H. B. 2137
(By Delegates Douglas, Campbell and Staton)
[Introduced February 18, 1997; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact sections two, three, five, six and
seven, article thirty-b, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to legislative findings and purpose; allowing
surrogates to consent to organ and tissue donation; removing
the possibility of multiple surrogates; authorizing release
of medical records; determination of incapacity; appointment
of the surrogate; court costs when surrogate appointment or
the surrogate's decisions are disputed; and overriding
objections to surrogate decisions.
Be it enacted by the Legislature of West Virginia:
That sections two, three, five, six and seven, article
thirty-b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 30B. 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
refuse
(2) The right to make medical treatment decisions extends to
persons a person who are is incapacitated at the moment of
decision. Such persons An incapacitated person who have has not
made their his or her wishes known in advance through an
applicable living will, or medical power of attorney or through
some other means have has the right to have health care decisions
made on their his or her behalf by persons a person who will act
in accordance with the incapacitated person's expressed values
and wishes, or, if unknown those values and wishes are
unknown, in the incapacitated 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 which 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 and to
provide 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 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.
(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.
(b) "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.
(c) "Capable adult" means a person over the age of eighteen years who is physically and mentally capable of making health
care decisions and who has not been deemed a protected person
pursuant to the provisions of chapter forty-four-a of this code.
(c) (d) "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 primary care provider, 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. 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.
(f) "Guardian" shall have the same meaning as defined in
sections one through six, article ten-a, chapter forty-four of
this code 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.
(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, organ or tissue donation, hospitalization, treatment in a
nursing home or other facility, and home health care. Health
care decision also means a decision to give, withhold or withdraw
informed consent to mental health treatment including treatment
for persons who are committed to a psychiatric hospital and who
are incapacitated. If a person expressed his or her wish to make
an anatomical gift as evidences by a written directive in a
living will, medical power of attorney, donor card, driver's
license, or other means, the surrogate shall follow the person's
expressed wishes.
(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, psychiatric 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, hospice 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, physician's assistant, 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) "Limited guardian" means a person appointed by the court
pursuant to the provisions of chapter forty-four-a of this code
who has only those responsibilities for the personal affairs of
a protected person as specified in the order of appointment.
(l) (m) "Medical information" shall have the same meaning as
defined 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 or "medical records" means and includes without restriction those medical histories,
records, reports, summaries, diagnoses, prognoses, records of
treatment, records of medication ordered and given, notes,
entries, X rays, and other written or graphic data prepared,
kept, made or maintained by any health care facility or health
care provider regarding a person's confinement, services
rendered, admissions, emergency room care, or inpatient or
outpatient care. These records may not include ordinary business
records regarding patient accounts or the administration of the
facility or institution.
(m) (n) "Parent" means a person who is another person's
natural or adoptive mother or father and whose parental rights
have not been terminated by a court of law.
(n) (o) "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.
(p) "Primary care provider" means a licensed physician,
psychologist, physician's assistant or advanced practice nurse
who has primary responsibility for a person's treatment and care.
If more than one licensed health care provider shares that
responsibility, any of these health care providers may select the
surrogate pursuant to section seven of this article.
(q) "Protected person" means an adult, eighteen years of age or older, 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.
(o) (r) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(p) (s) "Surrogate decision-maker" or "surrogate" means an
adult individual or individuals who are is reasonably available,
are is willing to make health care decisions on behalf of an
incapacitated person, possesses the capacity to make health care
decisions, and are is identified by the attending physician
primary care provider in accordance with the provisions of this
article as the person or persons who are is to make those
decisions in accordance with the provisions of this article.
(t) "Temporary guardian" means a person appointed by a court
for a limited or temporary period pursuant to the provisions of
section fourteen, article two, chapter forty-four-a of this code who has only those powers and duties specifically set forth in
the order of appointment.
§16-30B-5. Private decision-making process; authority of
surrogate.
(a) Health care decisions shall be made by capable adults
Any capable adult may make his or her own health care decisions
without 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 of an
incapacitated person and to release or authorize the release of
an incapacitated person's medical records to third parties.
(d) 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 or the surrogate is unwilling or unable to
serve, the surrogate's authority shall cease. However, but the
authority of the surrogate shall recommence if the person
subsequently becomes incapacitated as determined pursuant to
section six of this article. The surrogate's authority
terminates upon the death of the incapacitated person except with respect to decisions regarding autopsy and organ and tissue
donation.
