TITLE 31 HEALTH

Section 9. Consent for Surgical or Medical Treatment, 31-9-1 through 31-9-7.

ARTICLE 10 DRUG REPOSITORY PROGRAM

31-9-2. Persons authorized to consent to surgical or medical treatment.

In addition to such other persons as may be authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician:
1. Any adult, for himself or herself, whether by living will, advance directive for health care, or otherwise;
  (1.1) Any person authorized to give such consent for the adult under an advance directive for health care or durable power of attorney for health care under Chapter 32 of this title;
2. In the absence or unavailability of a person authorized pursuant to paragraph (1.1) of this subsection, any married person for his or her spouse;
3. In the absence or unavailability of a living spouse, any parent, whether an adult or a minor, for his or her minor child;
4. Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his or her care; and any guardian, for his or her ward;
5. Any female, regardless of age or marital status, for herself when given in connection with pregnancy, or the prevention thereof, or childbirth;
6. Upon the inability of any adult to consent for himself or herself and in the absence of any person to consent under paragraphs (1.1) through (5) of this subsection, the following persons in the following order of priority:
  1. Any adult child for his or her parents;
  2. Any parent for his or her adult child;
  3. Any adult for his or her brother or sister;
  4. Any grandparent for his or her grandchild;
  5. Any adult grandchild for his or her grandparent; or
  6. Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree; or
7. Upon the inability of any adult to consent for himself or herself and in the absence of any person to consent under paragraphs (1.1) through (6) of this subsection, an adult friend of the patient. For purposes of this paragraph, "adult friend" means 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 adult friend shall sign and date an acknowledgment form provided by the hospital or other health care facility in which the patient is located for placement in the patient's records certifying that he or she meets such criteria.
Any person authorized and empowered to consent under subsection (a) of this Code section shall, after being informed of the provisions of this Code section, act in good faith to consent to surgical or medical treatment or procedures which the patient would have wanted had the patient understood the circumstances under which such treatment or procedures are provided. The person who consents on behalf of the patient in accordance with subsection (a) of this Code section shall have the right to visit the patient in accordance with the hospital or health care facility's visitation policy.
For purposes of this Code section, the term "inability of any adult to consent for himself or herself" means a determination in the medical record by a licensed physician after the physician has personally examined the adult that the adult "lacks sufficient understanding or capacity to make significant responsible decisions" regarding his or her medical treatment or the ability to communicate by any means such decisions.
1. No hospital or other health care facility, health care provider, or other person or entity shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for relying in good faith on any direction or decision by any person reasonably believed to be authorized and empowered to consent under subsection (a) of this Code section even if death or injury to the patient ensues. Each hospital or other health care facility, health care provider, and any other person or entity who acts in good faith reliance on any such direction or decision shall be protected and released to the same extent as though such person had interacted directly with the patient as a fully competent person.
2. No person authorized and empowered to consent under subsection (a) of this Code section who, in good faith, acts with due care for the benefit of the patient, or who fails to act, shall be subject to civil or criminal liability for such action or inaction.

(a.1)In the absence, after reasonable inquiry, of any person authorized in subsection (a) of this Code section to consent for the patient, a hospital or other health care facility or any interested person may initiate proceedings for expedited judicial intervention to appoint a temporary medical consent guardian pursuant to Code Section 29-4-18.

(Code 1933, § 88-2904, enacted by Ga. L. 1971, p. 438, § 1; Ga. L. 1972, p. 688, § 1; Ga. L. 1975, p. 704, § 2; Ga. L. 1991, p. 335, § 1; Ga. L. 2001, p. 4, § 31; Ga. L. 2007, p. 133, § 12/HB 24; Ga. L. 2010, p. 852, § 1/SB 367.)

The 2010 amendment, effective June 3, 2010, substituted "this title" for "Title 31" at the end of paragraph (a)(1.1); added present paragraph (a)(2); redesignated former paragraph (a)(2) as present paragraph (a)(3); and deleted former paragraph (a)(3), which read: "Any married person, whether an adult or a minor, for himself or herself and for his or her spouse;"; deleted "or" at the end of paragraph (a)(5); in paragraph (a)(6), substituted "(1.1)" for "(2)" in the middle of the introductory language, deleted "or" at the end of subparagraph (a)(6)(C), substituted a semicolon for a period at the end of subparagraph (a)(6)(D), and added subparagraphs (a)(6)(E) and (a)(6)(F); added paragraph (a)(7); added subsection (a.1); added the last sentence to subsection (b); in subsection (c), inserted "the term" and substituted "or herself means" for "shall mean" near the beginning, and inserted "or her" following "his" near the end; and added subsection (d).

Cross references.

- Authority of court in juvenile proceeding to order that child undergo medical examination or treatment, § 15-11-12.

Termination of temporary medical consent guardianship, § 29-4-18.

Right of minor to obtain medical services for treatment of venereal disease on minor's consent alone, § 31-17-7.

Effect of consent by husband and wife to performance of artificial insemination procedure, § 43-34-37.

Consent of parent or guardian to blood donation by person 17 years of age or over, § 44-5-89.

Editor's notes.

- Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

Law reviews.

- For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015).

JUDICIAL DECISIONS

Consent may be manifest by acts and conduct.

- Consent to medical or surgical treatment may be manifest by acts and conduct, and need not necessarily be shown by writing or by express words. It may be implied from voluntary submission to treatment with full knowledge of what is going on. Smith v. Luckett, 155 Ga. App. 640, 271 S.E.2d 891 (1980).

Minors may not refuse unwanted care.

- Georgia provides no "mature minor" exception to the state's general rule that only adults may refuse unwanted medical care. Novak v. Cobb County-Kennestone Hosp. Auth., 849 F. Supp. 1559 (N.D. Ga. 1994), aff'd, 74 F.3d 1173 (11th Cir. 1996).

Parent signed as agent for adult son, not in personal capacity.

- Trial court erred in granting summary judgment to a medical center and denying it to a patient's parent because the parent signed the form on behalf of the adult son as an agent, not in a personal capacity; thus, the parent was not personally liable for any unpaid medical bills. Winterboer v. Floyd Healthcare Mgmt., 334 Ga. App. 97, 778 S.E.2d 354 (2015).

Cited in In re Doe, 262 Ga. 389, 418 S.E.2d 3 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Practice of acupuncture constitutes practice of medicine under laws of Georgia. 1973 Op. Att'y Gen. No. 73-131.

Minor unmarried female's right to consent limited.

- Whether minor, unmarried female under age of 18 years, can consent to medical treatment for herself when offered in conjunction with family planning services would depend in each instance on a determination of whether medical treatment was given in connection with pregnancy or childbirth. 1971 Op. Att'y Gen. No. 71-177.

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Parent and Child, §§ 71, 76. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, §§ 157 et seq., 180, 314 et seq.

C.J.S.

- 70 C.J.S., Physicians, Surgeons, and Other Health Care Providers, §§ 90 et seq., 116.

ALR.

- Consent as condition of right to perform surgical operation, 76 A.L.R. 562; 139 A.L.R. 1370.

Mental competency of patient to consent to surgical operation or medical treatment, 25 A.L.R.3d 1439.

Necessity and sufficiency of expert evidence to establish existence and extent of physician's duty to inform patient of risks of proposed treatment, 52 A.L.R.3d 1084.

Malpractice: questions of consent in connection with treatment of genital or urinary organs, 89 A.L.R.3d 32.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 A.L.R.5th 248.

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