Planning Ahead: New Hampshire Adopts Changes to its Advance Health Care Directives Statute, Including Updates to its Statutory Forms Used in Many Hospital Settings
A difficult but frequently unavoidable subject, advance directives give instructions to providers on how to care for individuals who no longer possess capacity to make decisions on their own. We associate the need for wills and powers of attorney for the elderly, but an adult can lose capacity at any age for a variety of reasons, such as a traumatic brain injury, severe mental health deterioration, hypoxia, or a medically-induced coma. For these reasons, New Hampshire law defines how medical decisions should be made—and this law just went through another recent update.
Chapter RSA 137-J covers these scenarios. This chapter can be broken into three topics: Advanced Directives (RSA 137-J:5 to J:23), Do Not Resuscitate (RSA 137-J:24 to J:33), and Surrogacy (RSA 137-J:34- to J:37). Last month, the entire chapter underwent changes that expand powers for properly appointed surrogate decision makers, as well as updates a variety of provisions and definitions. For healthcare providers and facilities, these changes are also notable because they alter the advance directive forms to reflect the new language in RSA 137-J:19, RSA 137-J:20, and RSA 137-J:26. Facilities should look to their current templates and ensure they mirror to these updates.
What are the most significant changes?
Substantively, the revisions expand the scope of surrogacy in certain instances. RSA 137-J:5, IV still requires attending practitioners to reasonably inform their patient about proposed treatment even when the patient lacks capacity. When an appointed surrogate consents to treatment (or withholding treatment) from the patient, that treatment will be provided or withheld even against the patient’s wishes, unless the patient has a durable power of attorney for health care that instructs otherwise. Thus, the surrogate cannot override previously stated preferences contained in an advance directive.
Most significantly, RSA 137-J:5 adds a provision for consenting to clinical trials or experimental treatments. Previously, agents under an advance directive or surrogate decision makers could not consent to experimental treatments. Now, both agents and surrogates may consent to enrollment in trials or experimental treatments as long as certain protocols are in place. The trial or experimental treatment must be overseen and authorized by an institutional review board and be consistent with state and federal regulations. Further, the consent must be consistent with any existing directives in a durable power of attorney for health care. If an existing durable power of attorney for health care is silent on enrollment, then a surrogate or agent may only consent to a trial or experimental treatment if the proposed treatment is for an immediately life-threatening disease or condition, if there are no alternative treatment options that would provide an equal or greater likelihood of saving the patient’s life, and the trial or treatment “is intended to be beneficial to the patient in terms of increasing mobility or reducing pain, distress, or discomfort.”
RSA 137-J:26 underwent notable changes regarding Do Not Resuscitate (“DNR”) orders. Now, both agents and surrogates may consent to a DNR order when previously only an agent could do so on behalf of an incapacitated patient. Upon the consent of either an agent or a surrogate decision maker, an attending provider may then enter a DNR order and that order will be considered valid.
A DNR order may fall into one of two categories set forth in RSA 137-J:26:
(a) A format that complies with the healthcare facility’s policies and procedures, as long as they comply with this statute; or
(b) A portable DNR, medical records clearly documenting a DNR order; a DNR bracelet or necklace worn by the patient so long as clearly identifies the patient; or a Physician Orders for Life-Sustaining Treatment form that clearly states that it is also a DNR order.
Agents—as well as surrogates—may also revoke DNR orders for patients lacking capacity under circumstances in accordance with RSA 137-6, which mandates that agents and surrogates make health care decisions in accordance with the patient’s known wishes and religious or moral beliefs. The revocation may be in the form of a “written, oral, or other act of communication to the attending physician or professional staff.” RSA 137-J:29, III.
Updated Forms and Disclosure Statements
All healthcare facilities should review their current forms and adopt the language in the revised RSA 137-J:19 and RSA 137-J:20 for Durable Powers of Attorney. These new disclosure statements are more streamlined and remove some of the “legalese” seen in the lengthy previous versions, and include the new ability for agents to consent to clinical trials and experimental treatments, where appropriate.
Please contact either Marrielle B. Van Rossum or Jennifer R. Rivett if we can provide any guidance.
