Blurred image of a patient in critical condition in the ICU ward.

“An Act Improving Medical Decision Making:” An Argument in Favor of MA House Bill 3388 and Senate Bill 843

By Beatrice Brown

On September 10, 2019, the Joint Committee on Judiciary at the Massachusetts State House heard testimony regarding House Bill 3388 and Senate Bill 843, “An Act Improving Medical Decision Making.” The Massachusetts Medical Society (MMS) was among those testifying in favor of the act. As noted by MMS, Massachusetts is one of only five states in the U.S. that does not have a default surrogate consent statute for incapacitated patients without a health care proxy. The intent of a default surrogate consent statute is “to provide legal authority for health care decision-making through a non-judicial rule of law where no guardian or agent had been appointed.”

Without such a statute in place, this means that a patient who is incapacitated and has not declared a health care proxy must await treatment while a guardian is appointed by the courts. This may be a lengthy, time-consuming process that physically drains hospitals’ resources and emotionally drains families. By contrast, these default surrogate consent statutes establish a list of surrogates that can be appointed by physicians to make decisions in lieu of the incapacitated patient. For example, in the Massachusetts bills, the following persons are listed as candidates who may be appointed as surrogates: the person’s spouse, unless legally separated; the person’s adult child; the person’s parent; the person’s adult sibling; and any other adult who satisfies the requirement of subdivision seven of the bill which states, “The person’s surrogate shall be an adult who has exhibited special care and concern for the person, who is familiar with the person’s personal values, who is reasonably available, and who is willing to serve.”

Importantly, there are patient protections in place in these default surrogate consent statutes that limit the types of decisions that these default surrogates can make without being appointed as medical guardian by a court. For example, as noted by MMS in their support of the Massachusetts bills, default surrogates cannot make “extraordinary decisions,” which are those deemed by Massachusetts law to be of the “highest severity.” Such protections exist to preserve patient autonomy and bodily integrity despite a lack of capacity.

Given the demonstrable need for having a mechanism to alleviate the suffering of patients and their families and to reduce unnecessary drain on limited hospital resources, as well as the fact that there are patient protections in place, it seems clear that the Massachusetts bills should be passed. Passing these bills would affirm patient autonomy despite a lack of capacity. As noted by MMS, a patient’s right to make decisions regarding their own health care “survives a patient’s loss of decisional capacity.” To not have a default surrogate consent statute interferes with the patient’s autonomy insofar as their access to proper medical care may be delayed or their wishes regarding their own medical treatment may not be known until a medical guardian is appointed by the courts.

Furthermore, there are clearly cases where default surrogates are needed. For example, take a young, healthy woman who has a horrific accident, leaving her with a traumatic brain injury and with a lack of capacity to provide informed consent (such as in the famous case of Karen Ann Quinlan). Very few young adults have advanced directives or have appointed a health care proxy – advanced care planning is not something that young adults in this country do or are even aware of. Without a default surrogate consent statute in place, the avenue that must be pursued for a surrogate decision-maker is appointment of a medical guardian by a court. However, with a default surrogate consent statute in place, this young woman’s mother or father, for instance, can serve as her surrogate decision-maker without needing recourse to the courts.

Unless advanced care planning across the country improves to the point where most patients’ wishes regarding medical treatment are documented (such as in the form of an advance directive or a medical order on life-sustaining treatment [MOLST]) or most patients have designated a legal health care proxy, default surrogate consent statutes are necessary to ensure that efficient care is provided to incapacitated patients in a manner that respects their autonomy. For this reason, I support the Massachusetts bills that have been put forward to establish a default surrogate consent statute.


Beatrice Brown

Beatrice (Bea) Brown is a Research Assistant for the Program On Regulation, Therapeutics, and Law (PORTAL) within the Division of Pharmacoepidemiology and Pharmacoeconomics at Brigham and Women's Hospital. She received her Master of Bioethics (MBE) from Harvard Medical School in 2020 and her BA in Ethics, Politics, & Economics from Yale University in 2019. During the 2019-2020 academic year, Bea was a Petrie-Flom Student Fellow and wrote a research paper proposing a new argument for a constitutional right to physician-assisted death by redefining what it means to heal.

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