26:2H-63. Decision making under an advance directive

11. a. The attending physician, the health care representative and, when appropriate, any additional physician responsible for the patient's care, shall discuss the nature and consequences of the patient's medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. Except as provided by subsection b. of this section, the attending physician shall obtain informed consent for, or refusal of, health care from the health care representative.

(1) Discussion of the proposed treatment and its alternatives shall include, as appropriate under the circumstances, the availability, benefits and burdens of rehabilitative treatment, therapy, and services.

(2) The decision making process shall allow, as appropriate under the circumstances, adequate time for the health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.

b. Following a determination that a patient lacks decision making capacity, the health care representative and the attending physician shall, to a reasonable extent, discuss the treatment options with the patient, and seek to involve the patient as a participant in the decision making process. The health care representative and the attending physician shall seek to promote the patient's capacity for effective participation and shall take the patient's expressed wishes into account in the decision making process.

Once decision making authority has been conferred upon a health care representative pursuant to an advance directive, if the patient is subsequently found to possess adequate decision making capacity with respect to a particular health care decision, the patient shall retain legal authority to make that decision. In such circumstances, the health care representative may continue to participate in the decision making process in an advisory capacity, unless the patient objects.

Notwithstanding any other provision of this act to the contrary, if a patient who lacks decision making capacity clearly expresses or manifests the contemporaneous wish that medically appropriate measures utilized to sustain life be provided, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.

c. In acting to implement a patient's wishes pursuant to an advance directive, the health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:

(1) The patient's contemporaneous expressions, including nonverbal expressions;

(2) Other reliable sources of information, including the health care representative's personal knowledge of the patient's values, preferences and goals; and

(3) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care professionals or religious leaders.

d. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's medical condition and the treatment alternatives, the health care representative shall exercise reasonable discretion, in good faith, to effectuate the terms, intent, and spirit of the instruction directive and other evidence of the patient's wishes.

e. Subject to the provisions of this act, and unless otherwise stated in the advance directive, if the patient's wishes cannot be adequately determined, then the health care representative shall make a health care decision in the patient's best interests.

L.1991,c.201,s.11.