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Enrolled Version - Final Version Senate Bill 318 History

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Key: Green = existing Code. Red = new code to be enacted
ENROLLED

Senate Bill No. 318

(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,



Oliverio, Ross, Snyder, White, Buckalew, Deem and Scott)

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[Passed April 12, 1997; in effect ninety days from passage.]

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AN ACT to amend and reenact sections two, three, five, six and seven, article thirty-b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the health care surrogate act; updating definitions and terms; providing for the determination of incapacity by the attending physician or the advanced practice nurse in consultation with the attending physician; providing for the selection of a health care surrogate by the attending physician or the advanced practice nurse in consultation with the attending physician; authorizing the surrogate to consent to organ and tissue donation; requiring the surrogate to adhere to written directives regarding autopsy or anatomical gift donations; authorizing the surrogate to request and release medical records; allowing formerly incapacitated persons to discharge a surrogate; providing methods for challenging the selection of a surrogate or the decision of a surrogate; assigning court costs regarding surrogate disputes; and requiring notice of the implementation of the surrogate's decisions unless enjoined by court order.

Be it enacted by the Legislature of West Virginia:

That sections two, three, five, six and seven, article thirty- b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 30B. HEALTH CARE SURROGATE ACT.
§16-30B-2. Legislative findings and purpose.
(a) The Legislature hereby finds that:
(1) All adults have a right to make decisions relating to their own medical treatment, including the right to consent to or refuse life-prolonging intervention; and
(2) The right to make medical treatment decisions extends to a person who is incapacitated at the moment of decision. An incapacitated person who has not made his or her wishes known in advance through an applicable living will, medical power of attorney or through some other means has the right to have health care decisions made on his or her behalf by a person who will act in accordance with the incapacitated person's expressed values and wishes, or, if those values and wishes are unknown, in the incapacitated person's best interests.
(b) The purpose of this article is to set forth a process for private health care decisionmaking for incapacitated adults which reduces the need for judicial involvement and defines the circumstances under which immunity shall be available for health care providers and surrogate decisionmakers who make health care decisions. The intent of the Legislature is to establish an effective method for private health care decisionmaking for incapacitated adults, and to provide that the courts should not be the usual venue for making decisions. It is not the intent of the Legislature to legalize, condone, authorize, or approve mercy killing or assisted suicide.
§16-30B-3. Definitions.
For the purposes of this article:
(a) "Adult" means a person who is eighteen years of age or older, an emancipated minor who has been established as such pursuant to the provisions of section twenty-seven, article seven, chapter forty-nine of this code, or a mature minor.
(b) "Attending physician" means the physician selected by or assigned to the person who has primary responsibility for treatment and care of the person and who is a licensed physician. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under this article.
(c) "Advanced practice nurse" means a nurse with substantial theoretical knowledge in a specialized area of nursing practice and proficient clinical utilization of the knowledge in implementing the nursing process pursuant to the provisions of title 19, legislative rules for West Virginia board of examiners for registered professional nurses, series 7.
(d) "Capable adult" means a person over the age of eighteen years who is physically and mentally capable of making health care decisions and who has not been deemed a protected person pursuant to the provisions of chapter forty-four-a of this code.
(e) "Close friend" means any person eighteen years of age or older who has exhibited significant care and concern for an incapacitated person who is willing and able to become involved in the incapacitated person's health care, and has maintained regular contact with the incapacitated person as to be familiar with his or her activities, health, and religious and moral beliefs.
(f) "Death" means a finding made in accordance with accepted medical standards of either: (1) The irreversible cessation of circulatory and respiratory functions; or (2) the irreversible cessation of all functions of the entire brain, including the brain stem.
(g) "Guardian" means a person appointed by a court pursuant to the provisions of chapter forty-four-a of this code who is responsible for the personal affairs of a protected person, and includes a limited guardian or a temporary guardian.
(h) "Health care decision" means a decision to give, withhold or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care and organ or tissue donation.
(i) "Health care facility" means a facility commonly known by a wide variety of titles, including, but not limited to, hospital, psychiatric hospital, medical center, ambulatory health care facility, physicians' office and clinic, extended care facility operated in connection with a hospital, nursing home, a hospital extended care facility operated in connection with a rehabilitation center, hospice and other facility established to administer health care in its ordinary course of business or practice.
(j) "Health care provider" means any physician, dentist, nurse, physician's assistant, paramedic, psychologist or other person providing medical, dental, nursing, psychological or other health care services of any kind.
(k) "Incapacity" means the inability because of physical or mental impairment to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented and to communicate that choice in an unambiguous manner.
(l) "Life-prolonging intervention" means any medical procedure or intervention which, when applied to a person, would serve solely to artificially prolong the dying process or to maintain the person in a persistent vegetative state. The term "life-prolonging intervention" does not include the administration of medication or the performance of any other medical procedure deemed necessary to provide comfort or to alleviate pain.
(m) "Limited guardian" means a person appointed by the court pursuant to the provisions of chapter forty-four-a of this code who has only those responsibilities for the personal affairs of a protected person as specified in the order of appointment.
(n) "Medical information" or "medical records" means and includes without restriction those medical histories, records, reports, summaries, diagnoses, prognoses, records of treatment, records of medication ordered and given, notes, entries, X rays and other written or graphic data prepared, kept, made or maintained by any health care facility or health care provider regarding a person's confinement, services rendered, admissions, emergency room care or inpatient or outpatient care. These records may not include ordinary business records regarding patient accounts or the administration of the facility or institution.
(o) "Parent" means a person who is another person's natural or adoptive mother or father and whose parental rights have not been terminated by a court of law.
(p) "Person" means an individual, a corporation, a business trust, a trust, a partnership, an association, a government, a governmental subdivision or agency or any other legal entity.
(q) "Protected person" means an adult, eighteen years of age or older, who, pursuant to the provisions of chapter forty-four-a of this code, has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events and environments to an extent that the individual lacks the capacity to: (1) Meet the essential requirements for his or her health, care, safety, habilitation or therapeutic needs without the assistance or protection of a guardian; or (2) manage property or financial affairs to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator.
(r) "Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
(s) "Surrogate decisionmaker" or "surrogate" means an adult individual who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions and is identified by the primary care provider in accordance with the provisions of this article as the person who is to make those decisions in accordance with the provisions of this article.
(t) "Temporary guardian" means a person appointed by a court for a limited or temporary period pursuant to the provisions of section fourteen, article two, chapter forty-four-a of this code who has only those powers and duties specifically set forth in the order of appointment.
§16-30B-5. Private decision-making process; authority of surrogate.

