ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2616
(By Delegates Gallagher, Huntwork,
P. White and Douglas)
[Passed April 9, 1993; in effect July 1, 1993]
AN ACT to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-c, relating
to do not resuscitate act; legislative findings and purpose;
definitions; applicability; presumed consent to
cardiopulmonary resuscitation; health care facilities not
required to expand to provide cardiopulmonary resuscitation;
issuance of a do not resuscitate order; order to be written
by a physician; compliance with a do not resuscitate order;
revocation; protection of persons carrying out in good faith
do not resuscitate order; notification by physician refusing
to comply with do not resuscitate order; insurance;
interinstitutional transfers; preservation of existing
rights; do not resuscitate order form; do not resuscitation
identification; public education; not suicide or murder;
full faith and credit; and severability.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-c, to
read as follows:
ARTICLE 30C. DO NOT RESUSCITATE ACT.
§16-30C-1. Short title.
The article may be cited as the "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.
(b)
Purpose.
- It is the purpose of this article to ensurethat 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.
§16-3C-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) "Cardiopulmonary resuscitation" means those measures
used to restore or support cardiac or respiratory function in the
event of a cardiac or respiratory arrest.
(c) "Do not resuscitate identification" means a standardized
identification necklace, bracelet or card as set forth in this
article that signifies that a do not resuscitate order has been
issued for the possessor.
(d) "Do not resuscitate order" means an order issued by a
licensed physician that cardiopulmonary resuscitation should not
be administered to a particular person.
(e) "Emergency medical services personnel" means paid or
volunteer firefighters, law-enforcement officers, emergency
medical technicians, paramedics, or other emergency servicespersonnel, providers or entities, acting within the usual course
of their professions.
(f) "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) "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) "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) "Home" means any place of residence other than a health
care facility and includes residential board and care homes and
personal care homes.
(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 tocommunicate that choice in an unambiguous manner.
(k) "Representative" means a person designated by a
principal to make health care decisions in accordance with
article thirty-a of this chapter.
(l) "Surrogate decision-maker" means a person or persons
over eighteen years of age with mental capacity who is reasonably
available, is willing to make health care decisions on behalf of
an incapacitated person, and is identified by the attending
physician in accordance with applicable provisions of this code
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.
(m) "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-4. Applicability.
The provisions of this article apply to all persons
regardless of whether or not they have completed a living will or
medical power of attorney. For the purposes of direction to
emergency medical services personnel, a do not resuscitate order
does not apply to treatment rendered at the site where trauma has
occurred to persons who experience a cardiac or respiratory
arrest as the result of severe trauma.
§16-30C-5. Presumed consent to cardiopulmonary resuscitation;
health care facilities not required to expand to
provide cardiopulmonary resuscitation.
(a) Every person shall be presumed to consent to the
administration of cardiopulmonary resuscitation in the event of
cardiac or respiratory arrest, unless one or more of the
following conditions, of which the health care provider has
actual knowledge, apply:
(1) A do not resuscitate order in accordance with the
provisions of this article has been issued for that person;
(2) A completed living will for that person is in effect,
pursuant to the provisions of article thirty of this chapter, and
the person is in a terminal condition or a persistent vegetative
state; or
(3) A completed medical power of attorney for that person is
in effect, pursuant to the provisions of article thirty-a of this
chapter, in which the person indicated that he or she does not
wish to receive cardiopulmonary resuscitation, or his or her
representative has determined that the person would not wish to
receive cardiopulmonary resuscitation.
(b) Nothing in this article shall require a nursing home,
personal care home, or extended care facility operated in
connection with hospitals to institute or maintain the ability to
provide cardiopulmonary resuscitation or to expand its existing
equipment, facilities or personnel to provide cardiopulmonary
resuscitation:
Provided,
That if a health care facility does not
provide cardiopulmonary resuscitation, this policy shall be
communicated in writing to the person, representative or
surrogate decision-maker prior to admission.
§16-30C-6. Issuance of a do not resuscitate order; order to bewritten by a physician.
(a) It shall be lawful for the attending physician to issue
a do not resuscitate order for persons who are present in or
residing at home or in a health care facility, provided that the
person, representative, or surrogate has consented to the order.
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. 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 suchminor. 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 standards.
(f) For persons not present or residing in a health care
facility, the do not resuscitate order shall be 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 hasgiven consent as evidenced by his/her signature below.
Physician Name
Physician Signature
Address
Person Signature
Address
Surrogate Decision-maker Signature
Address
§16-30C-7. Compliance with a do not resuscitate order.
(a) Health care providers shall comply with the do not
resuscitate order when presented with:
(1) A do not resuscitate order completed by a physician on
a form as specified in section six of this article;
(2) Do not resuscitate identification as set forth in
section thirteen of this article; or
(3) A do not resuscitate order for a person present or
residing in a health care facility issued in accordance with the
health care facility's policies and procedures.
