Description
S.B. 165 will prohibit a health facility or agency from maintaining or implementing a medical futility policy unless it is in writing. It will require a health facility or agency that maintains a medical futility policy to provide a copy upon request to a patient or resident, prospective patient or resident, or parent or legal guardian of any of those people.

“Medical futility policy” would mean a policy that encourages or allows a health facility or agency employee, or other health care professional to withhold or discontinue medical treatment or care for a patient or resident based on medical futility. “Medical futility” would mean a judgment that further medical treatment of a patient or resident would have no useful result.

This legislation will not prevent a health facility from having a medical futility policy, but it will encourage those health facilities who wish to assert “medical futility” to have a written policy explaining the health facilities’ standard for determining medical futility and to allow patients to make an informed decision about which facility to use if they are concerned about possible withholding or withdrawing of treatment.

Background
With the passage of Obamacare and the real possibility of “death panels,” knowing in advance of choosing a health care facility what that facilities’ policies are will give patients the knowledge they need to make an informed decision.

With increasing frequency, patients are being denied treatment on the basis of that treatment being deemed “futile” by health care facilities or providers. The testimony given in support of this bill came from a family of a disabled daughter who was denied routine treatment on the basis of the treatment being determined to be “futile” because the child has Trisomy 18 (the same condition that Rick Santorum’s daughter, Isabella, has).

In some cases, continued interventions are in fact futile, but there have been some cases where a patient was denied beneficial treatment because the doctor decided that it was futile. This bill does not create specific penalties should such a situation occur. But it will compel the hospital to acknowledge that they have a policy, put the policy in writing, and upon request, provide the patient or prospective patient a copy of the policy.

History
The Michigan House of Representatives unanimously approved (108-0) S.B. 165 on May 22, 2013. The House Health Policy Committee had unanimously reported a slightly amended version of the bill on May 14, 2013. Because of the changes made by the House, the Senate concurred in the House version on May 29, 2013, by a 36-0 vote. The bill was signed by Gov. Snyder on June 11, 2013, making the Medical Good-Faith Provisions Act Public Act 57 of 2013.

The Michigan Senate initially approved S.B. 165 by a unanimous 36-0 on April 9, 2013.

S. B. 165 was introduced on February 7, 2013 and was referred to the Senate Committee on Health Policy. On March 14, 2013, a substitute version of the bill was offered by the bill sponsor, Sen. Marleau, to replace the “medical futility” terminology with specific references to “life-sustaining treatment.” Both prolife medical ethicists and advocates for vulnerable patients endorsed the clarity that this new language offered to bill. By a unanimous vote, the amended bill was reported favorably to the full Senate.

A version of this bill was introduced late in 2012 by prolife Democratic Senator, Tupac Hunter, but received no action. Sen. Hunter solicited Sen. Marleau to assume sponsorship of the bill in 2013-14 session.