Other Bulletins

January 2003
Health Law Newsletter

Health Care Proxy Agent’s Authority to Commit a Principal to a Mental Health Facilityby Vanessa L. Smith, Esq.

The Massachusetts health care proxy statute, enacted in 1990, permits individuals to give advance directives for health care decisions. Such a directive is activated when a physician determines that an individual (“principal”) is incapable, due to a physical or mental condition, of making health care decisions or of communicating his or her wishes in this regard. The statute is broadly worded and allows an appointed agent to make “any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.”

The Massachusetts statute does not explicitly address whether a health care proxy agent is authorized to commit a principal to a mental health facility. As the Supreme Judicial Court of Massachusetts (“SJC”) has observed, “commitment to such a facility, unless voluntary, produces a loss of freedom as well as the stigma of mental illness.” An agent’s authority to commit a principal to a mental health facility has thus been a source of some debate and controversy and, until recently, was unsettled under Massachusetts law.

The SJC has clarified the scope of a health care proxy agent’s authority in this regard in a case called Cohen v. Bolduc. The SJC concluded that if the principal does not expressly limit the agent’s authority in the proxy instrument, the agent is authorized to make the treatment decision to commit the principal to a mental health facility, provided that the principal does not object to the commitment. If the principal does object, or if she revokes her proxy after it has been activated, the agent has no further authority to make treatment decisions, including those regarding the commitment or retention of the principal at a mental health facility, without a court determination that the principal is incapacitated.

The SJC’s decision hinged on the “respect for individual autonomy and self-determination reflected in the proxy statute” and an individual’s right to refuse medical treatment. The Court recognized that even after a proxy has been activated, a principal may disagree with her agent about a proposed course of treatment. Similarly, a principal may revoke her proxy at any time. In such cases, “the principal’s decision shall prevail.”

In the case of either an objection or a revocation of a proxy by the principal, the principal is presumed to have the capacity to make health care decisions and to revoke the proxy unless determined otherwise by a court. If the judge determines that the principal lacks such capacity, the proxy remains in effect, and the agent may continue to make treatment decisions on behalf of the principal pursuant to the health care proxy.

The Cohen decision applies specifically to treatment decisions by an agent on behalf of a principal pursuant to a health care proxy. Health care providers should be mindful that an individual appointed by a court as the guardian of a mentally ill person does not have the authority to admit or commit that person to a mental health facility unless the court “specifically finds (admission or commitment) to be in the best interests of such person and specifically so authorizes such admission or commitment by its order or decree” after a hearing at which the allegedly mentally ill person is represented by counsel.

Medical Peer Review Protection for Root-Cause Analysis of Sentinel Event

A recent West Virginia case has upheld the confidentiality and privileged nature of a root-cause analysis (“RCA”) performed by a hospital following a sentinel event. A sentinel event is defined by the Joint Committee on Accreditation of Healthcare Organizations (“JCAHO”) to be “an unexpected occurrence involving death or serious physical or psychological injury or the risk thereof.” The RCA evaluates what happened and why and seeks to identify changes that could be made in systems and processes that would reduce the risk of such events occurring in the future. The West Virginia case is important because it provides support to hospitals attempting to carry out effective risk-management inquiries, and a measure of comfort that the results of those efforts will not be used against the hospital or physicians in a medical malpractice action.

During the discovery phase of litigation, medical malpractice plaintiffs may attempt to obtain copies of quality assurance documents that evaluate the performance of the physicians involved. Massachusetts courts typically have denied such requests for disclosure on the ground that the documents sought are confidential and privileged under the Massachusetts medical peer review statute. That statute protects the privileged and confidential nature of the “the proceedings, reports, and records of a medical peer review committee” and exempts those materials from subpoena or discovery. To date, however, Massachusetts courts have not considered the issue of whether an RCA is entitled to the same protection from disclosure. Although Massachusetts courts are not required to follow the decisions of other state courts, the West Virginia case offers some encouragement that Massachusetts courts might also conclude that the RCA is privileged and exempt from disclosure.

The issue arose in Hess v. Ortho Clinic P.C., Inc., an ongoing case in the Circuit Court of Kanawha County in West Virginia, which involves a wrongful death claim against a physician. When plaintiffs sought to obtain information that would have been part of the RCA, counsel for the medical defendants moved for a protective order. The court heard extensive argument on the issue and conducted an in camera review of the RCA documents at issue. The court held that the Root Cause Analysis Committee of the hospital was a “review organization which conducted peer review” as contemplated by West Virginia law. The court ordered that the information was privileged under the West Virginia Peer Review Act and should not be disclosed to the plaintiffs.

The case is notable for the further reason that the JCAHO and the American Hospital Association filed amicus curiae briefs in support of the defendants’ position that the RCA was confidential. Their participation in the case underscores the position of those organizations that open and honest communications during the RCA are essential to the effectiveness of the sentinel event system in meeting the goal of improved patient safety. JCAHO is currently seeking the enactment of a federal statute that guarantees the confidentiality and privilege of root-cause analyses and other peer review materials.

If you would like additional information or assistance to help your health care practice or business meet its HIPAA compliance legal obligations, please contact Kelly A. McCarthy, Esq., Coordinator of the BR&G Health Law Practice Group, at (413) 272-6306, or Vanessa L. Smith, Esq., a member of the Group, at (413) 272-6213.