New CA Law Addresses Surrogate Medical Decision-Making

In September, California’s AB 2338 (Gipson) was signed into law by Governor Newsom. This welcome new law in the probate code codifies the legal authority for medical decision-making on behalf of incapacitated patients, although it will likely have little impact on the way these decisions have traditionally been made in health care institutions. CALTCM leaders, along with other stakeholders including the California Medical Association, California Advocates for Nursing Home Reform, California Department of Public Health, and the Coalition for Compassionate Care of California collaborated to finalize the language of this law. For those who want to read the law, it is available here.

To determine who should make decisions for a patient who lacks decisional capacity, the law specifies an initial hierarchy for the task, in descending order. (1) The patient’s surrogate selected by the patient (with capacity to select an agent) pursuant to Section 4711, meaning that the patient has orally designated an agent during the admission to the hospital or other health care institution. If such a person does not exist, the next in line is (2) The patient’s agent pursuant to an advance health care directive or a power of attorney for health care. If there is no such person, then authority goes to (3) The conservator or guardian of the patient having the authority to make healthcare decisions for the patient. Obviously, for many of our patients in post-acute and long-term care, there is nobody that fits any of these criteria.

So, when we are faced with the need to make medical decisions in a patient unable to give an oral designation of an agent, lacking a conservator or guardian, and without an agent under an advance health care directive, what do we do? Well, we do the same thing most of us have historically done—we look for interested family members who can tell us the patient’s known wishes, or provide substituted judgment based on their knowledge of the patient's beliefs, attitudes and wishes—and allow them to make decisions for the patient. When these cannot be determined, we look for someone who can speak to the patient’s best interests. We seek consensus among family (and other close relationships) whenever possible, and when consensus is not possible, we may get bioethics assistance.

Under AB 2338 (codified at Probate Code §4712), “a health care provider or a designee of the health care facility caring for the patient may choose a surrogate to make health care decisions on the patient’s behalf, as appropriate in the given situation.” Hence it is the responsibility of the provider—in a nursing facility, usually the attending physician—to determine who best can make decisions for a patient. Some states have rigid hierarchies for such decision-making, starting with spouse, then adult child, then parent, etc. Thankfully after considerable debate, and recognizing that families may be very different, California’s legislature decided not to go with this one-size-fits-all scheme. Those of us who have faced situations where a spouse requests treatments that everybody else in the family strongly believes the patient would not have wanted, surely appreciate the ability to choose a different surrogate.

The exact language in PC §4712 is as follows: “The patient’s surrogate shall be an adult who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve. A surrogate may be chosen from any of the following persons: (1) The spouse or domestic partner of the patient. (2) An adult child of the patient. (3) A parent of the patient. (4) An adult sibling of the patient. (5) An adult grandchild of the patient. (6) An adult relative or close personal friend.” Note that the surrogate does not have to be a biological or legal relative of the patient.

Some health care providers feel that this flexibility places too much responsibility on them. Critics of the law as written are concerned that this allows physicians to basically choose the family member they (the physicians) agree with, and write orders based on that. We need to remember that our sacred responsibility to our patients is to help them receive the care and treatment they want, or would have wanted—and not to push our personal values and beliefs on patients. We should always seek consensus, and when there is significant disagreement among family members or other interested parties, we may need to take additional steps, call in consultants, hold interdisciplinary team meetings, or convene Ethics Committees to help determine who should be chosen to make medical decisions for the patient. Rarely, court proceedings may be necessary—but remember, these are medical decisions, not legal decisions. A courtroom should be a distant last resort.

In most cases, this new law will not change anything, beyond giving formal legal standing to surrogates who historically have been given informal but practical ability to make decisions on their incapacitated family members’ behalf. For example, on POLST forms, the term “legally recognized decisionmaker” has appeared since POLST became law in 2009. This term was supposedly “as defined in case law,” but in reality was very vague. AB 2338 now gives that term a specific meaning, and should make us all feel comfortable when family members make medical decisions, in accordance with patients’ known wishes, substituted judgment, or best interests, on behalf of their incapacitated loved ones.

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