SB 598 - AS AMENDED BY THE SENATE
03/05/2020 0813s
2020 SESSION
20-2740
01/10
SENATE BILL 598
AN ACT adding physician assistants to the law governing advance directives.
SPONSORS: Sen. Sherman, Dist 24; Sen. Bradley, Dist 3; Sen. Gray, Dist 6; Rep. Salloway, Straf. 5; Rep. Marsh, Carr. 8; Rep. Schapiro, Ches. 16; Rep. Ticehurst, Carr. 3; Rep. Guthrie, Rock. 13
COMMITTEE: Health and Human Services
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ANALYSIS
This bill adds physician assistants to the law governing advance directives.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/05/2020 0813s 20-2740
01/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
AN ACT adding physician assistants to the law governing advance directives.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Advance Directives; Purpose and Policy. Amend RSA 137-J:1 to read as follows:
I. The state of New Hampshire recognizes that a person has a right, founded in the autonomy and sanctity of the person, to control the decisions relating to the rendering of his or her own medical care. In order that the rights of persons may be respected even after such persons lack the capacity to make health care decisions for themselves, and to encourage communication between patients and their attending physicians, PAs, or APRNs, the general court declares that the laws of this state shall recognize the right of a competent person to make a written directive:
(a) Delegating to an agent the authority to make health care decisions on the person's behalf, in the event such person is unable to make those decisions for himself or herself, either due to permanent or temporary lack of capacity to make health care decisions;
(b) Instructing his or her attending physician, PA, or APRN to provide, withhold, or withdraw life-sustaining treatment, in the event such person is near death or is permanently unconscious.
2 Advance Directives; Definitions. Amend RSA 137-J:2, IV to read as follows:
IV. "Attending physician, PA, or APRN" means the physician, physician assistant, or advanced practice registered nurse, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. If more than one physician, physician assistant, or advanced practice registered nurse shares that responsibility, any one of those physicians, physician assistants, or advanced practice registered nurses may act as the attending physician, PA, or APRN under the provisions of this chapter.
3 Advance Directives; Definitions.. Amend RSA 137-J:2, XIII-XXII-a to read as follows:
XIII. "Life-sustaining treatment" means any medical procedures or interventions which utilize mechanical or other medically administered means to sustain, restore, or supplant a vital function which, in the written judgment of the attending physician, PA, or APRN, would serve only to artificially postpone the moment of death, and where the person is near death or is permanently unconscious. "Life-sustaining treatment" includes, but is not limited to, the following: medically administered nutrition and hydration, mechanical respiration, kidney dialysis, or the use of other external mechanical or technological devices. Life sustaining treatment may include drugs to maintain blood pressure, blood transfusions, and antibiotics. "Life-sustaining treatment" shall not include the administration of medication, natural ingestion of food or fluids by eating and drinking, or the performance of any medical procedure deemed necessary to provide comfort or to alleviate pain.
XIV. "Living will" means a directive which, when duly executed, contains the express direction that no life-sustaining treatment be given when the person executing said directive has been diagnosed and certified in writing by the attending physician, PA, or APRN to be near death or permanently unconscious, without hope of recovery from such condition and is unable to actively participate in the decision-making process.
XV. "Medically administered nutrition and hydration" means invasive procedures such as, but not limited to the following: Nasogastric tubes; gastrostomy tubes; intravenous feeding or hydration; and hyperalimentation. It shall not include the natural ingestion of food or fluids by eating and drinking.
XVI. "Near death" means an incurable condition caused by injury, disease, or illness which is such that death is imminent and the application of life-sustaining treatment would, to a reasonable degree of medical certainty, as determined by 2 physicians, or a physician and a PA, or a physician and an APRN, only postpone the moment of death.
XVII. "Permanently unconscious" means a lasting condition, indefinitely without improvement, in which thought, awareness of self and environment, and other indicators of consciousness are absent as determined by an appropriate neurological assessment by a physician in consultation with the attending physician or an appropriate neurological assessment by a physician in consultation with an APRN or PA.
