The Legal and Functional Status of the Medical Proxy: Suggestions for Statutory Reform

See Holmes O.W. , “Agency I,” Harvard Law Review, 4 (1891): 345–65; and Holmes O.W. , “Agency II,” Harvard Law Review, 5 (1891): 1–23.

See Markesinis B.S. and Mundey R.J.C. , An Outline of the Law of Agency (Austin: Butterworth Legal Publications, 1992): at vii.

See Holdsworth W. Sir , A History of English Law (London: Methuen, Vol. VIII, 1966): at 222.

See Pollock F. Sir and Maitland F.W. , The History of English Law (London: Cambridge University Press, Vol. II, 1968): at 228.

See id.

Id. at 228 n.1.

See Holdsworth , supra note 3, at 223.

See Fridman G.H.L. , The Law of Agency (London: Butterworths, 5th ed., 1983): at 5.

Id. at 5–6.

Restatement (Second) of Agency § 1 (1957).

Id. § 1 cmt. b.

See Powell R. , The Law of Agency (London: Pitman, 2nd ed., 1961): at 7.

Black's Law Dictionary (St. Paul: West, 6th ed., 1990): at 753.

See Powell , supra note 12; Fridman , supra note 8; and Holdsworth , supra note 3, at 227.

See Powell , supra note 12.

An oft-applied enumeration of factors distinguishing employee from independent contractor is that contained in the Internal Revenue Service's (IRS) Revenue Ruling 87–41. See Rev. Rul. 87–41, 1987–1 CB 296. The IRS enumeration closely approximates the criteria typically considered in common law analyses of the distinction.

See Restatement (Second) of Agency § 17 (1957).

See, for example, Moses A.L. and Pope A.J. , “Estate Planning, Disability, and the Durable Power of Attorney,” South Carolina Law Review, 30 (1979): at 530 (“[T]hese rights may be so personal as to be nondelegable. If marriage and making a will are nondelegable duties, it is possible that the South Carolina Supreme Court may so classify delegations of the right to refuse medical treatment.”); see also Note, “Court Enforcement of a Durable Power of Attorney,” University of San Francisco Law Review, 17 (1983): at 614 n.16 (nondelegable acts “possibly” include the principal's life or death medical decisions).

See Annas G.J. and Glantz L.H. , “The Right of Elderly Patients to Refuse Life-Sustaining Treatment,” Milbank Quarterly, 64, Supp. 2 (1986): 136–38; and Legal Counsel for the Elderly/AARP, Decision-Making, Incapacity, and the Elderly: A Protective Services Practice Manual (Washington, D.C.: American Association of Retired Persons, 1987): at 6.

See, for example, Hare J. Pratt C. , and Nelson C. , “Agreement Between Patients and Their Self-Selected Surrogates on Difficult Medical Decisions,” Archives of Internal Medicine, 152 (1992): 1049–54; Emanuel E. and Emanuel L. , “Proxy Decision Making for Incompetent Patients: An Ethical and Empirical Analysis,” JAMA, 267 (1992): 2067–71; Seckler A.B. , “Substituted Judgment: How Accurate Are Proxy Predictions?,” Annals of Internal Medicine, 115 (1991): 92–98; Zweibel N.R. and Cassel C.K. , “Treatment Choices at the End of Life: A Comparison of Decisions by Older Patients and Their Physician-Selected Proxies,” Gerontologist, 29 (1989): 615–21; and Pearlman R.A. Uhlmann R.F. , and Jecker N.S. , “Spousal Understanding of Patient Quality of Life: Implications for Surrogate Decisions,” Journal of Clinical Ethics, 3 (1988): 114–21.

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Choices, Volume One: Report (Washington, D.C.: U.S. Government Printing Office, 1982): at 36.

Lynn J. , “Why I Don't Have a Living Will,” Law, Medicine & Health Care, 19 (1991): at 102.

See, for example, Collopy B.J. , “The Moral Underpinning of the Proxy-Provider Relationship: Issues of Trust and Distrust,” Journal of Law, Medicine & Ethics, 27 (1999): 37–45.

See Dubler N. and Nimmons D. , Ethics On Call (New York: Harmony Books, 1992): at 39–84.

Restatement (Second) of Agency § 13 (1957).

Id. § 13 cmt. a.

1. Follow the patient's explicit directives. Where a patient who had decision making capacity at the time, has left written directions in an advance directive or another form, or clear oral directions, and these directions seem intended to cover the situation presented, the surrogate should follow the directions.

2. Or apply the patient's preferences and values. If the patient has left no directions about the treatment in question, the surrogate should apply what is known about the patient's preferences and values, trying to choose as the patient would have wanted.

3. Or choose as a reasonable person in the patient's circumstances would. If there is not enough known about the patient's directions, preferences, and values to make an individualized decision, the surrogate should choose so as to promote the patient's interests as they would probably be conceived by a reasonable person in the patient's circumstances, selecting from within the range of choices that reasonable people would make.

Id. at 32 (notes omitted).

