Day 13 of her starvation and dehydration, March 30, 2005
Terri DIED 14 hours after this photo was taken

Starvation/Dehydration Prevention Acts from All States

Model Law that can be used for All States

MODEL STARVATION AND DEHYDRATION OF PERSONS WITH
DISABILITIES PREVENTION ACT Revised January 2006

Section 1. Short Title
This act shall be known and may be cited as the [STATE NAME]
"Starvation and Dehydration of Persons with Disabilities Prevention
Act".

Section 2. Definitions
A. "Hydration" means fluids administered by way of the
gastrointestinal tract or intravenously.
B. "Nutrition" means sustenance administered by way of the
gastrointestinal tract or intravenously.
C. "Person legally incapable of making health care decisions"
means any person who:
1. Has been declared legally incompetent to make decisions
affecting medical treatment or care, or
2. In the reasonable judgment of the attending physician, is
unable to make decisions affecting medical treatment or other
health care services, or
3. Is a minor.
D. "Physician" means a physician licensed by [relevant state
statute].
E. "Reasonable medical judgment" means a medical judgment that
would be made by a reasonably prudent physician, knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved.

Section 3. Presumption of Nutrition and Hydration Sufficient to
Sustain Life
A. It shall be presumed that every person legally incapable of
making health care decisions has directed his or her health care
providers to provide him or her with nutrition and hydration to a degree
that is sufficient to sustain life.
B. No guardian, surrogate, public or private agency, court, or any
other person shall have the authority to make a decision on behalf of a
person legally incapable of making health care decisions to withhold or
withdraw hydration or nutrition from such a person except in the
circumstances and under the conditions specifically provided for in
Section 4 of this act.

Section 4. Presumption of Nutrition and Hydration, When
Inapplicable
The presumption pursuant to Section 3 of this act shall not apply:
A. To the extent that, in reasonable medical judgment, the medical
condition of the person legally incapable of making health care decisions
is such that the provision of nutrition or hydration would not contribute
to sustaining that person's life or to providing comfort to that person.
B. If the person executed a directive in accordance with [state
advance directive statute] specifically authorizing the withholding or
withdrawal of nutrition and/or hydration, to the extent the authorization
applies.

Section 5. Civil Remedies
A. A cause of action for injunctive relief may be maintained
against any person who is reasonably believed to be about to violate or
who is in the course of violating this act, or to secure a court
determination, notwithstanding the position of a guardian or surrogate,
whether there is clear and convincing evidence that the person legally
incapable of making health care decisions, when legally capable of
making such decisions, gave express and informed consent to
withdrawing or withholding hydration or nutrition in the applicable
circumstances.
B. The action may be brought by any person who is:
(a) The spouse, parent, child, or sibling of the person;
(b) A current or former health care provider of the person;
(c) A legally appointed guardian of the person;
(d) The state protection and advocacy agency, or
(e) A public official with appropriate jurisdiction to
prosecute or enforce the laws of this state.
C. Pending the final determination of the court, it shall direct that
nutrition and hydration be provided unless it determines that Section 4A
is applicable.


GA House Bill 1132

By: Representatives Rogers of the 15th, White of the 3rd, Post 2, Burmeister of the 96th, Mills of the 67th, Post 2, and Coan of the 67th, Post 1


A BILL TO BE ENTITLED
AN ACT

To amend Title 31 of the Official Code of Georgia Annotated, relating to health, so as to enact the "Georgia Starvation and Dehydration of Persons with Disabilities Prevention Act"; to provide for definitions; to establish a presumption regarding life-sustaining procedures in health care decisions; to provide for exceptions to the health care presumption; to provide for civil remedies; to amend Code Section 31-32-11 of the Official Code of Georgia Annotated, relating to the effect of the chapter on living wills on other legal rights and duties, so as to provide that no presumption is created in contravention of Chapter 31 of Title 31; to amend Chapter 36 of Title 31 of the Official Code of Georgia Annotated, relating to durable power of attorney for health care, so as to provide that no presumption is created in contravention of Chapter 31 of Title 31; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by striking Chapter 31, which is reserved, and inserting in lieu thereof a new Chapter 31 to read as follows:
"CHAPTER 31

31-31-1.
This chapter shall be known and may be cited as the 'Georgia Starvation and Dehydration of Persons with Disabilities Prevention Act.'