XVIII. "Physician" means a medical doctor licensed in good standing to practice in the state of New Hampshire pursuant to RSA 329.
XVIII-a. " Physician assistant" or "PA" means a physician assistant licensed in good standing to practice in the state of New Hampshire pursuant to RSA 328-D.
XIX. "Principal" means a person 18 years of age or older who has executed an advance directive pursuant to the provisions of this chapter.
XX. "Qualified patient" means a patient who has executed an advance directive in accordance with this chapter and who has been certified in writing by the attending physician, PA, or APRN to lack the capacity to make health care decisions.
XXI. "Reasonable degree of medical certainty" means a medical judgment that is made by a physician, PA, or APRN who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
XXII. "Residential care provider" means a "facility" as defined in RSA 161-F:11, IV, a "nursing home" as defined in RSA 151-A:1, IV, or any individual or facility licensed, certified, or otherwise authorized or permitted by law to operate, for profit or otherwise, a residential care facility for adults, including but not limited to those operating pursuant to RSA 420-D.
XXII-a. "Surrogate decision-maker" or "surrogate" means an adult individual who has health care decision-making capacity, is available upon reasonable inquiry, is willing to make health care decisions on behalf of a patient who lacks health care decision-making capacity, and is identified by the attending physician, PA, or APRN in accordance with the provisions of this chapter as the person who is to make those decisions in accordance with the provisions of this chapter.
4 Advance Directives; Scope and Duration of Agent's Authority. Amend RSA 137-J:5, II-V to read as follows:
II. An agent's or surrogate's authority under an advance directive shall be in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician, PA, or APRN, and filed with the name of the agent or surrogate in the principal's medical record. When and if the principal regains capacity to make health care decisions, such event shall be certified in writing by the principal's attending physician, PA, or APRN, noted in the principal's medical record, the agent's or surrogate's authority shall terminate, and the authority to make health care decisions shall revert to the principal.
III. If the principal has no attending physician, PA, or APRN for reasons based on the principal's religious or moral beliefs as specified in his or her advance directive, the advance directive may include a provision that a person designated by the principal in the advance directive may certify in writing, acknowledged before a notary or justice of the peace, as to the lack of decisional capacity of the principal. The person so designated by the principal shall not be the agent, or a person ineligible to be the agent.
IV. The principal's attending physician, PA, or APRN shall make reasonable efforts to inform the principal of any proposed treatment, or of any proposal to withdraw or withhold treatment. Notwithstanding that an advance directive or a surrogacy is in effect and irrespective of the principal's lack of capacity to make health care decisions at the time, treatment may not be given to or withheld from the principal over the principal's objection unless the principal's advance directive includes the following statement initialed by the principal, "Even if I am incapacitated and I object to treatment, treatment may be given to me against my objection."
V. Nothing in this chapter shall be construed to give an agent or surrogate authority to:
(a) Consent to voluntary admission to any state institution;
(b) Consent to a voluntary sterilization;
(c) Consent to withholding life-sustaining treatment from a pregnant principal, unless, to a reasonable degree of medical certainty, as certified on the principal's medical record by the attending physician, PA, or APRN and an obstetrician who has examined the principal, such treatment or procedures will not maintain the principal in such a way as to permit the continuing development and live birth of the fetus or will be physically harmful to the principal or prolong severe pain which cannot be alleviated by medication; or
(d) Consent to psychosurgery, electro-convulsive shock therapy, sterilization, or an experimental treatment of any kind.
5 Advance Directives; Requirement to Act in accordance With Principal's Wishes and Best Interests. Amend RSA 137-J:6 to read as follows:
137-J:6 Requirement to Act in Accordance With Principal's Wishes and Best Interests. After consultation with the attending physician, PA, or APRN and other health care providers, the agent or surrogate shall make health care decisions in accordance with the agent's or surrogate's knowledge of the principal's wishes and religious or moral beliefs, as stated orally or otherwise communicated by the principal, or, if the principal's wishes are unknown, in accordance with the agent's or surrogate's assessment of the principal's best interests and in accordance with accepted medical practice.