15-18.5-103. Proxy decision-makers for medical treatment authorized - definitions.

Statute text

(1) A health-care provider or health-care facility may rely, in good faith, upon the medical treatment decision of a proxy decision-maker selected in accordance with subsection (4) of this section if an adult patient's attending physician determines that such patient lacks the decisional capacity to provide informed consent to or refusal of medical treatment and no guardian with medical decision-making authority, agent appointed in a medical durable power of attorney, person with the right to act as a proxy decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title, or other known person has the legal authority to provide such consent or refusal on the patient's behalf.

(1.5) As used in this section:

(a) "Interested person" means a patient's spouse, either parent of the patient, any adult child, sibling, or grandchild of the patient, or any close friend of the patient.

(b) "Proxy decision-maker" does not mean the attending physician.

(2) The determination that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment may be made by a court or the attending physician, and the determination shall be documented in such patient's medical record. The determination may also be made by an advanced practice registered nurse who has collaborated about the patient with a licensed physician either in person, by telephone, or electronically. The advanced practice registered nurse shall document in the patient's record the name of the physician with whom the advanced practice registered nurse collaborated. The attending physician shall make specific findings regarding the cause, nature, and projected duration of the patient's lack of decisional capacity, which findings shall be included in the patient's medical record.

(3) Upon a determination that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment, the attending physician, the advanced practice registered nurse, or such physician's or nurse's designee, shall make reasonable efforts to notify the patient of the patient's lack of decisional capacity. In addition, the attending physician, or such physician's designee, shall make reasonable efforts to locate as many interested persons as practicable, and the attending physician or advanced practice registered nurse may rely on such individuals to notify other family members or interested persons. Upon locating an interested person, the attending physician, advanced practice registered nurse, or such physician's or nurse's designee, shall inform such person of the patient's lack of decisional capacity and that a proxy decision-maker should be selected for the patient.

(4) (a) Interested persons who are informed of the patient's lack of decisional capacity shall make reasonable efforts to reach a consensus as to who among them shall make medical treatment decisions on behalf of the patient. The person selected to act as the patient's proxy decision-maker should be the person who has a close relationship with the patient and who is most likely to be currently informed of the patient's wishes regarding medical treatment decisions. If any of the interested persons disagrees with the selection or the decision of the proxy decision-maker or, if, after reasonable efforts, the interested persons are unable to reach a consensus as to who should act as the proxy decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings pursuant to part 3 of article 14 of this title. Only said interested persons may initiate such proceedings with regard to the patient.

(b) Nothing in this section precludes any interested person from initiating a guardianship proceeding pursuant to part 3 of article 14 of this title for any reason any time after said persons have conformed with paragraph (a) of this subsection (4).

(c) (I) An attending physician may designate another willing physician to make health-care treatment decisions as a patient's proxy decision-maker if:

(A) After making reasonable efforts, the attending physician or his or her designee cannot locate any interested persons, or no interested person is willing and able to serve as proxy decision-maker;

(B) The attending physician has obtained an independent determination of the patient's lack of decisional capacity by another physician; by an advanced practice registered nurse who has collaborated about the patient with a licensed physician either in person, by telephone, or electronically; or by a court;

(C) The attending physician or his or her designee has consulted with and obtained a consensus on the proxy designation with the medical ethics committee of the health-care facility where the patient is receiving care; and

(D) The identity of the physician designated as proxy decision-maker is documented in the medical record.

(II) For the purposes of subsections (4)(c)(I)(C), (4)(c)(V)(B), and (4)(c)(V)(C) of this section, if the health-care facility does not have a medical ethics committee, the facility shall refer the attending physician or his or her designee to a medical ethics committee at another health-care facility.

(III) The authority of the proxy decision-maker terminates in the event that:

(A) An interested person is willing to serve as proxy decision-maker;

(B) A guardian is appointed;

(C) The patient regains decisional capacity;

(D) The proxy decision-maker decides to no longer serve as the patient's proxy decision-maker; or

(E) The patient is transferred or discharged from the facility, if any, where the patient is receiving care, unless the proxy decision-maker expresses his or her intention to continue to serve as proxy decision-maker.

(IV) If the authority of a proxy decision-maker terminates for one of the reasons described in subparagraph (III) of this paragraph (c), the attending physician shall document the reason in the patient's medical record.

