within this state.

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] Practitioner 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 surrogate, 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] practitioner 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 or surrogate of the person that such attending [physician or APRN] practitioner is unwilling to effectuate the order. The attending [physician, PA, or APRN] practitioner shall thereafter at the election of the person or agent or surrogate permit the person or agent or surrogate to obtain another attending [physician, PA, or APRN] practitioner.

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

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

I. At any time a [person in a] principal admitted as an inpatient or outpatient to 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] practitioner or other professional staff of the health care facility.

II. At any time a [person] principal residing [at home] outside a health care facility may revoke [his or her] the principal's do not resuscitate order by destroying such order and removing do not resuscitate identification on[ his or her] the principal's person or by making either a written, oral, or other act of communication to a healthcare provider that is present with the principal. [The person is responsible for notifying his or her attending physician, PA, or APRN of the revocation.]

III. At any time, in accordance with RSA 137-J:6, an agent or surrogate may revoke [his or her consent to] a do not resuscitate order for a [person] principal who lacks capacity to make health care decisions who is admitted to a health care facility by making either a written, oral, or other act of communication to the attending practitioner or other professional staff at the health care facility [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, in accordance with RSA 137-J:6 an agent or surrogate may revoke [his or her consent] a do not resuscitate order  for a [person] principal who lacks capacity to make health care decisions who is residing [at home] outside a health care facility by destroying such order and removing do not resuscitate identification from the [person] principal's person, or by making either written, oral, or other act of communication to a healthcare provider that is present with the principal. [The agent is responsible for notifying the person's attending physician, PA, or APRN of the revocation.]

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

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

10  Advance Health Care Directives; Preservation of Existing Rights.  Amend RSA 137-J:32, I to read as follows:

I. Nothing in this chapter shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding of cardiopulmonary resuscitation in any lawful manner. In such respect, the provisions of this chapter are cumulative; provided, that this paragraph shall not be construed to authorize any violation of RSA 137-J:7, II [or III].

11  Advance Health Care 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] practitioner 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] practitioner may identify a surrogate from the list in paragraph I if the [physician, PA, or APRN] practitioner determines [he or she] the surrogate 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] practitioner, 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] practitioner shall have the right to rely on any of the above surrogates if the [physician, PA, or APRN] practitioner 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.

12  Advanced Health Care Directives.  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] practitioner 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.

13  Advanced Health Care Directives; Limitations on Surrogacy.  Amend RSA 137-J:37 to read as follows:

137-J:37 Limitations of Surrogacy.  

I. A surrogate shall not be identified over the express objection of the patient, and a surrogacy shall terminate if at any time a patient for whom a surrogate has been appointed expresses objection to the continuation of the surrogacy.

II. No [physician, PA, or APRN] practitioner 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] practitioner 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, PA, or APRN] practitioner to treat a patient who the [physician, PA, or APRN] practitioner reasonably believes lacks health care decision-making capacity and for whom no guardian, agent, or surrogate has been appointed.

V. The surrogate may make health care decisions for a principal to same extent as an agent under a durable power of attorney for health care [for up to 90 days after being identified in RSA 137-J:35, I], unless the principal regains health care decision-making capacity or a guardian is appointed [or patient is determined to be near death, as defined in RSA 137-J:2, XVI. The authority of the surrogate shall terminate after 90 days].

14  Repeal.  RSA 137-J:34, relative to applicability of certain advance directives, is repealed.

15  Effective Date.  This act shall take effect 60 days after its passage.

Links

SB74 at GenCourtMobile
SB74 Discussion

Action Dates

Date Body Type
Jan. 28, 2021 Senate Hearing

Bill Text Revisions

SB74 Revision: 32012 Date: Jan. 19, 2021, 4:01 p.m.

Docket


Jan. 28, 2021: Remote Hearing: 01/28/2021, 01:15 pm; Links to join the hearing can be found in the Senate Calendar; SC 8


Jan. 6, 2021: Introduced 01/06/2021 and Referred to Health and Human Services; SJ 3