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Introduced by   Representatives Donahue of Northfield, Andrews of Rutland City and Koch of Barre Town

Referred to Committee on


Subject:  Health; mental health; guardianship; medical surrogacy

Statement of purpose:  This bill proposes to create a medical surrogacy system to allow substitute decision-makers for persons found to lack capacity to make their own medical decisions.


It is hereby enacted by the General Assembly of the State of Vermont:


The general assembly finds:

(1)  18 V.S.A. § 9700 recognizes the fundamental right of an adult to determine the extent of health care the individual will receive, including treatment provided during periods of incapacity and at the end of life.

(2)  The Institute of Medicine’s “Crossing the Quality Chasm” series states that one of the six aims of high quality health care is that it be

“patient-centered,” which is defined as “providing care that is respectful of and responsive to individual patient preferences, needs, and values and ensuring that patient values guide all clinical decisions.”

(3)  The Institute of Medicine’s aims for health care have been adopted in both the state health resource allocation plan created pursuant to 18 V.S.A.

§ 9405 and the health care reform law in 3 V.S.A. § 2222a.

(4)  The Institute of Medicine and other national bodies have stated that the capacity to make medical decisions is a factor that is not predicated upon the absence or presence of a mental illness.

(5)  Vermont’s policies on parity between mental health services and other health care, as set forth in 8 V.S.A. § 4089b, the state health plan, and the state health resource allocation plan all dictate that the same standards be applied in all situations requiring a medical decision to be made for another person as a result of that person’s lack of capacity to give informed consent, regardless of the reason for the lack of capacity.

(6)  The United States Court of Appeals for the Second Circuit has held that it is a violation of the Americans with Disabilities Act to apply separate standards in circumstances in which the state creates a process for medical decision-making after loss of capacity.

(7)  Current law addresses substituted decision-making in ways that differ depending upon the route by which the substitute consent is accepted and the nature of the loss of capacity, and should be consistent in the ways substitute consent is permitted and in the protection of the rights of persons who lack capacity to consent to treatment.

Sec. 2.  18 V.S.A. chapter 79 is added to read:



(a)  Definitions.  As used in this section:

(1)  “Assent” means express or implied willingness to undergo treatment or medical procedures despite a lack of capacity to make medical decisions.  Assent may be presumed if a person is not conscious or otherwise physically able to express any opinion.

(2)  “Augmentation strategies” means supportive measures, not including medical procedures, that can enable a person with limitations on capacity to gain the capacity to make an informed medical decision.  Such strategies may include treatment to stabilize a condition limiting capacity, special assistance in reviewing and understanding the information necessary for informed consent, or use of an advance directive agent or guardian to coach the patient in decision-making or other cognitive skills.

(3)  “Capacity” means the ability to make an informed decision and includes:

(A)  Understanding, or the ability to comprehend relevant facts;

(B)  Appreciation, or the ability to apply the facts of a situation to onself;

(C)  Reasoning, or the ability to arrive at a decision through the ability to compare, to make judgments about probability, and to think about the consequences of potential actions; and

(D)  The ability to evidence a choice.

(4)  “Dissent” means an expressed objection to undergoing treatment or medical procedures despite the lack of capacity to make a medical decision.

(5)  “Emergency care” means medical treatment or procedures which, if not provided or begun within 24 hours, are likely to result in death or severe, long-term impairment of health.  Care shall not be considered to be emergency care if the consequences can be delayed or prevented through monitoring of the person’s condition at a health care facility.  Care shall not be considered to be emergency care at the point after which initial emergency care has prevented death or severe, long-term impairment of health and after which suspension of treatment would not result in an immediate return to a need for emergency care.

(6)  “Medical procedure” means any health care intervention that routinely requires informed consent or that is likely to cause an irreversible outcome, including:

(A)  Use of psychiatric medications or medications that alter cognitive brain processes, unless the effect has a duration of fewer than 24 hours;

(B)  Electroconvulsive therapy;

(C)  Amputation of a limb or any portion thereof;

(D)  Organ transplant;

(E)  End-of-life care;

(F)  Abortion; or

(G)  Sterilization.

(7)  “Person” means an individual aged 14 or older, or a child under the age of 14 if the child’s parent or guardian lacks the capacity to consent on behalf of the child.

(8)  “Treatment” means nonintrusive, routine medical care that does not generally require procedure-specific consent by the patient.

(9)  “Urgent care” means treatment or medical procedures which, if not provided or begun within one week, are likely to result in long-term negative health consequences for the person.

(b)  General provisions.

(1)  Notwithstanding other provisions of law, no person shall have his or her liberty restricted for the purpose of medical treatment or procedures, with the exception of emergency care, unless a court of competent jurisdiction determines, upon a hearing held pursuant to section 7510 of this title, there is probable cause to believe that the individual is a person in need of treatment.

(2)  A person with capacity shall have the exclusive right to consent to medical treatment or medical procedures unless such person has relinquished that right pursuant to section 9707 of this title.

(3)  A person without capacity who is already under a court-appointed medical guardianship or in the custody of the state may receive medical treatment without such person’s consent if such treatment is approved by the person’s guardian or custodian unless otherwise specified in subsection (e) of this section.

(c)  Findings of capacity.

(1)  A person shall be presumed to have capacity unless there is specific evidence that would lead a reasonable person to believe that an impairment of capacity exists sufficient to make the person unable to provide informed consent.  If evidence of lack of capacity exists, treatment may not be provided except with further evaluation of capacity under this section, unless otherwise permitted through an advance directive, under the emergency provisions of this section, or under the consent of a guardian or custodian with medical

decision-making authority.  Medical diagnosis alone shall not be considered evidence of lack of capacity.  A person who is unconscious or physically unable to communicate a medical decision shall be presumed to lack capacity without further evaluation.

