H. B. 2616
(By Delegates Gallagher, Huntwork, P. White
and Douglas)
[Introduced March 17, 1993; referred to the
Committee on Health and Human Resources then
the Judiciary.]
A BILL 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 resuscitation.
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.
§16-30C-1. Short title.
This 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, presentmedical 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 as defined below have the right
to have health care decisions made for them by surrogate decision
makers;
(5) Existing emergency medical services protocols require
their emergency medical services 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 and indicated 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 advance directives 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) Purposes.
(1) It is the purpose of this article to ensure that the
right of a person to self-determination relating tocardiopulmonary resuscitation is protected. It is the intent of
the Legislature to give direction to emergency medical services
personnel and other health care providers with regard to the
performance of cardiopulmonary resuscitation.
(2) This article intends to clarify the relationship between
the do-not-resuscitate order and the living will and the medical
power of attorney.
(3) This article does not legalize, condone, authorize or
approve mercy killing or assisted suicide.
§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 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
act.
(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) "Department" means the department of health and human
resources.
(d) "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 beenissued for the possessor.
(e) "Do-not-resuscitate order" means an order issued by a
licensed physician that cardiopulmonary resuscitation should not
be administered to a particular person.
(f) "Emergency medical services personnel" means paid or
volunteer firefighters, law-enforcement officers, emergency
medical technicians, paramedics, or other emergency services
personnel, emergency medical providers or emergency medical
entities, acting within the ordinary course of their professions.
(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 facility,
home health care, and the gift or donation of a body organ or
tissue.
(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, 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, and other facilities established to
administer health care.
(i) "Health care provider" has the same meaning as defined
in section one, article three-c of this chapter.
(j) "Home" means any place of residence other than a health
care facility and includes residential board and personal care
homes.
(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) "Representative" means a person designated by a
principal to make health care decisions in accordance with
article thirty-a of this chapter.
(m) "Surrogate decision maker" means a person or persons
over eighteen years of age with mental capacity who are
reasonably available, are willing to make health care decisions
on behalf of a person with incapacity, and are identified by the
attending physician in accordance with the provisions of this
code as the person or persons who are to make those decisions in
accordance with the provisions of the Health Care Surrogate Act:
Provided, That a representative named in a person's medical power
of attorney, if one has been completed, shall have priority above
surrogate decision makers.
(n) "Trauma" means blunt or penetrating bodily injuries from
impact which occur in situations including motor vehicle
collisions, mass casualty incidents and industrial accidents.
§16-30C-4. Applicability.
This act applies to all persons in West Virginia regardlessof 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
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 pursuant to section three,
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 pursuant to
section eighteen, article thirty-a of this chapter in which the
person has 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 requires 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, that this is 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 be
written by a physician.
(a) It is 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 if 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 therepresentative 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 if 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 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 is valid without the consent of the minor. In
the event of conflict between the wishes of parents or guardians
and the wishes of the mature minor, the wishes of the mature
minor shall prevail.
(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 alicensed physician in West Virginia, 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 or her
representative......................or his or her surrogate
decision maker....................................who has given
consent as evidenced by his or her signature below.
Physician Name.............................................
Physician Signature........................................
Address....................................................
Person Signature...........................................
...........................................
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) A do-not-resuscitate identification as set forth in
section six 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 carefacilities, 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 or
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 providedwith 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 of
the 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 code 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 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 the agent of, or under contract
with any of the foregoing or other individual who witnesses acardiac or respiratory arrest 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 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 refuses 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 the physician at the receiving facility issues admission
orders.
§16-30C-12. Preservation of existing rights.
(a) Nothing in this article impairs or supersedes 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 precludes 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 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 order forms as described in section section six of
this article.
(b) Do-not-resuscitate identification as set forth in thisarticle shall consist of either a medical condition bracelet or
necklace (e.g., Medical Alert) with the inscription of the
patient's name, date of birth in numerical form (e.g.,10/11/20),
and "WV Do-Not-Resuscitate" on it. No other identification or
wording complies with 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 and
procedure.
(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 inaccordance 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.
NOTE: The purpose of this bill is to ensure that the right
of a person to self determination relating to cardiopulmonary
resuscitation is protected in a noninstitutional setting, such as
the home of a person. The article gives direction to emergency
medical services personnel regarding the performance of
cardiopulmonary resuscitation. Finally, the article clarifies
the relationship between the do not resuscitate order, the living
will and the medical power of attorney.
This article is new; therefore, strike-throughs and
underscoring have been omitted.