H. B. 4144
(By Delegates Douglas, Martin, Staton, Fleischauer, Compton,
Leach and Trump)
[Introduced January 25, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one, article four-b, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend said chapter by
adding thereto a new article, designated article four-e, all
relating to providing that future health care of a deceased
person's family is adequate justification to cause the
performance of an autopsy; providing that medical power of
attorney representative or health care surrogate of a
deceased may grant consent for autopsy; creating the "West
Virginia Health Care Decisions Act"; legislative findings
and purpose; definitions; executing a living will or medical
power of attorney; applicability and resolution of conflict
between advance directives; private decision making process;
authority of living will, medical power of attorney representative and surrogate; determination of incapacity;
selection of surrogate; medical power of attorney
representative and health care surrogate decision-making
standards; reliance on authority of living will, medical
power of attorney representative or surrogate decision-maker
and protection of health care providers; negligence;
conscience objections; interinstitutional transfers;
insurance; withholding or withdrawal of life support not
considered assisted suicide or murder; preservation of
existing rights and relation to existing law; disallowing
construence of abrogation of common law doctrine of medical
necessity; revocation of medical power of attorney;
retroactive effect to existing living wills; reciprocity
extended to out-of-state living wills; liability for failure
to act in accordance with the directives of a living will or
medical power of attorney or the directions of a medical
power of attorney representative or health care surrogate;
prohibiting denial of admission to health care facility;
and, requiring second opinion for incapacitated persons
before selection of surrogate.
Be it enacted by the Legislature of West Virginia:
That section one, article four-b, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said chapter be
amended by adding thereto a new article, designated article four-
e, all to read as follows:
ARTICLE 4B. AUTOPSIES ON BODIES OF DECEASED PERSONS.
§16-4B-1. Autopsy on body of deceased persons in interest of
medical science; who may perform; consent required;
who may give consent.
In case of the death of any person in the state of West
Virginia, the attending physician, or if there be none, any
physician, if he or she deems it advisable in the interest of
medical science or future health care of the deceased person's
family, may perform or cause to be performed an autopsy on the
body of such deceased person without liability therefor, provided
consent to such autopsy is first obtained in writing or by
telephone, if the telephone authorization is verified by a second
person, from one of the following in the priority order stated:
(1) The medical power of attorney representative, if available;
(2) the health care surrogate, if one is appointed; (1) (3) the
surviving spouse of deceased; (2) (4) if there be no surviving
spouse, then any child of deceased over the age of eighteen
years: Provided, That the child's permission shall not be valid,
if any other child of the deceased over the age of eighteen years
objects prior to said autopsy and the objection shall be made known in writing to the physician who is to perform the autopsy;
(3) (5) if there be no surviving spouse, nor any child of
deceased over the age of eighteen years, then the mother or
father of deceased; (4) (6) if there be no surviving spouse, nor
any child over the age of eighteen years, nor mother or father,
then the duly appointed and acting fiduciary of the estate of the
deceased; or (5) (7) if there be no surviving spouse, nor any
child over the age of eighteen years, nor mother or father, nor
duly appointed and acting fiduciary of the estate of deceased,
then the person, firm, corporation or agency legally responsible
for the financial obligation incurred in disposing of the body of
deceased.
In the event the medical power of attorney representative,
the health care surrogate, spouse, child or parent of deceased be
mentally incompetent then the person authorized to consent to
such autopsy shall be the next in the order of priority herein
above defined.
ARTICLE 4E. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-4E-1. Short title.
This article may be cited as the "West Virginia Health Care
Decisions Act."
§16-4E-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, 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.
§16-4E-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) "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.
(d) "Advanced practice nurse" means a nurse with
substantial theoretical knowledge in a specialized area of
nursing practice and proficient clinical utilization of the
knowledge in implementing the nursing process pursuant to the
provisions of Title 19, legislative rules for West Virginia board
of examiners for registered professional nurses, series seven.
