(a)A health care provider, health care facility, and residential care facility shall not provide health care to a patient without capacity, except on an emergency basis, without first attempting to determine whether the patient has an advance directive in effect.
(b)A health care provider, health care facility, and residential care facility having knowledge that a principal’s advance directive is in effect shall follow the instructions of the person, whether agent or guardian, who has the authority to make health care decisions for the principal, or the instructions contained in the advance directive, unless:
(1)the instruction is clearly inconsistent with the advance directive or this chapter, and:
(A)the agent has failed to substantiate that the decision is proper under subsection 97
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(a) A health care provider, health care facility, and residential care facility shall not provide health care to a patient without capacity, except on an emergency basis, without first attempting to determine whether the patient has an advance directive in effect.
(b) A health care provider, health care facility, and residential care facility having knowledge that a principal’s advance directive is in effect shall follow the instructions of the person, whether agent or guardian, who has the authority to make health care decisions for the principal, or the instructions contained in the advance directive, unless:
(1) the instruction is clearly inconsistent with the advance directive or this chapter, and:
(A) the agent has failed to substantiate that the decision is proper under subsection 9711(d) of this title; or
(B) the guardian has not obtained an order from the Probate Division of the Superior Court authorizing the instruction;
(2) the instruction would cause the provider to violate any criminal law or the standards of professional conduct required by a professional licensing Board or Agency, in which case the provider shall make reasonable efforts to notify the principal, if possible, and any agent and guardian that the provider cannot follow the instruction; or
(3) because of a moral, ethical, or other conflict with an instruction in the advance directive or given by the agent or guardian, a principal’s provider, or an employee thereof is unwilling to follow that instruction, in which case the provider shall promptly:
(A) inform the principal, if possible, and any appointed agent and guardian of the conflict;
(B) assist the principal, agent, or guardian in the transfer of care to another provider or employee who is willing to honor the instruction;
(C) provide ongoing health care until a new provider or employee has been found to provide the services; and
(D) document in the principal’s medical record the conflict, the steps taken to resolve the conflict, and the resolution of the conflict.
(c) A health care provider, health care facility, or residential care facility which refuses pursuant to subdivision (b)(1) or (2) of this section to follow the instructions of the agent or the guardian or the instructions contained in the advance directive shall:
(1) inform the principal, if possible, and any agent, guardian, or other person making health care decisions for the person of the reasons for the refusal;
(2) document in the principal’s medical record the refusal, the reasons for the refusal, who was notified of the refusal, and any other steps taken to resolve the refusal.
(d) An employee with a conflict under subdivision (b)(3) of this section shall be required only to inform the employee’s employer. The employer shall be responsible for otherwise complying with the requirements of that subdivision.
(e) Unless otherwise required by the advance directive, in those circumstances where there is more than one adult identified as the agent, the principal’s clinician, health care provider, or residential care provider may rely on the decision of one of the identified agents as long as the clinician or provider documents in the principal’s medical record that the agent confirms that:
(1) all agents agree on the pending health care decision;
(2) all agents agree that this agent can make any pending health care decisions; or
(3) the other agent or agents are not reasonably available.
(f) The health care provider shall make reasonable efforts to inform the principal of any proposed health care or of any proposal to withhold or withdraw health care.
(g)(1) Health care shall not be given to or withheld from a principal over the principal’s objection unless:
(A)(i) the principal’s advance directive contains a provision, executed in compliance with subsection (h) of this section, which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity; and
(ii) the agent authorizes providing or withholding the health care; or
(B) the principal lacks capacity, will suffer serious and irreversible bodily injury or death if the health care cannot be provided within 24 hours, and:
(i) the principal does not have an agent or an applicable provision in an advance directive, or the agent is not reasonably available; or
(ii) the agent or advance directive authorizes providing or withholding the health care.
(2) The health care provider shall notify the agent or guardian if a principal requests or declines health care which the agent appears to have the authority to authorize or withhold under the principal’s advance directive.
