Section 22-8A-11

Surrogate; requirements; attending physician consulted, intent of patient followed; persons who may serve as surrogate; priority; validity of decisions; liability; form; declaratory and injunctive relief; penalties.

(a) If no advance directive for health care has been made, or if no duly appointed health care proxy is reasonably available, or if a valid advance directive for health care fails to address a particular circumstance, subject to the provisions of subsection (c) hereof, a surrogate, in consultation with the attending physician, may, subject to the provisions of Section 22-8A-6, determine whether to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration if all of the following conditions are met:

(1) The attending physician determines, to a reasonable degree of medical certainty, that:

a. The individual is no longer able to understand, appreciate, and direct his or her medical treatment, and

b. The individual has no hope of regaining such ability.

(2) Two physicians, one of whom is the attending physician and one of whom shall be qualified and experienced in making such diagnosis, have personally examined the individual and have diagnosed and certified in the medical record that the individual has a terminal illness or injury or has a condition of permanent unconsciousness.

(3) The attending physician or other health care provider and the surrogate have no actual knowledge of the existence of a valid advance directive for health care that would give guidance to the provider in treating the individual's condition.

(4) The treating physician determines, to a reasonable degree of medical certainty, that withholding or withdrawing the life-sustaining treatment or artificially provided nutrition and hydration will not result in undue pain or discomfort for the patient.

(b) The surrogate shall be a competent adult.

(c) The surrogate shall consult with the attending physician and make decisions permitted herein that conform as closely as possible to what the patient would have done or intended under the circumstances, taking into account any evidence of the patient's religious, spiritual, personal, philosophical, and moral beliefs and ethics, to the extent these are known to the surrogate. Where possible, the surrogate shall consider how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment or artificially provided nutrition and hydration against the burdens and benefits to the patient of that treatment; except, that any decision by a surrogate regarding the withdrawal or withholding of artificially provided nutrition and hydration from a person who is permanently unconscious shall only be made upon clear and convincing evidence of the patient's desires. The decision to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration by the surrogate shall be made in good faith and without consideration of the financial benefit or burden which will accrue to the surrogate or the health care provider as a result of the decision.

(d) Any of the following persons, in order of priority stated, when persons in prior classes are not available or willing to serve, may serve as a surrogate pursuant to the provisions of this section:

(1) A judicially appointed guardian, provided the appointment specifically authorizes the guardian to make decisions regarding the withholding of life-sustaining treatment or artificially provided nutrition and hydration. Nothing in this section shall be construed to require a judicial appointment before a decision can be made under this chapter. In addition, this section shall not be construed to require a judicially appointed guardian who has not been specifically authorized by a court to make decisions regarding the providing, withholding, or withdrawing of life-sustaining treatment or artificially provided nutrition and hydration to make those decisions or to seek court approval to make those decisions;

(2) The patient's spouse, unless legally separated or a party to a divorce proceeding;

(3) An adult child of the patient;

(4) One of the patient's parents;

(5) An adult sibling of the patient;

(6) Any one of the patient's surviving adult relatives who are of the next closest degree of kinship to the patient; or

(7) If the patient has no relatives known to the attending physician or to an administrator of the facility where the patient is being treated, and none can be found after a reasonable inquiry, a committee composed of the patient's primary treating physician and the ethics committee of the facility where the patient is undergoing treatment or receiving care, acting unanimously; or if there is no ethics committee, by unanimous consent of a committee appointed by the chief of medical staff or chief executive officer of the facility and consisting of at least the following: (i) the primary treating physician; (ii) the chief of medical staff or his or her designee; (iii) the patient's clergyman, if known and available, or a member of the clergy who is associated with, but not employed by or an independent contractor of the facility, or a social worker associated with but neither employed by nor an independent contractor of the facility. In the event a surrogate decision is being made by an ethics committee or appointed committee of the facility where the patient is undergoing treatment or receiving care, the facility shall notify the Alabama Department of Human Resources for the purpose of allowing the department to participate in the review of the matter pursuant to its responsibilities under the Adult Protective Services Act, Chapter 9 of Title 38.

(e) The surrogate shall certify and attest under oath that he or she has contacted one or more of the person or persons who is or are in a class equal to or higher than the surrogate and that each class has either consented or expressed no objections to him or her acting as surrogate or to the decision made by the surrogate. The certification shall be included in the medical record.

(f) A surrogate's decision shall nevertheless be valid if:

(1) He or she is unable to contact an individual whose consent or non-objection would otherwise be required because the individual's whereabouts are unknown, because the individual is in a remote location and cannot be contacted in sufficient time to participate in a decision to provide, withhold, or withdraw the treatment, or because the individual has been adjudged incompetent and remains under that disability; and

(2) The surrogate certifies and attests to that fact. In that case, the individual shall not be included in determining whether the individual's class has consented or expressed no objection as required pursuant to subsection (e).

(g) A health care provider who provides, withholds, or withdraws life-sustaining treatment or artificially provided nutrition and hydration from a patient upon the instructions of a surrogate who has certified and attested that he or she has qualified as a surrogate as required by this section shall not be subject to civil or criminal liability or be found to have committed an act of unprofessional conduct for providing, withdrawing, or withholding the life-sustaining treatment or artificially provided nutrition and hydration, nor shall the health care provider be deemed to be under a duty to investigate the truthfulness of the information certified and attested to by the surrogate.

(h) A surrogate acting pursuant to this section shall not be subject to civil or criminal liability or found to have committed an act of unprofessional conduct for decisions made in good faith to provide, withhold, withdraw, continue, or institute life-sustaining treatment, or artificially provided nutrition and hydration, unless the surrogate falsely or fraudulently certifies or attests to information required by this section.

(i) The Alabama State Board of Health shall prescribe by rule a form, which, when completed by a surrogate and duly notarized, shall constitute the certification of the surrogate as required by this chapter.

(j) If any relative, health care provider who is involved directly in the care of the patient, or other individual who is involved directly in providing care to the patient desires to dispute the authority or the decision of a surrogate to determine whether to provide, withhold, or withdraw medical treatment from a patient, he or she may file an action for declaratory and injunctive relief in the circuit court for the county where the patient is under treatment. A health care provider who is confronted by more than one individual who claims authority to act as surrogate for a patient may file an action for declaratory relief in the circuit court for the county where the patient is under treatment.

(k) An individual who knowingly certifies and attests to any information which is:

(1) Required by this chapter;

(2) Material to his or her authorization to act as a surrogate; and

(3) False, shall be guilty of a Class C felony. This shall be in addition to, and not in lieu of, penalties for other offenses of which the surrogate may be guilty by reason of this conduct.

(Acts 1997, No. 97-187, p. 281, §2.)