(e) "Capable adult" means a person over the age of eighteen
years who is physically and mentally capable of making health
care decisions and who has not been deemed a protected person pursuant to the provisions of chapter forty-four-a of this code.
(f) "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) "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) "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) "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) "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, 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) "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) "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) "Life-prolonging intervention" means any medical
procedure or intervention that, when applied to a person, would
serve solely 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 deemed necessary to provide comfort
or to alleviate pain.
(n) "A 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) "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 practice nurse in
collaboration with a physician to have the capacity to make
health care decisions.
(p) "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) "Medical power of attorney 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 chapter or similar act of another state and
recognized as valid under the laws of this state.
(r) "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) "A 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) "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) "A principal" means a person who has executed a living
will or medical power of attorney.
(v) "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.
(w) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(x) "A qualified psychologist" means a psychologist
licensed to practice psychology who has personally examined the
person.
(y) "Surrogate decision maker" or "surrogate" means an
adult individual 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
selected by the attending physician or advanced practice nurse in
collaboration with the attending physician 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.
(z) "A 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.
§16-4E-4. Executing a living will or medical power of attorney.
(a) Any competent adult may execute at any time a living
will or medical power of attorney. A living will or medical
power of attorney made pursuant to this article shall be: (1) In
writing; (2) executed by the principal or by another person in
the principal's presence at the principal's express direction if
the principal is physically unable to do so; (3) dated; (4)
signed in the presence of two or more witnesses at least eighteen
years of age; and (5) signed and attested by such witnesses whose
signatures and attestations shall be acknowledged before a notary
public as provided in subsection (d) of this section.
(b) In addition, a witness may not be:
(1) The person who signed the living will or medical power
of attorney on behalf of and at the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion of the estate of the principal
under any will of the principal or codicil thereto: Provided,
That the validity of the living will or medical power of attorney
shall not be affected when a witness at the time of witnessing
such living will or medical power of attorney was unaware of
being a named beneficiary of the principal's will;
(4) Directly financially responsible for principal's medical care;
(5) The attending physician; or
(6) The principal's medical power of attorney
representative or successor medical power of attorney
representative.
(c) The following persons may not serve as a representative
or successor representative: (1) A treating health care provider
of the principal; (2) an employee of a treating health care
provider not related to the principal; (3) an operator of a
health care facility serving the principal; or (4) an employee of
an operator of a health care facility not related to the
principal.
(d) It shall be the responsibility of the principal or his
or her representative to provide for notification to his or her
attending physician and other health care providers of the
existence of the living will or medical power of attorney. An
attending physician, when presented with the living will or
medical power of attorney, shall make the living will, medical
power of attorney or a copy of either or a revocation of either
a part of the principal's medical records.
(e) At the time of admission to any health care facility,
each person shall be advised of the existence and availability of
living will and medical power of attorney forms and shall be given assistance in completing such forms if the person desires:
Provided, That under no circumstances may admission to a health
care facility be predicated upon a person having completed either
a medical power of attorney or living will.
(f) The living will may, but need not, be in the following
form, and may include other specific directions not inconsistent
with other provisions of this article. Should any of the other
specific directions be held to be invalid, such invalidity shall
not affect other directions of the living will which can be given
effect without the invalid direction and to this end the
directions in the living will are severable.
STATE OF WEST VIRGINIA
LIVING WILL
Living will made this_______________day
of_________________(month, year).
I,________________________________________________, being of
sound mind, willfully and voluntarily declare that I want my wishes to be respected if I am very sick and not able to
communicate my wishes for myself. In the absence of my ability
to give directions regarding the use of life-prolonging medical
intervention, it is my desire that my dying shall not be
prolonged under the following circumstances:
If I am very sick and not able to communicate my wishes for
myself and I am certified by one physicians who has personally
examined me, to have a terminal condition or to be in a
persistent vegetative state (I am unconscious and am neither
aware of my environment nor able to interact with others,) I
direct that life-prolonging medical intervention that would serve
solely to prolong the dying process or maintain me in a
persistent vegetative state be withheld or withdrawn. I want to
be allowed to die naturally and only be given medications or
other medical procedures necessary to keep me comfortable. I
want to receive as much medication as is necessary to alleviate
my pain.
