COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 399
(By Senators Prezioso and Foster)
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[Originating in the Committee on Health and Human Resources;
reported March 22, 2005.]
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A BILL to amend and reenact §16-30-2, §16-30-3, §16-30-5 and
§16-30-10 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated
§16-30-26, all relating to end-of-life care; and the ability
of a physician, in specified circumstances, to refuse to
provide medical treatment if, to a reasonable degree of
medical certainty, the treatment would be medically
ineffective.
Be it enacted by the Legislature of West Virginia:
That §16-30-2, §16-30-3, §16-30-5 and §16-30-10 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
said code be amended by adding thereto a new section, designated
§16-30-26, all to read as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-2. Legislative findings and purpose.
(a)
Purpose. -- The purpose of this article is to ensure that
a patient's right to self-determination in health care decisions be
communicated and protected; and to set forth a process for private
health care decision making for incapacitated adults, including the
use of advance directives, which reduces the need for judicial
involvement and defines the circumstances under which immunity
shall be available for health care providers and surrogate
decisionmakers who make health care decisions.
The intent of the Legislature is to establish an effective
method for private health care decision making for incapacitated
adults, and to provide that the courts should not be the usual
venue for making decisions. It is not the intent of the
Legislature to legalize, condone, authorize or approve mercy
killing or assisted suicide.
(b)
Findings. -- The Legislature hereby finds that:
(1) Common law tradition and the medical profession in general
have traditionally recognized the right of a capable adult to
accept or reject medical or surgical intervention affecting one's
own medical condition;
(2) The application of recent advances in medical science and
technology increasingly involves patients who are unconscious or
otherwise unable to accept or reject medical or surgical treatment
affecting their medical conditions;
(3) Such advances have also made it possible to prolong the
dying process artificially through the use of intervening
treatments or procedures which, in some cases,
are expected to offer no hope of medical benefit;
(4) Capable adults should be encouraged to issue advance
directives designating their health care representatives so that in
the event any such adult becomes unconscious or otherwise incapable
of making health care decisions, decisions may be made by others
who are aware of such person's own wishes and values; and
(5) The right to make medical treatment decisions extends to
a person who is incapacitated at the moment of decision. An
incapacitated person who has not made his or her wishes known in
advance through an applicable living will, medical power of
attorney or through some other means has the right to have health
care decisions made on his or her behalf by a person who will act
in accordance with the incapacitated person's expressed values and
wishes, or, if those values and wishes are unknown, in the
incapacitated person's best interests.
(6) When medical treatment is requested by a person or the
person's appropriate decisionmaker that to a reasonable degree of
medical certainty will be medically ineffective or contrary to
accepted healthcare guidelines, there is no ethical obligation to
provide such treatment.
§16-30-3. Definitions.
For the purposes of this article:
(a) "Accepted health care guideline" means a health care or
practice guideline developed by a nationally recognized clinical or
professional association or a speciality society or government
sponsored agency that has developed practice or care guidelines based on original research or on review of existing research and
expert opinion. An accepted health care guideline also includes
policy or position statements issued by any West Virginia board
included in chapter thirty of this code with jurisdiction over
various health care practitioners. Guidelines established
primarily for purposes of coverage, payment or reimbursement do not
qualify as accepted practice or care guidelines when offered to
limit treatment options otherwise covered by the provisions of this
article.
(a) (b) "Actual knowledge" means the possession of information
of the person's wishes communicated to the health care provider
orally or in writing by the person, the person's medical power of
attorney representative, the person's health care surrogate or
other individuals resulting in the health care provider's personal
cognizance of these wishes. Constructive notice and other forms of
imputed knowledge are not actual knowledge.
(b) (c) "Adult" means a person who is eighteen years of age or
older, an emancipated minor who has been established as such
pursuant to the provisions of section twenty-seven, article seven,
chapter forty-nine of this code or a mature minor.
(c) (d) "Advanced nurse practitioner" means a registered nurse
with substantial theoretical knowledge in a specialized area of
nursing practice and proficient clinical utilization of the
knowledge in implementing the nursing process, and who has met the
further requirements of Title 19, legislative rules for West
Virginia Board of Examiners for Registered Professional Nurses, Series 7, who has a mutually agreed upon association in writing
with a physician and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the
person.
