H. B. 2599
(By Delegates Gallagher, Huntwork, P. White
and Douglas)
[Introduced March 16, 1993; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to repeal section five-a, article five-c, chapter sixteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend chapter sixteen of said
code by adding thereto a new article, designated article
thirty-b, relating to definitions; health care surrogate;
private decision-making process; incapacity; selection of a
surrogate; surrogate decision-making standards; protection
of health care provided; and insurance.
Be it enacted by the Legislature of West Virginia:
That section five-a, article five-c, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; and that chapter sixteen of said code be
amended by adding thereto a new article, designated article
thirty-b, to read as follows:
ARTICLE 30B. HEALTH CARE SURROGATE.
§16-30B-1. Short title.
This act shall be known as the "Health Care Surrogate Act of
1993."
§16-30B-2. Legislative findings and purpose.
(a) Findings. -- The Legislature hereby finds that:
(1) All adults have a right to make decisions relating to
their own medical treatment, including the right to consent to or
refuse life-prolonging intervention; and
(2) The right to make medical treatment decisions extends to
persons who are incapacitated at the moment of decision. Such
persons who have not made their wishes known in advance through
an applicable living will or medical power of attorney or through
other means have the right to have health care decisions made on
their behalf by persons who will act in accordance with the
person's expressed values and wishes, or, if unknown, in the
person's best interests.
(b) Purpose. -- It is the purpose of this act to set forth
a process for private health care decision-making for
incapacitated adults that reduces the need for judicial
involvement and that defines the circumstances under which
immunity shall be available for health care providers and
surrogate decision makers who make such health care decisions.
It is the intent of the Legislature to establish an effective
method for private health care decision-making for incapacitated
adults, and it is also the intent of the Legislature that the
courts should not be the usual venue for making such decisions.
It is not the intent of the Legislature to legalize, condone,authorize or approve mercy killing or assisted suicide.
§16-30B-3. Definitions.
(a) "Adult" means a person who is eighteen years of age or
older, an emancipated minor under West Virginia code, section
twenty-seven, article seven, chapter forty-nine, or a mature
minor.
(b) "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.
(c) "Close friend" means any person eighteen years of age or
older who has exhibited special care and concern for the person
and who, to the reasonable satisfaction of the attending
physician, is willing and able to become involved in the person's
health care, and has maintained such regular contact with the
person as to be familiar with the person's activities, health,
and religious and moral beliefs.
(d) "Committee" shall have the same meaning as defined in
West Virginia code, section one, article eleven, chapter twenty-
seven.
(e) "Death" shall have the same meaning as defined in West
Virginia code, section one, article ten, chapter sixteen.
(f) "Guardian" shall have the same meaning as defined in
West Virginia code, section one, two, three, four, five and six,article ten-a, chapter forty-four.
(g) "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, nursing care,
hospitalization, treatment in a nursing home or other facility,
and home health care.
(h) "Health care facility" means a type of health care
provider commonly known by a wide variety of titles, including,
but not limited to, hospitals, medical centers, ambulatory health
care facilities, physicians' offices and clinics, extended care
facilities operated in connection with hospitals, nursing homes,
hospital extended care facilities operated in connection with
rehabilitation centers, and other facilities established to
administer health care in their ordinary course of business or
practice.
(i) "Health care provider" shall have the same meaning as
defined in West Virginia code, subsection (i), section one,
article three-c, chapter sixteen.
(j) "Incapacity," or words of like import, 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.
(k) "Life-prolonging intervention" shall have the same
meaning as defined in West Virginia code, subsection (6), sectiontwo, article thirty, chapter sixteen.
(l) "Medical information" shall have the same meaning as
defined in West Virginia code, section four-a, article five,
chapter fifty-seven for hospital records and such definition
shall apply to other health care facilities as defined in this
section, but shall include information maintained in any health
care facility.
(m) "Parent" means a person who is the natural or adoptive
mother or father of the child and whose parental rights have not
been terminated by a court of law.
(n) "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.
(o) "Qualified physician" means a physician licensed to
practice medicine in West Virginia who has personally examined
the person.
(p) "Surrogate decision maker" means an adult individual or
individuals who are reasonably available, are willing to make
health care decisions, on behalf of an incapacitated person, and
are identified by the attending physician in accordance with the
provisions of this article as the person or persons who are to
make those decisions in accordance with the provisions of this
article.
§16-30B-4. Applicability.
Nothing in this article shall be applied in derogation of a
person's known wishes as expressed in an applicable living willexecuted in accordance with section three, article thirty of this
chapter or a medical power of attorney executed in accordance
with section six, article thirty-a of this chapter or by any
other means the health care provider determines to be reliable.
§16-30B-5. Private decision-making process; authority of
surrogate; determination of incapacity.
(a) Health care decisions shall be made by capable adults
without regard to guidelines contained in this article.
(b) Health care providers may rely upon health care
decisions on behalf of an incapacitated person without resort to
the courts or legal process, if the decisions are made in
accordance with the following paragraphs in this section and
otherwise meet the requirements of this article.
(c) Authority and duties of surrogate.
