MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Public Health and Welfare

By: Senator(s) Turner, Bean

AN ACT TO AMEND SECTION 41-41-211, MISSISSIPPI CODE OF 1972, TO CLARIFY THE AUTHORITY OF THE DIRECTOR OF A STATE MENTAL HOSPITAL TO CONSENT TO MEDICAL CARE AND TREATMENT OF PATIENTS FOR WHOM NO OTHER SURROGATE IS DESIGNATED OR AVAILABLE; TO CODIFY SECTION 41-41-9, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT A COURT MAY CONSENT TO OR ORDER MEDICAL TREATMENT, AND TO ALLOCATE THE EXPENSE OF TREATMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-41-211, Mississippi Code of 1972, is amended as follows:

41-41-211. (1) A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

(2) An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation, or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:

(a) The spouse, unless legally separated;

(b) An adult child;

(c) A parent; or

(d) An adult brother or sister.

(3) If none of the individuals eligible to act as surrogate under subsection (2) is reasonably available, 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.

(4) A surrogate shall communicate his or her assumption of authority as promptly as practicable to the members of the patient's family specified in subsection (2) who can be readily contacted.

(5) If more than one (1) member of a class assumes authority to act as surrogate, and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.

(6) 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.

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

(8) An individual at any time may disqualify another, including a member of the individual's family, from acting as the individual's surrogate by a signed writing or by personally informing the supervising health-care provider of the disqualification.

(9) * * * A surrogate may not be an owner, operator, or employee of a residential long-term health-care institution at which the patient is receiving care unless related to the patient by blood, marriage, or adoption, except in the case of a patient of a state-operated facility who has no person listed in subsection (2) reasonably available to act as a surrogate.

(10) A supervising 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.

SECTION 2. The following provision shall be codified as Section 41-41-9, Mississippi Code of 1972:

41-41-9. In addition to all other remedies available at law or in equity, any court having a clerk or any judge thereof may, in either term time or vacation, upon presentation of the written advice or certificate of one or more duly licensed physicians that there is an immediate or imminent necessity for medical or surgical treatment or procedures for an adult of unsound mind or a minor, summarily consent to or order and direct such surgical or medical treatment or procedures for the adult of unsound mind or minor, provided that:

(a) (i) The surrogate for such adult of unsound mind or minor has refused or declined to do so and there is no other person known to be immediately available who is so authorized, empowered, willing or capacitated to so consent; or

(ii) There is no person available to be designated as a surrogate; and

(b) There has been filed with or there is presented to such court or judge an application for a writ of habeas corpus as to such person, a pleading respecting the custody or care of such person, an application for appointment of a guardian or conservator for such person, a pleading seeking the adjudication of such person as a non compos mentis, drug addict, habitual drunkard or neglected child, or some other instrument or pleading otherwise invoking the aid or jurisdiction of said court or judge or the state, as parens patriae or otherwise, concerning the welfare of such person. Any subsequent dismissal, nonsuit, removal, transfer, overruling or denial of such original application, instrument or pleading, or denial of jurisdiction of the court or judge over the subject matter or necessary parties, shall not retroactively revoke, rescind or invalidate any prior consent.

The reasonable expense of an adult of unsound mind or a minor in thus obtaining such surgical or medical treatment or procedures shall be borne by his estate or any person liable at law for his necessities or, if they are unable to pay, by the county of residence or settlement of the person receiving such surgical or medical care.

Upon request of the attending physician or other interested person, it shall be the duty of any district attorney or county attorney to give his assistance in the presentation of any such medical advice or certificate and in obtaining the consent or order of a judge or court of proper jurisdiction.

SECTION 3. This act shall take effect and be in force from and after its passage.