CASEYFRANK

C.R.S. § 15-18.5-101. Legislative declaration - construction of statute.

(1) The general assembly hereby finds, determines, and declares that:

(a) All adult persons have a fundamental right to make their own medical treatment and health care benefit decisions, including decisions regarding medical treatment, artificial nourishment and hydration, and private or public health care benefits;

(b) The lack of decisional capacity to provide informed consent to or refusal of medical treatment should not preclude such decisions from being made on behalf of a person who lacks such decisional capacity and who has no known advance medical directive, or whose wishes are not otherwise known; and

(c) The enactment of legislation to authorize proxy decision-makers to make medical treatment decisions and surrogate decision-makers to make health care benefit decisions on behalf of persons lacking the decisional capacity to provide informed consent to or refusal of medical treatment is appropriate.

(2) The general assembly does not intend to encourage or discourage any particular medical treatment or to interfere with or affect any method of religious or spiritual healing otherwise permitted by law.

(3) Nothing in this article shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this article be construed as permitting any affirmative or deliberate act to end a person's life, except to permit natural death as provided by this article.

Source: L. 92: Entire article added, p. 1984, § 3, effective June 4. L. 2006: (1)(a) and (1)(c) amended, p. 841, § 3, effective May 4.

C.R.S. § 15-18.5-102. Definitions applicable to medical durable power of attorney - applicability.

(1) The definitions set forth in section 15-14-505 shall apply to the provisions of this article.

(2) The provisions of sections 15-14-506 to 15-14-509 shall apply to this article. In addition, proxy decision-makers, surrogate decision-makers for health care benefits, health care providers, and health care facilities shall be subject to the provisions of this article.

Source: L. 92: Entire article added, p. 1985, § 3, effective June 4. L. 2006: (2) amended, p. 841, § 4, effective May 4.

C.R.S. § 15-18.5-103. Proxy decision-makers for medical treatment authorized.

(1) A health care provider or health care facility may rely, in good faith, upon the medical treatment decision of a proxy decision-maker selected in accordance with subsection (4) of this section if an adult patient's attending physician determines that such patient lacks the decisional capacity to provide informed consent to or refusal of medical treatment and no guardian with medical decision-making authority, agent appointed in a medical durable power of attorney, person with the right to act as a proxy decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title, or other known person has the legal authority to provide such consent or refusal on the patient's behalf.

(2) The determination that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment may be made by a court or the attending physician, and the determination shall be documented in such patient's medical record. The determination may also be made by an advanced practice nurse who has collaborated about the patient with a licensed physician either in person, by telephone, or electronically. The advanced practice nurse shall document in the patient's record the name of the physician with whom the advanced practice nurse collaborated. The attending physician shall make specific findings regarding the cause, nature, and projected duration of the patient's lack of decisional capacity, which findings shall be included in the patient's medical record.

(3) Upon a determination that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment, the attending physician, the advanced practice nurse, or such physician's or nurse's designee, shall make reasonable efforts to notify the patient of the patient's lack of decisional capacity. In addition, the attending physician, or such physician's designee, shall make reasonable efforts to locate as many interested persons as defined in this subsection (3) as practicable and the attending physician or advanced practice nurse may rely on such individuals to notify other family members or interested persons. For the purposes of this section, "interested persons" means the patient's spouse, either parent of the patient, any adult child, sibling, or grandchild of the patient, or any close friend of the patient. Upon locating an interested person, the attending physician, advanced practice nurse, or such physician's or nurse's designee, shall inform such person of the patient's lack of decisional capacity and that a proxy decision-maker should be selected for the patient.

(4) (a) It shall be the responsibility of the interested persons specified in subsection (3) of this section to make reasonable efforts to reach a consensus as to whom among them shall make medical treatment decisions on behalf of the patient. The person selected to act as the patient's proxy decision-maker should be the person who has a close relationship with the patient and who is most likely to be currently informed of the patient's wishes regarding medical treatment decisions. If any of the interested persons specified in subsection (3) of this section disagrees with the selection or the decision of the proxy decision-maker or, if, after reasonable efforts, the interested persons specified in subsection (3) of this section are unable to reach a consensus as to who should act as the proxy decision-maker, then any of the interested persons specified in subsection (3) of this section may seek guardianship of the patient by initiating guardianship proceedings pursuant to part 3 of article 14 of this title. Only said persons may initiate such proceedings with regard to the patient.

(b) Nothing in this section shall be construed to preclude any interested person described in subsection (3) of this section from initiating a guardianship proceeding pursuant to part 3 of article 14 of this title for any reason any time after said persons have conformed with paragraph (a) of this subsection (4).

(5) When an attending physician determines that an adult patient lacks decisional capacity, the attending physician or another health care provider shall make reasonable efforts to advise the patient of such determination, of the identity of the proxy decision-maker, and of the patient's right to object, pursuant to section 15-14-506 (4) (a).

