Senate Bill No. 488
(By Senators Blatnik and Holliday)
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[Introduced March 22, 1993; 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 chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-b, relating
to the do not resuscitate act; legislative findings and
purpose; definitions; applicability; presumed consent to
cardiopulmonary resuscitation; health care facilities not
required to expand to provide cardiopulmonary resuscitation;
issuance of a do not resuscitate order; order to be written
by a physician; compliance with a do not resuscitate order;
revocation; protection of persons carrying out in good faith
do not resuscitate order; notification by physician refusing
to comply with do not resuscitate order; insurance;
interinstitutional transfers; preservation of existing
rights; do not resuscitate order form; do not resuscitation
identification; public education; not suicide or murder; and
full faith and credit.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-b, to
read as follows:
ARTICLE 30B. DO NOT RESUSCITATE ACT.
§16-30B-1. Short title.
The article may be cited as the "Do Not Resuscitate Act".
§16-30B-2. Legislative findings and purposes.
(a) Findings. -- The Legislature hereby finds that:
(1) Although cardiopulmonary resuscitation has saved the
lives of persons experiencing sudden, unexpected death, present
medical data indicates that cardiopulmonary resuscitation rarely
leads to prolonged survival in persons with chronic illnesses in
whom death is expected;
(2) In many circumstances, the performance of
cardiopulmonary resuscitation on persons may cause infliction of
unwanted and unnecessary pain and suffering;
(3) All persons have a right to make health care decisions
including the right to refuse cardiopulmonary resuscitation;
(4) Persons with incapacity have the right to have health
care decisions made for them by surrogate decision-makers;
(5) Existing emergency medical services protocols require
their personnel to proceed with cardiopulmonary resuscitation
when they find a person in a cardiac or respiratory arrest even
if such person has completed a living will or medical power ofattorney, indicating that he or she does not wish to receive
cardiopulmonary resuscitation; and
(6) The administration of cardiopulmonary resuscitation by
emergency medical services personnel to persons who have
indicated by a living will or medical power of attorney or other
means that they do not wish to receive such resuscitation offends
the dignity of the person and conflicts with standards of
accepted medical practice.
(b) Purpose. -- It is the purpose of this article to ensure
that the right of a person to self-determination relating to
cardiopulmonary resuscitation is protected. It is the intent of
the Legislature by enacting this article to give direction to
emergency medical services personnel and other health care
providers in regard to the performance of cardiopulmonary
resuscitation.
§16-30B-3. Definitions.
As used in this article, unless the context clearly requires
otherwise, the following definitions apply:
(a) "Attending physician" means the physician selected by or
assigned to the person who has primary responsibility for
treatment or 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 the
provisions of this article.
(b) "Cardiopulmonary resuscitation" means those measures
used to restore or support cardiac or respiratory function in theevent of a cardiac or respiratory arrest.
(c) "Do not resuscitate identification" means a standardized
identification necklace, bracelet or card as set forth in this
article that signifies that a do not resuscitate order has been
issued for the possessor.
(d) "Do not resuscitate order" means an order issued by a
licensed physician that cardiopulmonary resuscitation should not
be administered to a particular person.
(e) "Emergency medical services personnel" means paid or
volunteer firefighters, law-enforcement officers, emergency
medical technicians, paramedics, or other emergency services
personnel, providers or entities, acting within the usual course
of their professions.
(f) "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 extended
care facility, home health care, and the gift or donation of a
body organ or tissue.
(g) "Health care facility" means a facility established to
administer and provide health care services and which is 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, andextended care facilities operated in connection with
rehabilitation centers.
(h) "Health care provider" means any physician, dentist,
nurse, paramedic, psychologist or other person providing medical,
dental, nursing, psychological or other health care services of
any kind.
(i) "Home" means any place of residence other than a health
care facility and includes residential board and care homes and
personal care homes.
(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) "Representative" means a person designated by a
principal to make health care decisions in accordance with
article thirty-a of this chapter.
(l) "Surrogate decision-maker" means a person or persons
over eighteen years of age with mental capacity who is reasonably
available, is willing to make health care decisions on behalf of
an incapacitated person, and is identified by the attending
physician in accordance with applicable provisions of this code
as the person or persons who is to make decisions pursuant to
this article: Provided, That a representative named in the
incapacitated person's medical power of attorney, if such
document has been completed, shall have priority over a surrogatedecision-maker.
(m) "Trauma" means blunt or penetrating bodily injuries from
impact which occur in situations including, but not limited to,
motor vehicle collisions, mass casualty incidents and industrial
accidents.
§16-30B-4. Applicability.
The provisions of this article apply to all persons
regardless of whether or not they have completed a living will or
medical power of attorney. For the purposes of direction to
emergency medical services personnel, a do not resuscitate order
does not apply to treatment rendered at the site where trauma has
occurred to persons who experience a cardiac or respiratory
arrest as the result of severe trauma.
§16-30B-5. Presumed consent to cardiopulmonary resuscitation;
health care facilities not required to expand to provide
cardiopulmonary resuscitation.
