H. B. 4328
(By Mr. Speaker, Mr. Kiss, and Delegates Douglas,
Staton, Leach, Amores, Compton and Stalnaker)
[Introduced
January 31, 2002
; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact sections three, four, five, seven,
eight, ten, thirteen and twenty-two, article thirty, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections three, five, six, seven, eleven and thirteen,
article thirty-c of said chapter, all relating to end of life
care; revising definitions; establishing a standardized
physician orders for scope of treatment form; providing for a
physician orders for scope of treatment form to be used as a
means of do not resuscitate identification; providing that a
qualified advanced practice nurse has the authority to
complete a physician order for scope of treatment form to
determine incapacity and to select a surrogate decision maker;
providing civil and criminal immunity from liability for good faith compliance with do not resuscitate orders; and,
requiring that a do not resuscitate order accompany a person
during transfers from one health care facility to another.
Be it enacted by the Legislature of West Virginia:
That sections three, four, five, seven, eight, ten, thirteen
and twenty-two, article thirty, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that sections three, five, six, seven,
eleven and thirteen, article thirty-c of said chapter be amended
and reenacted, all to read as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) "Actual knowledge" means the possession of information of
the person's wishes communicated to the health care provider orally
or in writing by the person, the person's medical power of attorney
representative, the person's health care surrogate or other
individuals resulting in the health care provider's personal
cognizance of these wishes. Constructive notice and other forms of
imputed knowledge are not actual knowledge.
(b) "Adult" means a person who is eighteen years of age or
older, an emancipated minor who has been established as such
pursuant to the provisions of section twenty-seven, article seven, chapter forty-nine of this code or a mature minor.
(c) "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 7.
(e) (d) "Capable adult" means a person over the age of
eighteen years an adult who is physically and mentally capable of
making health care decisions and who has not been deemed considered
a protected person pursuant to the provisions of chapter
forty-four-a of this code.
(f) (e) "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) (f) "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) (g) "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) (h) "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) (i) "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) (j) "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) (k) "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) (l) "Life-prolonging intervention" means any medical
procedure or intervention that, when applied to a person, would
serve to artificially prolong the dying process or to maintain the
person in a persistent vegetative state. Life-prolonging
intervention includes, among other things, nutrition and hydration
administered intravenously or through a feeding tube. The term
"life-prolonging intervention" does not include the administration
of medication or the performance of any other medical procedure
deemed considered
necessary to provide comfort or to alleviate
pain.
(n) (m) "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) (n) "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) (o) "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) (p) "Medical power of attorney representative" or
"representative" means a person eighteen years of age or older
appointed by another person to make health care decisions pursuant
to the provisions of section six of this article or similar act of
another state and recognized as valid under the laws of this state.
(r) (q) "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) (r) "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) (s) "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.
(t) "Physician orders for scope of treatment (POST) form"
means a standardized form containing a qualified physician's or
qualified advanced practice nurse's orders for medical treatment
for a person in accordance with that person's wishes or, if that
person's wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with that
person's best interest. The form shall be bright pink in color to
facilitate recognition by emergency medical services personnel and
other health care providers. The form shall be kept as the first
page in a person's medical record in a health care facility unless
otherwise specified in the health care facility's policies and
procedures. The form shall indicate a qualified physician's or
qualified advanced practice nurse's orders regarding cardiopulmonary resuscitation, level of medical intervention in the
event of a medical emergency, use of antibiotics, and use of
medically administered fluids and nutrition. The form shall
indicate the basis for the qualified physician's or qualified
advanced practice nurse's orders and shall include the qualified
physician's or qualified advanced practice nurse's signature. The
form shall indicate whether the person has completed an advance
directive or had a guardian appointed and shall include the
signature of the person or his or her guardian, medical power of
attorney representative, or surrogate acknowledging agreement with
the qualified physician's or qualified advanced practice nurse's
orders. The qualified physician or qualified advance practice
nurse shall indicate the date, location, and outcome of any review
of the physician orders for scope of treatment form.
(u) "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 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 nineteen, legislative rules for West Virginia board of
examiners for registered professional nurses, series seven. This
nurse shall have personally examined the person, been selected or
assigned to the person, and have primary responsibility for
treatment and care of the person.
(w) (x) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(x) (y) "Qualified psychologist" means a psychologist licensed
to practice psychology who has personally examined the person.
(y) (z) "Surrogate decision maker" or "surrogate" means an
adult individual eighteen years of age or older who is reasonably
available, is willing to make health care decisions on behalf of an
incapacitated person, possesses the capacity to make health care
decisions, and is 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) (aa) "Terminal condition" means an incurable or
irreversible condition as diagnosed by the attending physician or
a qualified physician for which the administration of
life-prolonging intervention will serve only to prolong the dying
process.