(e) "Appropriate decisionmaker" means the person according to
the provisions of this code who is authorized to make decisions for
an incapacitated person. Such person may be the person's guardian,
adult parent if the incapacitated person is a minor, medical power
of attorney representative or surrogate.
(d) (f) "Attending physician" means the physician selected by
or assigned to the person who has primary responsibility for
treatment and care of the person and who is a licensed physician.
If more than one physician shares that responsibility, any of those
physicians may act as the attending physician under this article.
(e) (g) "Capable adult" means an adult who is physically and
mentally capable of making health care decisions and who is not
considered a protected person pursuant to the provisions of chapter
forty-four-a of this code.
(f) (h) "Close friend" means any adult who has exhibited
significant care and concern for an incapacitated person who is
willing and able to become involved in the incapacitated person's
health care and who has maintained regular contact with the
incapacitated person so as to be familiar with his or her
activities, health and religious and moral beliefs.
(g) (i) "Death" means a finding made in accordance with
accepted medical standards of either: (1) The irreversible cessation of circulatory and respiratory functions; or (2) the
irreversible cessation of all functions of the entire brain,
including the brain stem.
(h) (j) "Guardian" means a person appointed by a court
pursuant to the provisions of chapter forty-four-a of this code who
is responsible for the personal affairs of a protected person and
includes a limited guardian or a temporary guardian.
(i) (k) "Health care decision" means a decision to give,
withhold or withdraw informed consent to any type of health care,
including, but not limited to, medical and surgical treatments,
including life-prolonging interventions, psychiatric treatment,
nursing care, hospitalization, treatment in a nursing home or other
facility, home health care and organ or tissue donation.
(j) (l) "Health care facility" means a facility commonly known
by a wide variety of titles, including, but not limited to,
hospital, psychiatric hospital, medical center, ambulatory health
care facility, physicians' office and clinic,
intermediate care
facility for treatment of mental retardation, licensed behavioral
group home, extended care facility operated in connection with a
hospital, nursing home, a hospital extended care facility operated
in connection with a rehabilitation center, hospice, home health
care and other facility established to administer health care in
its ordinary course of business or practice.
(k) (m) "Health care provider" means any licensed physician,
dentist, nurse, physician's assistant, paramedic, psychologist or
other person providing medical, dental, nursing, psychological or other health care services of any kind.
(l) (n) "Incapacity" means the inability because of physical
or mental impairment to appreciate the nature and implications of
a health care decision, to make an informed choice regarding the
alternatives presented and to communicate that choice in an
unambiguous manner.
(m) (o) "Life-prolonging intervention" means any medical
procedure or intervention that, when applied to a person, would
serve to artificially prolong the dying process or to maintain the
person in a persistent vegetative state. Life-prolonging
intervention includes, among other things, nutrition and hydration
administered intravenously or through a feeding tube. The term
"life-prolonging intervention" does not include the administration
of medication or the performance of any other medical procedure
considered necessary to provide comfort or to alleviate pain.
(n) (p) "Living will" means a written, witnessed advance
directive governing the withholding or withdrawing of
life-prolonging intervention, voluntarily executed by a person in
accordance with the requirements of section four of this article.
(o) (q) "Mature minor" means a person less than eighteen years
of age who has been determined by a qualified physician, a
qualified psychologist or an advanced nurse practitioner to have
the capacity to make health care decisions.
(r) "Medically ineffective treatment" means that, to a
reasonable degree of medical certainty, a medical procedure,
including, but not limited to, cardiopulmonary resuscitation, dialysis and mechanical ventilation, will not:
(1) Prevent the deterioration of the health of a person; or
(2) Prevent the impending death of a person.
For the purposes of this article, treatment to relieve pain
and suffering for a person with a terminal condition does not
constitute medically ineffective treatment.
(p) (s) "Medical information" or "medical records" means and
includes without restriction any information recorded in any form
of medium that is created or received by a health care provider,
health care facility, health plan, public health authority,
employer, life insurer, school or university or health care
clearinghouse that relates to the past, present or future physical
or mental health of the person, the provision of health care to the
person, or the past, present or future payment for the provision of
health care to the person.
(q) (t) "Medical power of attorney representative" or
"representative" means a person eighteen years of age or older
appointed by another person to make health care decisions pursuant
to the provisions of section six of this article or similar act of
another state and recognized as valid under the laws of this state.