(a) Any capable adult may make his or her own health care decisions without regard to guidelines contained in this article.
(b) Health care providers and health care facilities may rely upon health care decisions on behalf of an incapacitated person without resort to the courts or legal process, if the decisions are made in accordance with the provisions of this article.
(c) The surrogate shall have the authority to make any and all health care decisions on behalf of an incapacitated person and to release or authorize the release of an incapacitated person's medical records to third parties.
(d) The surrogate's authority shall commence upon a determination, made pursuant to section six of this article, of the incapacity of the adult. In the event the person no longer is incapacitated or the surrogate is unwilling or unable to serve, the surrogate's authority shall cease. However, the authority of the surrogate may recommence if the person subsequently becomes incapacitated as determined pursuant to section six of this article unless during the intervening period of capacity the person executes an advance directive which makes a surrogate unnecessary or expressly rejects the previously appointed surrogate as his or her surrogate. A surrogate's authority terminates upon the death of the incapacitated person except with respect to decisions regarding autopsy and organ and tissue donation.
(e) The surrogate shall seek medical information necessary to make health care decisions for an incapacitated person. For the sole purpose of making health care decisions for the incapacitated person, the surrogate shall have the same right of access to the incapacitated person's medical information and the same right to discuss that information with the incapacitated person's health care providers that the incapacitated person would have if he or she was not incapacitated.
(f) If an incapacitated person previously expressed his or her wishes regarding autopsy or the desire to make an anatomical gift by a written directive such as a living will, medical power of attorney, donor card, drivers' license or other means, the surrogate shall follow the person's expressed wishes regarding autopsy and organ and tissue donation. In the absence of any written directives, any decision regarding anatomical gifts shall be made pursuant to the provisions of article nineteen of this chapter.
§16-30B-6. Determination of incapacity.

