Posted On Dec 18

Elder Law Section Presentation – Proposed Family Consent Law
Bold-faced type is the captioning of the power-point slides. Commentary immediately follows each section.

Health Care Representative

A health care representative is an adult given authority under this Act to consent to medical treatment for another adult who is unable to provide consent.
* If a statute authorizes a person to provide consent, then may that person also refuse consent? Specifically, to refuse a medical treatment that may or may not allow person to die?  “The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”  Cruzan v. Director of Missouri Dept. Health, 497 U.S. 261, 270 (1990).

General Rule

A health care representative may make a health care decision for an individual who is at least 18 years of age or who is an emancipated minor, so long as the individual’s attending physician has determined that he or she is unable to make health care decisions; the individual does not have a patient advocate designation; and, the individual does not have a guardian with the power to make health care decisions.

* Regarding emancipated minors: MCL 722.4e(1)(g) provides that an emancipated minor has “the right to authorize his or her own preventive health care, medical care, dental care, and mental health care, without parental knowledge or liability.” An emancipated minor is at least 16 years of age and a resident of Michigan, who has petitioned for an obtained an emancipation order from the court after an examination and finding that the minor has demonstrated the ability to manage his or her financial affairs, possesses the ability to manage his or her personal and social affairs, and that emancipation would be in the minor’s best interest. MCL 722.4a. An emancipated minor is treated as an adult but he or she is not an adult.



A health care representative may make medical treatment or care decisions for the individual.

* Specifically states “medical decisions,” but not mental health decisions. We could have written this in for emphasis and perhaps we should also say that the representative cannot make mental health decisions for the individual.

A health care representative is not authorized to withdraw [or withhold] life-sustaining treatment on behalf of an individual.

* The representative cannot withdraw life-sustaining treatment. Optional for withholding medical treatment.

A health care representative shall act in accordance with the standards of care applicable to fiduciaries when making health care decisions for an individual.

* A fiduciary stands in a position of trust and loyalty.

A health care representative shall not exercise a power concerning the individual’s health care if the individual could not have exercised the power on his or her own behalf.

* This limitation is derived from the patient advocate designation statute.

A health care representative’s authority under this act is suspended whenever the individual regains the ability to participate in his or her own healthcare decisions.

* We will add to this language how to determine that the individual has regained their ability to make their own decisions. Also, we need to consider “participate” versus “ability to make” their own healthcare decision.

Who may act as health care representative:Adults

Any adult member of the following classes, in descending order of priority, may act as health care representative:

The spouse, unless legally separated or an action for divorce, annulment, legal separation or for separate maintenance is pending.

* The audience asked about estranged spouses. An estranged spouse is probably no longer “estranged” if they are present to give consent.

Any of the adult children may be the representative.

* We do not require all of the members of the class to agree, nor do we require majority agreement.

 A parent whose right to legal custody of the individual was never terminated by a court order.

* This section is up for revisions and discussion based on the wise feedback of the audience. Only an adult child may have a healthcare representative, so we do not need to specify that only a parent who currently has the legal authority to make healthcare decisions for a child may serve as a healthcare representative.

A brother or sister

* The requirement is any adult brother or sister. Not all members of the class. Not the majority of the members of the class.

A grandchild or grandparent.

* This is the last rung of the priority list. Any grandchild or grandparent or grandchild who is an adult. The issue of persons who are alleged to lack the mental capacity to make a decision for another will arise. This is an issue that we need to address. The last rung is not a friend of the individual because that asks the healthcare facility to determine who is legitimately a friend and who is not legitimately a friend.

An individual with a higher priority who is willing to act as a health care representative may assume the authority to act even though another individual has previously assumed that authority.

* The example that I provided was that of a spouse in the Bahamas who could not be reached. If she returned from her vacation to find her husband at the hospital, then whoever was acting in her absence must step down when she arrives.

A health care provider acting in accordance with the standards of care applicable to the provider’s scope of practice shall not be liable for reliance upon representations made by an individual regarding his or her priority to act as health care representative as defined in this Act.

* The liability protection is the carrot that encourages a provider to make an attempt to apply this statute rather than insist that family obtain letters of authority for guardianship. The provider has limited liability . The provider is protected if he or she accepts consent from a family member who wrongly claimed to have that authority.

If a dispute arises under this act, a petition requesting the court’s determination may be filed with the probate court in the county in which the patient resides or is located.

* We can either limit the petition to asking a probate court to interpret the statute and apply it, or we can specify that if a dispute arises the probate court may require a petition for guardianship.  The answer probably lies more with the facts than with a rule since the court can decide whether this is a one-time dispute or an issue that will be ongoing.