(r) (u) "Parent" means a person who is another person's
natural or adoptive mother or father or who has been granted
parental rights by valid court order and whose parental rights have
not been terminated by a court of law.
(s) (v) "Persistent vegetative state" means an irreversible
state as diagnosed by the attending physician or a qualified physician in which the person has intact brain stem function but no
higher cortical function and has neither self-awareness or
awareness of the surroundings in a learned manner.
(t) (w) "Person" means an individual, a corporation, a
business trust, a trust, a partnership, an association, a
government, a governmental subdivision or agency or any other legal
entity.
(u) (x) "Physician orders for scope of treatment (POST) form"
means a standardized form containing orders by a qualified
physician that details a person's life-sustaining wishes as
provided by section twenty-five of this article.
(v) (y) "Principal" means a person who has executed a living
will or medical power of attorney.
(w) (z) "Protected person" means an adult who, pursuant to the
provisions of chapter forty-four-a of this code, has been found by
a court, because of mental impairment, to be unable to receive and
evaluate information effectively or to respond to people, events
and environments to an extent that the individual lacks the
capacity to: (1) Meet the essential requirements for his or her
health, care, safety, habilitation or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or
financial affairs to provide for his or her support or for the
support of legal dependents without the assistance or protection of
a conservator.
(x) (aa) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(y) (bb) "Qualified psychologist" means a psychologist
licensed to practice psychology who has personally examined the
person.
(z) (cc) "Surrogate decisionmaker" or "surrogate" means an
individual eighteen years of age or older who is reasonably
available, is willing to make health care decisions on behalf of an
incapacitated person, possesses the capacity to make health care
decisions and is identified or selected by the attending physician
or advanced nurse practitioner in accordance with the provisions of
this article as the person who is to make those decisions in
accordance with the provisions of this article.
(aa) (cc) "Terminal condition" means an incurable or
irreversible condition as diagnosed by the attending physician or
a qualified physician for which the administration of
life-prolonging intervention will serve only to prolong the dying
process.
§16-30-5. Applicability and resolving actual conflict between
advance directives.
(a) The provisions of this article which directly conflict
with the written directives contained in a living will or medical
power of attorney executed prior to the effective date of this
statute shall not apply. An expressed directive contained in a
living will or medical power of attorney or by any other means the
health care provider determines to be reliable shall be followed.
(b) If there is a conflict between the person's expressed
directives, the physician orders for scope of treatment form and the decisions of the medical power of attorney representative or
surrogate, the person's expressed directives shall be followed:
Provided, That if a person requests medical treatment orally or on
a living will or medical power of attorney, or a person or the
person's appropriate decisionmaker requests medical treatment on a
physician order for scope of treatment form, that person or the
person's appropriate decisionmaker will be informed that medical
treatment may not be performed if it is determined to be medically
ineffective according to the provisions of this article. If the
person who expressed a directive no longer possesses decision
making capacity, the person's appropriate decisionmaker will be
informed of the determination.
(c) In the event there is a conflict between two advance
directives executed by the person, the one most recently completed
takes precedence only to the extent needed to resolve the
inconsistency.
(d) If there is a conflict between the decisions of the
medical power of attorney representative or surrogate appropriate
decisionmaker and the person's best interests as determined by the
attending physician when the person's wishes are unknown, the
attending physician shall attempt to resolve the conflict by
consultation with a qualified physician, an ethics committee or by
some other means. If the attending physician cannot resolve the
conflict with the medical power of attorney representative, the
attending physician may transfer the care of the person pursuant to
subsection (b), section twelve of this article.
(e) Any petition filed and any proceeding held relating to the
provisions of this article shall, to the extent practicable, be
given priority over any other civil action before the court, except
actions in which trial is in progress. Any petition filed relating
to the provisions of this article shall be docketed immediately
upon filing.
§16-30-10. Reliance on authority of living will, physician orders
for scope of treatment form, medical power of
attorney representative or surrogate decisionmaker
and protection of health care providers.
(a) A physician, licensed health care professional, health
care facility or employee thereof shall not be subject to criminal
or civil liability for good-faith compliance with or reliance upon
the directions of the medical power of attorney representative in
accordance with this article.
(b) A health care provider shall not be subject to civil or
criminal liability for surrogate selection or good faith compliance
and reliance upon the directions of the surrogate in accordance
with the provisions of this article.
