Code of the District of Columbia

§ 21–2210. Substituted consent.

(a) In the absence of a durable power of attorney for health care and provided that the incapacity of the principal has been certified in accordance with § 21-2204, the following individuals, in the order of priority set forth below, shall be authorized to grant, refuse or withdraw consent on behalf of the patient with respect to the provision of any health-care service, treatment, or procedure:

(1) A court-appointed guardian or conservator of the patient, if the consent is within the scope of the guardianship or conservatorship;

(1A) A court-appointed intellectual disability advocate of the patient, if the ability to grant, refuse, or withdraw consent is within the scope of the advocate’s appointment under section 7-1304.13.

(2) The spouse or domestic partner of the patient;

(3) An adult child of the patient;

(4) A parent of the patient;

(5) An adult sibling of the patient;

(5A) A religious superior of the patient, if the patient is a member of a religious order or a diocesan priest;

(5B) A close friend of the patient; or

(6) The nearest living relative of the patient.

(b) A decision to grant, refuse or withdraw consent made pursuant to subsection (a) of this section shall be based on the known wishes of the patient or, if the wishes of the patient are unknown and cannot be ascertained, on a good faith belief as to the best interests of the patient.

(c) There shall be at least 1 witness present whenever a person specified in subsection (a)(2) through (6) of this section grants, refuses or withdraws consent on behalf of the patient.

(d) If no individual in a prior class is reasonably available, mentally capable and willing to act, responsibility for decisionmaking shall rest with the next reasonably available, mentally capable, and willing person on the priority list.

(e) Any person listed in subsection (a) of this section shall have legal standing to challenge in the Superior Court of the District of Columbia any decision made by a person of higher priority as listed within that subsection.

(f) The order of priority established in subsection (a) of this section creates a presumption that may be rebutted if a person of lower priority is found to have better knowledge of the wishes of the patient, or, if the wishes of the patient are unknown and cannot be ascertained, is better able to demonstrate a good-faith belief as to the interests of the patient.

(g) An individual identified in subsection (a)(5B) of this section shall not be authorized to grant, refuse, or withdraw consent on behalf of the patient with respect to a decision regarding a health-care service, treatment, or procedure if the individual is:

(1) A health-care provider who is treating or providing services to the incapacitated patient at the time of the health-care decision; or

(2) An owner, operator, administrator, or employee of, or a person with decision-making authority for, a health-care provider treating or providing services to the incapacitated patient at the time of the health-care decision.

(h) If no person listed in subsection (a) of this section is reasonably available, mentally capable, and willing to act, the health-care provider, or the District of Columbia, for those persons committed to receive habilitation or other services pursuant to Chapter 13 of Title 7, or any interested person may petition the Superior Court of the District of Columbia for appointment of a guardian pursuant to section 21-2044 or section 21-2046.

(i) The health-care provider who is treating or providing services to the incapacitated patient at the time of the health-care decision shall accept the decision of the individual authorized under this section to grant, refuse, or withdraw consent on behalf of the patient as the decision of the principal.


(Mar. 16, 1989, D.C. Law 7-189, § 11, 35 DCR 8653; Mar. 11, 1992, D.C. Law 9-67, § 2(b), 39 DCR 12; Feb. 5, 1994, D.C. Law 10-68, § 23(k), 40 DCR 6311; June 21, 2003, D.C. Law 15-17, § 2(b), 50 DCR 3387; Mar. 13, 2004, D.C. Law 15-105, § 106, 51 DCR 881; Oct. 22, 2008, D.C. Law 17-249, § 3(c), 55 DCR 9206; Sept. 26, 2012, D.C. Law 19-171, § 77, 59 DCR 6190; May 5, 2018, D.C. Law 22-93, § 202(c), 65 DCR 2823.)

Prior Codifications

1981 Ed., § 21-2210.

Section References

This section is referenced in § 7-651.01, § 7-1231.02, § 7-1231.06, § 7-1231.07, § 7-1301.03, § 7-1305.04, § 7-1305.06a, § 7-1305.06b, § 7-1305.06c, § 7-1305.07a, § 21-2011, § 21-2046, § 21-2047.02, and § 21-2211.

