34-12C-1      Definition of terms.
34-12C-2      Conditions authorizing health care decision by another--Determination by physician.
34-12C-3      Absence of power of attorney or appointed guardian--Consent by others--Disqualification--Delegation of authority--Wishes of incapacitated person--Recommendation of physician.
34-12C-4      Court-ordered health care--Conditions.
34-12C-5      Petition for authority to make health care decision--Filing in circuit court--Contents--Notice--Court-ordered investigation.
34-12C-6      Rights of authorized person as incapacitated person.
34-12C-7      Liability of health care provider--Liability of authorized decision maker .
34-12C-8      Scope of chapter.
34-12C-9      Insertion of urinary catheter into patient under age sixteen without consent of parent or guardian prohibited.

34-12C-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Attending physician," the physician who has primary responsibility for the treatment and care of the patient;

(2)    "Durable power of attorney for health care," an instrument executed pursuant to § 59-7-2.1 that authorizes its attorney in fact to make a health care decision or to consent to health care on behalf of its principal;

(3)    "Health care," any care, treatment, service, or procedure to maintain, diagnose, or treat a person's physical or mental condition. The term also includes admission to, and personal and custodial care provided by, a licensed health care facility as defined in § 34-12-1.1;

(4)    "Health care decision," the determination of the health care to be provided to a person;

(5)    "Health care provider," any licensed health care facility and any person, corporation, or organization licensed, certified, or otherwise authorized or permitted by law to administer health care, and any physician licensed pursuant to chapter 36-4;

(6)    "Incapacitated person," any person who is incapable of giving informed consent to health care;

(7)    "Person available to consent," any person who is authorized to make a health care decision for an incapacitated person and whose existence is known to the health care provider and who, in the good faith judgment of the health care provider, is reasonably available for consultation and is willing and competent to make an informed health care decision;

(8)    "Close friend," any adult who has provided significant care and exhibited concern for the patient, and has maintained regular contact with the patient so as to be familiar with the patient's activities, health, and religious or moral beliefs.

Source: SL 1990, ch 222, § 1; SL 2007, ch 192, § 1.

34-12C-2. Conditions authorizing health care decision by another--Determination by physician.

A health care decision by another is authorized under this chapter for an adult person who is incapable of giving informed consent to health care. A person is incapable of giving informed consent to health care if:

(1)    A guardian has been appointed for him or he has otherwise been adjudged legally incompetent;

(2)    A limited guardian has been appointed for him and the order of limited guardianship authorizes the limited guardian to make health care decisions on his behalf;

(3)    It has been so determined by the circuit court as provided in § 34-12C-4; or

(4)    It has been so determined in good faith by his attending physician, acting either alone or in consultation with another physician.

A determination by the attending physician that a person is incapable of giving informed consent is effective until there is a subsequent determination, either by the attending physician, or by the circuit court, that the person is either capable of giving informed consent or that the diagnosis upon which the determination of incapacity was based is no longer valid. The attending physician may decline to make a determination as to either a person's capacity or incapacity to give informed consent and a health care provider may, but need not, rely on any such determination.

Any determination by an attending physician shall be in writing, shall be signed by the attending physician and shall be made a part of the person's medical record.

Source: SL 1990, ch 222, § 2; SL 1993, ch 213, § 223.

34-12C-3. Absence of power of attorney or appointed guardian--Consent by others--Disqualification--Delegation of authority--Wishes of incapacitated person--Recommendation of physician.

In the absence of a durable power of attorney for health care or the appointment of a guardian of the person, or if neither the attorney in fact nor guardian is available to consent, a health care decision for an incapacitated person may be made by the following persons or members of the incapacitated person's family who are available to consent, in the order stated:

(1)    The spouse, if not legally separated;

(2)    An adult child;

(3)    A parent;

(4)    An adult sibling;

(5)    A grandparent or an adult grandchild;

(6)    An adult aunt or uncle, adult cousin, or an adult niece or nephew;

(7)    Close friend.

However, any person may, before a judicial adjudication of incompetence or incapacity, disqualify any member of the person's family from making a health care decision for the person. The disqualification shall appear in a document signed by the person or may be made by a notation in the person's medical record, if made at the person's direction.

Any member of the incapacitated person's family may delegate the authority to make a health care decision to another family member in the same or succeeding class. The delegation shall be signed and may specify conditions on the authority delegated.

Any person authorized to make a health care decision for an incapacitated person shall be guided by the express wishes of the incapacitated person, if known, and shall otherwise act in good faith, in the incapacitated person's best interest, and may not arbitrarily refuse consent. Whenever making any health care decision for the incapacitated person, the person available to consent shall consider the recommendation of the attending physician, the decision the incapacitated person would have made if the incapacitated person then had decisional capacity, if known, and the decision that would be in the best interest of the incapacitated person.

Source: SL 1990, ch 222, § 3; SL 2007, ch 192, § 2.

34-12C-4. Court-ordered health care--Conditions.

If the circuit court finds that a health care decision is required for a person and that the person is incapable of giving informed consent to health care, the circuit court may order health care, direct a health care decision, determine who is authorized to make the decision, appoint its own representative to make the decision, or order any other appropriate relief.