See Horttor B.J. , “A Survey of Living Will and Advanced Health Care Directives,” North Dakota Law Review, 74 (1998): 233–93. For a review of default surrogate laws, see O'Connor C.M. , “Statutory Surrogate Consent Provisions: A Review and Analysis,” Mental and Physical Disability Law Reporter, 20 (1996): 128–38.

There is no common terminology for these “default” surrogate laws. Some states refer to the default decision-maker as surrogate. See, for example, Ala. Code § 22–8A-11 (1998); 755 Ill. Comp. Stat. Ann. 40/25 (West 1998); and Md. Code Ann., Health Gen. § 5–605 (1998). Many more states have no specific term for this person. Further confusing matters, Florida and Kentucky call an appointed agent a surrogate. See Fla. Stat. Ann. § 765.101(14) (West 1998); and Ky. Rev. Stat. Ann. § 311.621 (Banks-Baldwin 1999). Florida calls the “default” surrogate a proxy. See Fla. Stat. Ann. § 765.101(13) (West 1998).

One feature that often differs between appointed proxies and surrogates is the existence of multiple family surrogates at the same priority level. Proxies are usually, though not always, appointed to serve singly; whereas several children may all have joint authority to make health decisions for their parents under default surrogate laws. This fact adds to the complexity of the task and a possibly greater need to work out differences of opinion among decision-makers. See O'Connor , supra note 28.

This review does not include special mental health proxy laws that currently exist in at least eight states. See Alaska Stat. §§ 47.30.950 to .980 (Michie 1998); Haw. Rev. Stat. Ann. § 327F (Michie 1998); Idaho Code §§ 66–601 to −613 (1998); 755 Ill. Comp. Stat. Ann. 43/1 to 43/115 (West 1998); Minn. Stat. Ann. § 253B.03 (West 1998); N.C. Gen. Stat. §§ 122C-71 to −77 (1997); Okla. Stat. Ann. tit. §§ 43A 11–101 to −113 (West 1999); and Or. Rev. Stat. §§ 127.700–.735 (1998).

See Horttor , supra note 28; and Larson E.J. and Eaton T.A. , “The Limits of Advance Directives: A History and Assessment of the Patient Self-Determination Act,” Wake Forest Law Review, 32 (1997): 349–93.

Tenn. Code Ann. § 34-6-208(b) (1998); and Cal. Prob. Code § 4750(b) (West 1999).

A full review of the statutory provisions, including the actual language, is available from the author.

Cal. Prob. Code § 4720(c) (West 1999).

See Del. Code Ann. tit. 16, § 2503(f) (1998); Md. Code Ann., Health-Gen. §§ 5–601(e), 5–605(c)(2), (3) (1998); N.J. Stat. Ann. § 26:2H-63(c) (West 1999); and W. Va. Code § 16–30B-8(b) (1998).

Md. Code Ann., Health-Gen. § 5–605(c)(2), (3) (1998) (emphasis added).

Id. § 5–601(e) (emphasis added).

See Dubler N.N. , “The Doctor-Proxy Relationship: The Neglected Connection,” Kennedy Institute of Ethics Journal, 5 (1995): at 293.

See, for example, Larson and Eaton , supra note 32, at 278; Teno J. , “Advance Directives for Seriously Ill Hospitalized Patients: Effectiveness with the Patient Self-Determination Act and the SUPPORT Intervention,” Journal of the American Geriatrics Society, 45 (1997): 500–07; and Orentlicher D. , “The Illusion of Patient Choice in End-of-Life Decisions”, JAMA, 267 (1992): 2101–04.

See Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§ 4206, 4751 (known as the “Patient Self-Determination Act”), codified at 42 U.S.C. §§ 1395cc(a)(1)(Q), 1395mm(c)(8), 1395cc(f), 1396a(a)(57),(58), 1396a(w) (1998).

Ark. Code Ann. § 20-17-202(d) (1997).

See, for example, Me. Rev. Stat. Ann. tit. 18-A, § 5–807(b) (West 1998); and N.M. Stat. Ann. § 24–7A-7(B) (Michie 1998).

New Jersey's statute provides a rare example. It states: “In situations in which a transfer of care is necessary, … a health care institution shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.” N.J. Stat. Ann. § 26:2H-62(b) (West 1999).

Dubler , supra note 39, at 303.

Ariz. Rev. Stat. Ann. § 36–3231 (West 1998); Conn. Gen. Stat. Ann. § 19a-578 (West 1998); Ga. Code Ann. § 31-36-7(1) (1998); 755 Ill. Comp. Stat. Ann. 45/4-7(a) (West 1998); and Ind. Code Ann. § 30-5-7-3 (West 1998).

N.J. Stat. Ann. §§ 26:2H-63(a), (b) (West 1999).

Ariz. Rev. Stat. Ann. § 36–3204(B) (West 1998).

Colo. Rev. Stat. Ann. § 15–18.5–103(6.5) (West 1999).

