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Introduced Version Senate Bill 399 History

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Senate Bill No. 399

(By Senators Prezioso and Foster)

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[Introduced February 28, 2005; referred to the

Committee on Health and Human Resources; and then to the Committee on the Judiciary.]

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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 cardiopulmonary resuscitation 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 decision makers 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 cardiopulmonary resuscitation is requested by a person or the person's appropriate decision maker that to a reasonable degree of medical certainty will be medically ineffective, there is no ethical obligation to provide cardiopulmonary resuscitation.
§16-30-3. Definitions.
For the purposes of this article:
(a) "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) "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) "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.
 (d) "Appropriate decision maker" 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) (e) "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) (f) "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) (g) "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) (h) "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) (i) "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) (j) "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) (k) "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) (l) "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) (m) "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) (n) "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) (o) "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) (p) "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.
 (q) "Medically ineffective cardiopulmonary resuscitation" means cardiopulmonary resuscitation that, to a reasonable degree of medical certainty, will be unsuccessful in restoring cardiac and respiratory function or that the person will experience repeated cardiopulmonary arrest in a short time before death occurs.
(p) (r) "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) (s) "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) (t) "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) (u) "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) (v) "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) (w) "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) (x) "Principal" means a person who has executed a living will or medical power of attorney.
(w) (y) "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) (z) "Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
(y) (aa) "Qualified psychologist" means a psychologist licensed to practice psychology who has personally examined the person.
(z) (bb) "Surrogate decision maker" 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 cardiopulmonary resuscitation orally or on a living will or medical power of attorney, or a person or the person's appropriate decision maker requests cardiopulmonary resuscitation on a physician order for scope of treatment form, that person or the person's appropriate decision maker will be informed that cardiopulmonary resuscitation 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 decision maker 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 decision maker 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 decision maker 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 decision maker requesting medically ineffective cardiopulmonary resuscitation. No such provider, facility, employee, or agent shall be criminally or civilly liable for the withholding of medically ineffective cardiopulmonary resuscitation 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 Cardiopulmonary Resuscitation.
(a) Once the attending physician has determined that a person's expressed directive or health care decision made by a person's appropriate decision maker requests medically ineffective cardiopulmonary resuscitation, 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 decision maker: 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 decision maker, 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 cardiopulmonary resuscitation will be medically ineffective and their unwillingness to comply. If transfer of the person to another attending physician is desired, the person or the person's appropriate decision maker shall have responsibility for arranging the transfer of the person to another health care provider; 
(2) Provide continuing care, including cardiopulmonary resuscitation for cardiopulmonary arrest, 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 decision maker; a transfer under these circumstances shall not constitute abandonment.
(c) If the person or the person's appropriate decision maker requests a transfer pursuant to subsection (b) of this section but after a period of 48 hours from the date of the health care provider's entry in the person's medical record described in subsection (b) (1) 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 cardiopulmonary resuscitation, then the health care provider and health care facility shall no longer be obligated to provide the cardiopulmonary resuscitation.
(d) Nothing in this section is intended to interfere with the authority of a person, or the person's appropriate decision maker as appropriate, to decline or withdraw consent for any unwanted medical treatment or procedure.

NOTE: The purpose of this bill is to provide that a physician, in certain circumstances, may refuse cardiopulmonary resuscitation where within a degree of medical certainty the treatments 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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