Current through April 3, 2024
(1) Pursuant to this Rule, each professional
support services agency shall maintain and establish policies and procedures
governing the designation of a health care decision-maker for making health
care decisions for a consumer who is incompetent or who lacks capacity,
including but not limited to allowing the withholding of CPR measures from
individual consumers. An adult or emancipated minor may give an individual
instruction. The instruction may be oral or written. The instruction may be
limited to take effect only if a specified condition arises.
(2) An adult or emancipated minor may execute
an advance directive for health care. The advance directive may authorize an
agent to make any health care decision the consumer could have made while
having capacity, or may limit the power of the agent, and may include
individual instructions. The effect of an advance directive that makes no
limitation on the agent's authority shall be to authorize the agent to make any
health care decision the consumer could have made while having
capacity.
(3) The advance directive
shall be in writing, signed by the consumer, and shall either be notarized or
witnessed by two (2) witnesses. Both witnesses shall be competent adults, and
neither of them may be the agent. At least one (1) of the witnesses shall be a
person who is not related to the consumer by blood, marriage, or adoption and
would not be entitled to any portion of the estate of the consumer upon the
death of the consumer. The advance directive shall contain a clause that
attests that the witnesses comply with the requirements of this
paragraph.
(4) Unless otherwise
specified in an advance directive, the authority of an agent becomes effective
only upon a determination that the consumer lacks capacity, and ceases to be
effective upon a determination that the consumer has recovered
capacity.
(5) A facility may use
any advanced directive form that meets the requirements of the Tennessee Health
Care Decisions Act or has been developed and issued by the Board for Licensing
Health Care Facilities.
(6) A
determination that a consumer lacks or has recovered capacity, or that another
condition exists that affects an individual instruction or the authority of an
agent shall be made by the designated physician, who is authorized to consult
with such other persons as he or she may deem appropriate.
(7) An agent shall make a health care
decision in accordance with the consumer's individual instructions, if any, and
other wishes to the extent known to the agent. Otherwise, the agent shall make
the decision in accordance with the consumer's best interest. In determining
the consumer's best interest, the agent shall consider the consumer's personal
values to the extent known.
(8) An
advance directive may include the individual's nomination of a court-appointed
guardian.
(9) A health care
facility shall honor an advance directive that is executed outside of this
state by a nonresident of this state at the time of execution if that advance
directive is in compliance with the laws of Tennessee or the state of the
consumer's residence.
(10) No
health care provider or institution shall require the execution or revocation
of an advance directive as a condition for being insured for, or receiving,
health care.
(11) Any living will,
durable power of attorney for health care, or other instrument signed by the
individual, complying with the terms of Tennessee Code Annotated, Title 32,
Chapter 11, and a durable power of attorney for health care complying with the
terms of Tennessee Code Annotated, Title 34, Chapter 6, Part 2, shall be given
effect and interpreted in accord with those respective acts. Any advance
directive that does not evidence an intent to be given effect under those acts
but that complies with these regulations may be treated as an advance directive
under these regulations.
(12) A
consumer having capacity may revoke the designation of an agent only by a
signed writing or by personally informing the supervising health care
provider.
(13) A consumer having
capacity may revoke all or part of an advance directive, other than the
designation of an agent, at any time and in any manner that communicates an
intent to revoke.
(14) A decree of
annulment, divorce, dissolution of marriage, or legal separation revokes a
previous designation of a spouse as an agent unless otherwise specified in the
decree or in an advance directive.
(15) An advance directive that conflicts with
an earlier advance directive revokes the earlier directive to the extent of the
conflict.
(16) Surrogates.
(a) An adult or emancipated minor may
designate any individual to act as surrogate by personally informing the
supervising health care provider. The designation may be oral or
written.
(b) A surrogate may make a
health care decision for a consumer who is an adult or emancipated minor if and
only if:
1. The consumer has been determined
by the designated physician to lack capacity, and
2. No agent or guardian has been appointed,
or
3. The agent or guardian is not
reasonably available.
(c)
In the case of a consumer who lacks capacity, the consumer's surrogate shall be
identified by the supervising health care provider and documented in the
current clinical record of the facility at which the consumer is receiving
health care.
