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 6000.1013 - Individuals who are not competent and who do not have end-stage medical conditions or are not permanently unconscious

Current through Register Vol. 54, No. 28, July 13, 2024
(a) If an individual is not competent to make
						a particular nonemergent health care decision, another person must make that
						decision on the individual's behalf.
(b) 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.
(c) When a surrogate health care decision
						maker is needed to make a nonemergent health care decision for an individual
						who neither has an end-stage medical condition nor is permanently unconscious,
						the 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
						the health care decision for the individual. See 20 Pa.C.S. Chapter 54,
						Subchapter C (relating to health care agents and representatives).
(2)
Guardian of the individual's
						person.
(i) If, under Pennsylvania's
						guardianship statute (20 Pa.C.S. Chapter 55 (relating to incapacitated
						persons)), a court has already appointed a guardian to make health care
						decisions on the individual's behalf, the guardian should make those 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 health care 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. See
						20 Pa.C.S. §
															5460(a) (relating to
						relation of health care agent to court-appointed guardian and other
						agents).
(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 decisions, an available
						and willing health care representative should make the health care
						decision.
(ii) In descending order
						of priority, the following persons 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. See 20 Pa.C.S. Chapter
						54, Subchapter C.
(4)
Facility director.
(i) In the absence of any other appointed
						decision maker or willing next of kin, the facility director becomes the health
						care decision maker under the MH/MR Act.
(ii) Under the MH/MR Act, the director of a
						facility may, with the advice of two physicians not employed by the facility,
						determine when elective surgery should be performed upon any mentally disabled
						person admitted or committed to the facility when the person does not have a
						living parent, spouse, issue, next of kin or legal guardian as fully and to the
						same effect as if the director had been appointed guardian and had applied to
						and received the approval of an appropriate court therefor.
(iii) Section 417(c) of the MH/MR Act
						(50
						P.S. §
															4417(c))
						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.
(iv) The facility
						director may authorize elective surgery and other treatment only with the
						advice of two physicians not employed by the facility.
(v) When the facility director becomes the
						surrogate health care decision maker for an individual who does not have an
						end-stage medical condition or is not permanently unconscious, the director
						should 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.
(vi) The facility director should be informed
						of the decision to be made and gather information based on the direct knowledge
						of those familiar with the individual.
(vii) In this manner, the facility director
						will have sufficient information to make the decision that the individual would
						make if able to do so.
(viii) 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.
(ix) In the event of a
						short-term absence of the facility director, the director may assign a designee
						to perform these functions.
(x) The
						assigned designee may only be a person authorized to perform the facility
						director's functions in the director's absence.
(xi) The facility director may not authorize
						a DNR order for a person who is not competent and does not have an end-stage
						medical condition.