by Craig Klugman, Ph.D.

This week a revision to the Florida advance directive law takes effect. The notable things in this new law are that it allows for one to appoint a health care surrogate for a minor, to have a surrogate’s authority be effective immediately, and it necessitates appointing a primary physician fro make end-of-life determinations.

The bill was passed in this spring and signed into law on June 11, 2015. It was introduced by Senator John Wood, Republican of District 41. His district is in the middle of the state containing the city of Winter Haven.

I am not an attorney and am not providing legal advice. If you have questions in the state of Florida, you should seek the advice of an attorney. You can send your lawyer a link to the bill here. I am simply giving a bioethicist’s view of this bill.

The most curious change to the law is that “attending physician” has been altered to “primary physician.” A patient or surrogate can appoint a “primary physician.” Thinking about one’s primary doctor, this is usually not someone who works in the hospital. Thus, it is possible, even likely, that the new law gives the final decision for medical choices (what can be offered, what will be offered, diagnosis) to someone who is not at the hospital, may not be employed through the hospital, and may not even have privileges at that hospital. An outside doctor designated as “primary” can waltz into a hospital and make decisions that contradict that of the attending or treating physician on the case.

Suggested language for the designation of a surrogate contains the phrase: “My health care surrogate’s authority becomes effective when my primary physician determines that I am unable to make my own health decisions…” So if one uses this suggested language, then it is the primary physician, not the treating or attending physician who determines when there is a lack of capacity.

The primary physician (along with a second consulting physician) is also the only one who can make a determination that a patient is “in a terminal condition, has an end-stage condition, or is in a persistent vegetative state. “ An oncologist no longer can tell a patient that he or she has limited life remaining. An ER doc can no longer say that patient is at an “end stage” after a car wreck. If one has neurological damage and is being treated by a neurologist, that educated expert cannot determine PVS. Instead, she or he must call the primary physician, who probably is not a neurologist, to set the record straight. I suppose this allows a family or a surrogate to choose a physician who perhaps holds the same religious or political views as they do, and will let that belief be a filter for interpreting an examination rather than relying simply (and perhaps uncomfortably) on expert opinion.

Another addition explicitly state that surrogates have access to private health information. This is appropriate and necessary for someone at the time the surrogacy is needed to be able to make informed decisions.

A surrogate and the designated primary physician must be “reasonably available.” This term is defined as “readily able to be contacted without undue effort and wiling and able to act in a timely manner considering the urgency of the patient’s health care needs.” This is a little worrisome. If the surrogate is not in the hospital and needs to be called, is a phone call too much effort? If the person is not answering the phone but can call back—is that an untimely manner?

The new law requires that a hospital notify a surrogate (in writing) and the primary physician when a patient loses capacity. I suppose the when the letter comes in the mail several days after one’s relative has lost capacity that somehow decisions will magically be made.

When one does appoint a surrogate, one can choose if that surrogacy begins when capacity is lost or immediately. However, if the patient has capacity and disagrees with the surrogate, the patient’s wishes prevail. This may be useful for people with dementia or who are having trouble taking care of their affairs. Several other states already have such a provision including Illinois.

If you have friends or family in Florida, you may want to alert them to changes in the advance directive laws. At the very least, they should think about appointing a primary physician who will work with their designated surrogate.