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amended, be repealed; and that said chapter sixteen be amended by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