In Washington a person has the right to make his or her own health care decisions. Under the principle of "informed consent," a patient must be provided all the information necessary to make a knowledgeable decision regarding his or her health care. If a patient is determined to be incapacitated or incompetent to make health care decisions on their own behalf, a surrogate party may speak for him or her, unless the patient indicates otherwise. The following persons, in order of priority, may consent to health care decisions on behalf of a patient who is incapacitated or incompetent:
A health care provider seeking informed consent for a patient who is incapacitated or incompetent is required to make reasonable efforts to secure consent from a surrogate party in descending order. No person may make health care decisions for the incompetent patient if a person in a higher priority can be located. A health care provider's failure to obtain the appropriate consent may give rise to an action for negligence.
A person designated to give informed consent must first determine in good faith that the patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that it is in the patient's best interests.
The list of persons who may provide informed consent for health care decisions for an adult who is incapacitated or incompetent is extended to include a person designated by the patient. The patient must communicate the designation by orally or personally informing a physician, nurse practitioner, or physician assistant, who must then sign and enter the information into the patient's health care record. The documentation must include a determination by the physician, nurse practitioner, or physician assistant, that the patient has capacity at the time the designation is being made and that the patient is not incapacitated under the Durable Power of Attorney Act.
A designation may be revoked at any time by a person personally informing a patient's health care provider of the patient's intent to revoke. The revocation must be documented in the patient's health care record. A health care provider is immune from any civil, criminal, professional, or other disciplinary action if the provider relies on the consent of a designated person to act as a patient's health care surrogate, provided that the health care provider did not have actual knowledge of the patient's revocation of that designation at the time consent was obtained.
The person designated by the patient is placed third in line in the health care decisionmaker statutory hierarchy.
The substitute bill clarifies that the physician, nurse practitioner, or physician assistant documenting the designation is also determining that the patient has capacity at the time of the designation and that the patient has not been determined incapacitated under the Durable Power of Attorney Act. The substitute bill provides that a person may revoke a designation at any time by personally informing any person providing health care to the patient of the patient's intent to revoke the designation and provides limited immunity to health care providers who rely on the consent of a person designated to act as a health care surrogate, unless the provider had actual knowledge of the patient's revocation of that designation at the time consent was obtained.
(In support) Honoring patients' values, choices, and personal priorities are bedrock elements of medical ethics and quality medical care. Advance directives are a valuable tool in protecting patient autonomy, but less than one-third of adults have such documents. A significant number of those who do, designate someone other than the identified surrogate decisionmaker in the health care proxy statutory hierarchy. Health care proxy hierarchies inadvertently complicate situations. For example, a patient may choose an adult child as opposed to a spouse to make a health care decision for them. There are instances due to a family member's distress over an illness or conflict or differences of opinion regarding what should be done, that a designation would have been helpful. This bill makes it easier for patients to indicate their wishes and for providers to follow those express wishes. The Uniform Healthcare Decisions Act (Act) recognizes the right of individuals to appoint a healthcare surrogate by both written and oral expression. At least seven states have adopted or adapted the Act, and 18 states have provisions for oral expressions of the appointment of a health care proxy.
Advance directives are overly detailed and getting notaries and witnesses during a pandemic is challenging. This approach allows for a physician, nurse practitioner, or physician assistant who witnesses a conversation with the patient to write a note in the health record that the patient has capacity and that the patient has made the designation.
Documenting the designation in the health record does not take the place of having an advance directive. If a patient has an advance directive or durable power of attorney those take precedence.
More people need access to a decisionmaker, but some language may be needed to clarify processes used to determine capacity; how a person would be able to revoke a designation; and how the designated person would know that they were designated and accept responsibility for that designation.
(Opposed) None.