§16-30-4. 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 medical power of
attorney representative or successor medical power of attorney
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 serving the principal and who is 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 or a revocation of the living will or medical power of attorney. An
attending physician or other health care provider, when presented
with the living will or medical power of attorney, or the
revocation of a 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 provision of living will or 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.
(g) 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 physician 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, dialysis and mental health treatment 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.
WitnessDATE
WitnessDATE
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:
Signature of Notary Public
(h) A medical power of attorney 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 medical power
of attorney which can be given effect without invalid direction and
to this end the directions in the medical power of attorney are
severable.
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, or autopsy 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
§16-30-5. Applicability and resolving actual conflict between
advance directives.
(a) The provisions of this article which directly conflict
with the written directives contained in a living will or medical
power of attorney executed prior to the effective date of this
statute shall not apply. An expressed directive contained in a
living will or medical power of attorney or by any other means the
health care provider determines to be reliable shall be followed.
(b) If there is a conflict between the person's expressed
directives, the physician's orders for scope of treatment form and
the decisions of the medical power of attorney representative or
surrogate, the person's expressed directives shall be followed.
(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.
§16-30-7. 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 a qualified
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, a qualified 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 or mental health treatment for the
person.
§16-30-8. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending
physician or the qualified 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 or qualified advanced practice nurse 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 qualified advanced practice nurse is authorized to select a
health care surrogate. In selecting a surrogate, the attending
physician or qualified 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
qualified 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
qualified 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 qualified 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 qualified 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 qualified 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 qualified 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 qualified 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 qualified 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 qualified 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 serving the principal and
who is not related to the principal.
§16-30-10. Reliance on authority of living will, physician orders
for scope of treatment form, medical power of
attorney representative or surrogate decision maker
and protection of health care providers.
(a) A physician, licensed health care professional, health
care facility or employee thereof shall not be subject to criminal
or civil liability for good-faith compliance with or reliance upon
the directions of the medical power of attorney representative in
accordance with this article.
(b) A health care provider shall not be subject to civil or
criminal liability for surrogate selection or good faith compliance
and reliance upon the directions of the surrogate in accordance
with the provisions of this article.
(c) A health care provider, health care facility or employee
thereof shall not be subject to criminal or civil liability for
good-faith compliance with or reliance upon the orders in a
physician orders for scope of treatment form.
(c) (d) No health care provider or employee thereof who in
good faith and pursuant to reasonable medical standards causes or
participates in the withholding or withdrawing of life-prolonging intervention from a person pursuant to a living will made in
accordance with this article shall, as a result thereof, be subject
to criminal or civil liability.
(d) (e) An attending physician who cannot comply with the
living will or medical power of attorney of a principal pursuant to
this article shall, in conjunction with the medical power of
attorney representative, health care surrogate or other
responsible person, effect the transfer of the principal to
another physician who will honor the living will or medical power
of attorney of the principal. Transfer under these circumstances
does not constitute abandonment.
§16-30-13. 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.
(c) If a person with a physician orders for scope of treatment
form is transferred from one health care facility to another, the
health care facility initiating the transfer shall communicate the
existence of the physician orders for scope of treatment form to
the receiving facility prior to the transfer and the physician
orders for scope of treatment form shall accompany the person to
the receiving facility and shall remain in effect. The form shall
be at the beginning of the patient's transfer records unless
otherwise specified in the health care facility's policy and
procedures. After admission, the physician orders for scope of
treatment form shall be reviewed and one of three actions shall be
taken: The physician orders for scope of treatment shall be
continued without change; the physician orders for scope of
treatment form shall be voided and a new form issued; or the
physician orders for scope of treatment form shall be voided
without a new form being issued.
§16-30-22. 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.
(c) Once a principal has been determined to be incapacitated
in accordance with the provisions of this article and his or her
living will or medical power of attorney has become effective, any
health care provider or health care facility which refuses to
follow the 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, because the principal has asked the health care provider or health care facility not to
follow such directions or decisions, shall have two physicians, one
of whom may be the attending physician, or one physician and a
qualified psychologist, or one physician and an a qualified
advanced practice nurse in collaboration with a physician, certify
that the principal has regained capacity to make the request. If
such certification occurs, the provisions of the applicable living
will or medical power of attorney, or the statute creating the
authority of the health care surrogate shall not apply because the
principal has regained decision-making capacity.
ARTICLE 30C. DO NOT RESUSCITATE ACT.
§16-30C-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 the event
of a cardiac or respiratory arrest.