(d) The consumer's
surrogate shall be an adult who has exhibited special care and concern for the
consumer, who is familiar with the consumer's personal values, who is
reasonably available, and who is willing to serve.
(e) Consideration may be, but need not be,
given in order of descending preference for service as a surrogate to:
1. The consumer's spouse, unless legally
separated;
2. The consumer's adult
child;
3. The consumer's
parent;
4. The consumer's adult
sibling;
5. Any other adult
relative of the consumer; or
6. Any
other adult who satisfies the requirements of
0720-35-.13(16)(d).
(f) No person who is the subject of a
protective order or other court order that directs that person to avoid contact
with the consumer shall be eligible to serve as the consumer's
surrogate.
(g) The following
criteria shall be considered in the determination of the person best qualified
to serve as the surrogate:
1. Whether the
proposed surrogate reasonably appears to be better able to make decisions
either in accordance with the known wishes of the consumer or in accordance
with the consumer's best interests;
2. The proposed surrogate's regular contact
with the consumer prior to and during the incapacitating illness;
3. The proposed surrogate's demonstrated care
and concern;
4. The proposed
surrogate's availability to visit the consumer during his or her illness;
and
5. The proposed surrogate's
availability to engage in face-to-face contact with health care providers for
the purpose of fully participating in the decision-making process.
(h) If the consumer lacks capacity
and none of the individuals eligible to act as a surrogate under
0720-35-.13(16)(c)
through
0720-35-.13(16)(g)
is reasonably available, the designated physician may make health care
decisions for the consumer after the designated physician either:
1. Consults with and obtains the
recommendations of a facility's ethics mechanism or standing committee in the
facility that evaluates health care issues; or
2. Obtains concurrence from a second
physician who is not directly involved in the consumer's health care, does not
serve in a capacity of decision-making, influence, or responsibility over the
designated physician, and is not under the designated physician's
decision-making, influence, or responsibility.
(i) In the event of a challenge, there shall
be a rebuttable presumption that the selection of the surrogate was valid. Any
person who challenges the selection shall have the burden of proving the
invalidity of that selection.
(j) A
surrogate shall make a health care decision in accordance with the consumer'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 consumer's best interest. In determining
the consumer's best interest, the surrogate shall consider the consumer's
personal values to the extent known to the surrogate.
(k) A surrogate who has not been designated
by the consumer may make all health care decisions for the consumer that the
consumer could make on the consumer's own behalf, except that artificial
nutrition and hydration may be withheld or withdrawn for a consumer upon a
decision of the surrogate only when the designated physician and a second
independent physician certify in the consumer's current clinical records that
the provision or continuation of artificial nutrition or hydration is merely
prolonging the act of dying and the consumer is highly unlikely to regain
capacity to make medical decisions.
(l) Except as provided in
0720-35-.13(16)(m):
1. Neither the treating health care provider
nor an employee of the treating health care provider, nor an operator of a
health care institution nor an employee of an operator of a health care
institution may be designated as a surrogate; and
2. A health care provider or employee of a
health care provider may not act as a surrogate if the health care provider
becomes the consumer's treating health care provider.
(m) An employee of the treating health care
provider or an employee of an operator of a health care institution may be
designated as a surrogate if:
1. The employee
so designated is a relative of the consumer by blood, marriage, or adoption;
and
2. The other requirements of
this section are satisfied.
(n) A health care provider may require an
individual claiming the right to act as surrogate for a consumer to provide
written documentation stating facts and circumstances reasonably sufficient to
establish the claimed authority.
(17) Guardian.
(a) A guardian shall comply with the
consumer's individual instructions and may not revoke the consumer's advance
directive absent a court order to the contrary.
(b) Absent a court order to the contrary, a
health care decision of an agent takes precedence over that of a
guardian.
(c) A health care
provider may require an individual claiming the right to act as guardian for a
consumer to provide written documentation stating facts and circumstances
reasonably sufficient to establish the claimed authority.
(18) A designated physician who makes or is
informed of a determination that a consumer lacks or has recovered capacity, or
that another condition exists which affects an individual instruction or the
authority of an agent, guardian, or surrogate, shall promptly record the
determination in the consumer's current clinical record and communicate the
determination to the consumer, if possible, and to any person then authorized
to make health care decisions for the consumer.