(1) Scope of surrogate's authority.
The surrogate shall have the authority to make any and all
health care decisions on the person's behalf.
(2) Commencement of surrogate's authority.
The surrogate's authority shall commence upon a
determination, made pursuant to subsection (d) of this section,
of the incapacity of the adult. In the event the person no
longer is incapacitated, the surrogate's authority shall cease,
but shall recommence if the person subsequently becomes
incapacitated as determined pursuant to subsection (d) of this
section.
(3) Right and duty to be informed.
The surrogate shall seek medical information necessary to
make health care decisions. For the sole purpose of making
health care decisions for the person, the surrogate shall have
the same right of access to the person's medical information that
the person would have had and of discussion of this information
with the person's attending physician.
(d) Determination of incapacity.
(1) For the purposes of this article, a person or surrogate
decision maker shall not be presumed to be incapacitated merely
by reason of advanced age or disability. With respect to a
person who has a diagnosis of mental illness or mental
retardation, such a diagnosis is not a presumption that the
person is incapacitated. A determination that a person is
incapacitated shall be made by the attending physician.
(2) Before implementation of a decision by a surrogate
decision maker to withhold or withdraw life-prolonging
intervention, at least one other qualified physician or a
licensed psychologist who has personally examined the person must
concur in the determination of incapacity of an adult.
(3) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, and, if one is required, by the second physician or
licensed psychologist. The recording shall state the basis for
the determination of incapacity, including the cause, nature and
expected duration of the person's incapacity, if these are known.
(4) If the person is conscious, the attending physicianshall inform the person that he or she has been determined to be
incapacitated and that a surrogate decision maker may be making
decisions regarding life-prolonging intervention for the person.
Moreover, the person shall be informed of the identity of the
surrogate decision maker and of any decision made by the
surrogate.
§16-30B-6. Selection of a surrogate.
(a) When a person is incapacitated, the health care provider
must make reasonable inquiry as to the availability and authority
of a representative under the Medical Power of Attorney Act.
When no representative is authorized and/or available, and
willing to serve, the health care provider must make a reasonable
inquiry as to the availability of possible surrogates listed in
items (1) through (8):
(1) The person's guardian of the person or committee;
(2) The person's spouse;
(3) Any adult child of the person;
(4) Either parent of the person;
(5) Any adult sibling of the person;
(6) Any adult grandchild of the person;
(7) A close friend of the person; and
(8) Such other persons or classes of persons including, but
not limited to, such public agencies, public guardians, other
public officials, public and private corporations, and other
representatives as the department of health and human resources
may from time to time designate in its rules promulgated pursuantto chapter twenty-nine-a of this code.
(b) After the inquiry, the health care provider shall rely
on surrogates in the order of priority set forth above, provided:
(1) Where there are multiple possible surrogate decision
makers at the same priority level, the health care provider
shall, after reasonable inquiry, choose as the surrogate the one
who reasonably appears to be best qualified. In determining who
appears to be best qualified, the health care provider shall give
special consideration to whether the proposed surrogate
reasonably appears to be better able to make decisions either in
accordance with the known wishes of the person or in accordance
with the person's best interests. The health care provider shall
consider in this determination the proposed surrogate's regular
contact with the person prior to and during the incapacitating
illness, his or her demonstrated care and concern, and his or her
availability to visit the person during the illness and to engage
in face-to-face contact with the provider for the purposes of
fully participating in the decision-making process; or
(2) The health care provider may rely instead on a proposed
surrogate lower in the priority if, in the provider's judgment,
such individual is best qualified as described in subsection
(b)(1) to serve as the person's surrogate. The health care
provider shall document in the medical record his or her reasons
for selecting a surrogate in exception to the priority order in
subsection (a).
(c) The surrogate decision maker, as identified by thehealth care provider, is authorized to make health care decisions
on behalf of the person without court order or judicial
involvement. The health care provider may rely on the decisions
of the surrogate if the provider believes, after reasonable
inquiry, that a representative under a valid, applicable medical
power of attorney is unavailable, and there is no other
applicable advance directive:
Provided,
That there is no reason
to believe that the health care decisions are contrary to the
person's religious beliefs or that there is not actual notice of
opposition to such health care decisions to the health care
provider by a member of the same or a prior class.
(d) In the event an individual in a higher, or lower, or the
same priority level seeks to challenge the selection of or the
decision of the identified surrogate decision maker, the
challenging party may initiate declaratory proceedings in the
circuit court of the county in which the incapacitated person
resides. Any health care provider or other person is not
required to seek declaratory relief.
(e) Any surrogate who becomes unavailable for any reason may
be replaced by applying the provisions of this section in the
same manner as for the initial choice of surrogate.
(f) In the event an individual of a higher priority to an
identified surrogate becomes available and willing to be the
surrogate, the individual with higher priority may be identified
as the surrogate unless the provisions of subsection (b) apply.
(g) The authority of the surrogate expires when the personis no longer incapacitated or when the surrogate is unwilling or
unable to continue to serve.
§16-30B-7. Surrogate decision-making standards.
(a) General standards.
