To Be or Not To Be in Tennessee: Deciding Surrogate Issues

Wampler, Andrew T

No! I am not Prince Hamlet, nor was meant to be;

Am an attendant lord, one that will do

To swell a progress, start a scene or two,

Advise the prince; no doubt, an easy tool,

Deferential, glad to be of use,

Politic, cautious, and meticulous;

Full of high sentence, but a bit obtuse;

At times, indeed, almost ridiculous

Almost, at times, the Fool.

- "The Love Song of J. Alfred Prufrock," T.S. Eliot1

I. THE ISSUE OF SURROGATE SELECTION

Tennessee law is clear that an individual may choose or refuse a course of medical treatment.2 More generally, it is long-standing tradition that any competent adult citizen should have complete autonomy over his own decision-making regardless of the consequence.3 The principle of autonomy provides that "individual persons are each, separately, of moral significance, worthy of respect, the bearers of basic rights and freedoms, and hence the final arbiters-subject to very limited constraints-of their own fates."4

The law, however, is often not clear about who should make medical decisions when a patient becomes unable to decide or even, more basically, at what precise point one no longer possesses the ability to decide.5 Generally, a surrogate is selected to step into the shoes of the patient. Until recently, however, there have been few legal guidelines for selecting surrogate decision-makers in Tennessee. Although advance directives are becoming more common as individuals seek to make their desires about their health care known while they are competent, countless people do not make such provisions while they are able to do so. With the increased use of the judiciary and huge advances made in lifesustaining medical treatments,6 the need for clarity in making decisions for incompetent medical patients becomes more critical.

As in many areas of the law, the Tennessee legislature allowed the field to remain open, leaving only common law principles to guide courts in making determinations regarding surrogate decision-making.7 Enacted statutes have very limited application. Further, little case law even mentions surrogate decision-making, much less elucidates any helpful standards for those facing the issue in hospitals and nursing homes. The Medical Malpractice Act references informed consent,8 providing the standard by which a patient must prove lack of informed consent. However, the statutes of the Medical Malpractice Act are far from comprehensive and offer no assistance in deciding issues involving consent for those who do not have the capacity to offer it. Administrative rules placed into effect by the Tennessee Department of Health in July 2003(9) may serve to provide direction for most surrogate decision-making issues,10 but the regulations only became necessary because the legislature failed to act. In February 2003, however, Tennessee legislators proposed bills to enact a version of the Uniform Health-Care Decisions Act (UHCDA).11 The bills passed first reading but were subsequently tabled until the 2004 legislative session.12

This article discusses various issues involved in making a medical decision on behalf of legally incompetent individuals in Tennessee. The article also argues for the need for comprehensive legislation in Tennessee regarding surrogate decision-making to provide guidance for health care providers and families when making decisions regarding an incompetent patient's care in the absence of a valid executed advance directive. In Part II of this article, the problems associated with making medical decisions on behalf of incapacitated individuals are illustrated. Parts III and IV discuss the various principles involved in making a medical decision and methods that are presently available for an individual to make an advance medical decision. Issues regarding individual autonomy and determination of competence required for making medical decisions are discussed in Part V. In Part VI, case law in Tennessee and other jurisdictions regarding making a medical decision on another's behalf is examined. Finally, Parts VII and VIII address legislation concerning surrogate decision-making and the public policy behind such statutory enactments.

II. THE PROBLEM OF MEDICAL DECISION-MAKING WITHOUT SURROGATE PROCEDURES

Every day, individuals become incapacitated for one reason or another. Some incapacitations are the result of automobile accidents or other unfortunate occurrences. In some instances, a person may have suffered a stroke, while other incapacitations associated with diseases or medical conditions may develop over a longer period. Regardless of the source of incapacitation, all too often, people do not formally express to others how decisions regarding their health care should be made. Additionally, individuals may fail to appoint others to make medical decisions for them before they become legally incompetent. As the following hypothetical situation illustrates, individuals can, and do, become incapacitated without taking the proper measures, leaving loved ones as well as health care providers to make difficult decisions.

Jane Doe (Doe), a thirty-year-old Tennessee mother of two minor children is involved in an automobile accident. After a prolonged extraction, emergency medical technicians take her to a local hospital on a trauma alert. Thanks to quick response and skillful medical assistance, she survives. After receiving stabilizing treatment, the hospital places her in the intensive care unit. Doe remains unconscious and, due to her injuries, must be placed on a ventilator.

Physically, Doe makes great strides. She remains in a coma, however, with a poor long-term prognosis. Doe has no advance directive, and her wishes regarding health care are not known. She continues to make physical progress and is moved to her own room, but she remains on life-support machinery. Six months later, she still has not regained consciousness and is sent to a rehabilitation center. Consulting neurologists do not give her family any hope that she will regain consciousness. She is then moved to a convalescent home but cannot be weaned from the ventilator.

Doe's family situation causes problems because disagreement exists over whether care should continue. The lifetime care benefit limits on her health insurance have been reached. The family dynamic creates difficulty regarding who should make such a decision. One complicating factor is that the Doe's two minor children cannot decide. Although the ex-husband spends time with Doe, the two are no longer married. Doe's parents are deceased, but she does have two surviving grandmothers, both of whom live in the area. Doe has three siblings. Doe also has two aunts, one of whom is her mother's sister-in-law. Doe is closer to one of these aunts than any other relative. Additionally, Doe has one close friend.

The medical prognosis is that Doe suffered severe brain damage and will remain in a constant vegetative state. Administrators are faced with deciding which person should decide Doe's course of care. Medical bills continue to accumulate. The administrators decide to leave Doe on life support because they think by doing so, they are less likely to be sued.

Who should decide? Should the administrator, who must be legitimately concerned about the bottom-line and lawsuits? Or should the decision rest with the ex-husband, with blood relatives, or with non-blood relatives with whom Doe maintained close relationships? The hypothetical illustrates a common situation and the many complexities that may arise. Despite the fact that other states have established surrogate decision-making structures, Tennessee law has given the administrators and family members no guidance until recently.

Similar issues arise in widely variant situations.13 Health care professionals face a variety of circumstances involving patient incapacitation arising from age or injury, and, unfortunately, most individuals fail to plan for such a medical event. The only Tennessee statutes providing for surrogate decision-making involve individuals with developmental disabilities; thus the coverage of such statutes is narrow.14 Until the recently-adopted administrative regulations and the proposal of enactment of the UHCDA, the topic of surrogate decision-making was mostly void from Tennessee law.

III. MAKING A MEDICAL DECISION

A. Basic Principles of Informed Consent

There are numerous legal considerations that must be taken into account when one is making a medical decision. The basis of any health care related decision is that the individual making the decision has been properly informed about the treatment or procedure about which they must decide to accept or refuse. The question of what constitutes a requisite level of informed consent becomes more difficult to answer when an individual must receive emergency care or an individual is legally incompetent such as instances involving minors or those who are mentally disabled. This Part discusses the principle of informed consent and its application in both ordinary and extraordinary circumstances.

