ENGROSSED
Senate Bill No. 318
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,
Oliverio, Ross, Snyder, White, Buckalew, Deem and Scott)
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[Originating in the Committee on the Judiciary;
reported March 12, 1997.]
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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 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)
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 or
refuse life-prolonging intervention; and
(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
is to set
forth a process for private health care decisionmaking 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
decisionmakers who make
such health care decisions.
It is The
intent of the Legislature
is to establish an effective method for
private health care decisionmaking 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.
For the purposes of this article:
(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.
(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.
(c) (e) "Close friend" means any person eighteen years of age
or older who has exhibited
special significant care and concern for
the an incapacitated person
and who
, to the reasonable satisfaction
of the attending physician is willing and able to become involved
in the
incapacitated person's health care, and has maintained
such
regular contact with the
incapacitated person as to be familiar
with
the person's his or her 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) (f) "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) (g) "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) (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,
and home health care
and organ or tissue donation.
(h) (i) "Health care facility" means a
type of health care
provider facility commonly known by a wide variety of titles,
including, but not limited to,
hospitals hospital,
psychiatric
hospitals hospital, medical
centers center, ambulatory health care
facilities facility, physicians'
offices office and
clinics clinic,
extended care
facilities facility operated in connection with
a
hospitals hospital, nursing
homes home,
a hospital extended care
facilities facility operated in connection
a rehabilitation
centers
center,
hospice and other
facilities facility established to
administer health care in
their its ordinary course of business or
practice.
(i) (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.
(j) (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.
(k) (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.
(l) (n) "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) (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.
(n) (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.
(o) (r) "Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
(p) (s) "Surrogate decisionmaker"
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
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
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 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.
(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.
(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
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
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
other 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
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.
(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 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 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. When
If no representative
or guardian is authorized or
available,
capable and willing to serve, the
health care provider attending
physician or advance practice nurse 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 upon a 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 decisionmakers
at the same priority level, the
health care provider attending
physician or the advanced practice nurse in consultation with the
attending physician 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 care provider shall give special consideration to 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;
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 health care provider providers for
the
purposes purpose of fully participating in the decision-making
process;
or
(2) The
health care provider attending physician or the
advanced practice nurse in consultation with the attending
physician may
rely instead on select a proposed surrogate
who is
ranked lower in
the priority if, in
the provider's his or her
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 care provider attending physician
or the advanced practice nurse 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 A health care provider
or health care facility may
rely
on 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; 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 The attending physician or advanced
practice nurse has not received 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 made pursuant to the provisions of
this section.
(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
or the supreme court of appeals.
No health care provider or other person is required to seek
declaratory relief. 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.
(e) (g) Any If the surrogate
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
attending physician 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.
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