H. B. 2506
(By Delegates Brown and Caputo)
[Introduced January 24, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §16-30-3 and §16-30-5 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§16-30C-2, §16-30C-3, §16-30C-6 and §16-30C-9 of said code,
all relating to the West Virginia Health Care Decisions Act
and the West Virginia Do Not Resuscitate Act providing
circumstances when health care facilities and providers are
not required to perform cardiopulmonary resuscitation; and
providing protections from civil and criminal liability under
certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §16-30-3 and §16-30-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §16-30C-2,
§16-30C-3, §16-30C-6, and §16-30C-9 of said code be amended and
reenacted, all to read as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISION 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) "Advanced nurse practitioner" means a registered nurse
with substantial theoretical knowledge in a specialized area of
nursing practice and proficient clinical utilization of the
knowledge in implementing the nursing process, and who has met the
further requirements of Title 19, Legislative Rules for West
Virginia Board of Examiners for Registered Professional Nurses,
Series 7, who has a mutually agreed upon association in writing
with a physician and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the
person.
(d) "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.
(e) "Capable adult" means an adult who is physically and
mentally capable of making health care decisions and who is not
considered 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 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 considered necessary
to provide comfort or to alleviate pain.
(n) "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 nurse practitioner 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) "Medically ineffective cardiopulmonary resuscitation"
means that, to a reasonable degree of medical certainty: (1)
Attempted cardiopulmonary resuscitation will be unsuccessful in
restoring cardiopulmonary function; or (2) after a brief period of
restoration of cardiopulmonary function the person will die within
minutes to hours of the time of cardiopulmonary arrest, regardless
of whether cardiopulmonary resuscitation is repeated.
(q)(r) "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) (s) "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) (t) "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) (u) "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) (v) "Physician orders for scope of treatment (POST) form"
means a standardized form containing orders by a qualified
physician that details a person's life-sustaining wishes as
provided by section twenty-five of this article.
(v) (w) "Principal" means a person who has executed a living
will or medical power of attorney.
(w) (x) "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.
(x) (y) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(y) (z) "Qualified psychologist" means a psychologist licensed
to practice psychology who has personally examined the person.
(z) (aa) "Surrogate decision maker" or "surrogate" means an 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 identified or selected by the attending physician
or advanced nurse practitioner 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.
(aa) (bb) "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.
§16-30-5. 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 do 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
with the exception that a directive or decision requesting
medically ineffective cardiopulmonary resuscitation is not to be
followed: Provided, That the provisions of subsection (h), section
six, article thirty-c of this chapter are followed.
(b) If there is a conflict between the person's expressed
directives, the physician 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,
except as provided in subsection (a) of this section.
(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,
except as provided in subsection(a) of this section.
(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.
ARTICLE 30C. DO NOT RESUSCITATE ACT.
§16-30C-2. Legislative findings and purposes.
(a)
Findings. -- The Legislature
hereby finds that:
(1) Although cardiopulmonary resuscitation has saved the lives
of persons experiencing sudden, unexpected death, present medical data indicates that cardiopulmonary resuscitation rarely leads to
prolonged survival in persons with chronic illnesses in whom death
is expected;
(2) In many circumstances, the performance of cardiopulmonary
resuscitation on persons may cause infliction of unwanted and
unnecessary pain and suffering;
(3) All persons have a right to make health care decisions
including the right to refuse cardiopulmonary resuscitation;
(4) Persons with incapacity have the right to have health care
decisions made for them by surrogate decision makers;
(5) Existing emergency medical services protocols require
their personnel to proceed with cardiopulmonary resuscitation when
they find a person in a cardiac or respiratory arrest even if
such
the person has completed a living will or medical power of
attorney, indicating that he
or she does not wish to receive
cardiopulmonary resuscitation;
and
(6) The administration of cardiopulmonary resuscitation by
emergency medical services personnel to persons who have indicated
by a living will or medical power of attorney or other means that
they do not wish to receive such resuscitation offends the dignity
of the person and conflicts with standards of accepted medical
practice;
and
(7) The performance of cardiopulmonary resuscitation, when it
has been determined to be medically ineffective, conflicts with standards of accepted medical practice.
