AN ACT to amend and reenact subsection 3 of section 23-06.5-03 and section 23-12-13 of the North Dakota Century Code, relating to the determination of incapacity and informed consent of incapacitated patients and minors.
SB 2297 revises North Dakota law governing when a health care directive becomes effective and who may give informed consent for medical treatment on behalf of incapacitated adults and minors. The bill clarifies that a health care directive, including an agent’s authority, is effective only when the principal lacks capacity, as certified in writing by the principal’s attending physician, psychiatrist, or psychologist and placed in the medical record, and it ends when capacity is regained.
The bill also rewrites the state’s informed-consent hierarchy for patients who cannot consent for themselves. It defines “incapacitated patient” and reorganizes the priority list of people who may consent, including durable power of attorney holders, health care agents, guardians, spouses, adult children, parents, adult siblings, grandparents, adult grandchildren, close relatives or friends, and, as a last resort, an interdisciplinary team of at least three health care professionals. For minors, it preserves parental authority first, then sets a similar fallback order if a parent cannot consent. The bill requires good-faith efforts to locate higher-priority decision-makers and continues existing limits on who may authorize sterilization, abortion, psychosurgery, or extended admission to a state mental health facility.
SB 2297 amends sections 23-06.5-03 and 23-12-13 of the North Dakota Century Code, affecting advance health care directives, surrogate decision-making, and informed consent procedures for incapacitated adults and minors. It standardizes the medical certification needed to establish incapacity, clarifies when directive authority begins and ends, and updates the statutory order of priority for surrogate consent. Health care providers, patients, families, guardians, and designated agents are the primary parties affected, and providers must continue reasonable and good-faith efforts to identify higher-priority decision-makers before relying on lower-priority surrogates or an interdisciplinary team.
The bill appears to have broad bipartisan support and moved with overwhelmingly favorable votes in both chambers, passing the Senate 46-1 and the House 90-3. The lack of recorded committee debate or opposition in the provided materials suggests the measure was viewed as a technical or clarifying update to existing consent and incapacity rules rather than a highly controversial policy change. Overall sentiment was positive and largely consensus-driven.
The main substantive issues in the bill are the scope of surrogate authority and the order of priority for who may make decisions when a patient cannot consent. The inclusion of an interdisciplinary team as a last-resort decision-maker may raise concern for some about institutional involvement in family medical decisions, while the retained prohibitions on sterilization, abortion, psychosurgery, and extended mental health admission preserve limits that could be points of interest in related debates. However, the vote totals indicate little visible contention in the legislative record provided.