31-31-2.
As used in this chapter, the term:
(1) 'Attending physician' means the physician who has primary responsibility at the time of reference for the treatment and care of the person.
(2) 'Express and informed consent' means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
(3) 'Health care provider' or 'provider' means the attending physician and any other person administering health care to the person at the time of reference who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or the practice of a profession, including any person employed by or acting for any such authorized person.
(4) 'Nourishment' means sustenance administered by way of the gastrointestinal tract.
(5) 'Person legally incapable of making health care decisions' means any person who:
(A) Has been declared legally incompetent to make decisions affecting medical treatment or care;
(B) In the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services; or
(C) Is a minor.
(6) 'Physician' means a person lawfully licensed in this state to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43.
(7) 'Reasonable medical judgment' means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

31-31-3.
(a) It shall be presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nourishment and hydration to a degree that is sufficient to sustain life.
(b) No guardian, surrogate, public or private agency, court, or any other person shall have the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw nourishment or hydration from such a person except in the circumstances and under the conditions specifically provided for in Code Section 31-31-4.

31-31-4.
The presumption pursuant to Code Section 31-31-3 shall not apply:
(1) To the extent that, in reasonable medical judgment:
(A) Provision of nourishment and hydration is not medically possible;
(B) Provision of nourishment and hydration would hasten death; or
(C) Because of the medical condition of the person legally incapable of making health care decisions, the person would be incapable of digesting or absorbing the nourishment and hydration so that its provision would not contribute to sustaining the person´s life;
(2) If the person executed a directive in accordance with Chapter 32 or Chapter 36 of Title 31 specifically authorizing the withholding or withdrawal of nourishment, hydration, or both to the extent the authorization applies; or
(3) If there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding nourishment or hydration in the applicable circumstances.

31-31-5.
(a) A cause of action for injunctive relief may be maintained against any person who commits an actual or threatened violation of this chapter or secures a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding nourishment or hydration in the applicable circumstances.
(b) The action for injunctive relief may be brought by any person who is:
(1) The spouse, parent, child, or sibling of the person legally incapable of making health care decisions;
(2) A current or former health care provider of the person legally incapable of making health care decisions;
(3) A legally appointed guardian of the person legally incapable of making health care decisions;
(4) A state protection and advocacy agency; or
(5) A public official with appropriate jurisdiction to prosecute or enforce the laws of this state.
(c) Pending the final determination of the court, it shall direct that nourishment and hydration be provided unless it determines that subsection (a) of Code Section 31-31-4 is applicable."

SECTION 2.
Code Section 31-32-11 of the Official Code of Georgia Annotated, relating to the effect of the chapter on living wills on other legal rights and duties, is amended by striking subsection (c) in its entirety and inserting in lieu thereof the following:
"(c) This chapter shall create no presumption concerning the intention of an individual who has not executed a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition, a coma, or a persistent vegetative state, nor shall it create any presumption in contravention of Chapter 31 of Title 31."

SECTION 3.
Chapter 36 of Title 31 of the Official Code of Georgia Annotated, relating to durable power of attorney for health care, is amended by striking Code Section 31-36-4, relating to delegation of health care powers to an agent, death of principal, and rights regarding life-sustaining or death-delaying procedures, in its entirety and inserting in its place a new Code Section 31-36-4 to read as follows:
"31-36-4.
The health care powers that may be delegated to an agent include, without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual. A health care agency may extend beyond the principal´s death if necessary to permit anatomical gift, autopsy, or disposition of remains. Nothing in this chapter shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining or death-delaying procedures in any lawful manner, and the provisions of this chapter are cumulative in such respect. Nothing in this chapter shall create any presumption in contravention of Chapter 31 of Title 31 relating to life-sustaining procedures in health care decisions."
SECTION 4.
This Act shall become effective on July 1, 2004.
SECTION 5.
All laws or parts of laws in conflict with this Act are repealed.

 

HAWAII STARVATION AND DEHYDRATION OF
PERSONS WITH DISABILITIES PREVENTION ACT

Section 1. Hawaii's Sustain Life Bill
This act shall be known and may be cited as the "Hawaii Starvation and Dehydration of Persons with Disabilities Prevention Act".

Section 2. Definitions
A. "Attending physician" means the physician who has primary responsibility for the overall medical treatment and care of a person.
B. "Health care provider" means a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
C. "Express and informed consent" means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
D. "Nutrition" means sustenance administered by way of the gastrointestinal tract.
E. "Person legally incapable of making health care decisions" means any person who:
1. Has been declared legally incompetent to make decisions affecting medical treatment or care, or
2. In the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services, or
3. Is a minor.
F. "Physician" means a physician licensed by [relevant state statute].
G. "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

Section 3. Presumption of Nutrition and Hydration Sufficient to Sustain Life
A. It shall be presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.
B. No guardian, surrogate, public or private agency, court, or any other person shall have the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person except in the circumstances and under the conditions specifically provided for in Section 4 of this act.

