Treatment Decisions for Incapacitated Adults – Questions #3 and #4
Test your knowledge about treatment decisions. This concludes our 4-question series. The same parameters apply to each of the questions.
Parameters: Dealing with adult patients (vs. minors) who lack capacity to consent to medical treatment. In other than an emergency situation. California law (Constitution and statutes) applies.
#3: Liability for Following Decisions by Agent
__ True or __ False: The California statutes protect a hospital or doctor from civil and criminal liability for good faith reliance on the decisions of an agent appointed in an Advance Health Care Directive or Power of Attorney for Health Care.
#4: Liability for Following Decisions by Family Members
__ True or __ False: California court cases indicate that, when no other legally authorized decision maker is available, a hospital or doctor is protected from civil and criminal liability for good faith reliance on the decisions of family members.
Answers and discussion (below):
#3 is True. See California Probate Code §4740.
#4 is False. The court decisions (Cobbs v. Grant, Barber v. Superior Court) indicate that liability can be minimized if relying on close relatives who are guided by the patient’s wishes or (if unknown) the patient’s best interests. The California Hospital Association recommends not relying on relatives if any of these apply: (a) relative’s capacity or motives are questionable, (b) substantial question that patient would make same decision or (c) another close relative objects.
Conclusions? If at all possible, name an agent to make care decisions for you under an Advance Health Care Directive or Power of Attorney for Health Care. Without such a document or other formal authority, you cannot assume that a doctor or hospital will listen to your relatives (even if you want them to).
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