The initial inquiry for choosing a surrogate involves examining the requirements for making a decision that is valid under the law. To make a legally sufficient medical decision in Tennessee, one must have adequate information and must provide informed consent to treatment.15 Although informed consent is an issue that may not be litigated on a daily basis in state courts, it is an issue that is considered and wrestled with every day throughout Tennessee by doctors, hospital staff and administrators, family members, and individuals. A number of issues involving informed consent are currently matters of considerable debate and controversy.

Health care providers and patients alike have become increasingly aware of the important role of informed consent. Most, if not all, facilities and physicians now utilize standardized forms detailing that the patient is aware of the purpose, procedure, and risks of a treatment and commemorating the patient's consent. Regardless of these efforts to inform them, many patients remain frighteningly unaware of the circumstances and determinations that surround their medical treatment.

At its most basic, informed consent "has two partsf:] informing and consenting. The physician does the former, the patient, the latter."16 As a general rule, a physician has a duty to instruct a patient in a manner sufficient to allow the patient to make an informed decision whether to accept or reject medical treatment.17 This duty is described by a legal term of artinformed consent-which is "[a] person's agreement to allow something to happen [(such as surgery)], made with full knowledge of the risks involved and the alternatives."18 In other words:

Consent is not the sort of thing that one can carry in one's pocket to an operating room and hand it to a surgeon . . . . Consent is not a physical object; it is an act of the will-and therefore not a piece of paper that is, at best, evidence that the act took place. [Such] evidence can be misleading."

The principle concerns a patient's right to decide what will happen to his body and to understand and make voluntary decisions regarding his medical care.20 Informed consent requires a dialogue between physician and patient that ultimately leads to enough knowledge to make a decision. The gap in expertise and information between a doctor and a layperson necessitates conversation and explanation. Even with informed consent, problems remain. As one writer stated, "The trouble with informed consent is that it is not educated consent."21 While a few commentators point to shortcomings and problems with requiring informed consent, most agree that the effort is worthwhile and that patients should have autonomy in deciding matters concerning their health care.22 One important aspect of consent is that not all medical decisions are made on medical grounds alone; in fact, those decisions are intensely personal and are colored by the life experience and situation of the one making the decision-the patient.

In Tennessee, a physician generally must disclose "the nature of the patient's ailment; the nature of and the reasons for the treatment or procedure; the risks involved with such treatment or procedure; whether such procedure is experimental; alternative methods of treatment along with the risks and benefits associated with it; and the patient's prospects for success."23 Physicians also possess a duty to disclose certain pertinent facts that are not necessarily medical in nature and may not involve the patient specifically.24 For example, a surgeon must inform a patient of a condition affecting the physician's hands before the disclosed information would be adequate for informed consent to undergo surgery.25 The Tennessee Court of Appeals stated that "[i]nformed consent is part and parcel of the surgical experience[;]"26 thus, it must encompass the entire "experience." The sufficiency and scope of the requisite disclosures depends on the circumstances surrounding an individual's care such as the nature of a proposed treatment, the patient's condition, and the standard of care.27 The physician is not required to explain all aspects of treatment or all conceivable risks.28

While the physician need not foresee every possible issue for a particular patient, informed consent requires significant thought and effort on the part of the health care professional.29 The physician must consider, among others, these questions:

(1) How much understanding must the patient achieve?

(2) What is the patient's background information on which to build that understanding?

(3) What will it cost in time and effort to achieve that understanding?

(4) What are the psychological barriers to understanding?

(5) Does the patient want the information?

(6) What is the likelihood that the information will harm the patient either directly or by impeding the processes of recovery?

(7) How much of what the patient could be made to understand is necessary for a reasonable level of informedness in the actual circumstances?

(8) What portion of the information, if any, must the patient be made to understand independently of the patient's desire for information?

(9) How much of the physician's skepticism about the relevant information should be revealed to the patient? . . .

(10) When and how should the information be provided? [and]

. . . .

(11) Is the consent voluntary, or is it the result of coercion or undue influence?10

Several Tennessee cases have recently addressed issues involving the adequacy of informed consent.31 According to the Tennessee Supreme Court, the standard for determining the sufficiency of the provided information is objective.32 This application of an objective standard is supported by the Restatement (Second) of Torts.? Under this standard, the failure by a physician to disclose significant, inherent risks of the proposed procedure is, however, not a direct cause of the injury suffered by the patient unless a reasonably prudent person would not have consented to the treatment if informed of those risks.34 The patient's own assertions about whether the patient would have consented are not controlling, but are relevant.35 The objective standard can fluctuate depending on personal characteristics such as medical condition, age, religious convictions, and idiosyncrasies.36 Sometimes the circumstances of a particular patient's life might warrant the making of a decision that would not be dictated if only science were taken into account.37

Physicians and facilities often employ written consent forms, and forms become important because of a presumption that arises in Tennessee.38 The general rule is that a person who signs a document, after having had a chance to read it, is bound by it.39 Similarly, this presumption applies in the informed consent context, except when a person's decision-making ability is compromised due to lack of capacity, misrepresentation, or forgery.40 When a patient asserts that a health care professional failed to explain adequately the pertinent risks or effects of treatment, the issue of informed consent arises."" Lack of informed consent is a cause of action for medical malpractice in Tennessee.

From its origins in eighteenth century American law, the field of medical malpractice has grown into its own subset of tort law.42 Approximately twenty-five years ago, Tennessee codified a medical malpractice act that covers a limited number of topics.43 Prior to that time, common law rules governed the patient's rights when receiving medical care. It has generally been the responsibility of the doctor to see that the patient understands enough of the information and circumstances to accept or decline treatment and to ensure that consent has actually been obtained.44

The right to obtain medical information stands as an essential aspect of informed consent. Patients are entitled to receive information from their own medical records, but that information is confidential.45 The persons permitted to access a patient's confidential information include medical caregivers, authorized administrative personnel, individuals designated by the patient, persons authorized by law to make decisions, or an individual with a court order.46 Surrogates recognized by law, including the parent of a minor, a guardian or conservator, an attorney in fact for health care purposes, or a surrogate for entry of a do-not-resuscitate (DNR) order, can obtain the information necessary to make informed decisions.47 On the other hand, third persons cannot obtain confidential information unless given permission by the patient. The implementation of the Health Insurance Portability and Accountability Act (HIPAA) regulations involving patient privacy in April 2003 creates additional access and safeguard issues, particularly as institutions become comfortable applying these standards.48

Once a patient consents to medical treatment, the issue may arise as to whether that consent has been revoked. As discussed below, Tennessee courts require unequivocal revocation of consent. Otherwise, a physician may be faced with liability for a medical battery for performing a procedure when consent is silently revoked, or in the alternative, may face malpractice liability for failure to perform a necessary treatment out of fear of committing a battery. Specifically, as the Tennessee Court of Appeals held in Hartman v. LeCorps,49 withdrawal of informed consent must be clear and unambiguous:

Once consent to treatment has been given it must be unequivocally withdrawn by the patient. After treatment or examination of the patient has begun, the patient's consent previously given may be withdrawn, subjecting the physician to liability for assault and battery if the treatment or examination is continued. However, the withdrawal of consent must be unequivocal, made while the patient is rational, and it must be medically feasible to desist without danger to the patient's health.50

