April 20, 2012

A recent bill introduced in the Missouri General Assembly sets up a priority list of representatives with the legal authority to make medical decisions for a loved one who has been rendered incapable of doing so on his or her own.

Though the intent of House Bill 1087, which is designed to give clarification on issues of consent, is honorable, the bill would bring more unnecessary bureaucratic work than conclusive solutions.

The list intends to quickly and conclusively settle conflicts between family members of the patient, where potentially month-long disagreements about the correct medical decision could ensue, by giving seemingly irremovable power to a successive list of individuals.

The problem here is that if someone disagrees with whoever has the legal authority to make the decision, he or she can appeal to the court to gain guardianship. This takes the situation back to the exact point it started from.

It is also difficult to gauge just how often these disputes concerning a patient’s life occur. When they do undoubtedly happen, they may be severe and warrant a form of conflict resolution, but this bill is not the answer. It only awards consent to one side of the conflict on the basis of a list — consent that can be removed anyway.

Additionally, the list grants first consent to the patient’s court-appointed guardian who would, given no conflicts, make the decision anyway. Yet the rest of the list, which next grants consent to an attorney-in-fact, then a spouse, then a parent or adult child, then an adult or sibling or grandchild, then any other blood relative, is problematic. The bill could strip away the right for family members to make decisions and could make it seem as if the courts are deciding for them.

The bill also does not solve the issue of privacy. As mandated by the Health Insurance Portability and Accountability Act of 1996, a patient must give explicit consent for his or her medical information to be shared with anyone. The conditions of the patient cannot be shared with anyone without the patient’s consent, even if the patient is unable to offer it. If it is forbidden for the patient’s medical information to be shared, how can a court-appointed proxy who has no knowledge of the patient’s background make medical decisions? A healthcare agent is supposed to make decisions based on the patient’s wishes and circumstances, and if that agent doesn’t know the information in its entirety, the decision is unlikely to be the right one.

Representative Bill White, R-District 129, said he sees the bill as a necessary addition to ensure Missourians are protected when unexpected disagreements arise. These arguments are unexpected for a reason, and if our solution was a bill that does nothing to solve these problems anyway and gives more power to the courts to decide what is best for a patient, we’d opt for no bill.