South Carolina Amends The Adult Healthcare Consent Act

Haynsworth Sinkler Boyd, P.A.
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Haynsworth Sinkler Boyd, P.A.The South Carolina General Assembly approved H. 3602 this session which amends Section 44-66-30, the Adult Healthcare Consent Act, to allow persons who have an “established relationship” with a patient to provide medical consent for that patient.

The Adult Healthcare Consent Act governs who is allowed to make health care decisions for a patient when the patient is unable to consent. A patient is unable to consent if he or she is unable to appreciate the nature and implications of their condition and unable to make a reasoned decision, or communicate a decision, regarding his or her treatment. A patient’s inability to consent must be certified by two licensed physicians or by a health care professional in cases of emergency.

Before the Act was amended, the law provided a limited list of persons allowed to give informed consent for a patient deemed unable to consent. If a medical provider could not locate one of these individuals, or if these individuals were unwilling to cooperate with medical decision-making, the medical provider would often have to petition for the appointment of a guardian in probate court, which is a very arduous and costly endeavor.

The following persons, in order of priority, are able to provide medical consent for an incapacitated person under the new law:

  1. a guardian appointed by the court;
  2. an attorney appointed by the patient in a durable power of attorney, if the decision falls within the scope of his authority;
  3. a spouse of the patient, unless the patient and spouse are separated pursuant to the statute;
  4. an adult child or a majority of the adult children who are available for consultation;
  5. a parent;
  6. an adult sibling or a majority of the adult sibling available for consultation;
  7. a grandparent or a majority of the grandparents available for consultation;
  8. any other adult relative by blood that the health care professional believes to have a close relationship with the patient, or if more than one, a majority of the adult relatives;
  9. a person given authority by another statute; or
  10. if, after good faith efforts, the hospital or healthcare provider determines that the above 1 through 9 are not available, then:
    • a person who has an established relationship with the patient,
    • who is acting in good faith and on behalf of the patient and who can reliably convey the patient’s wishes,
    • but who is not a paid caregiver or health care provider to the patient.

The statute defines a person with an established relationship as “an adult who has exhibited special care and concern for the patient, who is generally familiar with the patient's health care views and desires, and who is willing and able to become involved in the patient's health care decisions and to act in the patient's best interest.”

The statute imposes a duty on the hospital or facility to provide a form for this person to sign and date before a notary public. This form must explain the length and nature of the relationship with the patient and must be maintained in the patient’s medical record along with documentation of any unsuccessful efforts to locate persons with higher statutory priority to provide consent.

The law took effect on May 24, 2019, upon signature by Governor Henry McMaster.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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