I give the following SPECIAL DIRECTIVES OR LIMITATIONS:
(Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation and dialysis may be placed here.
My failure to provide special directives or limitations does not
mean that I want or refuse certain treatments.)
It is my intention that this living will be honored as the
final expression of my legal right to refuse medical or surgical
treatment and accept the consequences resulting from such
refusal.
I understand the full import of this living will.
Signed
Address
I did not sign the principal's signature above for or at the
direction of the principal. I am at least eighteen years of age
and am not related to the principal by blood or marriage,
entitled to any portion of the estate of the principal to the
best of my knowledge under any will of principal or codicil
thereto, or directly financially responsible for principal's
medical care. I am not the principal's attending physician or
the principal's medical power of attorney representative or
successor medical power of attorney representative under a
medical power of attorney.
Witness
Address
Witness
Address
STATE OF
COUNTY OF
The foregoing instrument was acknowledge before me this
______________________________________(date) by the principal and
by the two witnesses whose signatures appear above.
My commission expires:___________________________________
Signature of Notary Public
(g) A medical power of attorney shall be drafted in the
following form or in such form which substantially complies with
the requirements set forth herein. The provision of medical
power of attorney forms substantially in compliance with this
article by health care providers, medical practitioners, social
workers, social service agencies, senior citizens centers,
hospitals, nursing homes, personal care homes, community care facilities or any other similar person or group, without separate
compensation, does not constitute the unauthorized practice of
law within this state.
STATE OF WEST VIRGINIA
MEDICAL POWER OF ATTORNEY
Dated:_____________________________ , 20______
I,____________________________________________________, hereby
(Insert your name and address)
appoint as my representative to act on my behalf to give,
withhold or withdraw informed consent to health care decisions in
the event that I am not able to do so myself.
The person I choose as my representative is:
(Insert the name, address, area code and telephone number of the
person you wish to designate as your representative)
The person I choose as my successor representative is:
If my representative is unable, unwilling or disqualified to serve, then I appoint
(Insert the name, address, area code and telephone number of the
person you wish to designate as your successor representative)
This appointment shall extend to, but not be limited to,
health care decisions relating to medical treatment, surgical
treatment, nursing care, medication, hospitalization, care and
treatment in a nursing home or other facility, and home health
care. The representative appointed by this document is
specifically authorized to be granted access to my medical
records and other health information and to act on my behalf to
consent to, refuse or withdraw any and all medical treatment or
diagnostic procedures, if my representative determines that I, if
able to do so, would consent to, refuse or withdraw such
treatment or procedures. Such authority shall include, but not
be limited to, decisions regarding the withholding or withdrawal
of life-prolonging interventions.
I appoint this representative because I believe this person
understands my wishes and values and will act to carry into
effect the health care decisions that I would make if I were able
to do so, and because I also believe that this person will act in
my best interest when my wishes are unknown. It is my intent
that my family, my physician and all legal authorities be bound by the decisions that are made by the representative appointed by
this document, and it is my intent that these decisions should
not be the subject of review by any health care provider or
administrative or judicial agency.
It is my intent that this document be legally binding and
effective and that this document be taken as a formal statement
of my desire concerning the method by which any health care
decisions should be made on my behalf during any period when I am
unable to make such decisions.
In exercising the authority under this medical power of
attorney, my representative shall act consistently with my
special directives or limitations as stated below.
I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS
ON THIS POWER: (Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation and dialysis may be placed here.
My failure to provide special directives or limitations does not
mean that I want or refuse certain treatments.
