Pennsylvania Code › Title 55 - HUMAN SERVICES › Part VIII - Intellectual Disability and Autism Manual › Subpart A - Statements of Policy › Chapter 6000 - STATEMENTS OF POLICY › Subchapter R - PROCEDURES FOR SURROGATE HEALTH CARE DECISION MAKING › HEALTH CARE DECISION MAKING › Section 6000.1014 - Individuals who are not competent and who have either end-stage medical conditions or are permanently unconscious

Current through Register Vol. 54, No. 28, July 13, 2024
(a) Under Act 169, when a guardian, health
						care agent or health care representative will be making the decision, the
						attending physician determines whether an individual has an end stage medical
						condition or is permanently unconscious.
(b) In contrast, the MH/MR Act, which applies
						to health care decisions by facility directors, requires the advice of two
						physicians for recommended treatment of health care conditions, including end
						stage medical conditions.
(c) When
						a surrogate health care decision maker is needed to make a nonemergent health
						care decision for an individual who has an end-stage medical condition or is
						permanently unconscious and who has not executed a valid living will that
						governs the decision, the surrogate health care decision maker should be chosen
						in the following order:
(1)
Health
						care agent.
If the individual, while competent, has executed a valid
						advance health care directive that designates a health care agent and the
						health care agent is available and willing to make the decision, the health
						care agent should make health care decisions for the individual.
(2)
Guardian of the individual's
						person.
(i) If, under Pennsylvania's
						guardianship statute, a court has already appointed a guardian of the person to
						make health care decisions on the individual's behalf, the guardian should make
						the decisions for the individual.
(ii) If a person who executed a valid health
						care power of attorney is later adjudicated an incapacitated person and a
						guardian of the person is appointed by the court to make medical decisions, the
						health care agent named in the health care power of attorney is accountable to
						both the guardian and the individual.
(iii) The guardian has the same power to
						revoke or amend the appointment of a health care agent as the individual would
						have if he were not incapacitated, but may not revoke or amend the instructions
						in an advance health care directive absent judicial authorization.
(3)
Health care
						representative.
(i) In the absence
						of a health care agent designated under a valid advance health care directive
						or a court-appointed guardian of the person with authority to make health care
						decisions, an available and willing health care representative should make the
						health care decision.
(ii) In
						descending order of priority, the following individuals can act as health care
						representatives for individuals:
(A) A person
						chosen by the individual (in a signed writing or by informing the individual's
						attending physician) while the individual was of sound mind.
(B) The individual's spouse (unless a divorce
						action is pending).
(C) The
						individual's adult child.
(D) The
						individual's parent.
(E) The
						individual's adult brother or sister.
(F) The individual's adult
						grandchild.
(G) An adult who has
						knowledge of the individual's preferences and values.
(4)
Facility
						director.
(i) In the absence of any
						other appointed decision maker or willing next of kin, the facility director in
						his discretion becomes the surrogate health care decision maker under section
						417(c) of the MH/MR Act.
(ii)
						Section 417(c) of the MH/MR Act specifies that the facility director may
						authorize elective surgery, but the Department has consistently interpreted
						that section to recognize that the facility director's authority also
						encompasses health care decisions generally.
(iii) The facility director may authorize
						elective surgery and other treatment only with the advice of two physicians not
						employed by the facility.
(iv) When
						the facility director becomes the surrogate health care decision maker for an
						individual who has an end-stage medical condition or is permanently
						unconscious, the director shall first review the individual's support plan and
						relevant medical history and records to help identify the individual's medical
						status historically and immediately prior to making a surrogate health care
						decision.
(v) The facility director
						must be informed of the decision to be made and gather information based on the
						direct knowledge of those familiar with the individual.
(vi) In this manner, the facility director
						will have sufficient information to make the decision that the individual would
						make if able to do so.
(vii) For a
						decision to withdraw treatment or life-sustaining care for a person who is not
						competent who has an end-stage medical condition or is permanently unconscious,
						the Department recommends a facility director seek judicial authorization prior
						to the withdrawal of treatment or life-sustaining care due to a risk of
						conflict of interest claims.
(viii)
						For a DNR order for a person who is not competent who has an end-stage medical
						condition or is permanently unconscious, the Department recommends a facility
						director seek judicial authorization prior to requesting the issuance of a DNR
						order due to a risk of conflict of interest claims.
(ix) Pending the judicial authorization under
						subparagraphs (vii) and (viii), the Department recommends a facility director
						direct that treatment or life-sustaining care be continued for a person who is
						not competent who has an end-stage medical condition or is permanently
						unconscious.
(x) Even when another
						surrogate health care decision maker is identified, the facility director
						should continue to monitor the situation to ensure that decisions are made with
						the best interest of the individual as the paramount concern.
(xi) In the event of a short-term absence of
						the facility director, the director may assign a designee to perform these
						functions.
(xii) The assigned
						designee may only be a person authorized to perform the facility director's
						functions in the director's absence.