Comparing the FHCDA to Surrogate Decision Making Laws in Other States

NYSBA Health Law Journal, Vol. 16, No. 1, 2011

Widener Law School Legal Studies Research Paper No. 11-17

10 Pages Posted: 30 Mar 2011 Last revised: 6 Nov 2013

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Date Written: March 28, 2011

Abstract

This is my invited contribution to a special symposium issue of the New York State Bar Association’s Health Law Journal titled “Implementing the Family Health Care Decisions Act.” While this issue will be of keen interest to medical and legal practitioners in New York, it also holds significant value for those in other states looking to either amend or better implement their own healthcare decisions statutes.

There seem to be at least three distinct missions of this special issue of the Health Law Journal. First, several articles have an empirical focus. They describe how the FHCDA has been implemented in hospitals and nursing homes. Second, several articles have a normative focus. They describe how the FHCDA can and should be extended to health care settings (e.g. hospice, home care) to which it does not now apply. Third, several articles take a broader normative focus. They explain how the FHCDA might be better implemented (e.g. by training ethics committees).

This article serves the third mission. It focuses on those provisions at the heart of the FHCDA: the authorization of surrogates to make health care decisions on the patient’s behalf. Specifically, this Article compares the surrogate rules in the FHCDA to the “default” surrogate rules in other states’ health care decisions statutes. These comparisons can be usefully grouped into three categories: (1) the surrogate list, (2) the scope of surrogate decision making authority, and (3) the resolution of conflicts between and among surrogates.

Keywords: health law, healthcare, health care decisions, surrogates

JEL Classification: K32

Suggested Citation

Pope, Thaddeus Mason, Comparing the FHCDA to Surrogate Decision Making Laws in Other States (March 28, 2011). NYSBA Health Law Journal, Vol. 16, No. 1, 2011; Widener Law School Legal Studies Research Paper No. 11-17. Available at SSRN: https://ssrn.com/abstract=1797930

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

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