(2)  Evaluation of capacity shall be made by a medical doctor who is not the patient’s treating physician and who has clinical training in the assessment of capacity.  If the evaluating physician finds that the person has limitations of capacity but that augmentation strategies might enable the person to provide informed consent, such augmentation strategies shall be attempted before a finding of lack of capacity may be made.

(3)  Within one week of a new finding of lack of capacity, but in no event later than a hearing to approve substituted consent in a situation in which there is dissent to an urgent medical procedure, the evaluating physician shall document the diagnosed cause of the lack of capacity and a medical opinion as to whether future capacity is likely to be further diminished, be restored, remain unchanged, or fluctuate.  Any process under which substitution of medical decision-making is authorized shall include a plan for regular review of the need to reevaluate capacity.

(d)  Substitution of decision-making authority.

(1)  Consent to medical treatment or procedures for a person found to lack capacity, including routine care except as authorized under subdivision (b)(3) of this section, may be provided by the following parties, in order of priority:

(A)  An agent appointed under an advance directive pursuant to chapter 231 of this title.

(B)  A guardian appointed pursuant to chapter 111 of Title 14, unless the person is in the custody of the state at the time he or she is found to lack capacity.  A guardian with authority to make medical decisions shall not be appointed after a person has been placed in state custody.

(C)  The commissioner or designee of the department with custody of the person, if the person is in the custody of a state agency.

(D)  A substituted decision-maker recognized under common law and subject to the policies and procedures established at a health care facility for treatment or procedures at such facility, as long as the lack of capacity is directly related to a specific medical event that was the cause of the lack of capacity and is expected to be of a duration no longer than the specific medical event, not to exceed one month.  If the medical event is one that is likely to recur, authority under this subdivision (D) shall not be allowed for a recurrence unless such recurrence happens within one month or less of the initial occurrence.  This subdivision (D) shall not apply if a person has an agent, guardian, or custodian under subdivision (A), (B), or (C) of this subdivision (1), unless such agent, guardian, or custodian is not available within a medically prudent time frame reasonable for making a consent decision.

(2)  A person who is physically capable of doing so shall be given the opportunity to assent to a medical procedure.  Lack of assent shall not be interpreted as dissent.

(3)  During periods of incapacity, the decisions by the substitute decision-maker shall be based on the express instructions, wishes, or beliefs of the incapacitated person, to the extent those can be determined.  The person’s medical record shall include a record of the basis for a finding of incapacity, the name of the person who gave substituted consent on behalf of the patient, the assent of the patient, if provided, and the process of review of dissent, if applicable.

(e)  Dissent by persons lacking capacity for informed consent.

(1)  Notwithstanding subsections (b), (c), and (d) of this section and despite the lack of capacity to make a medical decision, when a person dissents to a medical procedure, a judicial review shall occur, and such review shall provide a due process opportunity to challenge the proposed procedure.

(2)  If a person without capacity dissents to nonemergency medical treatment, the substitute decision-maker shall meet with the person within 24 hours of the dissent to verify whether the treatment reflects what the person would have wanted, and the treating physician shall record that finding in the medical record along with the substituted decision-maker’s written consent or withdrawal of consent to authorize continued treatment.  Unless there is evidence that a person’s capacity has returned, the decision-maker shall not be required to reassess the person for the same course of care more often than monthly.

(3)  If a person without capacity dissents to a nonemergency medical procedure, substituted consent may occur only after the review and approval of a court of competent jurisdiction.  A hearing shall be scheduled in accordance with the degree of medical urgency.  The person shall be entitled to legal counsel appointed by the court and shall have the right to be present.

(4)  In order to approve substituted consent for a medical procedure, the court must find by clear and convincing evidence that:

(A)  the person lacks capacity;

(B)  the treatment or procedure is medically necessary;

(C)  the benefits of the treatment or procedure outweigh its risks; and

(D)  the person would have consented to the procedure but for the lack of capacity to consent.

(5)  If no evidence is presented to the contrary other than the dissent itself, and there are at least two medical witnesses establishing the requirements of subdivision (4)(A), (B), and (C) of this subsection, a court may find that the person would have consented but for the lack of capacity to consent.

(f)  Emergency or urgent care of a person without capacity who dissents to a medical procedure.

(1)  Notwithstanding the provisions of subsection (e) of this section, in situations of emergency care, a substitute decision-maker may provide consent for medical procedures, despite the dissent of the person, without judicial approval.

(2)  Notwithstanding the provisions of subdivision (e)(4) of this section, urgent medical procedures may be provided with the consent of the substitute decision-maker, despite the dissent of the person, without final judicial approval, if:

(A)  a court of competent jurisdiction finds probable cause that the conditions of subdivision (e)(4) of this section will be met when or if a full hearing is conducted;

(B)  the court finds by a preponderance of the evidence that an urgent situation exists; and

(C)  a full hearing is scheduled within one week of the interim approval of substitute decision-making, if the procedure constitutes an ongoing course of treatment, and the person continues to dissent to the procedure.

(3)  A hearing on substituted consent may be postponed beyond one week, but not beyond one month, only upon the motion of the person’s counsel and with the assent of the person dissenting to the procedure.

Sec. 2.  REPEAL

18 V.S.A. §§ 7624 through 7629, inclusive, are repealed.

Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont