Support for Bill S.853, An Act Improving Medical Decision-Making

Testimony of Rebecca Weintraub Brendel MD, JD before the Massachusetts State Joint Committee on Judiciary
Rebecca Weintraub Brendel, MD, JD

Presented to The Honorable William N. Brownsberger,  Senate Chairman, and The Honorable John V. Fernandes, House Chairman, Joint Committee on Judiciary at the Boston State House Senate Room on June 24, 2015. 

Dear Chairman Brownsberger and Chairman Fernandes:

I am writing as a psychiatrist at Massachusetts General and Partners Healthcare, and on behalf of the Massachusetts Medical Society to offer strong support for S.853, “An Act Improving Medical Decision-Making.”

Under current law in Massachusetts, unless a patient has previously executed a health care proxy, a family member or loved one has no legal authority to  make decisions for a patient if the patient is unable to do so him or herself. Take, for example, a common scenario at MGH, where a patient is brought in after a sudden, unexpected, and devastating accident or injury, such as a motor vehicle collision. A previously healthy, vibrant, and employed young man or woman suddenly becomes incapacitated due to injuries including traumatic brain injury (TBI). The patient’s spouse, who often has to attend to the needs of the couple’s minor children, has no legal authority to consent to what would otherwise be optimal care once emergency situations are stabilized, even though initiating these interventions as soon as possible would carry the best chance of success. Under present law, the spouse, unable to consent because there is no health care proxy, instead, becomes involved in the expensive, burdensome, time-consuming, and public court hearing for guardianship in order to gain the legal authority to make decisions that the medical team and family all agree the patient needs, that gives the patient the best chance for meaningful recovery, and that all involved are certain the patient him or herself would choose if able to do so.

This bill would grant family members legal authority to consent to medical treatment for patients who are unable to consent for themselves in situations where there is agreement about the need for standard treatment. In reviewing the cases at our institution over the past 16 months, nearly half the patients for whom guardianship was required would not have required guardianship under this bill. Simply put, for these patients, the guardianship process did not affect which individual was authorized to make decisions for the patient as compared to what would have occurred under the framework proposed in this bill. Similarly, the guardianship process for these patients did not affect the treatment the patient ultimately received except that the burdens of guardianship were associated with delays in getting patient to the right care, in the right place, at the right time. By passing this bill, patients for whom guardianship would not make a difference would be able to get care in a private and timely way.

In addition, by decreasing the number of cases in which guardianship would be required, this bill could also shift the resources of courts, hospitals, medical personnel, families, and advocates to focus on cases for which guardianship would still be required, including when a patient is unbefriended, when there is disagreement about care and treatment, and / or when extraordinary treatment requiring substituted judgment is proposed. As such, by clearly focusing efforts on the care and treatment of vulnerable patients who require advocacy and decision-making through formal protective proceedings, this bill could also increase the efficiency and effectiveness or guardianship proceedings in the Commonwealth.

As we in the Commonwealth continue to lead the nation in quality healthcare, I urge you to give this legislation favorable recommendation to support our patients in their ability to access the right health care in the right place at the right time.

Respectfully submitted,

Rebecca Weintraub Brendel MD, JD
Board Certified in Psychiatry
Added Qualifications in Forensic Psychiatry and Psychosomatic Medicine