STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION RECOMMENDATION Health Care Decisions for Adults Without Decisionmaking Capacity December 1998 California Law Revision Commission 4000 Middlefield Road, Room D-1 Palo Alto, CA 94303-4739 CALIFORNIA LAW REVISION COMMISSION COMMISSION MEMBERS ARTHUR K. MARSHALL Chairperson HOWARD WAYNE EDWIN K. MARZEC Assembly Member, Vice Chairperson Member ROBERT E. COOPER RONALD S. ORR Member Member BION M. GREGORY SANFORD M. SKAGGS Legislative Counsel Member PAMELA L. HEMMINGER COLIN W. WIED Member Member COMMISSION STAFF Legal NATHANIEL STERLING STAN ULRICH Executive Secretary Assistant Executive Secretary BARBARA S. GAAL BRIAN P. HEBERT ROBERT J. MURPHY Staff Counsel Staff Counsel Staff Counsel Administrative-Secretarial LAUREN M. TREVATHAN VICTORIA V. MATIAS Administrative Assistant Secretary NOTE The Commission’s reports, recommendations, and studies are published in separate pamphlets that are later bound in hardcover form. The page numbers in each pamphlet are the same as in the volume in which the pamphlet is bound, which permits citation to Commission publications before they are bound. This publication (#201) will appear in Volume 29 of the Commis- sion’s Reports, Recommendations, and Studies. Commission publications and other materials are available on the Internet at http://www.clrc.ca.gov/. 1999] 1 STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION RECOMMENDATION Health Care Decisions for Adults Without Decisionmaking Capacity December 1998 California Law Revision Commission 4000 Middlefield Road, Room D-1 Palo Alto, CA 94303-4739 2 HEALTH CARE DECISIONS [Vol. 29 NOTE This report includes an explanatory Comment to each section of the recommended legislation. The Comments are written as if the legislation were already operative, since their primary purpose is to explain the law as it will exist to those who will have occasion to use it after it is operative. Cite this report as Health Care Decisions for Adults Without Decision- making Capacity, 29 Cal. L. Revision Comm’n Reports 1 (1999). This is publication #201. 1999] 3 CONT ENT S Letter of Transmittal ....................................5 Acknowledgments ......................................7 Recommendation .....................................11 Proposed Law ........................................55 Conforming Revisions and Repeals ...................... 149 Revised Comments ................................... 227 Table Showing Location of UHCDA Provisions in Proposed Law ................................. 243 4 HEALTH CARE DECISIONS [Vol. 29 1999] RECOMMENDATION 5 STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION 4000 Middlefield Road, Room D-1 Palo Alto, CA 94303-4739 650-494-1335 ARTHUR K. MARSHALL, Chairperson ASSEMBLY MEMBER HOWARD WAYNE, Vice Chairperson ROBERT E. COOPER BION M. GREGORY PAMELA L. HEMMINGER EDWIN K. MARZEC RONALD S. ORR SANFORD M. SKAGGS COLIN W. WIED December 11, 1998 To: The Governor of California, and The Legislature of California This recommendation proposes a new Health Care Decisions Law to consolidate the Natural Death Act and the statutes govern- ing the durable power of attorney for health care, and provide comprehensive rules relating to health care decisionmaking for incapacitated adults. The proposed law, drawing heavily from the Uniform Health-Care Decisions Act (1993), includes new rules governing individual health care instructions, and provides a new optional statutory form of an advance health care directive. The proposed law would add procedures governing surrogate health care decisionmakers (“family consent” law) where an indi- vidual has not appointed an agent and no conservator of the person has been appointed, and procedures for making health care deci- sions for patients who do not have any surrogate willing to serve. Conforming changes in the procedure for obtaining court autho- rization for medical treatment would make clear that courts in proper cases have the same authority as other surrogates to make health care decisions, including withholding or withdrawal of life- sustaining treatment. Similarly, the statute governing decisionmak- ing by conservators for patients who have been adjudicated to lack the capacity to make health care decisions are conformed to the standards governing other health care surrogates. This recommendation is submitted pursuant to Resolution Chap- ter 91 of the Statutes of 1998. Respectfully submitted, Arthur K. Marshall Chairperson 6 HEALTH CARE DECISIONS [Vol. 29 1999] 7 ACKNOWLEDGMENTS Many individuals and organizations have participated in the Commission’s work on this recommendation. The Commission would like to acknowledge the assistance provided by those who have supported all or part of the proposal as well as