In Hartman, the plaintiff gave explicit consent to the defendant to perform knee surgery.51 Subsequently, in follow-up care, the defendant offered treatment for the surgical wound.52 During this treatment, the plaintiff complained "about the pain involved in the treatment" and asked the "defendant what he was doing."53 The court stated that the patient "did not at any time revoke his consent to have [the] defendant treat his surgical wound."54 The Tennessee court discussed with approval the outcome of a Georgia appellate court case in which a patient protested the administration of a catheter tube which was inserted into her colostomy after the patient had previously given her consent to treatment.55 The Georgia court held that these protests did not validly revoke the patient's consent.56

The Tennessee Court of Appeals adopted a two-element test from the Georgia court whereby a patient may revoke her consent to a treatment.57 The court provided these polices:

Once a patient has given his consent to be treated for a medical condition, the doctor must be able to assume that he has given that consent in regard to follow-up treatment. If the patient is not required to clearly express a revocation of that consent, the doctor is placed in an impossible position. If the doctor does not treat the condition, he will be sued for malpractice. If he does treat the condition and the patient subjectively and silently changes his mind, the doctor will be sued for lack of informed consent.58

The court made clear that a patient cannot silently revoke informed consent during a procedure and cannot subsequently revoke informed consent after a procedure.59

B. Consent in Other Contexts

In Tennessee, consent need not always be explicit. Consent may be implied when exigent circumstances make it impractical to obtain a patient's express consent.60 In that case, the law infers that the individual consents to emergency treatment because the immediate situation demands prompt action.61 An emergency exists when delay in offering care would likely result in a serious threat to the patient's health or a deterioration of the patient's condition.62 The assumption is that a person would desire medical assistance. By necessity, this presumption is based on an objective standard rather than on an individualized subjective standard. However, informed consent cannot be inferred if the patient has previously refused the treatment explicitly.63

The most common scenario for exigent consent involves care provided in an emergency room or at the scene of an accident. While care in an emergency room can require physicians to make immediate decisions without time for deliberation, it often does not. Implied consent, though, is dictated by the particular circumstances, and at times, the situation may lower the applicable standard of care. For example, when a patient receives care after sustaining a serious fall while being treated at the hospital for a minor injury, the sudden emergency doctrine might be applied in determining the fault of an emergency-room physician.64 When a person is confronted with a sudden or unexpected emergency that calls for immediate action, the person may not be expected to exercise the same accuracy of judgment as one who has had time for reflection and thought under normal circumstances.65 Consent and standard of care are separate determinations, and the two distinct concepts should not be confused.

Implied consent may also be proper during a previously authorized surgical procedure when an expansion of the scope of the procedure is warranted. As a general rule, a patient's consent is limited to those procedures that were contemplated when the patient provided consent.66 For instance, if additional surgery is required to correct conditions discovered during a procedure, the surgeon must obtain additional consent prior to correcting those conditions. However, a surgeon is permitted to proceed with additional surgery if the patient has consented to care of a particular condition, rather than to a specific procedure.67 Even when a physician could appropriately extend the scope of the initial procedure, the extension must not create any unreasonable risks and must be related to the initial treatment.68 This "contemplated" treatment standard does not require discussion of a precise procedure.

Children present more complex issues. In most jurisdictions, the law views minors as incompetent to give informed consent.69 Tennessee follows common law principles, usually requiring parental consent for medical treatment.70 In effect, a parent "steps into the shoes" of the minor and can assert the same control over the minor's care as his or her own care. Thus, parents in Tennessee have the right to refuse non-emergency medical treatment of a child.71 If a serious risk exists, however, a parent may not retain absolute control.72 On the other hand, some statutory circumstances exist in which a minor can receive treatment without parental consent such as care for drug dependence,73 emergencies,74 and pregnancy.75

"Mature minors" may make their own decisions. For example, some minors may have the capacity to consent to an abortion.76 The mature minor exception in Tennessee recognizes the long-standing common law "Rule of Sevens."77 While this rule raises presumptions, the assessment of capacity is an individual determination. The Tennessee Supreme Court elucidated the test:

[W]hether a minor has the capacity to consent to medical treatment depends upon the age, ability, experience, education, training, and degree of maturity or judgment obtained by the minor, as well as upon the conduct and demeanor of the minor at the time of the incident involved. Moreover, the totality of the circumstances, the nature of the treatment and its risks or probable consequences, and the minor's ability to appreciate the risks and consequences are to be considered.78

Although this "totality of the circumstances" standard can be useful in a courtroom, it is extremely difficult to apply without virtue of discovery, subpoena power, and an opportunity for cross examination.

Another exception to the general requirement of a parent's consent arises in the case of "emancipated" minors.79 The determination of emancipation is fact-sensitive.80 A person under eighteen can petition a court to remove the disability of minority.81 Emancipation can be by express agreement or can be implied, such as when the parent allows the child to marry or enter the military.82 Once a minor is emancipated by marriage, divorce does not reinstate a guardian's obligations.83

C. Surrogate Consent

In most cases, physicians consult with competent adults who have enough understanding to make personal medical decisions. Adult patients possess an almost absolute right to make medical decisions, even when a serious risk to health exists.84 Patient competence contemplates a patient's ability to understand the risks and alternatives of a medical decision necessary for the patient to make a deliberate choice.85 In most situations, even family members have no legal standing to intervene in the health care of patients.86 Even if a patient lacks competence, a spouse or other relative does not necessarily have the legal right to authorize or refuse treatment unless appointed as a surrogate.87

Options for patients who lack competence include court-appointed legal guardians, conservators, attorneys in fact for health care purposes, or surrogates designated to enter a DNR order. The uncertainty and potential disputes regarding non-appointed family members making decisions increase the importance for individuals to plan by executing living wills88 and durable powers of attorney for health care.89 The UHCDA, an act proposed by the National Conference of Commissioners on Uniform State Laws, seeks to alleviate some of these challenges.90 As previously noted, a version of the UHCDA was introduced in the Tennessee legislature in 2003.91 The uniform act is important because current statutes providing for living wills and durable powers of attorney do not address standards for the appointment of surrogates; thus, existing statutes are insufficient to solve the problem of making medical decisions for incompetent patients who have not executed a valid living will or durable power of attorney.92

There are some situations in which a patient is unable to give consent and no surrogate is available to provide it. That situation dictates legal recognition of some person with the ability to make surrogate decisions for that patient. Physicians sometimes act as surrogates for such patients, or physicians may seek out a third party. This type of situation exemplifies the need for Tennessee legislation that establishes a procedure for identifying a surrogate decision-maker.93

IV. EXISTING PROVISIONS INVOLVING MEDICAL DECISIONS FOR INCOMPETENT PATIENTS

In recent years, the Tennessee legislature has developed several devices that enable patients to provide advance guidance about health care decisions to counteract the serious problem of discerning the wishes of an incompetent patient. These devices, called "advance directives," provide directions about the means and manner of desired health care. The two most common forms of advance directives are living wills and durable powers of attorney. Both are creatures of statutory construction and seek to cover a wide gamut of situations. The statutes also provide the means to establish a conservatorship, which must be accomplished through the court system. Unfortunately, these statutes do not address the issue of who should be appointed as a surrogate in the absence of such an expression in a valid advance directive; however, the present statutes nonetheless provide a useful framework for those who do make their decisions regarding their health care known while they are competent. In the absence of an appointed surrogate and without statutory guidance, it is presently incumbent upon courts in Tennessee to appoint a conservator to make medical decisions for incompetent patients. As discussed below, this process is generally unduly cumbersome and complicated. In certain instances involving incompetent patients, a physician may enter a DNR order stating that resuscitation should be withheld from a patient in instances when resuscitative efforts would be medically futile. DNR orders are also discussed in this Part.