(h)(1) An advance directive executed in accordance with section 9703 of this title may contain a provision permitting the agent, in the event that the principal lacks capacity, to authorize or withhold health care over the principal’s objection. In order to be valid, the provision shall comply with the following requirements:
(A) An agent shall be named in the provision.
(B) The agent shall accept in writing the responsibility of authorizing or withholding health care over the principal’s objection in the event the principal lacks capacity.
(C) A clinician for the principal shall sign the provision and affirm that the principal appeared to understand the benefits, risks, and alternatives to the health care being authorized or rejected by the principal in the provision.
(D)(i) An ombudsman, a mental health patient representative, attorney licensed to practice law in this State, or the Probate Division of the Superior Court designee shall sign a statement affirming that the individual has explained the nature and effect of the provision to the principal, and that the principal appeared to understand the explanation and be free from duress or undue influence.
(ii) If the principal is a patient in a hospital when the provision is executed, the ombudsman, mental health patient representative, attorney, or Probate Division of the Superior Court designee shall be independent of the hospital and not an interested individual.
(E) The provision shall specify the treatments to which it applies and shall include an explicit statement that the principal desires or does not desire the proposed treatments even over the principal’s objection at the time treatment is being offered or withheld. The provision may include a statement expressly granting to the health care agent the authority to consent to the principal’s voluntary hospitalization.
(F) The provision shall include an acknowledgment that the principal is knowingly and voluntarily waiving the right to refuse or receive treatment at a time of incapacity, and that the principal understands that a clinician will determine capacity.
(2) A provision executed in compliance with subdivision (1) of this subsection shall be effective when the principal’s clinician and a second clinician have determined pursuant to subdivision 9706(a)(1) of this title that the principal lacks capacity.
(3) If an advance directive contains a provision executed in compliance with this section:
(A) The agent may, in the event the principal lacks capacity, make health care decisions over the principal’s objection, provided that the decisions are made in compliance with subsection 9711(d) of this title.
(B) A clinician shall follow instructions of the agent authorizing or withholding health care over the principal’s objection.
(4)(A) The first time a principal executes a provision under this subsection (h):
(i) the principal’s clinician shall be physically present in the same location as the principal to assess the principal’s understanding of the benefits, risks, and alternatives to the health care being authorized or rejected in the provision in accordance with subdivision (1)(C) of this subsection (h); and
(ii) the individual explaining the nature and effect of the provision in accordance with subdivision (1)(D) of this subsection (h) shall be physically present in the same location as the principal at the time of the explanation.
(B) If a principal later amends a provision executed under this subsection (h) by executing a new advance directive pursuant to section 9703 of this title that includes a provision permitting the agent to authorize or withhold health care over the principal’s objection pursuant to this subsection (h), or the principal executes a new advance directive that maintains a provision previously executed under this subsection (h):
(i) the clinician may be physically present in the same location as the principal to assess the principal’s understanding of the benefits, risks, and alternatives to the health care being authorized or rejected in the provision in accordance with subdivision (1)(C) of this subsection (h) or may assess the principal’s understanding based on the clinician’s interactions with the principal through a live, interactive, audio-video connection; and
(ii) the individual explaining the nature and effect of the provision in accordance with subdivision (1)(D) of this subsection (h) may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection.
(C) The clinician and the individual providing the explanation do not need to be physically present at the same time as one another or otherwise coordinate the timing or performance of their respective duties under subdivisions (1)(C) and (D) of this subsection (h).
(5) The agent who is permitted to authorize or withhold health care over the principal’s objection pursuant to this subsection does not need to be physically present for any portion of the principal’s execution of that provision or of the advance directive.
(6) The principal, the agent, the clinician, and the individual who explained the provision under subdivision (1)(D) of this subsection (h), or any one or more of them, may sign the provision, acceptance, or explanation affirmation statement, as applicable, using a digital signature. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2009, No. 154 (Adj. Sess.), § 238a, effective Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 20; 2017, No. 121 (Adj. Sess.), § 2b, eff. May 3, 2018; 2023, No. 88 (Adj. Sess.), § 3, eff. April 1, 2024.)