Missourians need clarification on who makes medical decisions when a loved one is rendered incapable of making independent decisions, according to a new House bill.
The bill, HB 1087, clearly defines a priority order in a situation where a medical patient is unable to make his or her own decisions.
Sponsored by Rep. Bill White, R-District 129, the bill names the first person in line to make decisions for a loved one as a court-appointed guardian, should there be one present.
According to the priority list, the next to make decisions would be an attorney-in-fact, an individual appointed by law, a spouse, a parent or adult child, an adult sibling or grandchild, then any other relative related by blood that has a close personal relationship with the patient, according to the bill text.
There is no such law in Missouri and never has been, which is why White is bringing it forward now. This type of law exists in 36 other states, and White sees it as a necessary addition to ensure Missourians are protected when unexpected disagreements arise.
“Right now we don’t have a default,” White said. “If you were in a car wreck, you would probably think your mom or dad has the authority to consent for a necessary surgery, but legally he or she has no right to if that right is challenged in court.”
White said the bill would reduce unnecessary burdens on families in times of extreme duress. For example, when a situation arises where a brother and a spouse have a significant disagreement, this process would clearly line out the priority of those involved, White said.
“Let’s say you have family members in an accident and they’re comatose,” White said. “We put them through the hassle of making them get a guardianship through probate court to decide who makes decisions and so forth. This bill seeks to reduce this.”
Opponents of the bill argue that it doesn’t speak to the issue of privacy, which can be debilitating in the healthcare industry, Harvey Tettlebaum, member of the Health and Hospital Law Legislative Review Subcommittee said in a statement to the executive committee.
For example, the Health Insurance Portability and Accountability Act of 1996 regulations require a patient give explicit consent to share medical information with anyone, according to the HIPAA website.
The problem arises in this bill because HIPAA dictates that the condition of the patient cannot be shared with anyone without the patient’s consent, even if the patient is physically or mentally unable to offer consent.
Opponents also challenge the order of the priority list. Missouri Right to Life stated in arguments to the executive committee that the courts should not delegate decisions.
Robert Blake Jr., professor emeritus of family and community medicine, said he generally thinks it is best for an immediate spouse to be the first line of decision regarding medical decisions. Although he didn’t refer to this specific legislation, he offered some general insights into the larger issue.
“When a patient is unable to make a decision, there can be disputes between what children, spouses and parents want done,” Blake said. “Healthcare officials are often caught in the middle. In general, spouses are the ones who are first in line to make decisions.”
While there are various arguments on the issue, the issue here is really about consent, not about taking any rights away or adding unnecessary bureaucracy, White said.
“Nothing is being taken away from anybody,” White said. “This bill deals only with the consent issue, and nothing prevents anyone from going through the probate court procedures to establish guardianship if there are disagreements.”