A. Advance Directives

1. Durable Powers of Attorney for Health Care94

A durable power of attorney for health care designates an attorney in fact who is authorized to make health care decisions for an incapacitated patient.95 Such a directive executed outside Tennessee by a nonresident of Tennessee is valid if it complies with the law of Tennessee or the law of the nonresident's state.96 The attorney in fact has priority over all others in health care decisions.97 The scope of the powers possessed by an attorney in fact is governed by the document and can include the authority to make medical decisions even after the principal's death.98 The statute permits the power of attorney to include decision-making regarding the Uniform Anatomical Gift Act, authorizing an autopsy, and directing the disposition of remains.99

To be effective, a durable power of attorney for health care must meet the statutory requirements. First, the document must authorize the attorney in fact to make health care decisions, and it must include a date of execution.100 It must be signed and acknowledged before a notary public and two witnesses.101 Each witness must declare that the person executing the document is of sound mind.102 Restrictions limit who can serve as a witness based on relationships with the patient and the patient's care providers.103

Certain persons may not be designated as an attorney in fact because of their relationship with the principal, such as those providing health care to the individual.104 A person under a conservatorship generally may not designate the conservator as attorney in fact to make health care decisions.105 A conservator can be designated if the power of attorney is otherwise valid, the conservatee is represented by legal counsel, and the legal counsel signs a certificate.106

A patient retains the ability to revoke the power of attorney by notifying the attorney in fact or the health care provider orally or in writing.107 A presumption attaches that an individual has the capacity to revoke a durable power of attorney for health care.108 Thus, one disputing the revocation must prove any lack of capacity. Divorce or annulment automatically eliminates a former spouse as attorney.109

Conceptually, the existence of a living will does not limit the authority of the attorney in fact to make health care decisions because the attorney in fact "stands in the shoes" of the principal, who, if competent, could revoke the living will. Therefore, unless the document granting the power of attorney for health care limits the authority of the attorney in fact, the directions of the attorney in fact control.110 On the other hand, the attorney in fact cannot consent to the withholding of health care necessary to keep the principal alive over the principal's objection, regardless of competence.111 A durable power of attorney for health care does not affect the principles governing treatment for emergencies.112

If a physician cannot in good faith comply with the instruction of an attorney in fact, the physician must make "the prompt and orderly transfer" of the patient to another physician.113 The Tennessee statute protects physicians who act in good faith.114 Pursuant to the statute, a health care provider cannot be "subject to criminal prosecution, civil liability or professional disciplinary action except to the same extent as would be the case if the principal, having had the capacity to give informed consent, had made the health care decision."115 In other words, physicians remain liable for malpractice.

2. Living Wills

A living will, another statutory device available for advance health care planning, may be utilized by individuals to express how they desire their health care to be administered. Specifically, living wills express an individual's desires regarding the withholding or removal of life-sustaining medical care if a physician determines that a patient is terminally ill and the patient is incapacitated to make such a decision. A living will authorizes the withholding or removal of life-sustaining medical care if a physician determines that the patient is terminally ill.116 Tennessee law defines a "living will" as "a written declaration . . . stating [a] declarant's desires for medical care or noncare, including palliative care, and other related matters such as organ donation and body disposal."117 The Tennessee Right to Natural Death Act (Act) declares that Tennesseans have "the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of [their] own medical care, specifically including palliative care and the use of extraordinary procedures and treatment."118 The Act allows the execution of this fundamental and inherent right by an individual's written declaration.119

A living will is effective from the date of its execution until revoked.120 A person may revoke a living will at any time, regardless of competency, by a dated and signed revocation or by oral statement to the attending physician.121 A living will executed outside Tennessee by a non-Tennessee resident is valid in Tennessee if it complies with either Tennessee law or the laws of the patient's state.122 A document that fails to meet the statutory requisites is not an effective living will; however, in some situations, it might serve as a medical consent statement. To allow the withholding of artificially provided nourishment, the document must specifically authorize it.123 A living will must be witnessed by two people who declare that they are not relatives of the patient, entitled by will "to any portion of the estate," attending physicians, employees of the attending physician, employees of the health facility, nor claimants against the estate.124 As provided in the statute, the living will must be a clear, written expression "of intent to accept, refuse, or withdraw medical care."125

A living will does not allow the withholding or removal of care in exigent situations in which the patient's ultimate prognosis is not certain.126 For example, when a patient with terminal cancer arrives at an emergency room in respiratory arrest due to injuries from an automobile accident, an executed living will does not authorize the withholding of care sufficient to stabilize the patient. The arrest in breathing would not constitute a "terminal condition" unless the attending physician decides that no reasonable chance of recovery exists and that the respiratory arrest would likely cause death, even with "treatment implemented for the purpose of sustaining life."127

The withholding or removal of care under the provisions of the Act does not constitute suicide, euthanasia, or homicide.128 Specifically, no physician or health facility complying with reasonable medical standards is subject to criminal or civil liability or a finding of unprofessional conduct for acting pursuant to the Act.129 As with the durable power of attorney, any provider who cannot comply with the actions contemplated by the living will must inform the person responsible for the patient's care.130 The physician may then transfer the patient to the care of another physician who is able to comply with the patient's wishes.131 The Act also provides for declarants to donate their organs and tissue, allowing a physician to maintain the declarant's body on artificial support, after death, to facilitate harvesting.132

B. Additional Means for Deciding the Course of Medical Treatment

1. Conservatorship Provisions

The Tennessee Code provides for the appointment of a conservator for a disabled person.133 This appointment is a legal one and must be made by a court with competent jurisdiction; an action to establish a conservatorship may "be brought in a court exercising probate jurisdiction" and must "be brought in the county of residence of the . . . disabled person."134

Any person with knowledge of the situation creating the need for a conservatorship may file a petition for the appointment of a conservator.135 The petition must be sworn and must contain various identifying, family, and medical information of the disabled person, who becomes the respondent to the filing.136 The petitioner must also describe the alleged disability, "[t]he rights of the respondent to be removed," and the circumstances giving rise to the need for conservatorship.137 Once the petitioner has filed a petition, the respondent retains certain rights regarding the proceedings such as the right to obtain "a hearing on the issue of disability" on demand, the right to present evidence and confront witnesses, the right to appeal the conservatorship decision, and the right to the appointment of an attorney ad litem.138

If a medical professional has examined the respondent within ninety days of the petition and produced a pertinent report, it is to be filed with the court.139 In the absence of an examination, or if the respondent refuses to be examined, the court shall order an examination.140 Of its own initiative or upon motion by a party, adversary counsel, or guardian ad litem, the court may require an examination by a specialist in the field of the purported disability.141 Each examiner's report must be sworn and must include the respondent's medical history, a description of the disability, an opinion on the need for a conservator, and other information that the court deems pertinent.142