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY
UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_____________________________
Signature of the Principal
I did not sign the principal's signature above. I am at
least eighteen years of age and am not related to the principal
by blood or marriage. I am not entitled to any portion of the
estate of the principal or to the best of my knowledge under any
will of the principal or codicil thereto, or legally responsible
for the costs of the principal's medical or other care. I am not
the principal's attending physician, nor am I the representative
or successor representative of the principal.
Witness:DATE:
Witness:DATE:
STATE OF
COUNTY OF
I, _______________________________, a Notary Public of said
County, do certify that_________________________________________,
as principal, and __________________________ and
_________________________, as witnesses, whose names are signed
to the writing above bearing date on the ____________ day of _____________, 20_____, have this day acknowledged the same
before me.
Given under my hand this __________ day of _____________,
20____.
My commission expires:__________________________________________.
__________________________________________
Notary Public
§16-4E-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 and the decisions of the medical power of attorney
representative or surrogate, the person's expressed directives
shall be followed.
(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 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.
§16-4E-6. Private decision making process; authority of living
will, medical power of attorney representative and
surrogate.
(a) Any capable adult may make his or her own health care
decisions without regard to guidelines contained in this article.
(b) Health care providers and health care facilities may
rely upon health care decisions made on behalf of an
incapacitated person without resort to the courts or legal
process, if the decisions are made in accordance with the
provisions of this article.
(c) The medical power of attorney representative or
surrogate shall have the authority to release or authorize the release of an incapacitated person's medical records to third
parties and make any and all health care decisions on behalf of
an incapacitated person, except to the extent that a medical
power of attorney representative's authority is clearly limited
in the medical power of attorney.
(d) The medical power of attorney representative or
surrogate's authority shall commence upon a determination, made
pursuant to section seven of this article, of the incapacity of
the adult. In the event the person no longer is incapacitated or
the medical power of attorney representative or surrogate is
unwilling or unable to serve, the medical power of attorney
representative or surrogate's authority shall cease. However,
the authority of the medical power of attorney representative or
surrogate may recommence if the person subsequently becomes
incapacitated as determined pursuant to section seven of this
article unless during the intervening period of capacity the
person executes an advance directive which makes a surrogate
unnecessary or expressly rejects the previously appointed
surrogate as his or her surrogate. A medical power of attorney
representative or surrogate's authority terminates upon the death
of the incapacitated person except with respect to decisions
regarding autopsy, funeral arrangements or cremation and organ
and tissue donation.
(e) The medical power of attorney representative or
surrogate shall seek medical information necessary to make health
care decisions for an incapacitated person. For the sole purpose
of making health care decisions for the incapacitated person, the
medical power of attorney representative or surrogate shall have
the same right of access to the incapacitated person's medical
information and the same right to discuss that information with
the incapacitated person's health care providers that the
incapacitated person would have if he or she was not
incapacitated.
(f) If an incapacitated person previously expressed his or
her wishes regarding autopsy, funeral arrangements or cremation,
organ or tissue donation, or the desire to make an anatomical
gift by a written directive such as a living will, medical power
of attorney, donor card, drivers' license or other means, the
medical power of attorney representative or surrogate shall
follow the person's expressed wishes regarding autopsy, funeral
arrangements or cremation, organ and tissue donation or
anatomical gift. In the absence of any written directives, any
decision regarding anatomical gifts shall be made pursuant to the
provisions of article nineteen of this chapter.
(g) If a person is incapacitated at the time of the decision
to withhold or withdraw life-prolonging intervention, the person's living will or medical power of attorney executed in
accordance with section four of this article is presumed to be
valid. For the purposes of this article, a physician or health
facility may presume in the absence of actual notice to the
contrary that a person who executed a living will or medical
power of attorney was a competent adult when it was executed.
The fact that a person executed a living will or medical power of
attorney is not an indication of the person's mental incapacity.
§16-4E-7. Determination of incapacity.