However, the circuit court may act only if it makes a further finding that:

(1)    There is no person available to consent; or

(2)    There are two or more persons in the same class available to consent and their decision is not unanimous; or

(3)    The person seeking to make the health care decision is not authorized to do so, is not reasonably available, is not able to make an informed decision, lacks capacity, or is not acting as required by § 34-12C-3; or

(4)    The health care provider has declined to follow the direction of a person authorized to make the health care decision; or

(5)    There are other substantial reasons for the circuit court's intervention; and

(6)    The relief granted is not inconsistent with the incapacitated person's express wishes, if known, and is otherwise in his best interest.

Source: SL 1990, ch 222, § 4.

34-12C-5. Petition for authority to make health care decision--Filing in circuit court--Contents--Notice--Court-ordered investigation.

A petition pursuant to § 34-12C-4 may be filed by the incapacitated or alleged incapacitated person, by any person who is, or who might be, authorized to make a health care decision for him pursuant to § 34-12C-3, by a health care provider or by any other interested person. Any petition shall be filed in the circuit court where the incapacitated or alleged incapacitated person either resides or is present for purposes of receiving health care.

The petition shall state, or set forth by affidavit, medical records or other evidence attached thereto, all of the following so far as known to the petitioner:

(1)    The nature of the physical or mental condition which requires treatment;

(2)    The recommended course of treatment and its predictable or probable outcome;

(3)    The available alternatives, if any, to the recommended course of treatment;

(4)    The efforts made to obtain informed consent if the petition requests that the circuit court make a determination that an alleged incapacitated person is incapable of giving an informed consent; and

(5)    Such other matters as may be necessary or appropriate for the specific relief requested.

Reasonable notice of time and place of hearing on the petition shall be given to the incapacitated or alleged incapacitated person and to any other person as the court may direct. However, the court may modify or dispense with notice and hearing if it finds that the delay may have a serious adverse effect upon the health of the incapacitated or alleged incapacitated person.

The court may appoint a guardian ad litem to make an investigation, report and recommendation as to the relief requested in the petition, or on any other matters as the court may direct.

Source: SL 1990, ch 222, § 5.

34-12C-6. Rights of authorized person as incapacitated person.

The informed consent of the person authorized under this chapter to make a health care decision shall, for all purposes, be deemed the informed consent of the incapacitated person. The person has the same right as does the incapacitated person to receive information relevant to the proposed health care, and to receive, review, and consent to the disclosure of medical records. Disclosure of information regarding contemplated health care to a person authorized to make a health care decision for an incapacitated person is not a waiver of any evidentiary privilege or of a right to assert confidentiality.

Source: SL 1990, ch 222, § 6.

34-12C-7. Liability of health care provider--Liability of authorized decision maker.

A health care provider acting or declining to act in reliance on a health care decision by a person whom the health care provider believes in good faith is authorized by this chapter to make a health care decision for another is not subject to criminal prosecution, civil liability, or professional disciplinary action on the ground that the person either had or did not have authority, capacity, or sufficient interest to make an informed health care decision or for disclosing to the person medical records or other information.

A health care provider who believes in good faith that a person is incapable of giving informed consent for himself or lacks authority, capacity, or sufficient interest to make an informed health care decision for another is not subject to criminal prosecution, civil liability, or professional disciplinary action for failing to follow that person's direction or for making such determination.

A health care provider who in good faith believes that a person is capable of giving informed consent for his own health care is not subject to criminal prosecution, civil liability, or professional disciplinary action for following that person's direction or for making such determination.

A person who in good faith believes that he is authorized under this chapter to make an informed health care decision for another is not subject to criminal prosecution or civil liability on the ground that he lacked authority or capacity.

Source: SL 1990, ch 222, § 7.

34-12C-8. Scope of chapter.

The provisions of this chapter do not:

(1)    Authorize consent to health care that is prohibited by the law of this state;

(2)    Except as provided in this chapter, affect the law of this state concerning:

(a)    The standard of care of a health care provider;

(b)    When consent is required for health care;

(c)    Notice to others of proposed health care;

(d)    Other authorized methods of consent;

(e)    Health care in an emergency without consent; or

(f)    Informed consent for health care;

(3)    Prevent a person authorized to make a health care decision from consenting to health care administered in good faith pursuant to the religious tenets of the incapacitated adult;

(4)    In any manner limit the powers and discretions that may be granted to an attorney in fact under an instrument executed pursuant to § 59-7-2.1; or

(5)    Require that a guardian of the person be appointed for a incapacitated person before a health care decision can be made;

(6)    Affect the law of abortion or sterilization in this state, nor the law governing the withdrawal or withholding of health care, or of any care, treatment, service, or procedure necessary to prolong or sustain life;

(7)    Affect treatment and care pertaining to mental health at the human services centers and developmental centers.

Source: SL 1990, ch 222, § 8.

34-12C-9. Insertion of urinary catheter into patient under age sixteen without consent of parent or guardian prohibited.

Notwithstanding any other provision of law a health care provider or any other person authorized to insert a urinary catheter may not insert a catheter into a patient under the age of sixteen without the verbal or written consent of the child's parent or guardian unless it is a medical emergency or a medical necessity.

Source: SL 2018, ch 202, § 1.