Who Can Make the Decisions?

When a family member is ill and unable to make decisions on their own, who decides for the patient may be an additional source of distress for the family members. How decisions are made in such circumstances is difficult and may add to the already stressful circumstances. Louisiana law provides a clear order for this decision making process by defining who may make decisions.

Persons who may consent to surgical or medical treatment

La. R.S. 40:1299.53

A. In addition to such other persons as may be authorized and empowered, any one of the following persons in the following order of priority, if there is no person in a prior class who is reasonably available, willing, and competent to act, is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures including autopsy not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician:

1. Any adult, for himself.
2. The judicially appointed tutor or curator of the patient, if one has been appointed.
3. An agent acting pursuant to a valid mandate, specifically authorizing the agent to make health care decisions.
4. The patient's spouse not judicially separated.
5. An adult child of the patient.
6. Any parent, whether adult or minor, for his child.
7. The patient's sibling.
8. The patient's other ascendants or descendants.
9. Upon the inability of any adult to consent for himself and in the absence of any person listed in Paragraphs (2) through (8) of this Subsection, an adult friend of the patient. For purposes of this Subsection to consent, “adult friend” means an adult who has exhibited special care and concern for the patient, who is generally familiar with the patient's health care views and desires, and who is willing and able to become involved in the patient's health care decisions and to act in the patient's best interest. The adult friend shall sign and date an acknowledgment form provided by the hospital or other health care facility in which the patient is located for placement in the patient's records certifying that he or she meets such criteria.
10. Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care and any guardian for his ward.

B. If there is more than one person within the above named class in Paragraphs (A)(1) through (9), the consent for surgical or medical treatment shall be given by a majority of those members of the class available for consultation.

C. If none of the persons listed under Paragraphs (A)(1) through (10) of this Section are reasonably available, then the patient's attending physician shall have the discretion to provide or perform any surgical or medical treatment or procedures, including but not limited to an autopsy, and may also make decisions regarding continued services needed by the patient, including but not limited to approving the placement or transfer of the patient to another facility, without the consent of the patient or other person authorized to consent for the patient. Prior to taking such action, the attending physician shall document in the patient's chart the facts that establish what medical decisions need to be made and why those decisions are needed without undue delay, as well as the steps taken to obtain consent from the patient or another person authorized by law to give consent and then obtain confirmation from another physician, preferably the patient's primary care physician if he is not the attending physician, of the patient's condition and the medical necessity for such action as is appropriate and consistent with the patient's condition and which cannot be omitted without adversely affecting the patient's condition or the quality of medical care rendered. The confirming physician shall personally examine the patient and document his assessment, findings and recommendations in the patient's chart prior to the proposed surgical or medical treatment or procedures being performed. This Subsection shall not apply to an emergency governed by the provisions of R.S. 40:1299.54.

D. (1) When no contact persons are included in the individual's records, in order to justify a finding that none of the authorized persons listed under Paragraphs (A)(1) through (9) of this Section are reasonably available, the patient's attending physician shall document the following in the patient's record:
(a) That he or a representative of the attending physician or facility has inquired of, or has made a documented good-faith effort to inquire of, the following entities regarding the existence of any advance directive made by the patient and the availability of information that would enable the physician to contact any person listed under Paragraphs (A)(2) through (9) of this Section:

• (i) The Louisiana Secretary of State's Living Will Registry.
• (ii) The patient's primary care physician or any known provider of medical treatment or services received by the patient in the previous one hundred and eighty days.
• (iii) Any known facility in which the patient has resided in the last one hundred and eighty days.

(b) That no advance directive or other information that would enable the physician to contact an authorized individual to consent is available.

(2) When names of potentially authorized persons are listed in the individual's records or are obtained through efforts under this Subsection, in order to justify a finding that none of the authorized persons listed under Paragraphs (A)(1) through (9) of this Section are reasonably available, the patient's attending physician shall document in the patient's record the name of each potentially authorized person that he or a representative of the physician or facility attempted to contact, the manner and date of the attempted contact, and the result of the attempted contact.