(a) For the purposes of this article, a person may 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, a qualified physician, a qualified psychologist or an
advanced practice nurse in collaboration with a physician
provided that the advanced practice nurse has personally examined
the person.
(b) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, a qualified physician, advanced practice nurse or a
qualified 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.
(c) If the person is conscious, the attending physician
shall inform the person that he or she has been determined to be
incapacitated and that a medical power of attorney representative
or surrogate decision maker may be making decisions regarding
life-prolonging intervention for the person.
§16-4E-8. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending
physician or the advanced practice nurse in collaboration with
the attending physician, with the assistance of other health care
providers as necessary, shall select, in writing, a surrogate.
The attending physician shall reasonably attempt to determine
whether the incapacitated person has appointed a representative
under a medical power of attorney in accordance with the
provisions of section four of this article, or if the
incapacitated person has a court-appointed guardian in accordance
with the provisions of article one, chapter forty-four-a of this
code. If no representative or court-appointed guardian is
authorized or capable and willing to serve, the attending
physician or advanced practice nurse is authorized to select a
health care surrogate. In selecting a surrogate, the attending
physician or advanced practice nurse must make a reasonable inquiry as to the existence and availability of a surrogate from
the following persons:
(1) The person's spouse;
(2) The person's adult children;
(3) The person's parents;
(4) The person's adult siblings;
(5) The person's adult grandchildren;
(6) The person's close friends;
(7) Any other person or entity, including, but not limited
to, public agencies, public guardians, public officials, public
and private corporations and other persons or entities which the
department of health and human resources may from time to time
designate in rules promulgated pursuant to chapter twenty-nine-a
of this code.
(b) After inquiring about the existence and availability of
a medical power of attorney representative or a guardian as
required by subsection (a) of this section, and determining that
such persons either do not exist or are unavailable, incapable or
unwilling to serve as a surrogate, the attending physician or an
advanced practice nurse in collaboration with the attending
physician shall select and rely upon a surrogate in the order of
priority set forth in subsection (a) of this section, subject to
the following conditions:
(1) Where there are multiple possible surrogate decision
makers at the same priority level, the attending physician or the
advanced practice nurse in collaboration with the attending
physician shall, after reasonable inquiry, select as the
surrogate the person who reasonably appears to be best qualified.
The following criteria shall be considered in the determination
of the person or entity best qualified to serve as the surrogate:
(A) 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;
(B) The proposed surrogate's regular contact with the person
prior to and during the incapacitating illness;
(C) The proposed surrogate's demonstrated care and concern;
(D) The proposed surrogate's availability to visit the
incapacitated person during his or her illness; and
(E) The proposed surrogate's availability to engage in
face-to-face contact with health care providers for the purpose
of fully participating in the decision-making process;
(2) The attending physician or the advanced practice nurse
in consultation with the attending physician may select a
proposed surrogate who is ranked lower in priority if, in his or
her judgment, that individual is best qualified, as described in this section, to serve as the incapacitated person's surrogate.
The attending physician or the advanced practice nurse shall
document in the incapacitated person's medical records his or her
reasons for selecting a surrogate in exception to the priority
order provided in subsection (a) of this section.
(c) The surrogate is authorized to make health care
decisions on behalf of the incapacitated person without a court
order or judicial involvement.
(d) A health care provider or health care facility may rely
upon the decisions of the selected surrogate if the provider
believes, after reasonable inquiry, that:
(1) A guardian or representative under a valid, applicable
medical power of attorney is unavailable, incapable or is
unwilling to serve;
(2) There is no other applicable advance directive;
(3) There is no reason to believe that such health care
decisions are contrary to the incapacitated person's religious
beliefs; and
(4) The attending physician or advanced practice nurse has
not received actual notice of opposition to any health care
decisions made pursuant to the provisions of this section.