Section 4. Presumption of Nutrition and Hydration, When Inapplicable
The presumption pursuant to Section 3 of this act shall not apply:
A. To the extent that, in reasonable medical judgment:
a) provision of nutrition and hydration is not medically possible,
b) provision of nutrition and hydration would hasten death, or,
c) because of the medical condition of the person legally incapable of making health care decisions, that person would be incapable of digesting or absorbing the nutrition and hydration so that its provision would not contribute to sustaining the person's life.
B. If the person executed a directive in accordance with [state advance directive statute] specifically authorizing the withholding or withdrawal of nutrition and/or hydration, to the extent the authorization applies.
C. If there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.

Section 5. Civil Remedies
A. A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating this act, or to secure a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
B. The action may be brought by any person who is:
(a) The spouse, parent, child, or sibling of the person;
(b) A current or former health care provider of the person;
(c) A legally appointed guardian of the person;
(d) The state protection and advocacy agency, or
(e) A public official with appropriate jurisdiction to prosecute or enforce the laws of this state.
C. Pending the final determination of the court, it shall direct that nutrition and hydration be provided unless it determines that Section 4A is applicable.

 

Iowa House Study Bill 302

HOUSE FILE
BY (PROPOSED COMMITTEE ON
GOVERNMENT OVERSIGHT BILL
BY CHAIRPERSON ALONS)


Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved

A BILL FOR

1 An Act creating a starvation and dehydration of persons with
2 disabilities prevention Act and providing remedies.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4 TLSB 3549YC 81
5 rh/cf/24

PAG LIN

1 1 Section 1. NEW SECTION. 216F.1 TITLE.
1 2 This chapter shall be known and may be cited as the "Iowa
1 3 Starvation and Dehydration of Persons with Disabilities
1 4 Prevention Act".
1 5 Sec. 2. NEW SECTION. 216F.2 DEFINITIONS.
1 6 For the purposes of this chapter:
1 7 1. "Attending physician" means the physician who has
1 8 primary responsibility for the overall medical treatment and
1 9 care of a person.
1 10 2. "Express and informed consent" means consent
1 11 voluntarily given with sufficient knowledge of the subject
1 12 matter involved, including a general understanding of the
1 13 medical procedures and treatments, the medically acceptable
1 14 alternative procedures and treatments, and the substantial
1 15 risks and hazards inherent in the proposed treatments and
1 16 procedures, to enable the person giving consent to make an
1 17 informed decision in the absence of force, fraud, deceit,
1 18 duress, or any other form of constraint or coercion.
1 19 3. "Health care provider" means a person who is licensed,
1 20 certified, or otherwise authorized under the laws of this
1 21 state to administer medical treatment or care in the ordinary
1 22 course of business or practice of a profession.
1 23 4. "Nutrition" means sustenance administered by way of the
1 24 gastrointestinal tract.
1 25 5. "Person legally incapable of making health care
1 26 decisions" means a person who is any of the following:
1 27 a. Has been declared legally incompetent to make decisions
1 28 affecting medical treatment or care.
1 29 b. In the reasonable judgment of the attending physician,
1 30 is unable to make decisions affecting medical treatment or
1 31 care services.
1 32 c. Is a minor.
1 33 6. "Physician" means a person who is licensed to practice
1 34 medicine and surgery, osteopathy, or osteopathic medicine and
1 35 surgery in this state.
2 1 7. "Reasonable medical judgment" means a medical judgment
2 2 that would be made by a reasonably prudent physician
2 3 knowledgeable about the person's medical condition and the
2 4 treatment options available.

2 5 Sec. 3. NEW SECTION. 216F.3 PRESUMPTION OF NUTRITION AND
2 6 HYDRATION SUFFICIENT TO SUSTAIN LIFE.
2 7 1. It shall be presumed that a person legally incapable of
2 8 making health care decisions has directed the person's health
2 9 care provider to provide the person with nutrition and
2 10 hydration to a degree sufficient to sustain the life of the
2 11 person.
2 12 2. A guardian, surrogate, employee of a public or private
2 13 agency, any other person, or court shall not decide on behalf
2 14 of a person legally incapable of making health care decisions
2 15 to withhold or withdraw nutrition or hydration from such a
2 16 person except as provided in subsection 3.
2 17 3. Subsection 1 shall not apply to the following:
2 18 a. Based upon a physician's reasonable medical judgment,
2 19 any of the following:
2 20 (1) The provision of nutrition and hydration is not
2 21 medically possible.
2 22 (2) The provision of nutrition and hydration would hasten
2 23 death.
2 24 (3) The person would be incapable of digesting or
2 25 absorbing the nutrition and hydration.
2 26 b. The person executed a declaration pursuant to section
2 27 144A.3 specifically authorizing the withholding or withdrawal
2 28 of nutrition and hydration to the extent the authorization
2 29 applies.
2 30 c. Clear and convincing evidence exists that the person
2 31 who is legally incapable of making health care decisions, when
2 32 legally capable of making health care decisions, gave express
2 33 and informed consent to withdrawing or withholding nutrition
2 34 or hydration in the applicable circumstances.