(V) The attending physician and the proxy decision-maker shall adhere to the following guidelines for proxy decision-making:

(A) For routine treatments and procedures that are low-risk and within broadly accepted standards of medical practice, the attending physician may make health-care treatment decisions;

(B) For treatments that otherwise require a written, informed consent, such as treatments involving anesthesia, treatments involving a significant risk of complication, or invasive procedures, the attending physician shall obtain the written consent of the proxy decision-maker and a consensus with the medical ethics committee;

(C) For end-of-life treatment that is nonbeneficial and involves withholding or withdrawing specific medical treatments, the attending physician shall obtain an independent concurring opinion from a physician other than the proxy decision-maker, and obtain a consensus with the medical ethics committee.

(5) When an attending physician determines that an adult patient lacks decisional capacity, the attending physician or another health-care provider shall make reasonable efforts to advise the patient of such determination, of the identity of the proxy decision-maker, and of the patient's right to object, pursuant to section 15-14-506 (4)(a).

(6) (a) Artificial nourishment and hydration may be withheld or withdrawn from a patient upon a decision of a proxy only when the attending physician and a second independent physician trained in neurology or neurosurgery certify in the patient's medical record that the provision or continuation of artificial nourishment or hydration is merely prolonging the act of dying and is unlikely to result in the restoration of the patient to independent neurological functioning.

(b) (I) Nothing in this article may be construed as condoning, authorizing, or approving euthanasia or mercy killing.

(II) Nothing in this article may be construed as permitting any affirmative or deliberate act to end a person's life, except to permit natural death as provided by this article.

(6.5) The assistance of a health-care facility's medical ethics committee shall be provided upon the request of a proxy decision-maker or any other interested person whenever the proxy decision-maker is considering or has made a decision to withhold or withdraw medical treatment. If there is no medical ethics committee for a health-care facility, such facility may provide an outside referral for such assistance or consultation.

(7) If any interested person or the guardian or the attending physician believes the patient has regained decisional capacity, then the attending physician shall reexamine the patient and determine whether the patient has regained such decisional capacity and shall enter the decision and the basis therefore into the patient's medical record and shall notify the patient, the proxy decision-maker, and the person who initiated the redetermination of decisional capacity.

(8) Except for a court acting on its own motion, a governmental entity, including the state department of human services and the county departments of human or social services, may not petition the court as an interested person pursuant to part 3 of article 14 of this title 15. In addition, nothing in this article 18.5 authorizes the county director of any county department of human or social services, or designee of such director, to petition the court pursuant to section 26-3.1-104 in regard to any patient subject to the provisions of this article 18.5.

(9) (a) Any attending physician, health-care provider, or health-care facility that makes reasonable attempts to locate and communicate with a proxy decision-maker shall not be subject to civil or criminal liability or regulatory sanction therefor.

(b) A physician acting in good faith as a proxy decision-maker in accordance with paragraph (c) of subsection (4) of this section is not subject to civil or criminal liability or regulatory sanction for acting as a proxy decision-maker. An attending physician or his or her designee remains responsible for his or her negligent acts or omissions in rendering care to an unrepresented patient.

History

Source: L. 92: Entire article added, p. 1985, 3, effective June 4. L. 94: (8) amended, p. 2647, 115, effective July 1. L. 2008: (2) and (3) amended, p. 125, 5, effective January 1, 2009. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 446, 13, effective July 1. L. 2010: (1) amended, (SB 10-199), ch. 374, p. 1753, 20, effective July 1. L. 2016: (1.5) added and (3), (4), (6), (6.5), (7), and (9) amended, (HB 16-1101), ch. 170, p. 537, 1, effective August 10. L. 2017: (4)(c)(II) amended, (SB 17-294), ch. 264, p. 1392, 33, effective May 25. L. 2018: (8) amended, (SB 18-092), ch. 38, p. 404, 20, effective August 8.

Annotations

Cross references: (1) For the legislative declaration contained in the 1994 act amending subsection (8), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.

(2) For provisions relating to the time of taking effect or the provisions for transition of this code, see 15-17-101.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "The Lawyer's Role in End-of-Life Planning Moving Beyond Advance Medical Directives", see 44 Colo. Law. 101 (July 2015).

Decision to agree to arbitrate is not a "medical treatment decision" and as such not within the authority of a health care proxy. There exists a distinction between an agreement to provide medical services, including an agreement to admit a patient to a health care facility, and an agreement to arbitrate a health care dispute. Lujan v. Life Care Ctrs. of Am., 222 P.3d 970 (Colo. App. 2009).

Subsection (8) does not preclude a governmental entity acting as a guardian from executing a cardiopulmonary resuscitation directive. People ex rel. Yeager, 93 P.3d 589 (Colo. App. 2004).