If the court finds that a conservatorship is appropriate, it shall enter an order naming the conservator, listing the conservator's powers and authority, and outlining specifics regarding management of the respondent's property.143 The court must name the conservator based on the best interests of the respondent.144 In naming a conservator, the court must consider the following individuals in the order listed:

(1) The person or persons designated in a writing signed by the alleged disabled person;

(2) The spouse of the disabled person;

(3) Any child of the disabled person;

(4) Closest relative(s) of the disabled person; and

(5) Other person(s).145

The Tennessee Code provides for discharge of the conservator, termination of the conservatorship, and modification of the conservator's duties.146 A conservator's appointment, by itself, does not terminate the respondent's duty to support dependent minor children or a spouse.147 The court may determine the amount of monetary support that the disabled person must supply.148

The same title of the Tennessee Code provides for guardianship, generally applying to minors, and serving similar purposes as conservatorship.'49 A separate chapter of the title provides the method for the appointment of guardians for elderly persons who have no relatives or others to serve as conservator, in which case the district public guardian serves as conservator.150

As is apparent from the foregoing discussion, the conservator proceedings can be expensive and time-consuming.151 While the procedure is cumbersome, the appointed conservator possesses the power and authority of the court. Many of the issues involving the election and scope of other decision-makers do not arise with conservators. Although the process of appointing a conservator is cumbersome and time-consuming, once a court appoints a conservator, little is left open to question or uncertainty due to the specific nature of court orders. However, many situations do not lend themselves to the time and effort necessary to conduct a conservatorship hearing. In addition, such a detailed method is seldom preferable to a family that is coping with a hospitalized or institutionalized individual who already faces issues regarding health care choices.

2. Do-Not-Resuscitate Orders

A DNR order is an order placed by a treating physician, stating that cardiopulmonary resuscitation should not be employed if the patient suffers cardiac arrest or fails to breathe.152 The order allows a patient to die naturally.153 The Tennessee Department of Health has regulations that apply to DNR orders.154 Tennessee's legislature has also codified procedures for such orders in statutes.155

When a DNR order may be appropriate for a particular patient who is incompetent, the health care provider identifies the patient's surrogate. The surrogate and the treating physician mutually agree on the order.156 The order can be drafted to be specific or limited depending on the situation. When the withholding of care is authorized by a DNR order, the law does not prevent providers from offering palliative measures.157 If the patient's wishes are unknown, the presumption arises that the patient desires resuscitation.158

Refusing to follow a DNR order is appropriate in instances when the physician believes that cardiopulmonary resuscitation would not be medically futile. This practice is consistent with the Code of Medical Ethics of the American Medical Association.159 As with advance directives, when a patient or surrogate insists upon treatment that the physician deems medically futile, the physician may withdraw from providing care under the guidelines of the code of medical ethics.160 Emergency personnel must honor a DNR order, unless either the attending physician or a person with other authority requests resuscitation.161

V. PRINCIPLES OF COMPETENCE AND AUTONOMY OF MEDICAL PATIENTS

As previously established, patients possess the right to refuse life-sustaining treatment.162 This right has garnered widespread attention, especially in light of the rapid advances in medical technology.163 Perhaps the most visible issue has been physicianassisted suicide. Most of the attention on the right to refuse treatment from the legal standpoint has focused on patients who lack decision-making capacity, however.164

Discussion of the right to refuse medical treatment necessarily begins with the United States Supreme Court's decision in Cruzan v. Director, Missouri Department of Health,"* a closely-divided five to four opinion.166 Nancy Cruzan (Cruzan) lost control of the vehicle she was driving and ended up in a ditch, face down without discernable respiratory or cardiac activity.'67 She was deprived of oxygen for approximately twelve to fourteen minutes.168 Despite the fact that her breathing and heart function were restored, "rehabilitative efforts proved unavailing," and she remained in a persistent vegetative state.169 When the bleak prognosis became apparent, Cruzan's parents sought to end nutrition and hydration, but the hospital caring for Cruzan refused.170

The Supreme Court examined an individual's common-law right to refuse medical treatment, analyzing the right as a constitutional liberty.171 The Court assumed, for purposes of its decision, "that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."172 Nevertheless, as the Court recognized, that liberty interest must be balanced against the competing state interest to preserve life.173

The majority noted that a right to refuse treatment must be exercised by surrogate decision-makers on behalf of incompetent patients.174 The Court held that it is appropriate for a state to create procedural safeguards against potential abuses regarding the termination of human life.175 Specifically, the Cruzan Court concluded that requiring clear and convincing evidence that the incompetent patient desired termination of life-sustaining treatment did not violate the comatose patient's constitutional rights.176 In fact, the state may decline to examine the quality of life and unqualifiedly assert an interest in preserving human life.177

Cruzan's parents argued that the state should "accept the 'substituted judgment' of close family members."178 Rejecting that argument, the Court held that it did "not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself."179 In a concurring opinion, justice O'Connor mentioned that the case did not preclude the Court from finding that a state must follow the direction of a duly authorized surrogate.180 As the Supreme Court's opinion in Cruzan illustrates, making medical decisions on behalf of an incompetent individual can become very complex in the absence of an advance expression of the individual's desires regarding health care. Because individuals possess the constitutional right to refuse life-sustaining care, determining who may "step into the shoes" to make medical decisions on their behalf when they become legally incapacitated requires an examination of issues surrounding the appointment of a legally cognizable surrogate.

VI. SURROGATE DECISIONS

Even with the existence of advance directive statues, individuals often neglect to appoint another individual to make health care decisions if they become legally incapable of making such decisions themselves. Especially in light of the constitutional right of an individual to refuse life-sustaining care discussed above, the issue of selecting the appropriate surrogate to make such crucial decisions on behalf of an incapacitated individual remains a critical issue. As one commentator noted, "[b]ecause it is unrealistic to believe that all people will execute living wills or appoint health care proxies, attention should be paid to the issue of surrogate consent and the question of who should make health care decisions for decisionally incapacitated individuals in the absence of advance directives."181 Many authors have discussed the importance of surrogates and their role with the disabled patient's doctor:

When [a] patient loses decisional capacity, his voice is lost and the physician is faced with making evaluations and recommendations about someone whose values and goals may not be known. It is in these circumstances that the knowledgeable-and, we would argue, traditional-presence of the trusted other can be so valuable to the patient and the physician. The appointed health care proxy embodies both the legal empowerment of the patient and the moral authority of the concerned and trusted other. Working together, the physician and proxy can confront the profound questions of health, life, and death on behalf of the incapacitated patient.182

Historically, a family member serves as a surrogate.183 Often, this status arises merely in default due to the assumed closeness of the family relationship, rather than any true knowledge of the particular patient's desires or best interest. Regardless of the relationship between family members and the patient, many issues face health care professionals in dealing with family members.184 The relationship that necessarily forms between the doctor and surrogate or other family members is often overlooked, but such a relationship is an important one.185

A. Foundational Surrogate cases

Surrogate decision-making has been an important legal issue considered by a number of courts over the last quarter of a century. Many of those cases involved family members confronting a decision.186 A few cases, however, involved an unrelated friend or other individual.187 In many instances, the court seems to allow the family's situation to dictate who gives consent without concern for choosing the best course of action, apparently in an attempt to keep the court removed from the situation. Probably the most significant surrogate-decision case is In re Quinlan,m which brought into focus many of the issues underlying the treatment of an incompetent patient.

