5055 Medical Consent – Special Situations and Guidelines | PUBLIC-GUARDIANSHIP-5800-MANUAL
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Georgia Division of Aging Services |
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Chapter: |
5050 Health and Medical Care |
Effective Date: |
03/01/2022 |
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Section Title: |
Medical Consent – Special Situations and Guidelines |
Reviewed or Updated in: |
MT 2022-02 |
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Section Number: |
5055 |
Previous Update: |
MT 2019-02 |
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Summary Statement
Specific legal and programmatic consultation may be needed in order to address individual cases.
Basic Considerations
The following guidelines provide clarification and direction in special situations. There are many factors that may need to be weighed in individual situations. Specific legal and programmatic consultation may be needed in order to address the uniqueness of individual cases.
Example of when consultation is required:
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The religious beliefs of the person under guardianship prohibit the treatment or the family’s wishes and the guardian’s plans conflict or the guardian is requested to consider “forcing” medical treatment to prevent death against the person’s wishes.
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A person under guardianship wants an abortion or the physician is recommending an abortion.
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Request for organ transplant from person under guardianship to another or experimental treatment/research.
Special Situations
Refusal of Medication and/or Treatment
While a guardianship removes the right of a person under guardianship to consent to medical treatment, it does not necessarily mean that a guardian can consent to any and all types of treatment over the objection of a person under guardianship. A person under guardianship, generally speaking, cannot make an informed consent to medical treatment. A person under guardianship does, however, retain a liberty interest to object to certain unwanted medical treatments and procedures, such as ECT, physical detention or involuntary commitment, and medications.
A guardian will receive consultation and notification rights of a person under guardianship who has a mental illness as in O.C.G.A. § 37-3-164, regardless of the objection of a person under guardianship. However, if a person under guardianship objects, the Department of Human Services (DHS), as guardian, cannot force the person under guardianship to take medication before the person under guardianship is considered an imminent risk to self or others (unsafe or emergency), or to stay in the hospital until completely well. See Public Guardianship Office Manual Sections 6007, Inpatient Hospitalization, and 6010, Refusal of Psychotropic Medications.
HIV Status
In reviewing screening and treatment options for DHS guardianship clients with mental illness or developmental disabilities who reside in Medicaid certified beds in a nursing facility, determine if any behavioral support plans and/or preadmission Screening and Resident Review (PASRR) progress documents are relevant.
The following are examples of when consultation is required:
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A person under guardianship is HIV positive and is sexually active. A person under guardianship who knows he or she is HIV positive and is sexually active must disclose to the sex partner that he or she is HIV positive. Section 16-5-60 of the Official Code of Georgia Annotated relates to reckless conduct causing harm to or endangering the bodily safety of another and the conduct by HIV infected persons. Such a person, failing to disclose, is guilty of a felony.
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Under O.C.G.A. § 24-12-21, when an HIV positive person’s physician reasonably believes that the spouse/sexual partner or any child is at risk of being infected by the HIV positive person…the physician may disclose to that spouse, sexual partner or child. This is done after they physician attempts to tell the HIV positive person that disclosure must be done.
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DHS may disclose to the board of health of the county in which the HIV positive person resides or is located if reasonably necessary to protect the health and safety of that person or others who may have come in contact with the body fluids of the HIV infected person, consistent with Department policy. DHS or the county board of health may contact any person at risk of being infected with HIV by the HIV positive person.
Do Not Resuscitate
“No Code” or “Do Not Resuscitate” (DNR) addresses the restarting of the heart and/or lungs should they fail. When a person’s heart and/or lungs cease working, procedures will be taken to restart the heart/lungs – unless there is a DNR/No Code on file for that person. People with advanced directives for healthcare should have their state wishes honored.
DHS, as guardian of an adult shall not authorize a “No Code” or “DNR” order.
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DHS shall not initiate legal action for the purpose of disconnecting life support.
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DHS shall make the person’s treating physician aware when the person under guardianship has a Georgia Advance Directive for Healthcare or a prior Durable Power of Attorney for Health Care. The guardian indicates to the physician that guardianship does not alter those arrangements.
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DHS shall be informed when a patient is determined to be a candidate for no resuscitation; however, DHS will leave the medical decision in the hands of the family and/or physician.
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Physicians or hospital personnel can be directed to O.C.G.A. § 31-39-4, the Cardiopulmonary Resuscitation Statute for persons authorized to issue an order not to resuscitate. DHS takes the position that the physician should follow the requirements of 31-39-4(e) in issuing an order not to resuscitate.
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The DHS representative shall contact the Long-Term Care Ombudsman on behalf of the client if a nursing home or hospital states that a person’s admission is contingent on the guardian signing an advance directive or “no code”. Do not sign such a form.
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When consenting for hospice care for a guardianship client, it is important for hospice to understand that DHS, as guardian, is not able to authorize a DNR. This should not prevent the person under guardianship from benefiting from hospice care. Any problems in this area should be discussed with the person’s treating physician.