Bill gives incapacitated patients proxy decision-makers

The Monana Senate judiciary committee on Friday heard a bill that would allow health-care providers to find proxy decision-makers for patients incapable of making medical decisions.

Senate Bill 92 would give an attending health-care provider the ability to determine if a patient lacks decisional capacity tied to medical treatment. The provider would then seek out people close to the patient who could decide among themselves which person should act as the proxy decision-maker.

If no one connected to the patient stepped forward, the provider could designate another physician, registered nurse or physician assistant to make treatment choices for the patient.

“If we could get guardians out of the walls at a moment’s notice, this is something we would never need,” bill sponsor Sen. Albert Olszewski, R-Kalispell, said. “But the truth is, that’s not happening right now.”

Olszewski, an orthopedic surgeon in Kalispell, said a proxy’s decisions could vary from giving the OK for a hip replacement, to taking a patient off artificial nourishment or hydration when it’s merely prolonging the act of dying.

He said without the bill, health-care providers have to go through competency hearings to gain guardianship over the patient. That process could take at least three months, he said.

Ellen Clifton, a registered nurse of 36 years from Billings, said patients are denied their dignity when their care stagnates because they lost their ability to communicate.

“This bill seeks to restore that for them,” she said. “I believe we can act in a way to give those patients a voice.”

Mike Foster with Montana Catholic Hospitals said the bill gives medical facilities a road map when providers receive an incapacitated patient.

“Whether it’s Alzheimer’s, a coma or a mental disability … a decision must be made,” he said.

According to the bill language, the attending health-care provider has to obtain an independent determination of the patient’s inability to make medical decisions. Then that provider has to consult and obtain approval on the proxy designation with the health facility’s medical ethics committee.

The provider’s role as a proxy can end when a person close to the patient takes their place, a guardian is appointed to the patient, or the patient regains their ability to make decisions.

Beth Brenneman, the staff attorney for Disability Rights Montana, opposed the bill.

Brenneman said she would want the legislation to include the oversight of a professional who specializes in the patient’s disability to help decide whether that person is incapable of making medical decisions.

She also pointed to the fact that care facilities can go through a court to get emergency guardianship over a patient.

Olszewski said while it’s possible to get emergency guardianship, physicians would have to go through the legal process every few days to treat the number of patients in need of a proxy decision-maker. He said the high caseload would be an abuse of the court system.

During the hearing, Sen. Jennifer Fielder, R-Thompson Falls, raised concerns the bill would give providers too much power over patients.

“Is there any place [in the bill] where the patient themself can say, ‘I don’t want treatment, I don’t want to do this,’” Field asked. “My concern is for the patient’s rights.”

Olszewski said if a patient can verbalize they don’t want treatment, as part of the physician’s oath to do no harm, “I can tell you as a physician, we’re going to honor that.”

He said as a living document, clearer guidelines could be added to the bill.

Senate Judiciary Chair Keith Regier, R-Kalispell, said the committee will most likely reach a decision on the bill late next week.

To view the proposed bill, go to http://laws.leg.mt.gov and search for SB 92.

Reporter Katheryn Houghton may be reached at 758-4436 or by email at khoughton@dailyinterlake.com.