(a) Every person shall be presumed to consent to the
administration of cardiopulmonary resuscitation in the event of
cardiac or respiratory arrest, unless one or more of the
following conditions, of which the health care provider has
actual knowledge, apply:
(1) A do not resuscitate order in accordance with the
provisions of this article has been issued for that person;
(2) A completed living will for that person is in effect,
pursuant to the provisions of article thirty of this chapter, and
the person is in a terminal condition or a persistent vegetativestate; or
(3) A completed medical power of attorney for that person is
in effect, pursuant to the provisions of article thirty-a of this
chapter, in which the person indicated that he or she does not
wish to receive cardiopulmonary resuscitation, or his or her
representative has determined that the person would not wish to
receive cardiopulmonary resuscitation.
(b) Nothing in this article shall require a nursing home,
personal care home, or extended care facility operated in
connection with hospitals to institute or maintain the ability to
provide cardiopulmonary resuscitation or to expand its existing
equipment, facilities or personnel to provide cardiopulmonary
resuscitation: Provided, That if a health care facility does not
provide cardiopulmonary resuscitation, this policy shall be
communicated in writing to the person, representative or
surrogate decision-maker prior to admission.
§16-30B-6. Issuance of a do not resuscitate order; order to be
written by a physician.
(a) It is lawful for the attending physician to issue a do
not resuscitate order for persons who are present in or residing
at home or in a health care facility if the person,
representative, or surrogate has consented to the order. A do
not resuscitate order shall be issued in writing in the form as
described in this section for a person not present or residing in
a health care facility. For persons present in health care
facilities, a do not resuscitate order shall be issued inaccordance with the policies and procedures of the health care
facility or in accordance with the provisions of this article.
(b) Persons may request their physicians to issue do not
resuscitate orders for them.
(c) The representative or surrogate decision-maker may
consent to a do not resuscitate order for a person with
incapacity. A do not resuscitate order written by a physician
for a person with incapacity with the consent of the
representative or surrogate decision-maker is valid and shall be
respected by health care providers.
(d) A parent may consent to a do not resuscitate order for
his or her minor child, provided that a second physician who has
examined the child concurs with the opinion of the attending
physician that the provision of cardiopulmonary resuscitation
would be contrary to accepted medical standards. If, in the
opinion of the attending physician, the minor is of sufficient
maturity to understand the nature and effect of a do not
resuscitate order, then no such order is valid without the
consent of such minor. In the event of conflict between the
wishes of the parents or guardians and the wishes of the mature
minor, the wishes of the mature minor shall prevail.
(e) If a surrogate decision-maker is not reasonably
available or capable of making a decision regarding a do not
resuscitate order, an attending physician may issue a do not
resuscitate order for a person with incapacity in a health care
facility: Provided, That a second physician who has personallyexamined the person concurs in the opinion of the attending
physician that the provision of cardiopulmonary resuscitation
would be contrary to accepted medical standards.
(f) For persons not present or residing in a health care
facility, the do not resuscitate order shall be in the following
form on a card suitable for carrying on the person.
Do Not Resuscitate Order
"As treating physician of and
a licensed physician, I order that this person SHALL NOT BE
RESUSCITATED in the event of cardiac or respiratory arrest. This
order has been discussed with or
his/her representative or his/her
surrogate decision-maker who has given consent as evidenced by
his/her signature below.
Physician Name
Physician Signature
Address
Person Signature
Address
Surrogate Decision-maker Signature
Address
§16-30B-7. Compliance with a do not resuscitate order.
(a) Health care providers shall comply with the do not
resuscitate order when presented with:
(1) A do not resuscitate order completed by a physician on
a form as specified in section six of this article;
(2) Do not resuscitate identification as set forth in
section fourteen of this article; or
(3) A do not resuscitate order for a person present or
residing in a health care facility issued in accordance with the
health care facility's policies and procedures.
(b) Pursuant to this article, health care providers shall
respect do not resuscitate orders for persons in health care
facilities, ambulances, homes and communities within this state.
§16-30B-8. Revocation of do not resuscitate order.
(a) At any time a person in a health care facility may
revoke his or her previous request for or consent to a do not
resuscitate order by making either a written, oral or other act
of communication to a physician or other professional staff of
the health care facility.
(b) At any time a person residing at home may revoke his or
her do not resuscitate order by destroying such order and
removing do not resuscitate identification on his or her person.
The person is responsible for notifying his or her physician of
the revocation.
(c) At any time a representative or surrogate decision-maker
may revoke his or her consent to a do not resuscitate order for
a person with incapacity in a health care facility by notifying
a physician or other professional staff of the health care
facility of the revocation of consent in writing, or by orally
notifying the attending physician in the presence of a witness
eighteen years of age or older.
(d) At any time a representative or surrogate decision-maker
may revoke his or her consent for a person with incapacity
residing at home by destroying such order and removing do not
resuscitate identification from the person. The representative
or surrogate decision-maker is responsible for notifying the
person's physician of the revocation.
