By Caitlin E. O’Brien and Hannah M. Andazola
Providers are sometimes faced with a situation where they must decide how to proceed with treatment when a patient is unable to consent to their own care. When faced with this difficult predicament, how should healthcare providers proceed?
If a family member or other caregiver has a durable power of attorney authorizing their ability to consent to treatment, that is preferable. However, sometimes, a family member or other caregiver consenting to care does not have a durable power of attorney authorizing them to consent for the patient and a provider must use his or her best judgment to determine how to proceed. Idaho Code §§ 39-4503 or 39-4504(1) allows a provider, acting in good faith, to obtain consent from the family member or other caregiver without being subject to civil liability.
Idaho’s Medical Consent and Natural Death Act (Idaho Code § 39-4504) provides protection to providers who, in good faith, obtain consent from certain family members who represent that they have the ability to consent as a surrogate decision maker for a family member who lacks capacity to consent.
In order for a surrogate decision maker to give consent, the surrogate decision maker must be capable of giving such consent. Pursuant to Idaho Code § 39-4503, a person is capable of giving consent when he or she comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure. A surrogate decision maker cannot consent to or refuse health care contrary to a patient’s advance directive or other wishes expressed by the patient while he or she was capable of consenting to his or her own health care.
§ 39-4504 sets forth a priority order for accepting consent from someone other than the patient. The priority is as follows:
The court appointed guardian of the patient;
The person named in the patient’s “Living Will and Durable Power of Attorney for Health Care”;
If married, the spouse of the patient;
An adult child of the patient;
A parent of the patient;
Any relative of the patient who represents himself or herself to be an appropriate, responsible person to act under the circumstances;
Any other competent individual representing himself or herself to be responsible for the health care of the patient.
Accordingly, even if a family member does not have a durable power of attorney, but consents to the treatment of an incapacitated patient, the consent is valid under the Medical Consent and Natural Death Act. However, based on § 39-4504, if a person can produce a durable power of attorney, his or her consent trumps the consent (or refusal to consent) of a different person or family member with no power of attorney.
Keep in mind that in Idaho, a person’s durable power of attorney for health care does not have to be notarized, witnessed or filed with the Secretary of State. This can make it difficult to determine the validity of a durable power of attorney. While individuals may file their durable power of attorney with the Secretary of State’s office to better protect themselves, many do not. Just because the Secretary of State does not have a copy of a patient’s durable power of attorney does not mean a copy produced by a family member or caregiver is necessarily invalid.
Providers should use their best judgment in these scenarios, but if there is no reason to believe that the person claiming capacity to consent for an incapacitated patient is lying or going against the patient’s wishes, proceeding with treatment is acceptable and likely will not open the provider or facility up to liability.
For questions regarding this blog post, please contact:
Caitin E. O’Brien or Hannah M. Andazola
Phone: (208) 215-2411
This blog post is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. This blog does not provide legal advice. This blog does not create an attorney-client relationship between you and Smith + Malek, PLLC. If you want to create an attorney-client relationship and have specific questions regarding the application of the law to your own circumstances, you should contact our office.