(b)
Purpose. -- It is the purpose of this article to ensure
that the right of a person to self-determination relating to
cardiopulmonary resuscitation is protected. It is the intent of
the Legislature by enacting this article to give direction to
emergency medical services personnel and other health care
providers in regard to the performance of cardiopulmonary
resuscitation.
§16-30C-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) "Authorized decision maker" means the person according to
the provisions of this code who is authorized to make health care
decisions for an incapacitated person.
(b)(c) "Cardiopulmonary resuscitation" means those measures
used to restore or support cardiac or respiratory function in the
event of a cardiac or respiratory arrest.
(c) (d) "Do-not-resuscitate identification" means a standardized identification necklace, bracelet, 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) (e) "Do-not-resuscitate order" means an order issued by a
licensed physician that cardiopulmonary resuscitation should not be
administered to a particular person.
(e) (f) "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) (g) "Health care decision" means a decision to give,
withhold or withdraw informed consent to any type of health care,
including, but not limited to, medical and surgical treatments,
including life-prolonging interventions, nursing care,
hospitalization, treatment in a nursing home or other extended care
facility, home health care and the gift or donation of a body organ
or tissue.
(g) (h) "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) (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.
(i) (j) "Home" means any place of residence other than a
health care facility and includes residential board and care homes
and personal care homes.
(j) (k) "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.
(l) "Medically ineffective cardiopulmonary resuscitation"
means that, to a reasonable degree of medical certainty: (1)
Attempted cardiopulmonary resuscitation will be unsuccessful in
restoring cardiopulmonary function; or (2) after a brief period of
restoration of cardiopulmonary function the person will die within
minutes to hours of the time of cardiopulmonary arrest, regardless
of whether cardiopulmonary resuscitation is repeated.
(k) (m) "Physician orders for scope of treatment (POST) form"
means a standardized form containing orders by a qualified
physician that details a person's life-sustaining wishes as provided by section twenty-five, article thirty of this chapter.
(l) (n) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(m) (o) "Representative" means a person designated by a
principal to make health care decisions in accordance with article
thirty-a of this chapter.
(n) (p) "Surrogate decision maker" or "surrogate" means an
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 identified or selected by the attending physician
or advanced nurse practitioner in accordance with applicable
provisions of article thirty of this chapter 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 the document has been completed,
shall have has priority over a surrogate decision maker.
(o) (q) "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.
(r) "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.
§16-30C-6. Issuance of a do-not-resuscitate order; order to be
written by a physician.
(a) An attending physician may issue a do-not-resuscitate
order for persons who are present in or residing at home or in a
health care facility if the person, representative or surrogate has
consented to the order:
Provided, That consent to issuance of a
do-not-resuscitate order for an incapacitated person in a terminal
condition is not necessary if cardiopulmonary resuscitation has
been determined to be medically ineffective in accordance with the
provisions of this article. 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 would be medically
ineffective. 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 is valid
without the consent of
such the 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
prevails. For purposes of this section, no minor less than sixteen
years of age
shall be is 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 governs.
(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 medically ineffective.
(f) For persons not present or residing in a health care
facility, the do-not-resuscitate order shall be noted on 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 reflected in at least one of the
following forms:
(1) Forms required by the policies and procedures of the
health care facility;
(2) The do-not-resuscitate card as set forth in subsection (f)
of this section; or
(3) The physician orders for scope of treatment form.
