Change of Law: Hospital Action Required
To: Hospital Chief Nursing Officers and Legal Counsel and Government Affairs Staff (please share with social workers and other appropriate staff)
From: Zosia Stanley, JD, MHA, Associate General Counsel | ZosiaS@wsha.org | (206) 216-2511
Subject: Effective July 28, 2019: Changes to State Law on Medical Decision Making
The purpose of this bulletin is to inform hospitals about recent changes to state law on medical decision making. Engrossed House Bill 1175 expands the classes of people who may act as surrogate decision makers (including the addition of a “close friend”) and authorizes notaries public to acknowledge health care directives. WSHA considers the passage of this bill an important victory for improving medical decision making and documentation for patients’ end of life wishes. WSHA has been the lead proponent for the passage of this legislation for several years. EHB 1175 takes effect on July 28, 2019.
Another bill that will impact decision making for patients who lack capacity is Second Substitute Senate Bill 5604, which modifies state laws on guardianships. 2SSB 5604 takes effect on January 1, 2021.
WSHA strongly supported and advocated for the passage of EHB 1175 to improve decision making for patients who lack capacity. This legislation supports and strengthens the work of Honoring Choices Pacific Northwest, an initiative between the Washington State Hospital Association and Washington State Medical Association to help everyone receive care that honors personal values and goals at the end of life.
This bulletin contains guidance to assist members to become familiar with the new laws.
The changes to state law on medical decision making and guardianship apply to anyone in Washington State, including for patients in hospitals licensed under chapter 70.41 RCW and psychiatric hospitals licensed under chapter 71.12 RCW.
- Know the law: Review this bulletin and the changes enacted in EHB 1175 and 2SSB 5604 with legal counsel and risk managers to determine the impact on your hospital and any resulting change to policies, practices, or forms.
- Review WSHA sample health care decision declaration for close friends: The expanded surrogate decision maker law allows an adult close friend of the patient to be a surrogate decision maker if the friend provides a declaration that shows facts and circumstances demonstrating closeness and knowledge of the patient’s values and wishes. A provider or facility that relies on a declaration provided in compliance with the statute is immune from liability or disciplinary action. WSHA’s sample form can be a starting point for hospitals to develop the necessary declaration. Hospitals should review the sample form in consultation with legal counsel.
- Determine the hospital’s policy for assessing declarations of close friends: The new law delineates specific information a close friend must provide to support his or her declaration. However, a provider or hospital is not required to accept or rely on a declaration. Hospitals should develop a process for assessing and determining when a declaration may be relied upon.
- Update hospital advance directive forms: The new law allows a notary to acknowledge an advance directive. This allows a patient to either find two witnesses or use a notary. The notary option also aligns with the option to notarize a power of attorney document (the witness requirement remains different for the two types of documents). If your hospital or health system provides advance directive forms for patients, the forms need to be updated to reflect the notary option for advance directives.
- Educate employees and key partners: Many hospitals participate in Honoring Choices Pacific Northwest or other programs designed to increase documentation of patients’ end of life wishes. Hospitals should ensure program managers and volunteers are aware of the new law, the new categories of decision makers, and the hospitals’ policies on declaration. Employees and key partners should be educated on how the changes in state law can improve the process for patients to document their wishes via advance directives.
- Update policies, procedures, and other documents: Hospitals may need to revise policies, procedures, forms, and other documents related to consent and health care directives to reflect the new classes of surrogate decision makers, new guardianship terminology, and the option of notarizing a health care directive.
EHB 1175 creates new classes of persons who may consent to health care on behalf of a person who is not competent to consent, provides immunity to providers and facilities that rely on the declaration of certain decision makers, and provides the option to execute a health care directive by using a notary (rather than two witnesses).
2SSB 5604 replaces existing guardianship laws with a uniform law governing guardianships and conservatorships for adults and minors. The expansive changes to the state guardianship law are likely to impact the court process and options for patients who need a court appointed guardian. The legislature is likely to continue to refine this law in the coming legislative session.
- New classes of people may provide informed consent for patients who lack capacity but retains the current hierarchy and requirements.
Washington State’s current informed consent law (RCW 7.70.065) allows a very limited range of people to make medical decisions on behalf of a patient who is incapacitated. The current hierarchy (in order of priority) is:
- A guardian;
- A spouse or state registered domestic partner;
- Adult children;
- Parents; and
- Adult siblings.