(e) If a person who is ranked as a possible surrogate
pursuant to subsection (a) of this section wishes to challenge the selection of a surrogate or the health care decision of the
selected surrogate, he or she may seek injunctive relief or may
file a petition for review of the selection of, or decision of,
the selected surrogate with the circuit court of the county in
which the incapacitated person resides or the supreme court of
appeals. There shall be a rebuttable presumption that the
selection of the surrogate was valid, and the person who is
challenging the selection shall have the burden of proving the
invalidity of that selection. The challenging party shall be
responsible for all court costs and other costs related to the
proceeding, except attorneys' fees, unless the court finds that
the attending physician or advanced practice nurse acted in bad
faith, in which case the person so acting shall be responsible
for all costs. Each party shall be responsible for his or her
own attorneys' fees.
(f) If the attending physician or advanced practice nurse is
advised that a person who is ranked as a possible surrogate
pursuant to the provisions of subsection (a) of this section has
an objection to a health care decision to withhold or withdraw a
life-prolonging intervention which has been made by the selected
surrogate, the attending physician or advanced practice nurse
shall document the objection in the medical records of the
patient. Once notice of an objection or challenge is documented, the attending physician or advanced practice nurse shall notify
the challenging party that the decision shall be implemented in
seventy-two hours unless the attending physician receives a court
order prohibiting or enjoining the implementation of the decision
as provided in subsection (e) of this section. In the event that
the incapacitated person has been determined to have undergone
brain death and the selected surrogate has authorized organ or
tissue donation, the decision shall be implemented in twenty-four
hours unless the attending physician receives a court order
prohibiting or enjoining the implementation of the decision as
provided in subsection (e) of this section.
(g) If the surrogate becomes unavailable for any reason, the
surrogate may be replaced by applying the provisions of this
section.
(h) If a person who ranks higher in priority relative to a
selected surrogate becomes available and willing to be the
surrogate, the person with higher priority may be substituted for
the identified surrogate unless the attending physician
determines that the lower ranked person is best qualified to
serve as the surrogate.
(i) The following persons may not serve as a surrogate: (1)
A treating health care provider of the principal; (2) an employee
of a treating health care provider not related to the principal; (3) an owner, operator or administrator of a health care facility
serving the principal; or (4) an employee of an owner, operator
or administrator of a health care facility not related to the
principal.
§16-4E-9. Medical Power of Attorney representative and health
care surrogate decision making standards.
(a) General standards.
The medical power of attorney representative or the health
care 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; 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.
§16-4E-10. Reliance on authority of living will, 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) 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.
(d) 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 of the principal.
Transfer under these circumstances does not constitute
abandonment.
§16-4E-11. Negligence.
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 medical power of attorney representative or
surrogate. Nothing in this article shall be deemed to alter the
law of negligence as it applies to the acts of any medical power
of attorney representative or 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.
§16-4E-12. 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, the medical
power of attorney representative or surrogate 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.
§16-4E-13. Interinstitutional transfers.
(a) In the event that a person admitted to any health care
facility in this state has been determined to lack capacity and
that person's medical power of attorney has been declared to be
in effect or a surrogate decision maker has been selected for
that person all in accordance with the requirements of this
article, and that person is subsequently transferred from one
health care facility to another, the receiving health care facility may rely upon the prior determination of incapacity and
the activation of the medical power of attorney or selection of
a surrogate decision maker as valid and continuing until such
time as an attending physician, a qualified physician, a
qualified psychologist or advanced practice nurse in
collaboration with a physician in the receiving facility assesses
the person's capacity. Should the reassessment by the attending
physician, a qualified physician, a qualified psychologist or an
advanced practice nurse in collaboration with a physician of the
person at the receiving facility result in a determination of
continued incapacity, the receiving facility may rely upon the
medical power of attorney representative or surrogate decision
maker who provided health care decisions at the transferring
facility to continue to make all health care decisions at the
receiving facility until such time as the person regains
capacity. If a person admitted to any health care facility in
this state has been determined to lack capacity and the person's
medical power of attorney has been declared to be in effect or a
surrogate decision maker has been selected for that person all in
accordance with the requirements of this article, and that person
is subsequently discharged home in the care of a home health care
agency or hospice, the home health care agency or hospice may
rely upon the prior determination of incapacity. The home health care agency or hospice may rely upon the medical power of
attorney representative or health care surrogate who provided
health care decisions at the transferring facility to continue to
make all health care decisions until such time as the person
regains capacity.