Md. Code Ann., Health-Gen. §§ 5–605(b), 5–612(a) (1998).

N.J. Stat. Ann. § 26:2H-66 (West 1999).

See, for example, Me. Rev. Stat. Ann. tit. 18-A, § 5–807(a) (West 1998); Mo. Ann. Stat. § 404.820(4) (West 1999); N.H. Rev. Stat. Ann. § 137-J:2(IV) (1998); Tex. Civ. Prac. & Rem. Code Ann. § 135.002(d) (West 1998); and Vt. Stat. Ann. tit. 14, § 3453(d) (1998).

S.D. Codified Laws § 59-7-2.6 (Michie 1998).

When courts become involved through guardianship proceedings, a different question concerning overriding the authority of the proxy arises: Does a guardian automatically preempt the authority of the earlier appointed proxy? The states vary in their statutory answers to this question.

Del. Code Ann. tit. 16, § 2508(d) (1998).

Ind. Code Ann. § 30-5-7-3 (West 1998).

Ariz. Rev. Stat. Ann. § 36–3204(A) (West 1998).

Iowa Code Ann. § 144B.9.1.b (West 1998).

The present review looks only at conscience objections made against the decisions of proxies or surrogates. Conscience objections to living wills may or may not be governed by the same provisions, because many states have separate living will statutes with or without separate conscience objection provisions. For a concise summary of conscience clauses circa 1995, see Boozang K.M. , “Deciding The Fate of Religious Hospitals in the Emerging Health Care Market,” Houston Law Review, 31 (1995): at 1454 n.100.

Ky. Rev. Stat. Ann. § 311.633(3) (Banks-Baldwin 1999).

N.J. Stat. Ann. § 26:2H-62(b) (West 1999).

N.M. Stat. Ann. 1978 § 24–7A-7(E) (1998).

Conscience objections should be distinguished from refusals based on medical futility or inappropriateness. Futility concepts pose their own difficulties with respect to definition and judgment, but they are, at least in theory, matters resolved by application of generally accepted medical standards. Most advance directive laws have some variation of the following example from the Uniform Health-Care Decisions Act:

This Act does not authorize or require a health-care provider or institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

Uniform Health-Care Decisions Act, U.L.A. Health Care Dec. § 13(d) (1993).

Ky. Rev. Stat. Ann. § 311.633(2) (Banks-Baldwin 1999).

Ohio Rev. Code Ann. § 1337.16(B) (Banks-Baldwin 1999).

Ala. Code § 22–8A-8 (1998).

Nev. Rev. Stat. § 449.628 (1997).

Tex. Health & Safety Code § 672.016 (West 1998).

Idaho Code § 39–4508 (1998).

Mass. Gen. Laws Ann. ch. 201D, § 14 (West 1998).

N.Y. Pub. Health Law § 2984(3) (McKinney 1999).

Tenn. Code Ann. § 34-6-214 (1998).

Haw. Rev. Stat. Ann. § 327–26 (Michie 1998).

755 Ill. Comp. Stat. 45/4-11 (West 1998).

Ariz. Rev. Stat. Ann. § 36–3209 (West 1998).

Louisiana and Maryland were not included among the states requiring that proxies give notice, because their statutes merely provided that any person may give the physician notice of the existence of an advance directive if the patient was not able to do so. See La. Rev. Stat. Ann. § 40:1299.58.3.B (West 1999); and Md. Code Ann., Health-Gen. § 5–602(f) (1998).

Ala. Code § 22–8A-11(c) (1998).

Ky. Rev. Stat. Ann. § 311.629(1) (Banks-Baldwin 1999).

See, especially, Orentlicher D. , “The Limits of Legislation,” Maryland Law Review, 53 (1994): 1255–305.

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forgo Life-Sustaining Treatment: Ethical, Medical and Legal Issues in Treatment Decisions (Washington, D.C.: U.S. Government Printing Office, 1983): at 30.

Id. at 23.

Id.

See President's Commission, supra note 21, at 151.

See Hardwig J. , “SUPPORT and the Invisible Family,” Hastings Center Report, 25, no. 6 (1995): S23–S25.

See Orentlicher , supra note 40.

See Bopp J. Jr. and Coleson R.E. , “A Critique of Family Members as Proxy Decisionmakers Without Legal Limits,” Issues in Law & Medicine, 12 (1996): 133–65.

N.J. Stat. Ann. § 26:2H-63(b) (West 1999).

See discussion at p. 60.

Uniform Health-Care Decisions Act, U.L.A. Health Care Dec. § 7(a) (1993).

Ind. Code Ann. § 16-36-1-11 (West 1998); Mo. Ann. Stat. § 404.840 (West 1999); Neb. Rev. Stat. § 30–3417 (1998); Or. Rev. Stat. § 127.535 (1998); and S.D. Codified Laws § 34–12C-6 (Michie 1998).

N.J. Stat. Ann. § 26:2H-63(a), (b) (West 1999).

755 Ill. Comp. Stat. 45/4-11 (West 1998).