ENROLLED
Senate Bill No. 318
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,
Oliverio, Ross, Snyder, White, Buckalew, Deem and Scott)
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[Passed April 12, 1997; in effect ninety days from passage.]
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AN ACT 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 the health care surrogate act; updating
definitions and terms; providing for the determination of
incapacity by the attending physician or the advanced practice
nurse in consultation with the attending physician; providing
for the selection of a health care surrogate by the attending
physician or the advanced practice nurse in consultation with
the attending physician; authorizing the surrogate to consent
to organ and tissue donation; requiring the surrogate to
adhere to written directives regarding autopsy or anatomical
gift donations; authorizing the surrogate to request and
release medical records; allowing formerly incapacitated
persons to discharge a surrogate; providing methods for
challenging the selection of a surrogate or the decision of a
surrogate; assigning court costs regarding surrogate disputes; and requiring notice of the implementation of the surrogate's
decisions unless enjoined by court order.
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) 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
a person who is incapacitated at the moment of decision. An
incapacitated person who has not made his or her wishes known in
advance through an applicable living will, medical power of
attorney or through some other means has the right to have health
care decisions made on his or her behalf by a person who will act
in accordance with the incapacitated person's expressed values and
wishes, or, if those values and wishes are unknown, in the
incapacitated person's best interests.
(b) The purpose of this article is to set forth a process for
private health care decisionmaking for incapacitated adults which
reduces the need for judicial involvement and defines the circumstances under which immunity shall be available for health
care providers and surrogate decisionmakers who make health care
decisions. The intent of the Legislature is to establish an
effective method for private health care decisionmaking for
incapacitated adults, and to provide that the courts should not be
the usual venue for making decisions. It is not the intent of the
Legislature to legalize, condone, authorize, or approve mercy
killing or assisted suicide.
§16-30B-3. Definitions.
For the purposes of this article:
(a) "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.
(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) "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.
(d) "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.
(e) "Close friend" means any person eighteen years of age or
older 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 has maintained regular
contact with the incapacitated person as to be familiar with his or
her activities, health, and religious and moral beliefs.
(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.
(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.
(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.
(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 and other facility established to administer health
care in its ordinary course of business or practice.
(j) "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.
(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.
(l) "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.
(m) "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.
(n) "Medical information" 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.
(o) "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.
(p) "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.
(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.
(r) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(s) "Surrogate decisionmaker" or "surrogate" means an adult
individual who is reasonably available, is willing to make health
care decisions on behalf of an incapacitated person, possesses the
capacity to make health care decisions and is identified by the
primary care provider 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.
(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) Any capable adult may make his or her own health care
decisions without regard to guidelines contained in this article.
(b) Health care providers and health care facilities may rely upon health care decisions 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 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, the authority of the
surrogate may recommence if the person subsequently becomes
incapacitated as determined pursuant to section six of this article
unless during the intervening period of capacity the person
executes an advance directive which makes a surrogate unnecessary
or expressly rejects the previously appointed surrogate as his or
her surrogate. A surrogate's authority terminates upon the death
of the incapacitated person except with respect to decisions
regarding autopsy and organ and tissue donation.
(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 that information with the incapacitated person's health
care providers that the incapacitated person would have if he or
she was not incapacitated.
(f) If an incapacitated person previously expressed his or her
wishes regarding autopsy or the desire to make an anatomical gift
by a written directive such as a living will, medical power of
attorney, donor card, drivers' license or other means, the
surrogate shall follow the person's expressed wishes regarding
autopsy and organ and tissue donation. In the absence of any
written directives, any decision regarding anatomical gifts shall
be made pursuant to the provisions of article nineteen of this
chapter.
§16-30B-6. 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
or the advanced practice nurse in consultation with the attending
physician.
(b) Before implementation of a decision by a surrogate
decisionmaker to withhold or withdraw life-prolonging intervention,
at least one qualified physician or a licensed psychologist who has
personally examined the person, in addition to the attending physician, must concur in the determination of incapacity of an
adult.
(c) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, and, if required, 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.
(d) 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 decisionmaker may be making
decisions regarding life-prolonging intervention for the person.