This act does not abrogate any rights granted by a constitution, common law, treaty, statute or any other legally recognized basis.
* The preemption section considered where the individual’s right to consent to medical care is found in the law. It could be a right to privacy, a liberty interest from the 14th Amendment, or a common law doctrine, depending which court is writing the opinion.

End of Proposed Family Consent Statute



1. Can a State require a surrogate to produce clear and convincing evidence of the patient’s wishes?


Cruzan: “An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a “right” must be exercised for her, if at all, by some sort of surrogate.  … Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.”

* The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”

In Cruzan, the Court balanced the individual’s right to their life against that same individual’s right to refuse unwanted medical treatment. Both rights are found in the 14th Amendment Due Process clause. Because a Constitutional interest is at stake, a heightened evidentiary standard may be applied. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Cruzan quoting Addington v. Texas. “This Court has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’” Cruzan quoting Santosky v. Kramer.


2. Can a State require a patient’s wishes to be in a document?


Cruzan: “It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person’s life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. There is no doubt that statutes requiring wills to be in writing, and statutes which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri’s requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can.”

* Missouri rejected the argument that Cruzan’s parents were entitled to order the termination of her medical treatment, concluding that no person could assume that choice for Nancy (1) in the absence of the formalities required by the Missouri Living Will statute or (2) in the absence of clear and convincing evidence of the patient’s wishes.


3. If there is insufficient evidence of the patient’s wishes can a State choose to not accept the decision of a family member?


Cruzan: “Petitioners alternatively contend that Missouri must accept the “substituted judgment” of close family members even in the absence of substantial proof that their views reflect the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., and Parham v. J. R.  But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California’s favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again petitioners would seek to turn a decision, which allowed a State to rely on family decision-making into a constitutional requirement that the State recognize such decision-making. But constitutional law does not work that way.”

* It is acceptable for a state to refuse to accept family consent. The only Constitutional liberty interest at stake here is the right that belongs to the patient. The patient’s family has no Constitutional right to make a decision on behalf of the patient.

Court’s rationale for refusing family consent in Cruzan:

Cruzan: “No doubt is engendered by anything in this record but that Nancy Cruzan’s mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of “substituted judgment” with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling — a feeling not at all ignoble or unworthy, but not entirely disinterested, either — that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient’s wishes lead us to conclude that the State may choose to defer only to those wishes, rather than confide the decision to close family members.”

* The Court’s decision is based on Constitutional law.

“We are not faced in this case with the question whether a State might be required to defer to the decision of a surrogate if competent and probative evidence established that the patient herself had expressed a desire that the decision to terminate life-sustaining treatment be made for her by that individual.”

* However, it would have gone differently if Nancy’s parents had been able to produce clear and convincing evidence of Nancy’s wishes.

Pros of family decision-makers

No one cares more about the person than the family
No one knows the person’s religious beliefs and personal values better than family
Strangers with a political agenda should not be allowed to intervene
Judicial intervention is costly and intrusive

Cons to family decision-making
Dysfunctional families
Family conflicts
Family not always close
Family uncomfortable with making the decision
Family sometimes make very unreasonable decisions

Follow up on Nancy Cruzan

Two months after the High Court ruling, the Cruzans asked Judge Teel for a second hearing to present new evidence from three of their daughter’s co-workers. Miss Cruzan’s co-workers testified that they recalled her saying she would never want to live “like a vegetable.” At the same hearing, Miss Cruzan’s doctor called her existence a “living hell” and recommended removal of the tube. Her court-appointed guardian concurred. Judge Teel then ruled that there was clear evidence of Miss Cruzan’s wishes, and on Dec. 14 gave permission for the feeding tube to be removed. Doctors removed the tube and she died.  Rev. Joseph Foreman, the leader of an Atlanta anti-abortion group who was among a knot of protesters outside the hospital that housed Miss Cruzan, said “I sympathize with the hardship of caring for a helpless woman, but I have no sympathy for a family who solves their problems by starving their daughter to death when there were hundreds of bona fide offers to care for her regardless of her condition,” he said yesterday in a prepared statement. “Even a dog in Missouri can not be legally starved to death.”
Lester and Joyce Cruzan said their daughter died peacefully and apparently without pain.

The American Hospital Association has estimated that 70 percent of all hospital deaths are already negotiated in some way, with the concerned parties privately agreeing not to start, or to withdraw, some form of life-support technology or treatment.

“Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die”
Published: December 27, 1990
New York Times