In 1975, Karen Quinlan (Quinlan) experienced respiratory arrest, rendering the twenty-one year old permanently comatose.189 Quinlan remained unconscious and required a respirator to breathe.190 Her physicians determined that she was in a chronic vegetative state with neurological function but no cognitive function, thus she was not "brain dead.'"" She remained in an intensive care unit and became emaciated, losing approximately forty pounds.192 Based on the fact that Quinlan had no chance of recovery, her family decided to remove life support but was met with resistance from the care facility management.193

In a suit by Quinlan's father to become her guardian, the court noted that generally a litigant can assert only his own constitutional rights but that the father possessed sufficient standing to assert those rights of his daughter in this situation.194 Quinlan's father could not assert religious beliefs or the protection against cruel and unusual punishment as grounds to prevent continued treatment.1'0 However, her father could assert his daughter's constitutional right of privacy despite the fact that such a right is not explicitly enumerated in the Constitution, and in this case, that right was greater than the State's interest in preserving human life based on Quinlan's condition.196

Shortly after the Quinlan decision, courts in Massachusetts examined surrogate issues and reached different conclusions from the New Jersey Supreme Court in Quinlan as to who shall make medical decisions on behalf of an incompetent patient. In the cases of Superintendent of Belchertown State School v. Saikewczm and In re Dinnerstein,198 an individual suffered from an incurable disease, and the incapacitated individual's guardian ad litem sought to require that treatment be rendered to the patient.199 Unlike the decision in Quinlan, the court in Saikewcz held that a court, instead of the patient's family, guardian, or health care providers, should be the party ultimately responsible for making a medical decision regarding the withholding of treatment from an incapacitated patient.200 Specifically, the court followed the substituted judgment doctrine,201 which requires a court to '"don the mental mantle of the incompetent'" and make a medical decision for them.202 In Dinnerstein, however, the Massachusetts Court of Appeals held that the decision to withhold resuscitation (as opposed to withholding treatment) from a terminally-ill incompetent patient was at the discretion of the treating physician.203 Several other states, like Massachusetts, have also adopted some derivative of the substituted judgment doctrine.204 In some instances, courts held that family members could withdraw or withhold life-sustaining care from incapacitated patients without judicial involvement or approval.205

B. Tennessee Cases

Although a number of Tennessee cases discuss the requirements of informed consent,206 few address issues arising prior to the providing of information and granting consent; namely, whether one is able to give consent and, if not, who should give consent. While the informed consent statute assumes that a patient is competent to make a medical decision,207 no existing statutes address the issue of informed consent in the context of incompetent patients. While legislative guidance on the matter would likely resolve any potential problems, some cases in Tennessee provide general direction for addressing particular informed consent issues that may arise when a medical decision must be made involving an incompetent individual. The Tennessee case that best illustrates the issues regarding a patient's competency to make an informed decision about their health care is Tennessee Department of Human Services v. Northern.208

In Northern, a seventy-two-year-old woman (Ms. Northern) developed gangrene in both of her feet, resulting from frostbite and thermal burning.209 Physicians at Nashville General Hospital determined that it was necessary to amputate her feet to save her life.210 Ms. Northern refused the recommendation that her feet be amputated, and her health care providers became concerned that she lacked the capacity to appreciate her medical condition or to consent to a course of treatment.211 The Tennessee Department of Human Services filed an action in chancery court seeking guidance and bringing the action pursuant to a statute allowing for protective services for elderly persons who lack capacity; the court's decision is based on that statute.212

The chancellor appointed a guardian ad litem to represent Ms. Northern and later made a finding that she lacked the capacity to make medical decisions, granting authority to the Department of Human Services to make those decisions.213 Three days later, the chancellor noted in an order that the patient was articulate, lucid, and had no wish to die but was unable or unwilling to recognize the serious nature of her medical condition.214 The issue was appealed to the court of appeals.215

The Tennessee Court of Appeals modified and affirmed the chancellor's order.216 In first addressing the validity of the statute at issue that provided protective services by the State for elderly persons lacking mental capacity to consent, the court stated that a patient who wishes to die rather than have her feet amputated has a constitutional right for that wish to be granted.217 The court noted that the State, however, does possess the constitutional power to act for its incompetent citizens, even those partially incompetent, and the court held that the chancellor was justified in authorizing another to make decisions for the patient when she had a five to ten percent chance of surviving if her feet were not amputated.218 The court of appeals also stated that when a fiduciary obligation is granted empowering another to make decisions on behalf of an elderly person, such as Ms. Northern, the designation of an individual as opposed to an organization, such as the State, is more appropriate.219 Accordingly, the court modified the chancellor's order naming the director of the Department of Human Services as the guardian ad litem rather than the department itself.220

Then-judge Drowota, now Chief Justice Drowota of the Tennessee Supreme Court, drafted a concurring opinion in Northern discussing the matter of competence that sheds light on the direction that the present Tennessee Supreme Court might take on the issue.221 Drowota recognized that the case was not "ordinary."222 While specifically noting that the issue was not applicable to the instant case, Drowota stated that he and members of the court of appeals were in general agreement that a competent person could refuse medical treatment even if death would occur, despite the fact that Tennessee courts had not addressed the issue.223 When competency is an issue, though, the State is obligated to assist the person in making vital health care decisions, and the initial assumption must be that the person desires lifesaving care.224 Drowota then discussed the safeguards inherent in the Tennessee statute at issue.225

Drowota next addressed the factual issue of Ms. Northern's competence, noting that a determination of competence is not based on the decision to accept or refuse medical treatment.226 In his concurring opinion, Drowota noted that Ms. Northern looked at her "disfigured, coal black, crusty, cracking, oozing, and rancid" feet yet still "insist[ed] that nothing [was] wrong." Further, she had no appreciation for the fact that her life was in danger although she expressed no desire to die.227 According to Drowota, it was this fact-Ms. Northern's inability to recognize her state of imminent peril-that the court relied en for its determination that Ms. Northern was not competent to make decisions regarding her care.228 Specifically, he stated that the court did not assume that Ms. Northern was incompetent based upon the reasoning that she rejected lifesaving treatment.229

Drowota then discussed the right of an individual to refuse treatment, noting that some jurisdictions did not allow the rejection of lifesaving medical care.230 He stated that the Tennessee Supreme Court could well follow this minority rule, pointing to a curious snake-handling case in which the Tennessee Supreme Court "declared that both snake-handling and the drinking of strychnine could be enjoined constitutionally by the State . . . 'to protect a person from himself and to demand that he protect his own life.'"231 However, because the Northern case hinged on the particular factual situation, the court of appeals was not required to make such a choice among competing legal principles.232 Drowota noted that ultimately, the question of an individual's competence should not be answered by the decision made by the patient but rather by the ability of the patient to comprehend the basic facts of her situation.233