(a) For the purposes of this article, a person may not be presumed to be incapacitated merely by reason of advanced age or disability. With respect to a person who has a diagnosis of mental illness or mental retardation, such a diagnosis is not a presumption that the person is incapacitated. A determination that a person is incapacitated shall be made by the attending physician or the advanced practice nurse in consultation with the attending physician.
(b) Before implementation of a decision by a surrogate decisionmaker to withhold or withdraw life-prolonging intervention, at least one qualified physician or a licensed psychologist who has personally examined the person, in addition to the attending physician, must concur in the determination of incapacity of an adult.
(c) The determination of incapacity shall be recorded contemporaneously in the person's medical record by the attending physician, and, if required, a second health care provider, either a qualified physician or licensed psychologist. The recording shall state the basis for the determination of incapacity, including the cause, nature and expected duration of the person's incapacity, if these are known.
(d) If the person is conscious, the attending physician shall inform the person that he or she has been determined to be incapacitated and that a surrogate decisionmaker may be making decisions regarding life-prolonging intervention for the person.
§16-30B-7. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending physician or the advanced practice nurse in consultation with the attending physician shall select, in writing, a surrogate with the assistance of other health care providers as necessary. The attending physician shall reasonably attempt to determine whether the incapacitated person has appointed a representative under a medical power of attorney in accordance with the provisions of article thirty-a of this chapter, or if the incapacitated person has a guardian in accordance with the provisions of article one, chapter forty-four-a of this code. If no representative or guardian is authorized or capable and willing to serve, the attending physician or advance practice nurse must make a reasonable inquiry as to the availability of a surrogate from the following persons:
(1) The person's spouse;
(2) The person's adult children;
(3) The person's parents;
(4) The person's adult siblings;
(5) The person's adult grandchildren;
(6) The person's close friends;
(7) Any other person or entity, including, but not limited to, public agencies, public guardians, public officials, public and private corporations and other persons or entities which the department of health and human resources may from time to time designate in rules promulgated pursuant to chapter twenty-nine-a of this code.
(b) After inquiring about the existence and availability of a medical power of attorney representative or a guardian as required by subsection (a) of this section, and determining that such persons either do not exist or are unavailable or unwilling to serve as a surrogate, the primary care provider shall select and rely upon a surrogate in the order of priority set forth in subsection (a) of this section, subject to the following conditions:
(1) Where there are multiple possible surrogate decisionmakers at the same priority level, the attending physician or the advanced practice nurse in consultation with the attending physician shall, after reasonable inquiry, choose as the surrogate the person who reasonably appears to be best qualified. The following criteria shall be considered in the determination of the person or entity best qualified to serve as the surrogate:
(A) Whether the proposed surrogate reasonably appears to be better able to make decisions either in accordance with the known wishes of the person or in accordance with the person's best interests;
(B) The proposed surrogate's regular contact with the person prior to and during the incapacitating illness;
(C) The proposed surrogate's demonstrated care and concern;
(D) The proposed surrogate's availability to visit the incapacitated person during his or her illness; and
(E) The proposed surrogate's availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process;
(2) The attending physician or the advanced practice nurse in consultation with the attending physician may select a proposed surrogate who is ranked lower in priority if, in his or her judgment, that individual is best qualified, as described in this section, to serve as the incapacitated person's surrogate. The attending physician or the advanced practice nurse shall document in the incapacitated person's medical records his or her reasons for selecting a surrogate in exception to the priority order provided in subsection (a) of this section.
(c) The surrogate is authorized to make health care decisions on behalf of the incapacitated person without a court order or judicial involvement.
(d) A health care provider or health care facility may rely upon the decisions of the selected surrogate if the provider believes, after reasonable inquiry, that:
(1) A guardian or representative under a valid, applicable medical power of attorney is unavailable, incapable or is unwilling to serve;
(2) There is no other applicable advance directive;
(3) There is no reason to believe that such health care decisions are contrary to the incapacitated person's religious beliefs; and
(4) The attending physician or advanced practice nurse has not received actual notice of opposition to any health care decisions made pursuant to the provisions of this section.
(e) If a person who is ranked as a possible surrogate pursuant to subsection (a) of this section wishes to challenge the selection of a surrogate or the health care decision of the selected surrogate, he or she may seek injunctive relief or may file a petition for review of the selection of, or decision of, the selected surrogate with the circuit court of the county in which the incapacitated person resides or the supreme court of appeals. There shall be a rebuttable presumption that the selection of the surrogate was valid, and the person who is challenging the selection shall have the burden of proving the invalidity of that selection. The challenging party shall be responsible for all court costs and other costs related to the proceeding, except attorneys' fees, unless the court finds that the attending physician or advanced practice nurse acted in bad faith, in which case the person so acting shall be responsible for all costs. Each party shall be responsible for his or her own attorneys' fees.
(f) If the attending physician or advanced practice nurse is advised that a person who is ranked as a possible surrogate pursuant to the provisions of subsection (a) of this section has an objection to a health care decision to withhold or withdraw a life- prolonging intervention which has been made by the selected surrogate, the attending physician or advanced practice nurse shall document the objection in the medical records of the patient. Once notice of an objection or challenge is documented, the attending physician or advanced practice nurse shall notify the challenging party that the decision shall be implemented in seventy-two hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in subsection (e) of this section. In the event that the incapacitated person has been determined to have undergone brain death and the selected surrogate has authorized organ or tissue donation, the decision shall be implemented in twenty-four hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in subsection (e) of this section.
(g) If the surrogate becomes unavailable for any reason, the surrogate may be replaced by applying the provisions of this section.
(h) If a person who ranks higher in priority relative to a selected surrogate becomes available and willing to be the surrogate, the person with higher priority may be substituted for the identified surrogate unless the attending physician determines that the lower ranked person is best qualified to serve as the surrogate.
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