(c) A health care provider, health care facility or employee
thereof shall not be subject to criminal or civil liability for
good-faith compliance with or reliance upon the orders in a
physician orders for scope of treatment form.
(d) (d) No health care provider or employee thereof who in
good faith and pursuant to reasonable medical standards causes or participates in the withholding or withdrawing of life-prolonging
intervention from a person pursuant to a living will made in
accordance with this article shall, as a result thereof, be subject
to criminal or civil liability. A health care provider, health care
facility or employee or agent thereof acting in accordance with the
provisions of this article shall not be subject to criminal or
civil liability for declining to comply with a person's expressed
directive or a health care decision made by a person's appropriate
decisionmaker requesting medically ineffective treatment or health
care contrary to accepted guidelines. No such provider, facility,
employee or agent shall be criminally or civilly liable for the
withholding of medically ineffective treatment or health care
contrary to accepted guidelines in accordance with the provisions
of this article.
(e) An attending physician who cannot comply with the living
will or medical power of attorney of a principal pursuant to this
article shall, in conjunction with the medical power of attorney
representative, health care surrogate or other responsible person,
effect the transfer of the principal to another physician who will
honor the living will or medical power of attorney of the
principal. Transfer under these circumstances does not constitute
abandonment.
(f) An attending physician who cannot comply with the living
will or medical power of attorney of a principal pursuant to this
article shall, in conjunction with the person's medical power of
attorney representative, health care surrogate or other responsible person, effect the transfer of the principal to another physician
who will honor the living will or medical power of attorney of the
principal. Transfer under these circumstances does not constitute
abandonment.
§16-30-26. Medically ineffective treatment.
(a) Once the attending physician has determined that a
person's expressed directive or health care decision made by a
person's appropriate decisionmaker requests treatment that is
medically ineffective or that is contrary to accepted health care
guidelines, the attending physician, other health care provider, or
health care facility may decline to comply with the person's
expressed directive or health care decision made by a person's
appropriate decisionmaker:
Provided, That a second licensed
physician who has examined the person concurs with the
determination of the attending physician and documents this finding
in the person's medical record.
(b) An attending physician, other health care provider, or
health care facility that declines to comply with a person's
expressed directive or health care decision pursuant to subsection
(a) shall:
(1) Promptly so inform the person, if possible, and the
appropriate decisionmaker, explain other options for treatment of
the person's condition and record an entry in the person's medical
record indicating the basis for the determination that the
requested medical treatment will be medically ineffective or health
care contrary to accepted guidelines and their unwillingness to comply. If transfer of the person to another attending physician
is desired, the person or the person's appropriate decisionmaker
shall have responsibility for arranging the transfer of the person
to another health care provider;
(2) Provide continuing care, including continuing life-
prolonging intervention, to the person until a transfer can be
effected, if desired and feasible, except as provided in subsection
(c) of this section; and
(3) Cooperate with and not impede the transfer of the person
to another health care provider and health care facility identified
by the person, or the person's appropriate decisionmaker; a
transfer under these circumstances shall not constitute
abandonment.
(c) If the person or the person's appropriate decisionmaker
requests a transfer pursuant to subsection (b) of this section, but
after a period of seven days from the date of the health care
provider's entry in the person's medical record described in
subdivision (1), subsection (b) of this section no health care
provider and health care facility can be found who is willing to
comply with the request for medically ineffective treatment or
treatment contrary to accepted health care guidelines, then the
health care provider and health care facility shall no longer be
obligated to provide the life-prolonging intervention.
(d) If the attending physician and health care facility decide
to withhold or withdraw the requested treatment after a willing
health care provider and health care facility has not been found pursuant to subsection (c) of this section, then the attending
physician and health care facility shall so inform the person, if
possible, and any person then authorized to make health care
decisions for the person and withhold or withdraw the treatment
following a period of not less than seventy-two hours.
(e) Nothing in this section is intended to interfere with the
authority of a person, or the person's appropriate decisionmaker as
appropriate, to decline or withdraw consent for any unwanted
medical treatment or procedure.
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(NOTE: The purpose of this bill is to provide that a
physician, in certain circumstances, may refuse medical treatment
where within a degree of medical certainty the treatment would be
ineffective.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would be
added.
§16-30-26 is new; therefore, strike-throughs and underscoring
have been omitted.)
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