(h) When a person in a terminal condition has requested
cardiopulmonary resuscitation in a living will, medical power of
attorney or physician orders for scope of treatment form or a
person's authorized decision maker requests cardiopulmonary
resuscitation, an attending physician may issue a
do-not-resuscitate order for an incapacitated person in a terminal
condition if the attending physician and a consulting physician,
after the consulting physician has examined the incapacitated
person's relevant medical records, including, but not limited to,
laboratory results, X rays, the opinions of consulting physicians,
and hospital discharge summaries, certify in writing in the medical
record that cardiopulmonary resuscitation for the person would be
medically ineffective. If there is no request for cardiopulmonary
resuscitation, a do-not-resuscitate order may be issued in
accordance with subsection (a) of this section. An attending
physician who declines to comply with a directive or decision
requesting cardiopulmonary resuscitation that has been determined to be medically ineffective shall:
(1) Before the issuance of the do-not-resuscitate order notify
the person, if possible, and the authorized decision maker for the
person of the determination that cardiopulmonary resuscitation will
be medically ineffective and that the physician and other providers
will not order cardiopulmonary resuscitation for the person in the
event of cardiac arrest;
(2) Inform the person, if possible, and the authorized
decision maker that the health care provider or the health care
facility, or both, has declined or will decline to comply with the
directive or decision requesting cardiopulmonary resuscitation made
before the issuance of the do-not-resuscitate order; and
(3) Cooperate with the person or the person's authorized
decision maker if a transfer of care to another health care
provider and health care facility is desired and possible. If
transfer is not possible because of the person's unstable medical
condition, or other reasons including, but not limited to, refusal
of another physician to accept the patient, then the health care
provider and health facility is not required to provide medically
ineffective cardiopulmonary resuscitation.
(i) This article creates no presumption concerning the
effectiveness or ineffectiveness of medical treatments other than
cardiopulmonary resuscitation.
§16-30C-9. Protection of persons carrying out in good faith do-not-resuscitate order; notification of
representative or surrogate decision maker by
physician refusing to comply with do-not-resuscitate
order.
(a) No health care provider, health care facility, or
individual employed by, acting as the agent of, or under contract
with any of the foregoing
shall be is subject to criminal
prosecution or civil liability for carrying out in good faith a
do-not-resuscitate order authorized by this article on behalf of a
person as instructed by the person, representative or surrogate
decision maker or for those actions taken in compliance with the
standards and procedures set forth in this article.
(b) No health care provider, health care facility, individual
employed by, acting as agent of, or under contract with any of the
foregoing or other individual who witnesses a cardiac or
respiratory arrest
shall be is subject to criminal prosecution or
civil liability for providing cardiopulmonary resuscitation to a
person for whom a do-not-resuscitate order has been issued,
provided that
such the physician or individual:
(1) Reasonably and in good faith was unaware of the issuance
of a do-not-resuscitate order; or
(2) Reasonably and in good faith believed that consent to the
do-not-resuscitate order had been revoked or canceled.
(c) Any physician who refused to issue a do-not-resuscitate order at a person's request or to comply with a do-not-resuscitate
order entered pursuant to this article shall take reasonable steps
to advise promptly the person, representative or surrogate decision
maker of the person that
such the physician is unwilling to
effectuate the order. The attending physician shall thereafter at
the election of the person, representative or surrogate decision
maker permit the person, representative or surrogate decision maker
to obtain another physician.
(d) Attending physicians, other health care providers, health
care facilities or employees or agents thereof acting in accordance
with the provisions of this article are not subject to criminal or
civil liability for declining to comply with an incapacitated
person's expressed directive or a health care decision made by a
person's authorized decision-maker requesting medically ineffective
cardiopulmonary resuscitation. No physician, other health care
provider, facility, employee, or agent is criminally or civilly
liable for the withholding of medically ineffective cardiopulmonary
resuscitation in accordance with the provisions of this article.
NOTE: The purpose of this bill is to
create an exception to
the provisions of an individual's advance directives or direction
where an attending physician believes that the cardiopulmonary
resuscitation of a patient will be, within a reasonable degree of
medical certainty, medically ineffective
.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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