(c) "Do not resuscitate identification" means a standardized
identification necklace, bracelet, or card, or physician orders for
scope of treatment form 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, and extended 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) "Physician orders for scope of treatment (POST) form"
means a standardized form containing a qualified physician's or
qualified advanced practice nurse's orders for medical treatment
for a person in accordance with that person's wishes or, if that
person's wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with that
person's best interest. The form shall be bright pink in color to
facilitate recognition by emergency medical services personnel and
other health care providers. The form shall be kept as the first page in a person's medical record in a health care facility unless
otherwise specified in the health care facility's policies and
procedures. The form shall indicate a qualified physician's or
qualified advanced practice nurse's orders regarding
cardiopulmonary resuscitation, level of medical intervention in the
event of a medical emergency, use of antibiotics, and use of
medically administered fluids and nutrition. The form shall
indicate the basis for the qualified physician's or qualified
advanced practice nurse's orders and shall include the qualified
physician's or qualified advanced practice nurse's signature. The
form shall indicate whether the person has completed an advance
directive or had a guardian appointed and shall include the
signature of the person or his or her guardian, medical power of
attorney representative, or surrogate acknowledging agreement with
the qualified physician's or qualified advanced practice nurse's
orders. The qualified physician or qualified advance practice
nurse shall indicate the date, location, and outcome of any review
of the physician orders for scope of treatment form.
(l) "Qualified 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 provision of title
nineteen, legislative rules for West Virginia board of examiners for registered professional nurses, series seven. This nurse shall
have personally examined the person, been selected by or assigned
to the person, and have primary responsibility for treatment and
care of the person.
(m) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(k) (n) "Representative" means a person designated by a
principal to make health care decisions in accordance with article
thirty-a of this chapter.
(l) (o) "Surrogate decision-maker" or surrogate means a person
or persons an adult individual eighteen years of age or older 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
or qualified advanced practice nurse 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 surrogate decision-maker.
(m) (p) "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.
§16-30C-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 vegetative
state; or
(3) A completed medical power of attorney for that person is
in effect, pursuant to the provisions of article thirty 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.
(4) A completed physician orders for scope of treatment form
in which a qualified physician or qualified advanced practice nurse has ordered do not resuscitate.
(b) Nothing in this article shall require a nursing home,
personal care home, hospice, 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.
§16-30C-6. Issuance of a do not resuscitate order; order to be
written by a physician.
(a) It shall be 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, provided that 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 in
accordance 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 the minor is between
the ages of sixteen and eighteen, and 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 shall be valid without the consent of such
minor. In the event of a conflict between the wishes of the
parents or guardians and the wishes of the mature minor, the wishes
of the mature minor shall prevail. For purposes of this section,
no minor less than sixteen years of age shall be considered mature.
Nothing in this article shall be interpreted to conflict with the
provisions of the Child Abuse Prevention and Treatment Act and
implementing regulations at 45 CFR 1340. In the event conflict is unavoidable, federal law and regulation shall govern.
(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 personally examined 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 a physician
orders for scope of treatment form or 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
(g) For persons residing in a health care facility, the do not
resuscitate order shall be in one of the following three forms:
(1) According to the policies and procedures of the health
care facility;
(2) According to the do not resuscitate card as set forth in
subsection (f) of this section; or
(3) According to the physician orders for scope of treatment
form.
§16-30C-7. Compliance with a do not resuscitate order.
(a) Health care providers shall comply with the do not
resuscitate order when presented with one of the following:
(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
thirteen 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; or
(4) A physician orders for scope of treatment form in which a
qualified physician or qualified advanced practice nurse has
ordered do not resuscitate.
(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.
§16-30C-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
health care facility initiating the transfer shall communicate 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, the do not resuscitate card as described in
section six of this article or the physician orders for scope of
treatment form 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. The
do not resuscitate card or the physician orders for scope of
treatment form shall be kept as the first page in the person's
transfer records.
§16-30C-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 may 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 shall be deemed to comply 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, a physician
orders for scope of treatment form in which a qualified physician
or qualified advanced practice nurse has ordered do not
resuscitate, 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 be responsible for establishing a system for the
distribution of the do not resuscitate identification bracelets and
necklaces.
(d) The secretary of the department of health and human
resources, 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 resuscitate order for them.
NOTE:
The purpose of this bill is to amend the West Virginia
Health Care Decisions Act and the West Virginia Do Not Resuscitate
Act to provide legal protection for health care providers for
good-faith reliance on the orders in a Physician Orders for Scope
of Treatment (POST) form, to establish the POST form as a means of
do not resuscitate identification, and to establish how the POST
form is to be used during transfers from one health care facility
to another. This legislation does not require use of the POST
form.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.