Montana Code 50-5-1302. Determination of decisional capacity — use of proxy decisionmaker
50-5-1302. Determination of decisional capacity — use of proxy decisionmaker. (1) An attending health care provider may determine that an adult patient lacks decisional capacity related to medical treatment. The determination must be documented in the patient’s medical record.
Terms Used In Montana Code 50-5-1302
- Adult: means any person 18 years of age or older. See Montana Code 50-5-1301
- Attending health care provider: means the physician, advanced practice registered nurse, or physician assistant, whether selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. See Montana Code 50-5-1301
- Decisional capacity: means the ability to provide informed consent to or refuse medical treatment or the ability to make an informed health care decision as determined by a health care provider experienced in this type of assessment. See Montana Code 50-5-1301
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Health care facility: means a hospital, critical access hospital, rural emergency hospital, or facility providing skilled nursing care as those terms are defined in 50-5-101. See Montana Code 50-5-1301
- Health care provider: means any individual licensed or certified by the state to provide health care. See Montana Code 50-5-1301
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
(2)(a) The attending health care provider shall make specific findings related to the cause, nature, and projected duration of the patient’s lack of decisional capacity. The findings must be included in the patient’s medical record.
(b)Health care providers must use evidence-based methodologies for determining decisionmaking capacity. The method used to determine decisionmaking capacity may be selected in collaboration with a medical ethics committee.
(c)Patients with chronic cognitive disabilities may require assessment by health care providers familiar with the patient’s specific disability. If available, health care providers familiar with the patient’s chronic cognitive disability must be consulted to assess decisionmaking capacity.
(d)Patients for whom English is a second language must be assessed by a health care provider in the presence of an interpreter who is fluent in the patient’s primary language. Patients who communicate using American sign language must be assessed in the presence of an interpreter fluent in American sign language.
(3)A health care provider or health care facility may rely in good faith upon the medical treatment decision of a proxy decisionmaker selected or appointed in accordance with this part if an adult patient’s attending health care provider determines that the patient lacks decisional capacity and the patient does not have:
(a)a guardian with medical decisionmaking authority;
(b)an agent appointed in a medical durable power of attorney; or
(c)any other known person with the legal authority to provide consent or refusal of medical treatment on the patient’s behalf.
(4)Guardianship proceedings may be initiated by the health care facility in the absence of family or interested parties at the same time that a proxy decisionmaker is selected to meet the patient’s current decisional needs. If a guardian is appointed, the guardian shall assume the proxy decisionmaker role.