Senate Bill No. 161
(By Senators
Hunter, Kessler, Dempsey, Foster, Oliverio, Lanham,
McCabe and Jenkins
)
____________
[Introduced January 16, 2006; referred to the Committee on Health
and Human Resources.]
____________
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; and providing
circumstances when health care facilities and providers are
not required to perform cardiopulmonary resuscitation.
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.
(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.
(
st) "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.
(
tu) "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.
(
vw) "Principal" means a person who has executed a living
will or medical power of attorney.
(
wx) "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.
(
xy) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(
yz) "Qualified psychologist" means a psychologist licensed
to practice psychology who has personally examined the person.
(
zaa) "Surrogate decisionmaker" 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.
(
aabb) "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 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
shall not be followed: Provided, that the provisions of article
30C, section 6(h) 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 person has completed a living will or medical power of
attorney, indicating that he/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.
(c) "Cardiopulmonary resuscitation" means those measures
used to restore or support cardiac or respiratory function in the
event of a cardiac or respiratory arrest.
(
cd) "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.
(
de) "Do-not-resuscitate order" means an order issued by a
licensed physician that cardiopulmonary resuscitation should not
be administered to a particular person.
(
ef) "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.
(
fg) "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.
(
gh) "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.
(
hi) "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.
(
ij) "Home" means any place of residence other than a health
care facility and includes residential board and care homes and
personal care homes.
(
jk) "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.
(
km) "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.
(
ln) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(
mo) "Representative" means a person designated by a
principal to make health care decisions in accordance with
article thirty-a of this chapter.
(
np) "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
document has been completed, shall have priority over a surrogate
decision maker.
(
oq) "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-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 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 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
standardsmedically 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
decisionmaker ______________________________ who has given
consent as evidenced by his/her signature below.
Physician Name_______________
Physician Signature_______________
Address_______________
Person Signature_______________
Address_______________
Surrogate Decisionmaker 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 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 if the attending physician and a
consulting physician 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 and/or the health
care facility 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 shall not be 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 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 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 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 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 shall not be
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 such physician, other health care provider, facility,
employee, or agent shall be criminally or civilly liable for the
withholding of medically ineffective cardiopulmonary
resuscitation in accordance with the provisions of this article.
NOTE: The purpose of the bill is to define medically
ineffective cardiopulmonary resuscitation and to authorize an
attending physician to issue a do not resuscitate order for a
person who lacks decision-making capacity when cardiopulmonary
resuscitation would be ineffective. The issuance of the do not
resuscitate order would not require consent when it has been
determined to be medically ineffective by the attending physician
and another physician.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would
be added.