those who have expressed objections to one or more aspects. The participa- tion of a broad spectrum of experts aids the Commission in preparing a better proposal, and the Commission benefits greatly from the public service performed by these individuals and organizations. The Commission is indebted to its consultant, Prof. David English, who was also the reporter for the Uniform Health-Care Decisions Act, which provided the starting point for much recom- mendation and Professor English regularly attended meetings and commented on materials as the project progressed. The Commis- sion appreciates the substantial amount of time devoted by many of those who wrote commentaries on proposed drafts and who attended Commission meetings. Particularly noteworthy has been the assistance provided by James L. Deeringer (liaison with the State Bar Estate Planning, Trust and Probate Law Section Execu- tive Committee), Alice Mead (California Medical Association), and Matthew S. Rae, Jr. (California Commission on Uniform State Laws), who regularly attended Commission meetings and provided written materials. The Commission would also like to thank the members of the State Bar Advance Directive Committee (including Leah V. Granof, current Chair, Faye Blix, James L. Deeringer, David English, and Harley Spitler), the Long Term Care Subcommittee of the Los Angeles County Bar Association Bioethics Committee (including Christine J. Wilson, R.N., J.D., Chair, Terri D. Keville, J.D., and Linda Faber-Czingula, R.N.), and the Beverly Hills Bar Association Probate, Trusts and Estates Section Executive Committee (including Jeannette Hahm, Chair, Phyllis Cardoza, Joelle Drucker, Susan Jabkowski, Marc L. Sallus, Bert Z. Tigerman, and Geraldine Wyle). The Commission received valuable assistance from a number of law students in the course of this project: Cynthia Bradford and Andrew Jaramillo (Stanford Law School), Matthew Waddell and 8 HEALTH CARE DECISIONS [Vol. 29 Tina Chen (University of Pennsylvania Law School), and researchers in the Hastings Law School Public Law Research Institute (under the direction of Stephanie E. Shaw), including Kimberly A. Jackson, Lisa Pau, Suzanne Robinson, Robert E. Sheehan, Dawn Takeuchi, and Nicole A. Wesley. The individuals listed below also assisted the Commission by submitting written comments or participating at Commission meet- ings. Inclusion of the name of an individual or organization should not be taken as an indication of the individual’s opinion or the organization’s position on any part of the proposed law. The Commission regrets any errors or omissions that may have been made in compiling these acknowledgments. ELIZABETHANNE MILLER ANGEVINE MARLYS HUEZ Miller & Angevine, Whittier Department of Health Services, Sacramento SHERRY BRAHENY, M.D. California Medical Association Bioethics MELVIN H. KIRSCHNER, M.D. Committee, San Diego LACMA-LACBA Joint Committee on Biomedical Ethics, Los Angeles ERIC M. CARLSON Nursing Home Project PATRICIA L. MCGINNIS Bet Tzedek, Los Angeles California Advocates for Nursing Home Reform, San Francisco PROF. SUSAN CHANNICK California Western School of Law RONALD B. MILLER, M.D. San Diego U.C. Irvine College of Medicine; Council on Ethical Affairs, California Medical KATE CHRISTENSEN, M.D. Association Kaiser Permanente ROBERT D. ORR, M.D. LORI COSTA Loma Linda University Medical Center California Association of Health Facilities RUTH E. RATZLAFF LINDA DANIELS, M.D., J.D. Attorney, Fresno Bioethics Committee, San Diego County Medical Society LOIS RICHARDSON California Healthcare Association CAROL GALLEGOS Sacramento Department of Health Services, Sacramento LAWRENCE J. SCHNEIDERMAN, M.D. U.C. San Diego School of Medicine MARGE GINSBURG Sacramento Healthcare Decisions HERBERT SEMMEL National Senior Citizens Law Center MICHAEL GUNTHER-MAHER, M.D. Los Angeles Echo, Sacramento HARLEY SPITLER PAUL GORDON HOFFMAN Cooley Godward, San Francisco Hoffman Sabban & Watenmaker Los Angeles 1999] ACKNOWLEDGMENTS 9 KEVIN G. STAKER BRUCE HUDSON TOWNE Staker & Associates, Camarillo Attorney, Sacramento MAUREEN SULLIVAN STUART D. ZIMRING California Healthcare Association, Attorney, North Hollywood Sacramento SHANNON SUTHERLAND California Nurses Association, Sacramento 10 HEALTH CARE DECISIONS [Vol. 29 1999] 11 HE AL TH C AR E DE CISIONS FOR ADUL TS WIT HOUT DE CISIONM AKING C APAC IT Y California has been a pioneer in the area of health care decisionmaking for adults without decisionmaking capacity, with the enactment of the 1976 Natural Death Act1 and the 1983 Durable Power of Attorney for Health Care.2 Legislation in other states over the last 15 years, enactment of the federal Patient Self-Determination Act in 1990,3 and promulgation of a new Uniform Health-Care Decisions Act in 1993,4 suggest the