The Tennessee Court of Appeals recently addressed issues involving the providing of nutrition and care for an incompetent patient in San Juan-Torregosa v. Garcia.234 At the time of the case, Engracia Torregosa Garcia (Garcia) was a patient in a chronic vegetative state at a hospice center for terminally ill patients.235 Prior to her placement in hospice care, she had experienced cardiac arrest from which she was resuscitated, but her brain had failed to receive oxygen for over ten minutes, rendering her comatose with only basic brain stem function.236 She later developed breast cancer and was transferred to the hospice center.237 Garcia's mother and siblings brought an action because the hospice center withdrew intravenous hydration and nutrition that had been supplied to the patient while she was hospitalized.238 The chancellor appointed a guardian ad litem to represent Garcia and granted a restraining order requiring nutrition.239 Garcia had not executed a living will or other advance directive while competent.240

The court of appeals reviewed the chancellor's reasoning beginning with his adherence to Cruzan, which recognized the constitutional right to refuse medical treatment, including nutrition.241 The court referenced the federal and state right to privacy and self-determination.242 Tennessee not only recognizes those rights, but the state's constitution affords greater protections than does the United States Constitution.243 After discussing the decision in Northern, including Drowota's concurring opinion, the court outlined the various Tennessee statutory means for ensuring consent to treatment by an incompetent person.244

The trial court found that refusal of nutrition and hydration for an incompetent patient could only be expressed through a valid written document by the patient pursuant to the statutes.245 The court of appeals determined that this construction of the Natural Death Act would cause it to conflict with other sections of the statutes.246 Further, the court found that legislative intent allowed for the refusal of medical care, including nutrition, and that the living will statute was but one way to express the refusal.247

The court agreed with the finding of fact that Garcia had expressed, while competent, her desire to receive no artificial means of life support.248 The court directed the trial court to appoint a conservator for Garcia, pursuant to the Tennessee statutes, to carry out her wishes to refuse nutrition.249 The court did not discuss the difficulties or shortcomings of the conservatorship method for this and similar situations.250 Although Tennessee courts have examined surrogate decision-making issues in a limited scope, as the cases of Northern and Garcia illustrate, making such decisions by way of the judiciary is too often cumbersome and time-consuming. Not only are such judicial determinations of surrogate issues a burden on family members, in many instances, the time required to resolve issues in the courts may be detrimental to a patient's health. Enacting statutory guidelines would provide a more efficient and expedient method of providing resolution to surrogate determination issues.

VII. LEGISLATION AND THE MODEL ACT

A. Statutes in Other States

Several states enacted some form of legislation dealing with surrogate decision-making.251 As of 2002, thirty-five states and the District of Columbia had adopted statutes dealing with the issue of surrogate decision-making for health care.252 Seven of those jurisdictions passed comprehensive, specialized surrogate consent provisions.253 Nine others promulgated a specific consent provision as a part of a health care decisions act.254 Twelve states include surrogate consent as a part of living will provisions, while seven states cover the issue in general informed consent statutes.255 Conspicuous in its absence from the list has been Tennessee.

Virginia is one contiguous state that enacted statutes dealing with surrogate decision-making when no surrogate has been formally designated by the patient.256 The Virginia statute is included in a comprehensive health care decisions act.257 Additionally, the Illinois Health Care Surrogate Act (Illinois Act) is an example of a comprehensive act outlining surrogate consent.258 This act was adopted in Illinois due to the shortcomings and inflexible nature of the living will and power of attorney provisions.259 The Illinois Act possesses prerequisites for its application and addresses issues involving decisional capacity, qualifying conditions, the decision-making process, reliance, right of conscience, and the legal effect of decisions.260 It also covers identification of a surrogate, multiple surrogates, qualifications of surrogates, and decision-making bases.261 Many of the jurisdictions that have passed comprehensive legislation model their provisions on the UHCDA.262 Despite the existence of this model act, the Tennessee legislature has failed to enact general legislation, although some legislative activity recently occurred.

B. Recent Tennessee Legislation

Tennessee recently passed statutes of limited scope dealing with surrogate decision-making.263 These statutes were signed into effect on June 23, 2000,264 and placed under Title 33 of the Tennessee Code, which addresses mental health. These new statutes replaced Title 33 of the Tennessee Code in its entirety.265 Unfortunately, the scope of these sections covers only those individuals with developmental disabilities and mental illness.266 The caption of the new laws displays their limited reach:

A[n act] relative to persons with mental illness, serious emotional disturbance, mental retardation, and developmental disabilities and providing for rights, duties, powers, liabilities, and related provisions, and specifically amending Tennessee Code Annotated Titles 4, 33, and 37, and others that cite Title 33.267

While these statutes are necessary and a step in the right direction, they are not effective in clarifying the law and protecting the interests of the majority of patients afforded health care in Tennessee. The individual who sustains serious head injuries and is rendered incompetent is not covered by the legislation, nor is the aging person who suffers from Alzheimer's disease. It is the quantity of individuals, the vast majority of the population, who do not fall within the reach of the statutes that illustrates the shortcomings of the legislation.

This recent Tennessee legislation authorizes surrogates to make decisions on behalf of persons receiving service, who have applied for service, or for whom someone has proposed service from the Department of Mental Health and Developmental Disabilities.268 The statutes set out procedures to select surrogates.269 Service is provided to those who have "mental illness, serious emotional disturbances, [or a] developmental disability."270 Obviously, similar legislation would be helpful with reference to patients falling outside the service of the Department of Mental Health and Developmental Disabilities.

There also exist administrative regulations by the Tennessee Department of Health.271 These adopted regulations cover health care facilities but do not lend complete guidance regarding health care decision-making. While they provide some insight into the Department of Health's position on surrogate selection and decision-making, they do not speak for the legislature.

C. Proposed Tennessee Health-Care Decisions Act

With the proposed Tennessee Decisions Act (proposed Act or proposed statutes), Tennessee legislators seek to enact comprehensive legislation providing for the selection and appointment of a surrogate decision-maker for health care and the basis on which decisions should be made for those who are incapacitated.272 These provisions derive from the UHCDA. In fact, the proposed Act is taken directly from the UHCDA with the only difference being the reversal of the final two sections. The proposed Act defines certain important terms such as capacity, health care, health care decision-making, and surrogates. Under the provisions, adults may give instructions regarding their health care decisions orally or in writing.273 The proposed statutes also discuss advance health care directives, outlining their operation and offering a model form.274

Section 5 of the proposed statutes covers surrogates.275 In descending order of preference, the following may serve as surrogate:

(1) the spouse, unless legally separated;

(2) an adult child;

(3) a parent; or

(4) an adult brother or sister.276

If no surrogate is available from these categories, "an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may act as surrogate."277 The surrogate must communicate the assumption of authority to the family members as soon as possible.278

In all instances of decision-making, the proposed Act provides that the primary surrogate focus is on the patient's specific "instructions, if any, and other wishes" of the patient to the extent known.279 Otherwise, "the surrogate shall make the decision" based on the surrogate's belief "of the patient's best interest," considering "the patient's personal values to the extent known to the surrogate."280 Judicial approval is not necessary.281

The proposed Act further provides procedures for physicians who encounter surrogate issues. The proposed statutes direct certain disclosure and communication requirements and demand the patient's medical records be considered in any decisions that are made.282 The proposed statutes direct physicians to comply with a surrogate's decision and provide a means for the physician to decline compliance in some instances.283 The surrogate would have the same rights to medical records and information as the principal.284 The proposed Act would cover other topics such as limiting liability for compliance, allowing court intervention, and addressing the validity of photocopies.285

One important point under the proposed statutes is that "[a]n individual is presumed to have capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate."286 In addition, no presumption arises from the fact that an individual has failed to execute an advance health care directive.287 It should also be noted that the general purpose of the proposed Act will be to make the law uniform,288 thus authority from other states with the UHCDA can provide guidance in the application of the proposed statutes.

