Page 7 - September 2020 Ulupono

Decision making
by healthcare surrogates: Know the legal implications
By Andrea Suzuki Director of Compliance
Advanced directives are the primary tools that Americans use to communicate their healthcare wishes should they become incapacitated or unable to make their own wishes known. Yet recent studies have shown that 63 percent of adult Americans have yet to complete one. In the absence of an advanced directive, most Americans in 43 states have to rely on their State’s default surrogate decision making statutes (seven states have failed to enact such statutes). These statutes provide a way for an individual that has a relationship with an incapacitated patient, to be designated as a healthcare decision maker for the patient, without going through what is often times a lengthy and arduous legal process for guardianship.
There are two types of surrogate decision- making statutes: 1) hierarchy of kinship; and 2) consensus surrogate decision-making. Hierarchy of kinship statutes give surrogate decision making authority to a person based on a priority that is laid out in the law itself. For instance, hierarchy of kinship statutes
typically give the spouse first priority, then an adult child, then an adult sibling and so
maker who was design consensus can make. P
ated by way of er HRS §327E-5,
on. Often times, it’s assumed in Hawai’i that this type of hierarchy of kinship decision making is valid. But this assumption is wrong.
Hawai’i is one of four states that is has a consensus surrogate decision-making law. This means that rather than relying on the law to tell individuals who has priority to make healthcare decisions, they rely on those closest to the individual to come to
a consensus on who should be the decision maker. Per Hawai’i law (Hawaii Revised Statutes), upon a determination that the patient lacks decisional capacity to provide informed consent, the physician or physician designee, shall make reasonable efforts
to notify as many interested persons (as defined by law) as practicable. By law, the physician may rely on such individuals to notify other family members and interested persons. Those individuals have to reach
a consensus as to who will act as the decision maker; the decision maker should be one that is closest to the individual and most likely to be currently informed of
the patient’s wishes regarding healthcare decisions. The decision maker then must state, under penalty of false swearing,
the circumstances and facts reasonably sufficient to establish such authority. If no consensus is formed, or an interested person disagrees, the parties then proceed to a guardianship proceeding.
It should be noted that there are limitations to what decisions a surrogate decision
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“A surrogate who has not been designated by the patient may make all health-care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a
patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient's medical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely
to have any neurological response in the future. The surrogate who has not been designated by the patient shall make health- care decisions for the patient based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient's best interest.”
While the consensus surrogate decision- making process seems more arduous and complicated, it is better suited to allow
for the consideration of the multitude of cultural differences and family dynamics that are especially unique and prevalent
in Hawai’i, such as multi-generational households and hanai familial relationships. In addition, Adventist Health Castle has adopted an easy to follow form for use in designating a healthcare surrogate decision maker for an incapacitated individual, which you can obtain by calling Health Information Management at ext. 5153.