[4653 Double Effect]

Effective July 1, 2000 California has enacted the Health Care Decisions Law: This Law has been incorporated into the California Probate Code.  The following summaries and extracts from the Code are of particular relevance to health-care providers:

1) ADULTS have the right to control decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

2) MEDICAL TREATMENT that artificially prolongs life “beyond natural limits”, thus prolonging the dying process, may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.

3) DECISIONS regarding withdrawing or withholding life-sustaining treatment should normally (that is, “in the absence of controversy”) be made without the assistance of the court.

4650.  The Legislature finds the following: 

      (a) In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

      (b) Modern medical technology has made possible the artificial prolongation of human life beyond natural limits.  In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person. 

      (c) In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment.

4) A PATIENT’S decision to withdraw or withhold life-sustaining treatment is NOT the same as suicide, and the health care provider who carries out the patient’s wishes is not guilty of “mercy killing, assisted suicide, or euthanasia”.  

4653.  Nothing in this division shall be construed to condone, authorize, or approve mercy killing, assisted suicide, or euthanasia.
     This division is not intended to permit any affirmative or deliberate act or omission to end life other than withholding or withdrawing health care pursuant to an advance health care directive, by a surrogate, or as otherwise provided, so as to permit the natural process of dying.

4656.  Death resulting from withholding or withdrawing health care in accordance with this division does not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.

5) ADULTS may execute a Durable Power of Attorney for Health Care in which they designate an agent to make health-decisions on their behalf: this person then “has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health care information.” The agent is to act in accordance with the patient’s wishes and best interests. In making health-care decisions for the patient the agent has priority over all other persons (including the patient’s family).

The Durable Power of Attorney for Health Care may also include the patient’s health care instructions.  This document is valid in California even if it was executed in another state; and a copy of this document has the same effect as the original, which must normally be signed by the patient and be either signed by two witnesses or notarized. It remains in effect until revoked.

4660.  A copy of a written advance health care directive, revocation of an advance directive, or designation or disqualification of a surrogate has the same effect as the original.

4670.  An adult having capacity may give an individual health care instruction.  The individual instruction may be oral or written.  The individual instruction may be limited to take effect only if a specified condition arises.

4671.  (a) An adult having capacity may execute a power of attorney for health care, as provided in Article 2 (commencing with Section 4680).  The power of attorney for health care may authorize the agent to make health care decisions and may also include individual health care instructions.

      (b) The principal in a power of attorney for health care may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment.

4672.  (a) A written advance health care directive may include the individual’s nomination of a conservator of the person or estate or both, or a guardian of the person or estate or both, for consideration by the court if protective proceedings for the individual’s person or estate are thereafter commenced. 

      (b) If the protective proceedings are conservatorship proceedings in this state, the nomination has the effect provided in Section 1810 and the court shall give effect to the most recent writing executed in accordance with Section 1810, whether or not the writing is a written advance health care directive.

4673.  A written advance health care directive is legally sufficient if all of the following requirements are satisfied: 

      (a) The advance directive contains the date of its execution.

      (b) The advance directive is signed either (1) by the patient or (2) in the patient’s name by another adult in the patient’s presence and at the patient’s direction.

      (c) The advance directive is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Sections 4674 and 4675.

4676.  (a) A written advance health care directive or similar instrument executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction or of this state, is valid and enforceable in this state to the same extent as a written advance directive validly executed in this state. 

      (b) In the absence of knowledge to the contrary, a physician or other health care provider may presume that a written advance health care directive or similar instrument, whether executed in another state or jurisdiction or in this state, is valid.

4678.  Unless otherwise specified in an advance health care directive, a person then authorized to make health care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health care information.

4684.  An agent shall make a health care decision in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent.  Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest.  In determining the principal’s best interest, the agent shall consider the principal’s personal values to the extent known to the agent.

4685.  Unless the power of attorney for health care provides otherwise, the agent designated in the power of attorney who is known to the health care provider to be reasonably available and willing to make health care decisions has priority over any other person in making health care decisions for the principal.

4686.  Unless the power of attorney for health care provides a time of termination, the authority of the agent is exercisable notwithstanding any lapse of time since execution of the power of attorney.

 6) Unless they are related to the patient, health-care providers involved in the patient’s care may NOT serve as the patient’s surrogate decision-maker.

4659.  (a) Except as provided in subdivision (b), none of the following persons may make health care decisions as an agent under a power of attorney for health care or a surrogate under this division:

(1) The supervising health care provider or an employee of the health care institution where the patient is receiving care. 

(2) An operator or employee of a community care facility or residential care facility where the patient is receiving care. 

(b) The prohibition in subdivision (a) does not apply to the following persons: 

                (1) An employee who is related to the patient by blood, marriage, or adoption. 

(2) An employee who is employed by the same health care institution, community care facility, or residential care facility for the elderly as the patient.

(c) A conservator under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) may not be designated as an agent or surrogate to make health care decisions by the conservatee, unless all of the following are satisfied:

          (1) The advance health care directive is otherwise valid.

          (2) The conservatee is represented by legal counsel.

          (3) The lawyer representing the conservatee signs a certificate stating in substance: “I am a lawyer authorized to practice law in the state where this advance health care directive was executed, and the principal or patient was my client at the time this advance directive was executed.  I have advised my client concerning his or her rights in connection with this advance directive and the applicable law and the consequences of signing or not signing this advance directive, and my client, after being so advised, has executed this advance directive.”

7) PATIENTS are presumed to have the capacity to make health-care decisions and to appoint or disqualify surrogate decision-makers: the determination that they lack or have recovered capacity is normally made by their physician.

4657.  A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate.  This presumption is a presumption affecting the burden of proof.

4658.  Unless otherwise specified in a written advance health care directive, for the purposes of this division, a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual health care instruction or the authority of an agent or surrogate, shall be made by the primary physician.

8) PATIENTS cannot oblige health-care providers to offer treatment  “contrary to generally accepted health care standards”.

4654.  This division does not authorize or require a health care provider or health care institution to provide health care contrary to generally accepted health care standards applicable to the health care provider or health care institution.

9) A HEALTH care provider may decline to comply with an individual health care instruction or health care decision for reasons of conscience or because the instructions are contrary to the policy of the institution.

4734. (a) A health care provider may decline to comply with an individual health care instruction or health care decision for reasons of conscience.

         (b) A health care institution may decline to comply with an individual health care instruction or health care decision if the instruction or decision is contrary to a policy of the institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health care decisions for the patient.

4735.  A health care provider or health care institution may decline to comply with an individual health care instruction or health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.

10) PHYSICIANS or institutions that decline to comply with advance directives must inform patients or surrogates and make efforts to transfer care to another provider

4736.  A health care provider or health care institution that declines to comply with an individual health care instruction or health care decision shall do all of the following:

    (a) Promptly so inform the patient, if possible, and any person then authorized to make health care decisions for the patient.

    (b) Unless the patient or person then authorized to make health care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision.

    (c) Provide continuing care to the patient until a transfer can be accomplished or until it appears that a transfer cannot be accomplished.  In all cases, appropriate pain relief and other palliative care shall be continued.

This Webpage was created for a workshop held at Saint Andrew's Abbey, Valyermo, California in 1990....x....  ’ “”.