SB 2297 — AN ACT to amend and reenact subsection 3 of section 23-06.5-03 and section 23-12-13 of the North Dakota Century Code, relating to the determination of incapacity and informed consent of incapacitated patients and minors.

25.1234.02000 Sixty-ninth Legislative Assembly of North Dakota FIRSTIn ENGROSSMENTRegular ENGROSSEDSession Commencing Tuesday, January 7, 2025 SENATE BILL NO.

2297 Introduced(Senators by Senators Roers, Barta, Lee, SorvaagSorvaag) Representative(Representative O'BrienO'Brien) AAN BILLACT for an Act to amend and reenact subsection 3 of section 23-06.5-03 and section 23-12-13 of the North Dakota Century Code, relating to the determination of incapacity and informed consent of incapacitated patients and minors.

Subsection 3 of section 23-06.5-03 of the North Dakota Century Code is amended and reenacted as follows:

3.

A health care directive, including the agent's authority, is in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician, psychiatrist, or psychologist and filed in the principal's medical record, and ceases to be effective upon a determination that the principal has recovered capacity.

SECTION 2.

AMENDMENT.

Informed consent for health care for a minor patient or a patient who is determined by a physician to be an incapacitated person, as defined in subsection 2 of section 30.1-26-01, and unable to consent may be obtained from a person authorized to consent on behalf of the patientForpatient. purposes of this section:

PersonsFor purposes of this section:

"Incapacitated patient" means an adult unable to understand and appreciate the nature and consequence of a health care decision, including the benefits, harms, and reasonable alternatives to proposed health care, and unable to communicate a health care decision, as certified by the patient's attending physicianphysician, psychiatrist, or psychologist and filed in the patient's medical record.

Persons 2.

IndividualsUnless a court of competent jurisdiction determines otherwise, individuals in the following classes and in the following order of priority may provide informed consent to health care on behalf of thean incapacitated patient:

The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions, unless a court of competent jurisdiction specifically authorizes a guardian to make medical Pagedecisions No.for the incapacitated person;

1 25.1234.02000 Sixty-ninth Legislative Assembly decisions for the incapacitated personA guardian acting under a valid court order specifically authorizing the guardian to make health care decisions for the patient;

c.b.

c.S.

TheB. patient's d.

ANO. spouse of the patient who has maintained significant contactscontact with the incapacitated personpatient;

2297 - PAGE 2 c.

The patient'sA spouse of the patient who has maintained significant contactscontact with the incapacitated personpatient;

ChildrenChildrenA e.child of the patient who areis at least eighteen years of age and who havehas maintained significant contactscontact with the incapacitated personpatient;

A child of the patient who areis at least eighteen years of age and who havehas maintained significant contactscontact with the incapacitated personpatient;

ParentsParentsA f.parent of the patient, including a stepparent who has maintained significant contactscontact with the incapacitated personpatient;

A parent of the patient, including a stepparent who has maintained significant contactscontact with the incapacitated personpatient;

Adult brothers and sisterssistersAn g.adult sibling of the patient who havehas maintained significant contactscontact with the incapacitated personpatient;

An adult sibling of the patient who havehas maintained significant contactscontact with the incapacitated personpatient;

GrandparentsGrandparentsA h.grandparent of the patient who havehas maintained significant contactscontact with the incapacitated personpatient;

A grandparent of the patient who havehas maintained significant contactscontact with the incapacitated personpatient;

GrandchildrenGrandchildrenA i.grandchild of the patient who areis at least eighteen years of age and who havehas maintained significant contactscontact with the incapacitated personpatient;

Aor grandchildi. of the patient who areis at least eighteen years of age and who havehas maintained significant contactscontact with the incapacitated personpatient;

or i.j.

or k.j.

Page(1) No.An interdisciplinary team may include an employee or agent of a health care provider treating an incapacitated patient, including a member of the ethics committee, provided a member of the team is not directly involved with the treatment of the incapacitated patient.

2 25.1234.02000 Sixty-ninth Legislative Assembly (1) An interdisciplinary team may include an employee or agent of a health care provider treating an incapacitated patient, including a member of the ethics committee, provided a member of the team is not directly involved with the treatment of the incapacitated patient.

4.S.

AB. physicianhealth care provider seeking informed consent for proposed health care for a minor patient or a patient who is an incapacitated person andan incapacitated Page No.

3NO. 25.1234.02000 Sixty-ninth Legislative Assembly patient or a minor who is unable to consent must make reasonable efforts to locate and secure authorization for the health care from a competent personindividual in the first or succeeding class identified in subsection 12 for an incapacitated patient or subsection 3 for a minor.

2297 - PAGE 3 4.

A physicianhealth care provider seeking informed consent for proposed health care for a minor patient or a patient who is an incapacitated person andan incapacitated patient or a minor who is unable to consent must make reasonable efforts to locate and secure authorization for the health care from a competent personindividual in the first or succeeding class identified in subsection 12 for an incapacitated patient or subsection 3 for a minor.

If a patient who is determined by a physicianphysician, psychiatrist, or psychologist to be an incapacitated personpatient, or a personan individual interested in the patient's welfare, objects to a determination of incapacity made pursuant toin accordance with this section, a court hearing pursuant to chapter 30.1-28 must be held to determine the issue of incapacity.