The proposed Act was tabled in 2003 because of opposition from a few institutions that were concerned that the passage of that legislation could impact some federal funds. That issue has since been resolved, and the opposition has been withdrawn. There was also some mention that the new regulations by the Department of Health would cover the situation; however, that position has been discounted. Additionally, some concerns were voiced by legal practitioners that the new statutes would change the status quo involving powers of attorney and other procedures. These issues have been addressed, and the proposed Act will be reintroduced in 2004.289

VIII. PUBLIC POLICY CONSIDERATIONS THAT WARRANT SURROGATE SELECTION STATUTES

Public policy supports clear procedures and guidelines to assist family members or others in making informed decisions for incompetent patients especially in light of the fact that relatively few individuals plan for their incapacity. Provisions to assist family members and friends can ease difficult situations and provide answers. Such direction can allow persons to focus on the patient and the patient's condition rather than face questions about who should make decisions and on what basis. Issues surrounding the medical care of an incompetent patient, particularly as it involves life-sustaining treatments, are necessarily complex and difficult without layering legal disputes onto the problems.290

Clear provisions also allow more efficient decision-making. The court system will need to intervene less frequently, allowing issues involving medical care to be made in hospital rooms instead of courtrooms. Detailed procedures also allow family members to "play from the same page" and allow health care professionals to know the parameters of the family dynamic with which they deal.

Problems may still arise such as the availability of an appropriate surrogate or the occurrence of a serious dispute between two or more possible surrogates from the same appointment class.291 However, despite shortcomings, the proposed Act would clarify the law and prevent many possible pitfalls in patient care. The proposed statutes will also decrease the number of incidences in which judicial review is required. Most courts indicate that court approval of surrogate decisions is usually not necessary or encouraged. The clear trend is away from requiring judicial review for something as personal as health care decisions. Of course, the degree of seriousness attendant upon the proposed treatment affects that decision. This more formal and comprehensive approach to these issues will better serve Tennessee residents.292

Enacting the proposed Act will bring Tennessee into line with a majority of states.293 Uniformity with other jurisdictions will be a significant benefit gained by passing the proposed Act. A Tennessee law that matches and complements similar laws in other states is useful, particularly with the mobility and family dynamic of American society. It will provide Tennessee with a coherent and consistent means of addressing surrogacy issues, while providing a logical procedure for doing so. The proposed Act would also serve to provide important legal protections for those acting in good faith. More importantly, it will allow for the appropriate persons to make health care decisions and will help outline the proper factors to examine in making that decision. The proposed Act will also simplify considerations to be addressed when issues of competency and health care arise. In short, it will foster use of surrogate decisions so that the best possible decisions can be made.

It is likewise good public policy to prevent a catch-22 situation for doctors and health care facilities.294 Aside from better facilitation and more definite answers regarding health care, the new statutes would serve to decrease possible litigation arising after a decision has been made. In the absence of statutory direction, a physician may have trouble determining who the proper surrogate should be when a decision becomes necessary. The task would become increasingly difficult if family members disagreed over the action to undertake on behalf of their incapacitated relative. The situation becomes even more dire for a physician when the disputing family members are of the same class, such as siblings of the incapacitated individual or children. In the case of deadlocked relatives when there is no deciding vote, a physician is trapped in the middle. If a patient has two adult children, one who wishes to remove life support and one who wishes to continue, a doctor cannot accommodate both and must deal with the competing interests. The circumstances become more complicated when the patient's status quo treatment cannot be maintained and the family disagrees on which of two or more treatments to undertake.

Regardless of the physician's own belief about the proper decision, the physician may be required to defend a lawsuit. In the absence of any evidence of the patient's desires, what is a physician to do when the son thinks one treatment is appropriate, the daughter thinks the opposite treatment is appropriate, and no middle ground can be reached? Has consent to both treatments been made or has consent to neither been granted? The physician may open herself to a lawsuit for medical battery regardless of which course she takes. On the other hand, failure to engage in any procedure whatsoever, when a procedure becomes medically necessary and such a dispute exists, could possibly constitute medical malpractice, again opening the physician to liability. These hypothetical, yet realistic, scenarios illustrate why the new surrogate statutes are important. The Tennessee Court of Appeals has discussed this untenable situation for physicians in the context of the withdrawal of informed consent by a competent patient.295 The issue of withdrawal of informed consent by an incompetent patient, however, is necessarily more complicated because of the number of other matters present in circumstances involving incompetent individuals. Thus, because of the potential complexities involved in the revocation of consent by surrogates on behalf of incompetent patients, clear and determinate procedures for surrogate consent decisions should be provided by statutes as well.

IX. CONCLUSION

The law is clear that competent adults must consent to medical treatment, and they may refuse treatment if they desire. The issue of who should make decisions for incapacitated patients creates more complicated problems. For many years, Tennessee statutes failed to clarify those difficult issues despite family members and health care professionals wrestling with those problems daily.

The Tennessee legislature provided procedures for advance directives; however, only a small percentage of the population takes advantage of that option. The Department of Health, through the Board for Licensing, adopted rules applying to various health care facilities. The administrative rules issued by the Department of Health likely serve to cover the situation adequately, at least in the context of health care facilities and other similar institutions. Still, the legislature's silence has persisted for too long. Wisely, Tennessee embarked upon the process of joining the long list of states that provide statutory direction in coping with the care of incapacitated patients by adopting its own version of the UHCDA.

Passage of the UHCDA will provide direction to those facing issues of incapacity. It will create consistency and uniformity so that answering difficult questions involving health care can be more certain and efficient as well as establish a logical procedure and extend legal protection to those who act under its auspices. Further, enacting the legislation will simplify the issues that family, friends, physicians, and facilities face when a patient loses competence, and it will allow a greater focus on the patient and on the patient's care. It is time for Tennessee to join the other states that have offered this guidance to their people.

ANDREW T. WAMPLER*

* J.D., magna cum laude, 2001, University of Tennessee; M.A., 1997, University of Tennessee; B.A., summa cum laude, 1995, Presbyterian College. The author is an attorney with Wilson, Worley & Gamble, P.C., in Kingsport, Tennessee, and his practice focuses on civil litigation, primarily in the areas of medical malpractice, antitrust, class actions, and commercial litigation. The author may be contacted at awampler@wwglaw.com. The author would like to thank William T. Gamble for his direction in considering and defining this topic and for his invaluable insight.

Copyright University of Memphis Winter 2004
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