(e) The attending physician who is informed of or provided
with a revocation of consent pursuant to this section shall
immediately cancel the do not resuscitate order if the person is
in a health care facility and notify the professional staff of
the health care facility responsible for the person's care of the
revocation and cancellation. Any professional staff of the
health care facility who is informed of or provided with a
revocation of consent pursuant to this section shall immediately
notify the attending physician of such revocation.
(f) Only a licensed physician may cancel the issuance of a
do not resuscitate order.
§16-30B-9. Protection of persons carrying out in good faith do
not resuscitate order; notification of representative or
surrogate decision-maker by physician refusing to comply
with do not resuscitate order.
(a) No health care provider, health care facility, or
individual employed by, acting as the agent of, or under contract
with any of the foregoing may be subject to criminal prosecution
or civil liability for carrying out in good faith a do not
resuscitate order authorized by this article on behalf of a
person as instructed by the person, representative or surrogate
decision-maker or for those actions taken in compliance with the
standards and procedures set forth in this article.
(b) No health care provider, health care facility,
individual employed by, acting as agent of, or under contract
with any of the foregoing or other individual who witnesses a
cardiac or respiratory arrest may be subject to criminal
prosecution or civil liability for providing cardiopulmonary
resuscitation to a person for whom a do not resuscitate order has
been issued, provided that such physician or individual:
(1) Reasonably and in good faith was unaware of the issuance
of a do not resuscitate order; or
(2) Reasonably and in good faith believed that consent to
the do not resuscitate order had been revoked or canceled.
(c) Any physician who refused to issue a do not resuscitate
order at a person's request or to comply with a do not
resuscitate order entered pursuant to this article shall take
reasonable steps to advise promptly the person, representative,
or surrogate decision-maker of the person that such physician isunwilling to effectuate the order. The attending physician shall
thereafter at the election of the person, representative or
surrogate decision-maker permit the person, representative or
surrogate decision-maker to obtain another physician.
§16-30B-10. Insurance.
(a) No policy of life insurance is legally impaired,
modified, or invalidated in any manner by the issuance of a do
not resuscitate order notwithstanding any term of the policy to
the contrary.
(b) A person may not prohibit or require the issuance of a
do not resuscitate order for an individual as a condition of such
individual's being insured or receiving health care services.
§16-30B-11. Interinstitutional transfers.
If a person with a do not resuscitate order is transferred
from one health care facility to another health care facility,
the existence of a do not resuscitate order shall be communicated
to the receiving facility prior to the transfer, and the written
do not resuscitate order shall accompany the person to the health
care facility receiving the person and shall remain effective
until a physician at the receiving facility issues admission
orders.
§16-30B-12. Preservation of existing rights.
(a) Nothing in this article impairs or supersedes any legal
right or legal responsibility which any person may have to effect
the withholding of cardiopulmonary resuscitation in any lawful
manner. In such respect, the provisions of this article arecumulative.
(b) Nothing in this article precludes a court of competent
jurisdiction from approving the issuance of a do not resuscitate
order under circumstances other than those under which such an
order may be issued pursuant to the provisions of this article.
§16-30B-13. Do not resuscitate order form; do not resuscitate
identification; public education.
(a) The secretary of the department of health and human
resources, no later than one year after the passage of this
article, shall implement the statewide distribution of do not
resuscitate forms as described in section six of this article.
(b) Do not resuscitate identification as set forth in this
article shall consist of either a medical condition bracelet or
necklace with the inscription of the patient's name, date of
birth in numerical form, and "WV do not resuscitate" on it. No
other identification or wording complies with the provisions of
this article. Such identification shall be issued only upon
presentation of a properly executed do not resuscitate order form
as set forth in section six of this article or a do not
resuscitate order properly executed in accordance with a health
care facility's written policy and procedure.
(c) The secretary of the department of health and human
resources, no later than one year after the passage of this
article, shall establish a system for the distribution of the do
not resuscitate identification bracelets and necklaces.
(d) The secretary of the department of health and humanresources, no later than one year after the passage of this
article, shall develop and implement a statewide educational
effort to inform the public of their right to accept or refuse
cardiopulmonary resuscitation and to request their physician to
write a do not resuscitation order for them.
§16-30B-14. Not suicide or murder.
The withholding of cardiopulmonary resuscitation from a
person in accordance with the provisions of this article does
not, for any purpose, constitute suicide or murder. The
withholding of cardiopulmonary resuscitation from a person in
accordance with the provisions of this article, however, does
not relieve any individual of responsibility for any criminal
acts that may have caused the person's condition. Nothing in
this article legalizes, condones, authorizes or approves mercy
killing or assisted suicide.
§16-30B-15. Full faith and credit.
It is the intention of the Legislature to recognize that
existence of do not resuscitate identification correctly
expresses the will of any person who bears it and that foreign
courts recognize this expression and give full faith and credit
to do not resuscitate identification.
NOTE: The purpose of this bill is to give direction to
health care providers in regard to the performance of
cardiopulmonary resuscitation.
This article is new; therefore, strike-throughs and
underscoring have been omitted.