§16-30B-7. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending
physician or the advanced practice nurse in consultation with the
attending physician shall select, in writing, a surrogate with the
assistance of other health care providers as necessary. The
attending physician shall reasonably attempt to determine whether
the incapacitated person has appointed a representative under a
medical power of attorney in accordance with the provisions of
article thirty-a of this chapter, or if the incapacitated person
has a guardian in accordance with the provisions of article one,
chapter forty-four-a of this code. If no representative or
guardian is authorized or capable and willing to serve, the attending physician or advance practice nurse must make a
reasonable inquiry as to the 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 or unwilling to
serve as a surrogate, the primary care provider 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 decisionmakers
at the same priority level, the attending physician or the advanced practice nurse in consultation with the attending physician shall,
after reasonable inquiry, choose as the surrogate the person who
reasonably appears to be best qualified. The following criteria
shall be considered in the determination of the person or entity
best qualified to serve as the surrogate:
(A) Whether the proposed surrogate reasonably appears to be
better able to make decisions either in accordance with the known
wishes of the person or in accordance with the person's best
interests;
(B) The proposed surrogate's regular contact with the person
prior to and during the incapacitating illness;
(C) The proposed surrogate's demonstrated care and concern;
(D) The proposed surrogate's availability to visit the
incapacitated person during his or her illness; and
(E) The proposed surrogate's availability to engage in
face-to-face contact with health care providers for the purpose of
fully participating in the decision-making process;
(2) The attending physician or the advanced practice nurse in
consultation with the attending physician may select a proposed
surrogate who is ranked lower in priority if, in his or her
judgment, that individual is best qualified, as described in this
section, to serve as the incapacitated person's surrogate. The
attending physician or the advanced practice nurse shall document
in the incapacitated person's medical records his or her reasons
for selecting a surrogate in exception to the priority order provided in subsection (a) of this section.
(c) The surrogate is authorized to make health care decisions
on behalf of the incapacitated person without a court order or
judicial involvement.
(d) A health care provider or health care facility may rely
upon the decisions of the selected surrogate if the provider
believes, after reasonable inquiry, that:
(1) A guardian or representative under a valid, applicable
medical power of attorney is unavailable, incapable or is unwilling
to serve;
(2) There is no other applicable advance directive;
(3) There is no reason to believe that such health care
decisions are contrary to the incapacitated person's religious
beliefs; and
(4) The attending physician or advanced practice nurse has not
received actual notice of opposition to any health care decisions
made pursuant to the provisions of this section.
(e) If a person who is ranked as a possible surrogate pursuant
to subsection (a) of this section wishes to challenge the selection
of a surrogate or the health care decision of the selected
surrogate, he or she may seek injunctive relief or may file a
petition for review of the selection of, or decision of, the
selected surrogate with the circuit court of the county in which
the incapacitated person resides or the supreme court of appeals.
There shall be a rebuttable presumption that the selection of the surrogate was valid, and the person who is challenging the
selection shall have the burden of proving the invalidity of that
selection. The challenging party shall be responsible for all
court costs and other costs related to the proceeding, except
attorneys' fees, unless the court finds that the attending
physician or advanced practice nurse acted in bad faith, in which
case the person so acting shall be responsible for all costs. Each
party shall be responsible for his or her own attorneys' fees.
(f) If the attending physician or advanced practice nurse is
advised that a person who is ranked as a possible surrogate
pursuant to the provisions of subsection (a) of this section has an
objection to a health care decision to withhold or withdraw a life- prolonging intervention which has been made by the selected
surrogate, the attending physician or advanced practice nurse shall
document the objection in the medical records of the patient. Once
notice of an objection or challenge is documented, the attending
physician or advanced practice nurse shall notify the challenging
party that the decision shall be implemented in seventy-two hours
unless the attending physician receives a court order prohibiting
or enjoining the implementation of the decision as provided in
subsection (e) of this section. In the event that the
incapacitated person has been determined to have undergone brain
death and the selected surrogate has authorized organ or tissue
donation, the decision shall be implemented in twenty-four hours
unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in
subsection (e) of this section.
(g) If the surrogate becomes unavailable for any reason, the
surrogate may be replaced by applying the provisions of this
section.
(h) If a person who ranks higher in priority relative to a
selected surrogate becomes available and willing to be the
surrogate, the person with higher priority may be substituted for
the identified surrogate unless the attending physician determines
that the lower ranked person is best qualified to serve as the
surrogate.