The surrogate shall make health care decisions:
(1) In accordance with the person's wishes, including
religious and moral beliefs; or
(2) In accordance with the person's best interests if these
wishes are not reasonably known and cannot with reasonable
diligence be ascertained, in accordance with the person's best
interest; and
(3) Which reflect the values of the person, including the
person's religious and moral beliefs, to the extent they are
reasonably known or can with reasonable diligence be ascertained.
(b) Assessment of best interests.
An assessment of the person's best interests shall include
consideration of the person's medical condition, prognosis, the
dignity and uniqueness of every person, the possibility and
extent of preserving the person's life, the possibility of
preserving, improving or restoring the person's functioning, the
possibility of relieving the person's suffering, the balance of
the burdens to the benefits of the proposed treatment or
intervention, and such other concerns and values as a reasonable
individual in the person's circumstances would wish to consider.
§16-30B-8. Reliance on authority of surrogate decision maker
and protection of health care providers.
A health care provider shall not be subject to civil or
criminal liability for good-faith compliance and reliance upon
the directions of the surrogate in accordance with this article.
Nothing in this article shall be deemed to protect a provider
from liability for the provider's own negligence in the
performance of the provider's duties or in carrying out any
instructions of the surrogate. Nothing in this article shall be
deemed to alter the law of negligence as it applies to the acts
of any surrogate or provider, and nothing herein shall be
interpreted as establishing a standard of care for health care
providers for purposes of the law of negligence.
§16-30B-9. Conscience objections.
(a) Health care facilities. Nothing in this article shall
be construed to require a health care facility to change
published policy of the health care facility that is expressly
based on sincerely held religious beliefs or sincerely held moral
convictions central to the facility's operating principles.
(b) Health care providers. Nothing in this article shall be
construed to require an individual health care provider to honor
a health care decision made pursuant to this article if:
(1) The decision is contrary to the individual provider's
sincerely held religious beliefs or sincerely held moral
convictions; and
(2) The individual health care provider promptly informs the
person who made the decision and the health care facility of his
or her refusal to honor the decision. In such event, thesurrogate decision maker shall have responsibility for arranging
the transfer of the person to another health care provider. The
individual health care provider shall cooperate in facilitating
such transfer, and a transfer under these circumstances shall not
constitute abandonment.
§16-30B-10. Interinstitutional transfers.
If a person with an order to withhold or withdraw life-
prolonging intervention is transferred from one health care
facility to another, the existence of such order shall be
communicated to the receiving facility prior to the transfer, and
the written order shall accompany the person to the receiving
facility and shall remain effective until an attending physician
at the receiving facility first examines the transferred person
and issues admission orders.
§16-30B-11. Insurance.
Neither policy of life insurance, nor annuity nor other type
of contract that is conditioned on the life or death of the
person, shall be legally impaired or invalidated in any manner by
the withholding or withdrawal of life-prolonging intervention
from a person in accordance with the provisions of this article,
notwithstanding any terms of the policy to the contrary.
§16-30B-12. Not suicide or murder.
The withholding or withdrawal of life-prolonging
intervention from a person in accordance with the decision of a
surrogate decision maker made pursuant to the provisions of this
article does not, for any purpose, constitute assisted suicide ormurder. The withholding or withdrawal of life-prolonging
intervention from a person in accordance with the decisions of a
surrogate decision maker made pursuant to the provisions of this
article, however, shall not relieve any individual of
responsibility for any criminal acts that may have caused the
person's condition. Nothing in this article shall be construed
to legalize, condone, authorize, or approve mercy killing or
assisted suicide.
§16-30B-13. Preservation of existing rights.
The provisions of this article are cumulative with existing
law regarding an individual's right to consent to or refuse
medical treatment. The provisions of this article shall not
impair any existing rights or responsibilities that a health care
provider, a person, including a minor or an incapacitated person,
or a person's family may have in regard to the withholding or
withdrawal of life-prolonging intervention, including any rights
to seek or forego judicial review of decisions regarding life-
prolonging intervention under the common law or statutes of this
state.
§16-30B-14. Relation to existing law; repeal of section five-a
of article five-c of chapter sixteen; no
abrogation of common law doctrine of medical
necessity.
(a) This article repeals section five-a of article five-c of
chapter sixteen of the code of West Virginia. Individuals
designated as patient representatives pursuant to section five-aof article five-c of chapter sixteen of the code of West Virginia
may agree to become surrogate decision makers subject to the
provisions of this article.
(b) Nothing in this article shall be construed to abrogate
the common law doctrine of medical necessity.
§16-30B-15. Severability.
The provisions of this article are severable and if any
provision, section or part thereof shall be held invalid,
unconstitutional or inapplicable to any person or circumstance,
such invalidity, unconstitutionality or inapplicability shall not
affect or impair any other remaining provisions contained herein.
NOTE: The purpose of this bill is to set forth a process
for private health care decision-making for incapacitated adults
that reduces the need for judicial involvement and that defines
the circumstances under which immunity shall be available for
health care provider.
This article is new; therefore, strike-throughs and
underscoring have been omitted.