(19) Except as provided in
0720-35-.13(20)
through
0720-35-.13(22),
a health care provider or institution providing care to a consumer shall:
(a) Comply with an individual instruction of
the consumer and with a reasonable interpretation of that instruction made by a
person then authorized to make health care decisions for the consumer;
and
(b) Comply with a health care
decision for the consumer made by a person then authorized to make health care
decisions for the consumer to the same extent as if the decision had been made
by the consumer while having capacity.
(20) A health care provider may decline to
comply with an individual instruction or health care decision for reasons of
conscience.
(21) A health care
institution may decline to comply with an individual instruction or health care
decision if the instruction or decision is:
(a) Contrary to a policy of the institution
which is based on reasons of conscience, and
(b) The policy was timely communicated to the
consumer or to a person then authorized to make health care decisions for the
consumer.
(22) A health
care provider or institution may decline to comply with an individual
instruction or health care decision that requires medically inappropriate
health care or health care contrary to generally accepted health care standards
applicable to the health care provider or institution.
(23) A health care provider or institution
that declines to comply with an individual instruction or health care decision
pursuant to
0720-35-.13(20)
through 0720-35-.13(22)
shall:
(a) Promptly so inform the consumer,
if possible, and any person then authorized to make health care decisions for
the consumer;
(b) Provide
continuing care to the consumer until a transfer can be effected or until the
determination has been made that transfer cannot be effected;
(c) Unless the consumer or person then
authorized to make health care decisions for the consumer refuses assistance,
immediately make all reasonable efforts to assist in the transfer of the
consumer to another health care provider or institution that is willing to
comply with the instruction or decision; and
(d) If a transfer cannot be effected, the
health care provider or institution shall not be compelled to comply.
(24) Unless otherwise specified in
an advance directive, a person then authorized to make health care decisions
for a consumer has the same rights as the consumer to request, receive,
examine, copy, and consent to the disclosure of medical or any other health
care information.
(25) A health
care provider or institution acting in good faith and in accordance with
generally accepted health care standards applicable to the health care provider
or institution is not subject to civil or criminal liability or to discipline
for unprofessional conduct for:
(a) Complying
with a health care decision of a person apparently having authority to make a
health care decision for a consumer, including a decision to withhold or
withdraw health care;
(b) Declining
to comply with a health care decision of a person based on a belief that the
person then lacked authority; or
(c) Complying with an advance directive and
assuming that the directive was valid when made and had not been revoked or
terminated.
(26) An
individual acting as an agent or surrogate is not subject to civil or criminal
liability or to discipline for unprofessional conduct for health care decisions
made in good faith.
(27) A person
identifying a surrogate is not subject to civil or criminal liability or to
discipline for unprofessional conduct for such identification made in good
faith.
(28) A copy of a written
advance directive, revocation of an advance directive, or designation or
disqualification of a surrogate has the same effect as the original.
(29) The withholding or withdrawal of medical
care from a consumer in accordance with the provisions of the Tennessee Health
Care Decisions Act shall not, for any purpose, constitute a suicide,
euthanasia, homicide, mercy killing, or assisted suicide.
(30) Physician Orders for Scope of Treatment
(POST)
(a) Physician orders for scope of
treatment (POST) may be issued by a physician for a patient with whom the
physician has a bona fide physician-patient relationship, but only:
1. With the informed consent of the
patient;
2. If the patient is a
minor or is otherwise incapable of making an informed decision regarding
consent for such an order, upon request of and with the consent of the agent,
surrogate, or other person authorized to consent on the patient's behalf under
the Tennessee Health Care Decisions Act; or
3. If the patient is a minor or is otherwise
incapable of making an informed decision regarding consent for such an order
and the agent, surrogate, or other person authorized to consent on the
patient's behalf under the Tennessee Health Care Decisions Act, is not
reasonably available, if the physician determines that the provision of cardio
pulmonary resuscitation would be contrary to accepted medical
standards.
