68-11-1806 - Designation of surrogate. - Tennessee Statutes

68-11-1806. Designation of surrogate.

(a)  An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health care provider. The designation may be oral or written.

(b)  A surrogate may make a health care decision for a patient who is an adult or emancipated minor, if, and only if:

     (1)  The patient has been determined by the designated physician to lack capacity; and

     (2)  No agent or guardian has been appointed or the agent or guardian is not reasonably available.

(c)  (1)  In the case of a patient who lacks capacity, has not appointed an agent, has not designated a surrogate, and does not have a guardian, or whose agent, surrogate, or guardian is not reasonably available, the patient's surrogate shall be identified by the supervising health care provider and documented in the current clinical record of the institution or institutions at which the patient is then receiving health care.

     (2)  The patient's surrogate shall be an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, who is reasonably available, and who is willing to serve. No person who is the subject of a protective order or other court order that directs that person to avoid contact with the patient shall be eligible to serve as the patient's surrogate.

     (3)  Consideration may be given, in order of descending preference for service as a surrogate, to:

          (A)  The patient's spouse, unless legally separated;

          (B)  The patient's adult child;

          (C)  The patient's parent;

          (D)  The patient's adult sibling;

          (E)  Any other adult relative of the patient; or

          (F)  Any other adult who satisfies the requirements of subdivision (c)(2).

     (4)  The following criteria shall be considered in the determination of the person best qualified to serve as the surrogate:

          (A)  Whether the proposed surrogate reasonably appears to be better able to make decisions, either in accordance with the known wishes of the patient, or in accordance with the patient's best interests;

          (B)  The proposed surrogate's regular contact with the patient prior to and during the incapacitating illness;

          (C)  The proposed surrogate's demonstrated care and concern;

          (D)  The proposed surrogate's availability to visit the patient during the patient's illness; and

          (E)  The proposed surrogate's availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process.

     (5)  If none of the individuals eligible to act as a surrogate under this subsection (c) are reasonably available, the designated physician may make health care decisions for the patient after the designated physician either:

          (A)  Consults with and obtains the recommendations of an institution's ethics mechanism; or

          (B)  Obtains concurrence from a second physician who is not directly involved in the patient's health care, does not serve in a capacity of decision-making, influence, or responsibility over the designated physician, and is not under the designated physician's decision-making, influence, or responsibility.

     (6)  In the event of a challenge, there shall be a rebuttable presumption that the selection of the surrogate was valid. Any person who challenges the selection shall have the burden of proving the invalidity of that selection.

(d)  A surrogate shall make a health care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate.

(e)  A surrogate who has not been designated by the patient may make all health care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the designated physician and a second independent physician certify in the patient's current clinical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to regain capacity to make medical decisions.

(f)  A health care decision made by a surrogate for a patient is effective without judicial approval.

(g)  (1)  Except as provided in subdivision (g)(2):

          (A)  Neither the treating health care provider nor an employee of the treating health care provider, nor an operator of a health care institution nor an employee of an operator of a health care institution may be designated as a surrogate; and

          (B)  A health care provider or employee of a health care provider may not act as a surrogate, if the health care provider becomes the principal's treating health care provider.

     (2)  An employee of the treating health care provider or an employee of an operator of a health care institution may be designated as a surrogate, if:

          (A)  The employee so designated is a relative of the principal by blood, marriage, or adoption; and

          (B)  The other requirements of this section are satisfied.

(h)  A health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury, stating facts and circumstances reasonably sufficient to establish the claimed authority.

[Acts 2004, ch. 862, § 1.]