(6) Artificial nourishment and hydration may be withheld or withdrawn from a patient upon a decision of a proxy only when the attending physician and a second independent physician trained in neurology or neurosurgery certify in the patient's medical record that the provision or continuation of artificial nourishment or hydration is merely prolonging the act of dying and is unlikely to result in the restoration of the patient to independent neurological functioning.

(6.5) The assistance of a health care facility's medical ethics committee shall be provided upon the request of a proxy decision-maker or any other interested person specified in subsection (3) of this section whenever the proxy decision-maker is considering or has made a decision to withhold or withdraw medical treatment. If there is no medical ethics committee for a health care facility, such facility may provide an outside referral for such assistance or consultation.

(7) If any of the interested persons specified in subsection (3) of this section or the guardian or the attending physician believes the patient has regained decisional capacity, then the attending physician shall reexamine the patient and determine whether or not the patient has regained such decisional capacity and shall enter the decision and the basis therefore into the patient's medical record and shall notify the patient, the proxy decision-maker, and the person who initiated the redetermination of decisional capacity.

(8) Except for a court acting on its own motion, no governmental entity, including the state department of human services and the county departments of social services, may petition the court as an interested person pursuant to part 3 of article 14 of this title. In addition, nothing in this article shall be construed to authorize the county director of any county department of social services, or designee of such director, to petition the court pursuant to section 26-3.1-104, C.R.S., in regard to any patient subject to the provisions of this article.

(9) Any attending physician, health care provider, or health care facility that makes reasonable attempts to locate and communicate with a proxy decision-maker shall not be subject to civil or criminal liability or regulatory sanction therefor.

Source: L. 92: Entire article added, p. 1985, § 3, effective June 4. L. 94: (8) amended, p. 2647, § 115, effective July 1. L. 2008: (2) and (3) amended, p. 125, § 5, effective January 1, 2009. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 446, § 13, effective July 1. L. 2010: (1) amended, (SB 10-199), ch. 374, p. 1753, § 20, effective July 1.

Editor's note: (1) Section 25 of chapter 374, Session Laws of Colorado 2010, provides that the act amending subsection (1):

(a) Applies to governing instruments executed by decedents who die on or after July 1, 2010; and any proceeding in court then pending or thereafter commenced regardless of the time of death of the decedent except to the extent that, in the opinion of the court, the former statute should be made applicable in a particular case in the interest of justice or because of infeasibility of application of a provision of the act; and

(b) Does not apply to an action performed before July 1, 2010, in any proceeding; an accrued right; a right that is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 2010; or a provision of a governing instrument that was executed before July 1, 2010, and includes a clear indication of a contrary intent.

Cross references: For the legislative declaration contained in the 1994 act amending subsection (8), see section 1 of chapter 345, Session Laws of Colorado 1994.

ANNOTATION

Decision to agree to arbitrate is not a "medical treatment decision" and as such not within the authority of a health care proxy. There exists a distinction between an agreement to provide medical services, including an agreement to admit a patient to a health care facility, and an agreement to arbitrate a health care dispute. Lujan v. Life Care Ctrs. of Am., 222 P.3d 970 (Colo. App. 2009).

Subsection (8) does not preclude a governmental entity acting as a guardian from executing a cardiopulmonary resuscitation directive. People ex rel. Yeager, 93 P.3d 589 (Colo. App. 2004).

C.R.S. § 15-18.5-104. Surrogate decision-makers for health care benefits.

(1) A proxy decision-maker for medical treatment selected in accordance with section 15-18.5-103 or a person with the right to act as a surrogate decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title shall have authority to make health care benefit decisions on behalf of an adult patient and may be known additionally as a surrogate decision-maker for health care benefits.

(2) A court or the attending physician may make the determination that a person lacks the decisional capacity to make health care benefit decisions. The determination shall be documented in such patient's medical record. The determination may also be made by an advanced practice nurse who has collaborated about the patient with a licensed physician either in person, by telephone, or electronically. The advanced practice nurse shall document in the patient's record the name of the physician with whom the advanced practice nurse collaborated. The attending physician or nurse shall make specific findings regarding the cause, nature, and projected duration of the person's lack of decisional capacity regarding health care benefit decisions. Such determination and findings shall be documented in the person's medical record.

(3) Upon a determination that an adult patient lacks decisional capacity to make health care benefit decisions, the attending physician, advanced practice nurse, or the physician's or nurse's designee shall make reasonable efforts to notify the patient of the patient's lack of decisional capacity. In addition, the attending physician or advanced practice nurse or the physician's or nurse's designee shall make reasonable efforts to locate as many interested persons as defined in this subsection (3) as practicable, and the attending physician or advanced practice nurse may rely on such individuals to notify other family members or interested persons. For the purposes of this section, "interested persons" means the patient's spouse; either parent of the patient; any adult child, sibling, or grandchild of the patient; or any close friend of the patient. Upon locating an interested person, the attending physician or advanced practice nurse or the physician's or nurse's designee shall inform such person of the patient's lack of decisional capacity and determine whether such interested person is available, willing, and has the capability to act as a surrogate decision-maker for health care benefits for the patient.