(b) 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 a physician at the
receiving facility issues admission orders.
§16-4E-14. Insurance.
(a) No policy of life insurance or annuity or 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.
(b) The withholding or withdrawal of life-prolonging
intervention from a principal in accordance with the provisions
of this article does not, for any purpose, constitute a suicide
and does not constitute the crime of assisting suicide.
(c) The making of a living will or medical power of attorney
pursuant to this article does not affect in any manner the sale,
procurement or issuance of any insurance policy nor does it
modify the terms of an existing policy.
(d) No health care provider or health care service plan,
health maintenance organization, insurer issuing disability
insurance, self-insured employee welfare benefit plan, nonprofit
medical service corporation or mutual nonprofit hospital service
corporation shall require any person to execute a living will or
medical power of attorney as a condition for being insured for or
receiving health care services.
§16-4E-15. Withholding of life support not assisted suicide or
murder.
The withholding or withdrawal of life-prolonging
intervention from a person in accordance with the decision of a
medical power of attorney representative or surrogate decision
maker made pursuant to the provisions of this article does not,
for any purpose, constitute assisted suicide or murder. The
withholding or withdrawal of life-prolonging intervention from a
person in accordance with the decisions of a medical power of
attorney representative or 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.
§16-4E-16. Preservation of existing rights and relation to
existing law; no presumption.
(a) 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.
(b) This article creates no presumption concerning the
intention of an individual who has not executed a living will or
medical power of attorney to consent to, refuse or withdraw any
and all medical treatment or diagnostic procedures, including,
but not limited to, life-prolonging intervention.
§16-4E-17. No abrogation of common law doctrine of medical
necessity.
Nothing in this article shall be construed to abrogate the common law doctrine of medical necessity.
§16-4E-18. Revocation.
(a) A living will or medical power of attorney may be revoked
at any time only by the principal or at the express direction of
the principal by any of the following methods:
(1) By being destroyed by the principal or by some person in
the principal's presence and at his or her direction;
(2) By a written revocation of the living will or medical
power of attorney signed and dated by the principal or person
acting at the direction of the principal. Such revocation shall
become effective only upon delivery of the written revocation to
the attending physician by the principal or by a person acting on
behalf of the principal.
The attending physician shall record in the principal's
medical record the time and date when he or she receives
notification of the written revocation; or
(3) By a verbal expression of the intent to revoke the living
will or medical power of attorney in the presence of a witness
eighteen years of age or older who signs and dates a writing
confirming that such expression of intent was made. Any verbal
revocation shall become effective only upon communication of the
revocation to the attending physician by the principal or by a
person acting on behalf of the principal. The attending physician shall record, in the principal's medical record, the
time, date and place of when he or she receives notification of
the revocation.
(b) There is no criminal or civil liability on the part of
any person for failure to act upon a revocation made pursuant to
this section unless that person has actual knowledge of the
revocation.
(c) The grant of a final divorce decree shall act as an
automatic revocation of the designation of the former spouse to
act as a medical power of attorney representative or successor
representative.
§16-4E-19. Physician's duty to confirm, communicate and
document terminal condition or persistent
vegetative state; medical record identification.
(a) An attending physician who has been notified of the
existence of a living will executed under this article, without
delay after the diagnosis of a terminal condition or persistent
vegetative state of the principal, shall take steps as needed to
provide for confirmation, written certification and documentation
of the principal's terminal condition or persistent vegetative
state in the principal's medical record.
