36-3206. Enforcement or challenge of a directive or decision; judicial proceedings; automatic stays

A. An interested person may file a verified petition with the superior court to determine the validity or effect of a health care directive or the decision of a surrogate.

B. The petition shall include the following information:

1. The name and current location of the patient and any surrogate or guardian authorized to make decisions for the patient.

2. The name and address of any health care provider known by the petitioner to be providing health care to the principal.

3. If a health care directive exists, a description or a copy of the health care directive.

4. The judicial relief sought by the petitioner.

C. On the filing of the petition, the court shall enter a temporary order directing compliance with section 36-3203, subsection E. Notice of this order shall be provided by personal service on the surrogate, the patient, the health care providers immediately responsible for the patient's care and other persons the court requires to be notified.

D. The court shall review the petition, any other pleadings on file and any evidence offered by the petitioner to determine if it should order temporary orders without a further hearing. The court may enter a temporary order directing the provision or the withholding of specific medical treatment pending a further hearing if the court determines that there is reasonable cause to believe that health care decisions are being made by a surrogate or a health care provider that derogate the patient's wishes or, if the patient's wishes are not known, the patient's best interests.

E. The court shall schedule and conduct a hearing within five working days of the filing of a petition. Notice shall be provided by personal service on the surrogate, the patient, the health care providers immediately responsible for the patient's care, and other persons the court requires to be notified.

F. On the filing of the petition the court may:

1. Appoint an attorney for the patient if it appears that this is in the patient's best interests.

2. Appoint an investigator as provided under section 14-5308 or a physician, or both, to evaluate the patient and submit a written report to the court before the hearing.

3. Enter other temporary orders that the court determines are necessary and appropriate to protect the wishes or the best interests of the patient, including an order exercising the power of a guardian or appointing a temporary guardian as provided under section 14-5310.

G. A person filing a petition under this section is not required to post a bond unless the court determines that a bond is necessary to protect the interests of any party.

H. If a petition is filed to challenge the decision of a guardian to permanently withdraw the artificial administration of food and fluid from a patient who is in an irreversible coma or is in a persistent vegetative state that the patient's doctor believes is irreversible or incurable, there is a rebuttable presumption that a patient who does not have a valid living will, power of attorney or other health care directive has directed the patient's health care providers to provide the patient with food and fluid to a degree that is sufficient to sustain life, including, if necessary, through a medically invasive procedure, by way of the gastrointestinal tract or intravenously, and that that provision is in the patient's best interests.

I. The presumption pursuant to subsection H of this section may be rebutted only if either of the following applies:

1. In reasonable medical judgment any of the following applies:

(a) The provision of food or fluid is not medically possible.

(b) The provision of food or fluid would hasten death.

(c) Because of the medical condition of the patient, the patient would be incapable of digesting or absorbing the food or fluid so that its provision would not contribute to sustaining the patient's life or provide physical comfort to the patient.

2. The court finds both of the following by clear and convincing evidence:

(a) The patient is in an irreversible coma or is in a persistent vegetative state that is irreversible or incurable. Evidence that the patient is in an irreversible coma or is in a persistent vegetative state that is irreversible or incurable must be supported by either of the following:

(i) The opinion of an independent physician who is licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in neurology. The petitioner, the patient or the patient's attorney may present additional evidence of the patient's medical condition that is supported by the opinion of a physician selected by that party.

(ii) If a specialist in neurology is not available, the opinion of an independent physician who is licensed pursuant to title 32, chapter 13 or 17 and who has examined the patient specifically to assess whether the patient is in an irreversible coma or a persistent vegetative state that is irreversible or incurable supported by a recommendation of the institutional bioethics committee of the health care facility.

(b) While competent the patient manifested the patient's intent that medically invasive life prolonging treatment, including the artificial administration of food or fluid, not be administered in the case of an irreversible coma or a persistent vegetative state that is irreversible or incurable.

J. On notice and a hearing, the court may enter appropriate orders to safeguard the wishes of the patient. If the court is unable to determine those wishes, the court may enter appropriate orders to safeguard the patient's best interest. These orders may include:

1. Appointing a surrogate if the procedural requirements of title 14, chapter 5, article 3 have been met.

2. Removing an agent or any other surrogate and appointing a successor.

3. Directing compliance with the terms of the patient's health care directive, including the provisional removal or withholding of treatment if the court finds that this conforms with the patient's wishes or, if the patient's wishes are not known, is in the patient's best interest.

4. Directing the transfer of the patient to a suitable facility or to the care of a health care provider who is willing to comply with the patient's wishes.

5. Assessing court costs and attorney fees against a party found to have proceeded in bad faith.

K. Notwithstanding a person's incapacity, the court may deny a petition to appoint a guardian for that person based on the existence of a valid and unrevoked health care directive.

L. A guardian appointed pursuant to this section is immune from civil and criminal liability to the same extent as any other surrogate pursuant to section 36-3203, subsection D.

M. A superior court order that authorizes a guardian to permanently withdraw food or fluid from a patient who is in an irreversible coma or in a persistent vegetative state that is irreversible or incurable is automatically stayed for five business days to allow a party, or that party's successor in interest in the event of the original party's death, to seek an expedited appeal with the court of appeals. A decision from the court of appeals is automatically stayed for five business days to allow a party, or that party's successor in interest in the event of the original party's death, to seek review by the supreme court. Food or fluid shall not be permanently withdrawn pending a decision on the merits of the case by the court of appeals or a decision on a petition by the supreme court.