(d) (e) The surrogate shall seek medical information
necessary to make health care decisions for an incapacitated
person. For the sole purpose of making health care decisions for
the incapacitated person, the surrogate shall have the same right
of access to the incapacitated person's medical information and
the same right to discuss this that information with the
incapacitated person's attending physician health care providers
that the incapacitated person would have had if he or she was not
incapacitated.
§16-30B-6. Determination of incapacity.
For the purposes of this article, a person shall 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 primary care provider.
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, in
addition to the primary care provider, 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 primary care provider, and, if one is required, by the
second a second health care provider, either a qualified
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 primary
care provider 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 If no representative or guardian
is authorized or available, capable and willing to serve, the
health primary care provider must make a reasonable inquiry as to
the availability of possible surrogates listed in items (1)
through (8) of this subsection: a surrogate from the following
persons:
(1) The person's guardian of the person or committee;
(2) (1) The person's spouse;
(3) (2) Any adult child of the person The person's adult
children;
(4) (3) Either parent of the person The person's parents;
(5) (4) Any adult sibling of the person The person's adult
siblings;
(6) (5) Any adult grandchild of the person The person's
adult grandchildren;
(7) (6) A close friend of the person The person's close
friends;
(8) (7) Such Any other persons or classes of persons person
or entity, including, but not limited to, such public agencies,
public guardians, other public officials, public and private
corporations, and other representatives persons or entities which 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, 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 or unwilling to serve as a surrogate, the health
primary care provider shall select and rely
on
surrogates
surrogate in the order of priority set forth above, provided 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 health primary
care provider shall, after reasonable inquiry, choose as the
surrogate the one person who reasonably appears to be best
qualified. In determining who appears to be best qualified, the
health primary care provider shall give special consideration to
the following:
(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; The health care provider shall consider in this
determination
(B) The proposed surrogate's regular contact with the person
prior to and during the incapacitating illness;
(C) The proposed surrogate's his or her demonstrated care
and concern; and his or her
(D) The proposed surrogate's availability to visit the
incapacitated person during the his or her illness; and
(E) The proposed surrogate's availability to engage in
face-to-face contact with the a health care provider for the
purposes of fully participating in the decision-making process.
or
(2) The health primary care provider may select and rely
instead on upon a proposed surrogate who is ranked lower in the
priority if, in the provider's judgment, such that individual is
best qualified, as described in subsection (b) of this section,
to serve as the incapacitated person's surrogate. The health
primary care provider shall document in the medical record
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 decision-maker, as identified by the
health care provider, is authorized to make health care decisions
on behalf of the incapacitated person without a court order or
judicial involvement.
(d)
The
on upon the decisions of the selected surrogate if the provider believes,
after reasonable inquiry, that:
(1)
a
and
(2) There is no other applicable advance directive;
Provided, That
(3) There is not no reason to believe that such health care
decisions are contrary to the incapacitated person's religious
beliefs; or and
(4)
that
there is
not actual notice of opposition to such any health care decisions
to the health
care provider by a member of the same or a prior
class
(d) (e) In the event an individual If a person who in a
higher, or lower, or the same priority level seeks to challenge
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 identified selected surrogate,
decision-maker, the challenging party he or she may initiate
declaratory proceedings in 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.
No health care provider or other person is required to seek declaratory relief.
(f) If a health care provider 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 health care
provider shall document the objection in the medical records of
the patient. Once notice of an objection or challenge is
documented, the health care provider shall notify the challenging
party that the decision shall be implemented in seventy-two hours
unless the health care provider 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 health care provider receives a court order
prohibiting or enjoining the implementation of the decision as
provided in subsection (e) of this section.
(e) (g)
Any
who becomes unavailable for
any reason, the surrogate may be replaced by applying the
provisions of this section in the same manner as for the initial
choice of the surrogate.
(f) (h) If In the event an individual of a higher priority
to an identified surrogate a person who ranks higher in priority
relative to a selected surrogate becomes available and willing to
be the surrogate, the individual person with higher priority may
be substituted for the identified as the surrogate unless the
primary care provider determines that the lower ranked person is
best qualified to serve as the surrogate. the provisions of
subsection (b) of this section apply.
(g) The authority of the surrogate expires when the
incapacitated person is no longer incapacitated or when the
surrogate is unwilling or unable to continue to serve.
Note: This bill would amend the Health Care Surrogate Act
by permitting a surrogate to donate organs and tissue and
authorize autopsy, removing the possibility of multiple
surrogates, authorizing the surrogate to release medical records
to third parties, providing that the primary care provider shall
appoint the surrogate, assessing court costs when surrogate
appointment or the surrogate's decision is challenged, and providing a method to override an objection to surrogate
decisions.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
which would be added.