EHB 1775 does not displace the above hierarchy. The bill authorizes the following classes of people (in order of priority following the above list) to consent to health care on behalf of a person who is not competent:
- Adult grandchildren who are familiar with the patient;
- Adult nieces and nephews who are familiar with the patient;
- Adult aunts and uncles who are familiar with the patient; and
- Under certain circumstances, an adult who is a close friend of the patient (see below).
The addition of the new classes of decision makers does not change the existing requirement in state law. The hierarchy must be followed. For any class that includes more than one person, all members of the class must agree. This includes the category of “close friends.” State law continues to require that a decision maker in a lower class cannot provide informed consent if a person of a higher priority has refused to give such consent.
- There are specific requirements for a close friend to serve as a surrogate decision maker.
To qualify as a surrogate decision maker, an adult who is a close friend of the patient must have exhibited special care and concern for the patient, be familiar with the patient’s values, be reasonably available to make health care decisions, and sign a declaration under penalty of perjury.
A person may not provide informed consent under the “close friend category” if the person is: the patient’s physician (or the physician’s employee); an owner, administrator, or employee of a facility where the patient receives care; or a person who is compensated for providing care to the patient. The intent of this limitation is to protect patients from those with a financial interest. Consistent with current law, a person who is authorized to provide informed consent to health care may not exercise any rights under the Death with Dignity Act on behalf of a patient who is not competent to consent.
The declaration signed by the close friend is effective for up to six months. The declaration must generally recite facts and circumstances demonstrating that the person meets the statutory requirements and is unaware of a person in a higher priority class who is willing and able to provide informed consent.
WSHA Sample Health Care Decision Declaration reflects these requirements.
- Providers and facilities are not required to rely on the declaration of a close friend and are protected from liability.
A health care provider or facility may, but is not required to, rely on the declaration of a close friend. A health care provider or facility that relies on this declaration is immune from suit in any action, civil or criminal, or from professional or disciplinary action.
Hospitals should consider what standard or process will be used to assess whether a declaration will be relied upon. If the declaration of a close friend does not meet the standards required by law, a court appointed guardian may be the remaining option.
- Notaries may acknowledge health care advance directives
A notary public or other person authorized by law to take acknowledgements may sign a health care advance directive directing the withholding or withdrawal of life-sustaining treatment, in lieu of two witnesses. This provides the option for the patient to either find two witnesses that meet state law requirements or engage the services of a notary to acknowledge the directive.
Some health systems and hospitals have asked if employees who are state licensed notaries may acknowledge advance directives for patients. WSHA is not aware of a state law that would prevent an employee of a provider, health system, or hospital from serving as a notary, assuming the employee is properly licensed as a state notary. Hospitals should assess their policies to determine if employees may act as notaries.
- Overview of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.
2SSB 5604 repeals existing laws relating to guardianship and permits a court to appoint a guardian to make decisions about the care and wellbeing of another person or a conservator to manage another person’s property. The bill changes the basis for appointing a guardian, as well as the guardian’s identified duties.
To appoint a guardian for an adult, the court must find that: (1) the person cannot meet essential requirements for physical health, safety, or self-care because the person cannot receive and evaluate information or make or communicate decisions even with supportive services, technological assistance, or supported decision making; and (2) the person’s needs cannot be met by a less restrictive alternative. The guardian’s duties are to make decisions regarding the support, care, education, health, and welfare of the adult subject to the guardianship, to the extent necessitated by the person’s limitations. In addition, the guardian must promote the person’s self-determination.
For minors, a court may appoint a guardian if appointment is in the minor’s best interest and each parent consents, all parental rights have been terminated, or no parent is willing or able to exercise parental rights. A guardian for a minor has the same responsibilities and powers as a parent regarding the minor’s support, care, education, health, safety, and welfare.
The bill includes a number of provisions related to qualifications, priority of appointment, standby guardians and guardians ad litem, appointment of counsel, third-party acceptance of a guardian’s authority, monitoring, and training.
WSHA’s 2019 New Law Implementation Guide
Please visit WSHA’s 2019 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.
Background and References
Engrossed House Bill 1175
Second Substitute Senate Bill 5604
WSHA Sample Health Care Decision Declaration
Honoring Choices PNW
Chapter 70.122 RCW (Natural Death Act, including health care directive requirements)
Court Guardianship Portal