(4) If a proxy decision-maker for medical treatment or an interested person, as defined in subsection (3) of this section, is unavailable, unwilling, or does not have the capability to make a health care benefit decision on behalf of a person lacking the decisional capacity to make a health care benefit decision pursuant to this section, then the attending physician or his or her designee may appoint a surrogate decision-maker for health care benefits as described in subsection (5) of this section.

(5) The surrogate decision-maker for health care benefits appointed by an attending physician or his or her designee may be a private individual or an individual acting on behalf of an organization, including an employee of the organization, willing to voluntarily assume the fiduciary responsibility to make health care benefit decisions in the best interests of the person who lacks the decisional capacity to make health care benefit decisions. The appointed surrogate decision-maker for health care benefits shall be free of conflicts specified in subsection (9) of this section.

(6) Community and charitable organizations may provide volunteers or employees to serve as surrogate decision-makers for health care benefits. The division of insurance, established in section 10-1-103, C.R.S., shall be available to provide assistance to surrogate decision-makers for health care benefits regarding medicare benefits. A physician or his or her designee may contact nonprofit entities that serve the elderly or disability communities for assistance in locating an appropriate surrogate decision-maker for health care benefits.

(7) After a physician or his or her designee locates an individual willing to act as the surrogate decision-maker for health care benefits pursuant to subsection (3) of this section, the physician shall certify the appointment in writing on the form set forth in section 15-18.5-105.

(8) If the surrogate decision-maker for health care benefits, a proxy decision-maker for medical treatment, an interested person, the person's guardian, or the attending physician believes the patient has regained decisional capacity, then the attending physician shall reexamine the patient and determine whether or not the patient has regained such decisional capacity and shall enter the decision and the basis therefor into the patient's medical record and shall notify the patient, the surrogate decision-maker for health care benefits, and the person who initiated the redetermination of decisional capacity.

(9) A surrogate decision-maker for health care benefits may not be an employee, a contractor, or an official representative of, or receive any remuneration of any kind from, a health care provider, medical benefit provider, pharmaceutical company, pharmacy benefit management company, pharmacy, or any person or entity engaged in the sale of insurance.

(10) A surrogate decision-maker for health care benefits shall have access to all necessary information, including but not limited to:

(a) Personal health information as defined by the federal "Health Insurance Portability and Accountability Act of 1996", 42 U.S.C. sec. 1320d-7 (a) (2); and

(b) Financial information needed to make appropriate health care benefit decisions; except that any bank, trust company, savings and loan association, credit union, or insurance company regulated under any laws of this state or the United States and any officer, employee, agent, or affiliate of any of the foregoing entities shall be exempt from any requirement to provide financial information to a surrogate decision-maker under the provisions of this section.

(11) A surrogate decision-maker for health care benefits shall make decisions that are in the best interests of the person on whose behalf the decisions are made.

(12) Any entity, including a financial entity, that relies in good faith on a certificate of appointment of a surrogate decision-maker for health care benefits received directly from the attending physician or his or her designee shall be immune from liability for actions taken on the basis of said certificate.

(13) A surrogate decision-maker for health care benefits shall be immune from liability for decisions made in good faith.

(14) An attending physician, health care provider, or health care facility that acts in substantial compliance with this section shall not be subject to civil or criminal liability or regulatory sanction relating to the selection or actions of a surrogate decision-maker for health care benefits.

(15) Nothing in this section shall be construed as requiring a surrogate decision-maker for health care benefits to make a decision or from prohibiting an individual from consulting another person or entity to obtain assistance in making a health care benefit decision.

Source: L. 2006: Entire section added, p. 841, § 5, effective May 4. L. 2008: (2) and (3) amended, p. 125, § 6, effective January 1, 2009. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 446, § 14, effective July 1. L. 2010: (1) amended, (SB 10-199), ch. 374, p. 1754, § 21, effective July 1.

Editor's note: (1) Section 25 of chapter 374, Session Laws of Colorado 2010, provides that the act amending subsection (1):

(a) Applies to governing instruments executed by decedents who die on or after July 1, 2010; and any proceeding in court then pending or thereafter commenced regardless of the time of death of the decedent except to the extent that, in the opinion of the court, the former statute should be made applicable in a particular case in the interest of justice or because of infeasibility of application of a provision of the act; and

(b) Does not apply to an action performed before July 1, 2010, in any proceeding; an accrued right; a right that is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 2010; or a provision of a governing instrument that was executed before July 1, 2010, and includes a clear indication of a contrary intent.

ANNOTATION

Decision to agree to arbitrate is not a "medical treatment decision" and as such not within the authority of a health care proxy. There exists a distinction between an agreement to provide medical services, including an agreement to admit a patient to a health care facility, and an agreement to arbitrate a health care dispute. Lujan v. Life Care Ctrs. of Am., 222 P.3d 970 (Colo. App. 2009).