§ 9731. Informed consent by surrogate for DNR/COLST order
(a)(1) One or more interested individuals may be eligible to act as the surrogate for an adult without capacity in order to provide or withhold informed consent for a do-not-resuscitate order or clinician order for life-sustaining treatment pursuant to this subchapter. Only one interested individual may act as a surrogate at a time.
(2)(A) A patient's health care provider shall not be considered an interested individual and shall not serve as a patient's surrogate to provide or withhold informed consent for a DNR/COLST order pursuant to this chapter unless related to the patient by blood, marriage, civil union, or adoption.
(B) The owner, operator, employee, agent, or contractor of a residential care facility, health care facility, or correctional facility in which the patient resides at the time the DNR/COLST order is written shall not be considered an interested individual and shall not act as the patient's surrogate to provide or withhold consent for a DNR/COLST order pursuant to this chapter unless related to the patient by blood, marriage, civil union, or adoption.
(b) A surrogate may provide or withhold informed consent only if all of the following conditions are met:
(1) the patient's clinician determines that the patient lacks capacity to provide informed consent;
(2) the patient has not appointed an agent through an advance directive;
(3) the patient has not indicated in an advance directive that the interested individual or individuals seeking to serve as surrogate should not be consulted on health care decisions or otherwise provided instructions in an advance directive contrary to allowing such individual or individuals to serve as surrogate;
(4) the patient does not have a guardian who is authorized to make health care decisions; and
(5) the patient does not object to the surrogate providing or withholding consent for a DNR/COLST order or to the treatment proposed to be provided or withdrawn pursuant to a DNR/COLST order, even if the patient lacks capacity.
(c)(1) A surrogate shall be an interested individual who is designated by the patient by personally informing the patient's clinician. If the patient designates a surrogate to the clinician orally, the clinician shall document the designation in the patient's medical record at the time the designation is made.
(2) If the patient has not designated a surrogate pursuant to subdivision (1) of this subsection, or if the surrogate designated by the patient is not reasonably available or is unwilling to serve, then the patient's clinician shall make a reasonable attempt to notify all reasonably available interested individuals of the need for a surrogate to make a decision regarding whether to provide or withhold consent for a DNR/COLST order. A surrogate shall be an interested individual who is:
(A) willing to provide or withhold informed consent for a DNR/COLST order for the patient in accordance with the patient's wishes and values, if known; and
(B) willing and available to consult with the patient's clinician.
(3) Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, an individual shall not serve as a surrogate over the patient's objection, even if the patient lacks capacity.
(d) The patient's clinician, health care provider, or residential care provider may rely on the decision of a surrogate identified pursuant to this section as long as the clinician or provider documents in the patient's medical record that the surrogate has confirmed that one of the following circumstances applies:
(1)(A) All interested individuals agree on the decision to provide or withhold consent for a DNR/COLST order, in which case they shall designate one surrogate, as well as an alternate, if available, who is authorized to provide or withhold consent and whose name will be identified on the DNR/COLST form and in the patient's medical record.
(B) All interested individuals agree that a specific interested individual may make the decision regarding whether to provide or withhold consent for a DNR/COLST order, in which case they shall designate the individual as the surrogate, as well as an alternate, if available, who is authorized to provide or withhold consent and whose name will be identified on the DNR/COLST form and in the patient's medical record.
(C) The surrogate or alternate, if applicable, is not reasonably available, in which case the clinician shall consult the interested individuals to request designation of another surrogate and alternate.
(2) If at any time the interested individuals are unable to agree on the designation of a surrogate, an interested person, as defined in 14 V.S.A. § 3061, may file a petition for guardianship in the Probate Division of the Superior Court.
(e) A surrogate providing informed consent for a DNR/COLST order shall use substituted judgment consistent with the patient's wishes and values and consistent with the parameters described in subsection 9711(d) of this title. The surrogate shall consult with the patient to the extent possible, and with the patient's clinician and any other appropriate health care providers and shall provide or withhold informed consent for a DNR/COLST order by attempting to determine what the patient would have wanted under the circumstances.
(f) The patient's clinician shall make reasonable efforts to inform the patient of any proposed treatment, or of any proposal to withhold or withdraw treatment, based on the decisions made by the surrogate.
(g) If the patient's clinician determines that the patient no longer lacks capacity and the DNR/COLST order was based on informed consent provided by a surrogate, the clinician shall seek the informed consent of the patient for any DNR/COLST order, which shall supersede the surrogate's consent.
(h) A surrogate shall have the same rights as a patient with capacity would have to the following, to the extent that it is related to providing or withholding informed consent for a DNR/COLST order:
(1) request, receive, review, and copy any oral or written information regarding the patient's physical or mental health, including medical and hospital records;
(2) participate in any meetings, discussions, or conferences concerning health care decisions related to the patient;
(3) consent to the disclosure of health care information; and
(4) file a complaint on behalf of the patient regarding a health care provider, health care facility, or residential care facility. (Added 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)