(b) Pursuant to this article, health care providers shall
respect do not resuscitate orders for persons in health care
facilities, ambulances, homes and communities within this state.
§16-30C-8. Revocation of do not resuscitate order.
(a) At any time a person in a health care facility may
revoke his or her previous request for or consent to a do not
resuscitate order by making either a written, oral or other act
of communication to a physician or other professional staff of
the health care facility.
(b) At any time a person residing at home may revoke his/her
do not resuscitate order by destroying such order and removing do
not resuscitate identification on his or her person. The person
is responsible for notifying his or her physician of the
revocation.
(c) At any time a representative or surrogate decision-maker
may revoke his or her consent to a do not resuscitate order for
a person with incapacity in a health care facility by notifying
a physician or other professional staff of the health care
facility of the revocation of consent in writing, or by orally
notifying the attending physician in the presence of a witness
eighteen years of age or older.
(d) At any time a representative or surrogate decision-maker
may revoke his or her consent for a person with incapacity
residing at home by destroying such order and removing do not
resuscitate identification from the person. The representative
or surrogate decision-maker is responsible for notifying the
person's physician of the revocation.
(e) The attending physician who is informed of or provided
with a revocation of consent pursuant to this section shall
immediately cancel the do not resuscitate order if the person is
in a health care facility and notify the professional staff ofthe health care facility responsible for the person's care of the
revocation and cancellation. Any professional staff of the
health care facility who is informed of or provided with a
revocation of consent pursuant to this section shall immediately
notify the attending physician of such revocation.
(f) Only a licensed physician may cancel the issuance of a
do not resuscitate order.
§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 issuanceof 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.
§16-30C-10. Insurance.
(a) No policy of life insurance shall be legally impaired,
modified, or invalidated in any manner by the issuance of a do
not resuscitate order notwithstanding any term of the policy to
the contrary.
(b) A person may not prohibit or require the issuance of a
do not resuscitate order for an individual as a condition of such
individual's being insured or receiving health care services.
§16-30C-11. Interinstitutional transfers.
If a person with a do not resuscitate order is transferred
from one health care facility to another health care facility,
the existence of a do not resuscitate order shall be communicated
to the receiving facility prior to the transfer, and the written
do not resuscitate order shall accompany the person to the health
care facility receiving the person and shall remain effective
until a physician at the receiving facility issues admissionorders.
§16-30C-12. Preservation of existing rights.
(a) Nothing in this article shall impair or supersede any
legal right or legal responsibility which any person may have to
effect the withholding of cardiopulmonary resuscitation in any
lawful manner. In such respect, the provisions of this article
are cumulative.
(b) Nothing in this article shall be construed to preclude
a court of competent jurisdiction from approving the issuance of
a do not resuscitate order under circumstances other than those
under which such an order may be issued pursuant to the
provisions of this article.
§16-30C-13. Do not resuscitate order form; do not resuscitate
identification; public education.
(a) The secretary of the department of health and human
resources, no later than one year after the passage of this
article, shall implement the statewide distribution of do not
resuscitate forms as described in section six of this article.
(b) Do not resuscitate identification as set forth in this
article shall consist of either a medical condition bracelet or
necklace with the inscription of the patient's name, date of
birth in numerical form, and "WV do not resuscitate" on it. No
other identification or wording shall be deemed to comply with
the provisions of this article. Such identification shall be
issued only upon presentation of a properly executed do not
resuscitate order form as set forth in section six of this
article or a do not resuscitate order properly executed in
accordance with a health care facility's written policy andprocedure.
(c) The secretary of the department of health and human
resources, no later than one year after the passage of this
article, shall be responsible for establishing a system for the
distribution of the do not resuscitate identification bracelets
and necklaces.
(d) The secretary of the department of health and human
resources, no later than one year after the passage of this
article, shall develop and implement a statewide educational
effort to inform the public of their right to accept or refuse
cardiopulmonary resuscitation and to request their physician to
write a do not resuscitate order for them.
§16-30C-14. Not suicide or murder.
The withholding of cardiopulmonary resuscitation from a
person in accordance with the provisions of this article does
not, for any purpose, constitute suicide or murder. The
withholding of cardiopulmonary resuscitation from a person in
accordance with the provisions of this article, however, shall
not relieve any individual of responsibility for any criminal
acts that may have caused the person's condition. Nothing in
this article shall be construed to legalize, condone, authorize
or approve mercy killing or assisted suicide.
§16-30C-15. Full faith and credit.
It is the intention of the Legislature to recognize that
existence of do not resuscitate identification correctly
expresses the will of any person who bears it and that foreign
courts recognize this expression and give full faith and credit
to do not resuscitate identification.
§16-30C-16. Severability.
The provisions of this article are severable and if any
provision, section or part thereof shall be held invalid,
unconstitutional or inapplicable to any person or circumstance,
such invalidity, unconstitutionality or inapplicability shall not
affect or impair any other remaining provisions contained herein.