Effect of Amendments

D.C. Law 15-17, in subsec. (a), inserted “or domestic partner” after “spouse” in par. (2), made a nonsubstantive change in par. (5A), and added par. (5B); and added subsecs. (f) and (g).

D.C. Law 15-105, in subsec. (g), validated previously made technical corrections.

D.C. Law 17-249 added subsecs. (a)(1A), (h), and (i).

The 2012 amendment by D.C. Law 19-171 validated a previously made technical correction in (a)(1A).

Applicability

Section 7011 of D.C. Law 22-33 repealed § 4 of D.C. Law 21-72. Therefore the creation of this section by D.C. Law 21-72 has been implemented.

Applicability of D.C. Law 21-72: § 4 of D.C. Law 21-72 provided that the change made to this section by § 2 of D.C. Law 21-72 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been given effect.

Emergency Legislation

For temporary (90 days) repeal of § 4 of D.C. Law 21-72, see § 7011 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).

For temporary (90 days) repeal of § 4 of D.C. Law 21-72, see § 7011 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Mental Retardation and Developmental Disabilities Emergency Amendment Act of 2005 (D.C. Act 16-190, October 28, 2005, 52 DCR 10021).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Mental Retardation and Development Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-262, January 26, 2006, 53 DCR 795).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).

For temporary (90 day) amendment of section, see § 3(c) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).

For temporary (90 day) amendment, see § 3(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).

Temporary Legislation

Section 3(c) of D.C. Law 16-46 added par. (1A) to subsec. (a) and added subsec. (h) to read as follows:

“(1A) A court-appointed mental retardation advocate of the patient, if the ability to grant, refuse, or withdraw consent is within the scope of the advocate’s appointment under § 7-1304.13.”

“(h) If no person listed in subsection (a) of this section is reasonably available, mentally capable, and willing to act, the health-care provider, or the District of Columbia, for those persons committed or admitted to receive habilitation or other services pursuant to Chapter 13 of Title 7 of the District of Columbia Official Code, or any interested person may petition the Superior Court of the District of Columbia for appointment of a limited guardian for health care pursuant to § 21-2044(c).”

Section 6(a) of D.C. Law 16-46 provided that the act shall expire after 225 days of its having taken effect.

Section 3(c) of D.C. Law 16-194 added a new par. (1A) to subsec. (a), and added a new subsec. (h) to read as follows:

“(h) If no person listed in subsection (a) of this section is reasonably available, mentally capable, and willing to act, the health-care provider, or the District of Columbia, for those persons committed or admitted to receive habilitation or other services pursuant to Chapter 13 of Title 7, or any interested person may petition the Superior Court of the District of Columbia for appointment of a health-care guardian pursuant to section 21-2044 or section 21-2046.”

Section 6(b) of D.C. Law 16-194 provided that the act shall expire after 225 days of its having taken effect.

Section 3(c) of D.C. Law 17-100 added subsecs. (a)(1A), (h), and (i) to read as follows:

“(1A) A court-appointed mental retardation advocate of the patient, if the ability to grant, refuse, or withdraw consent is within the scope of the advocate’s appointment under section 7-1304.13.”

“(h) If no person listed in subsection (a) of this section is reasonably available, mentally capable, and willing to act, the health-care provider, or the District of Columbia, for those persons committed or admitted to receive habilitation or other services pursuant to Chapter 13 of Title 7, or any interested person may petition the Superior Court of the District of Columbia for appointment of a health-care guardian pursuant to section 21-2044 or section 21-2046.

“(i) The health-care provider who is treating or providing services to the incapacitated patient at the time of the health-care decision shall accept the decision of the individual authorized under this section to grant, refuse, or withdraw consent on behalf of the patient as the decision of the principal.”

Section 6(b) of D.C. Law 17-100 provided that the act shall expire after 225 days of its having taken effect.