(b) Once confirmation, written certification and
documentation of the principal's terminal condition or persistent vegetative state is made, the attending physician shall verbally
or in writing inform the principal of his or her condition or the
principal's medical power of attorney representative or
surrogate, if the principal lacks capacity to comprehend such
information and shall document such communication in the
principal's medical record.
(c) All inpatient health care facilities shall develop a
system to visibly identify a person's chart which contains a
living will or medical power of attorney as set forth in this
article.
§16-4E-20. Living wills previously executed.
A living will executed prior to the effective date of this
article and which expressly provides for the withholding or
withdrawal of life-prolonging intervention or for the termination
of life-sustaining procedures in substantial compliance with the
provisions of section four of this article is hereby recognized
as a valid living will, as though it were executed in compliance
with the provisions of this article.
§16-4E-21. Reciprocity.
A living will or medical power of attorney executed in
another state is validly executed for the purposes of this
article if it is executed in compliance with the laws of this
state or with the laws of the state where executed.
§16-4E-22. Liability for failure to act in accordance with the
directives of a living will or medical power of
attorney or the directions of a medical power of
attorney representative or health care surrogate.
(a) A health care provider or health care facility who does
not have actual knowledge of a living will or medical power of
attorney completed by a person is not civilly or criminally
liable for failing to act in accordance with the directives of a
principal's living will or medical power of attorney.
(b) A health care provider or a health care facility is
subject to review and disciplinary action by the appropriate
licensing board for failing to act in accordance with a
principal's directives in a living will or medical power of
attorney, or the decisions of a medical power of attorney
representative or health care surrogate, provided that the
provider or facility had actual knowledge of the directives or
decisions.
§16-4E-23. Prohibition.
Under no circumstances may the presence or absence of a
living will or medical power of attorney be used to deny a person
admission to a health care facility.
§16-4E-24. Need for a second opinion regarding incapacity for
persons with psychiatric mental illness, mental retardation, or addiction.
For persons with psychiatric mental illness, mental
retardation or addiction who have been determined by their
attending physician or a qualified physician to be incapacitated,
a second opinion by a qualified physician or qualified
psychologist that the person is incapacitated is required before
the attending physician is authorized to select a surrogate. The
requirement for a second opinion shall not apply in those
instances in which the medical treatment to be rendered is not
for the person's psychiatric mental illness.
NOTE: The primary purpose of this bill is to create the
"West Virginia Health Care Decisions Act". The bill also amends
existing law to provide that future health care of a deceased
person's family is adequate justification to cause the
performance of an autopsy and to provide that a medical power of
attorney representative or health care surrogate of a deceased
may grant consent for autopsy. The newly created West Virginia
Health Care Decisions Act contains provisions as per the
following: Legislative findings and purpose; definitions;
execution of a living will or medical power of attorney;
applicability and resolution of conflict between advance
directives; private decision making process; the authority of
living will, medical power of attorney of attorney representative
and surrogate; determination of incapacity; selection of a
surrogate; medical power of attorney representative and health
care surrogate decision making standards; reliance on authority
of living will, medical power of attorney representative or
surrogate decision maker insulates health care providers;
negligence; conscience objections; interinstitutional transfers;
insurance; withholding or withdrawal of life support not
considered assisted suicide or murder; preservation of existing
rights and relation to existing law; disallowing construence of abrogation of common law doctrine of medical necessity;
revocation of medical power of attorney; retroactive effect to
existing living wills; reciprocity extended to out-of-state
living wills; liability for failure to act in accordance with the
directives of a living will or medical power of attorney or the
directions of a medical power of attorney representative or
health care surrogate; prohibiting denial of admission to health
care facility; and, requiring second opinion for incapacitated
persons before selection of surrogate.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Article four-E is new; therefore, strike-throughs and
underscoring have been omitted.