GLAA endorses Health-Care Decisions Amendment Act
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GLAA endorses Health-Care Decisions Amendment Act

Gay and Lesbian Activists Alliance of Washington, DC
P. O. Box 75265
Washington, D.C. 20013
(202) 667-5139

Testimony on Bill 14-843
“Health-Care Decisions Amendment Act of 2002”

Before the Committee on the Judiciary
December 5, 2002

Councilmember Patterson, Members of the Committee, and Fellow Citizens:

Good morning. My name is Craig Howell. I am a former President of the Gay and Lesbian Activists Alliance of Washington (GLAA), the oldest continuously active gay and lesbian civil rights group in the country. I am pleased to speak on GLAA’s behalf in support of Bill 14-843, the “Health-Care Decisions Amendment Act of 2002.”

We want to thank you, Mrs. Patterson, and your colleague Mr. Evans for taking the initiative to introduce this legislation. We also want to acknowledge the co-sponsorship of all your colleagues, excepting only Messrs. Chavous and Orange.

GLAA has long played a leadership role in promoting equal rights for same-sex families. As early as the mid-1970s, we supported then-Councilmember Arrington Dixon’s bills to recognize same-sex marriages and to ban discrimination against gay and lesbian parents in child visitation and custody cases; the latter bill was in fact enacted into law. In the 1980s, GLAA spearheaded the coalition that led to the passage of the Health Care Benefits Expansion Act of 1992, which first created the Domestic Partnership program here in the District. After Congress blocked funding to implement the program, GLAA publicized the clever means authorized by then-Mayor Sharon Pratt Kelly to allow unmarried couples to become legally-recognized Domestic Partners. More recently, we played an active role in the broad-based coalition that developed and implemented the lobbying strategy that resulted in an end to the Congressional funding ban, overcoming a number of embarrassing miscues by the Mayor’s office.

The legislation before us this snowy morning would amend Chapter 22 of Title 21 of the DC Official Code, which deals with “Health-Care Decisions.” The current relevant section of the law, Section 21-2210, “Substituted consent,” begins as follows: “(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 section 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:”

The subsections give the order of priority as follows, in paraphrase: (1) a Court-appointed guardian or conservator; (2) spouse; (3) adult child; (4) parent; (5) adult sibling; (5A) religious superior (for patients in religious orders); and (6) the nearest living relative.

Under the current law, then, committed couples that have been long living together are “strangers to the law” if they are not related by blood or marriage when it comes to making critical decisions about each other’s health care if one partner becomes incapacitated. Even though some gay men and lesbians are estranged from their families of origin, these relatives are automatically granted a legal claim to make crucial health decisions, regardless of the wishes of their chosen loved ones.

Bill 14-843 would eliminate this source of potential tragedy. It would amend the second priority to read: “spouse or domestic partner.” It would also add a new priority, 5B: “A close friend of the patient.”

The bill would further add a new 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.”

A person does not have to be officially registered with the D.C. government as a domestic partner to be considered a domestic partner for purposes of this legislation. The bill defines “domestic partner” as “an adult person living with, but not married to, another adult person in a committed, intimate relationship.”

Similarly, a “close friend” is defined in the legislation as “any adult who has exhibited significant care and concern for the patient, and has maintained regular contact with the patient so as to be familiar with his or her activities, health, and religious and moral beliefs.”

GLAA endorses Bill 14-843 as a modest but potentially useful step towards extending full civil equality to same-sex relationships. In an ideal world, committed same-sex partners could be legally married, or at least would be executing durable power of attorney documents for each other. But since no state yet recognizes same-sex marriages, and since not all domestic partners are sophisticated enough to execute power of attorney documents, this reform should prove meaningful and productive.

We would suggest amending the bill’s definition of “domestic partner” to make clear that someone who is registered in the District as a Domestic Partner, or who can produce documentation for being registered under a substantially equivalent program in another jurisdiction or with an employer, automatically qualifies.

Thank you. I would be glad to answer any questions you may have.

[Note from Craig Howell: I was the first witness called to testify on Bill 14-843. I read my statement in full; no time limits, thank goodness. Ms. Patterson thanked me and indicated agreement with our suggestion at the end of our testimony about the usefulness of spelling out that people who have registered with the District's Domestic Partner program or with similar programs in other jurisdictions or with employers should automatically be considered to qualify as "domestic partners" under the terms of this legislation. I pointed out that such a provision would be especially useful for out-of-town visitors when one partner is stricken while here.

[Next was a panel of two people from the George Washington University Hospital Ethics Committee. Kathy indicated at the outset that the bill was originally their idea, and she introduced it at their behest. The first witness on the panel pointed out that the trend in health-care decision laws around the country has been to include close friends in the hierarchy of decision-makers, and that more jurisdictions are following the District's lead in establishing domestic partner programs; thus, the bill is intended to keep us up with the times. The other panel witness said that the addition of a new subsection (f), that allows a person of lower priority under the law to be recognized as a decision-maker in place of someone legally higher up the ladder, would grant some flexibility into the decision-making hierarchy. She cited one GWU Hospital case where an elderly woman was in intensive care for some time while a man with whom she had lived for 16 years, but whom she had never married, was powerless to make any health decisions for her; instead, the Hospital was legally obligated to consult and be guided by the wishes of the patient's 83-year-old sister who was feeble in both mind and body. So priorities and hierarchies would remain, but the presumption would become rebuttable under the bill.

[A woman from Corp Counsel testified briefly; she had no written statement. She did indicate that this legislation presents no problems for her office and indeed is in line with general social and political trends here and around the country; she called the bill a step forward. She did suggest that the definition of "close friend" be clarified to require some kind of indication that the patient welcomed and reciprocated the care and concern of the person seeking to make health care decisions on their behalf.

[Kathy said she would re-introduce the bill early in 2003, since it's too late for anything to be done with the bill in the current Council term.]

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