(b) A POST may
be issued by a physician assistant, nurse practitioner or clinical nurse
specialist for a patient with whom such physician assistant, nurse practitioner
or clinical nurse specialist has a bona fide physician assistant-patient or
nurse-patient relationship, but only if:
1. No
physician, who has a bona fide physician-patient relationship with the patient,
is present and available for discussion with the patient (or if the patient is
a minor or is otherwise incapable of making an informed decision, with the
agent, surrogate, or other person authorized to consent on the patient's behalf
under the Tennessee Health Care Decisions Act);
2. Such authority to issue is contained in
the physician assistant's, nurse practitioner's or clinical nurse specialist's
protocols;
3. Either:
(i) The patient is a resident of a nursing
home licensed under title 68 or an ICF/MR facility licensed under title 33 and
is in the process of being discharged from the nursing home or transferred to
another facility at the time the POST is being issued; or
(ii) The patient is a hospital patient and is
in the process of being discharged from the hospital or transferred to another
facility at the time the POST is being issued; and
4. Either:
(i) With the informed consent of the
patient;
(ii) If the patient is a
minor or is otherwise incapable of making an informed decision regarding
consent for such an order, upon request of and with the consent of the agent,
surrogate, or other person authorized to consent on the patient's behalf under
the Tennessee Health Care Decisions Act; or
(iii) If the patient is a minor or is
otherwise incapable of making an informed decision regarding consent for such
an order and the agent, surrogate, or other person authorized to consent on the
patient's behalf under the Tennessee Health Care Decisions Act, is not
reasonably available and such authority to issue is contained in the physician
assistant, nurse practitioner or clinical nurse specialist's protocols and the
physician assistant or nurse determines that the provision of cardiopulmonary
resuscitation would be contrary to accepted medical standards.
(c) If the patient is an
adult who is capable of making an informed decision, the patient's expression
of the desire to be resuscitated in the event of cardiac or respiratory arrest
shall revoke any contrary order in the POST. If the patient is a minor or is
otherwise incapable of making an informed decision, the expression of the
desire that the patient be resuscitated by the person authorized to consent on
the patient's behalf shall revoke any contrary order in the POST. Nothing in
this section shall be construed to require cardiopulmonary resuscitation of a
patient for whom the physician or physician assistant or nurse practitioner or
clinical nurse specialist determines cardiopulmonary resuscitation is not
medically appropriate.
(d) A POST
issued in accordance with this section shall remain valid and in effect until
revoked. In accordance with this rule and applicable regulations, qualified
emergency medical services personnel; and licensed health care practitioners in
any facility, program, or organization operated or licensed by the Board for
Licensing Health Care Facilities, the Department of Mental Health and Substance
Abuse Services, or the Department of Intellectual and Developmental
Disabilities, or operated, licensed, or owned by another state agency, shall
follow a POST that is available to such persons in a form approved by the Board
for Licensing Health Care Facilities.
(e) Nothing in these rules shall authorize
the withholding of other medical interventions, such as medications,
positioning, wound care, oxygen, suction, treatment of airway obstruction or
other therapies deemed necessary to provide comfort care or alleviate
pain.
(f) If a person has a
do-not-resuscitate order in effect at the time of such person's discharge from
a health care facility, the facility shall complete a POST prior to discharge.
If a person with a POST is transferred from one health care facility to another
health care facility, the health care facility initiating the transfer shall
communicate the existence of the POST to qualified emergency medical service
personnel and to the receiving facility prior to the transfer. The transferring
facility shall provide a copy of the POST that accompanies the patient in
transport to the receiving health care facility. Upon admission, the receiving
facility shall make the POST a part of the patient's record.
(g) These rules shall not prevent, prohibit,
or limit a physician from using a written order, other than a POST, not to
resuscitate a patient in the event of cardiac or respiratory arrest in
accordance with accepted medical practices. This action shall have no
application to any do not resuscitate order that is not a POST, as defined in
these rules.
(h) Valid do not
resuscitate orders or emergency medical services do not resuscitate orders
issued before July 1, 2004, pursuant to then-current law, shall remain valid
and shall be given effect as provided in these rules.
Authority: T.C.A. §§
4-5-202,
4-5-204,
68-11-202, 68-11-204, 68-11-206,
68-11-209, 68-11-224, and 68-11-1801 through 68-11-1815.