2 35 Sec. 4. NEW SECTION. 216F.4 CIVIL REMEDIES.
3 1 1. A cause of action may be maintained to secure a court
3 2 determination, notwithstanding the position of a guardian,
3 3 surrogate, or attorney in fact, as to whether clear and
3 4 convincing evidence exists that the person legally incapable
3 5 of making health care decisions, when legally capable of
3 6 making such decisions, gave express and informed consent to
3 7 the withdrawing or withholding of nutrition or hydration in
3 8 the applicable circumstances.
3 9 2. An action pursuant to subsection 1 may be brought by
3 10 any of the following persons:
3 11 a. A spouse, parent, child, or sibling of the person
3 12 legally incapable of making a health care decision.
3 13 b. A current or former health care provider of the person
3 14 legally incapable of making a health care decision.
3 15 c. A guardian of the person legally incapable of making a
3 16 health care decision.
3 17 d. An employee of a state protection or advocacy agency.
3 18 e. A public official with authority to prosecute and
3 19 enforce the laws of this state.
3 20 3. Pending the final determination of a court as to
3 21 whether a person who is legally incapable of making health
3 22 care decisions has been unlawfully denied nutrition or
3 23 hydration, the court shall issue an order directing that
3 24 nutrition and hydration be provided unless the court
3 25 determines that section 216F.3, subsection 3, applies.
3 26 Sec. 5. NEW SECTION. 216F.5 APPLICABILITY.
3 27 This chapter shall not invalidate any living will, durable
3 28 power of attorney for health care, or any similarly executed
3 29 legal document created prior to July 1, 2005.

3 30 EXPLANATION
3 31 This bill creates a starvation and dehydration of persons
3 32 with disabilities prevention Act.
3 33 The bill creates a presumption in the law that a person who
3 34 is legally incapable of making health care decisions has
3 35 directed the person's health care provider to provide the
4 1 person with nutrition and hydration to a degree sufficient to
4 2 sustain the life of the person. The bill provides that the
4 3 presumption cannot be overcome by the actions of any guardian,
4 4 surrogate, employee of a public or private agency, or any
4 5 other person, or court. However, the presumption does not
4 6 apply in cases where, based upon a physician's reasonable
4 7 medical judgment, the provision of nutrition and hydration is
4 8 not medically possible or would hasten death, or where the
4 9 person would be incapable of digesting or absorbing the
4 10 nutrition and hydration. In addition, the presumption does
4 11 not apply in cases where the person executed a declaration
4 12 specifically authorizing the withholding or withdrawal of
4 13 nutrition and hydration or where clear and convincing evidence
4 14 exists that the person who is legally incapable of making
4 15 health care decisions, when legally capable of making health
4 16 care decisions, gave express and informed consent to
4 17 withdrawing or withholding nutrition or hydration in the
4 18 applicable circumstances.
4 19 The bill provides that a cause of action may be maintained
4 20 to secure a court determination, notwithstanding the position
4 21 of a guardian, surrogate, or attorney in fact, whether clear
4 22 and convincing evidence exists that the person legally
4 23 incapable of making health care decisions, when legally
4 24 capable of making such decisions, gave express and informed
4 25 consent to the withdrawing or withholding of nutrition or
4 26 hydration in the applicable circumstances. The bill further
4 27 provides that a court, upon a final determination that a
4 28 person who is legally incapable of making health care
4 29 decisions has been unlawfully denied nutrition or hydration,
4 30 shall issue an order directing that nutrition or hydration be
4 31 provided unless the court determines that circumstances exist
4 32 that overcome the presumption in favor of the provision of
4 33 nutrition and hydration.
4 34 The bill defines "person legally incapable of making health
4 35 care decisions" to mean any person who has been declared
5 1 legally incompetent to make decisions affecting medical
5 2 treatment or care, who, in the reasonable judgment of the
5 3 attending physician, is unable to make decisions affecting
5 4 medical treatment or other heath care services, or who is a
5 5 minor.


MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Judiciary, Division B
By: Senator(s) Nunnelee, Clarke
Senate Bill 2193

AN ACT RELATING TO THE WITHHOLDING OR WITHDRAWAL OF NUTRITION OR HYDRATION FROM INCOMPETENT PERSONS; TO CODIFY SECTION 41-41-301, MISSISSIPPI CODE OF 1972, TO BE CITED AS THE "STARVATION AND DEHYDRATION OF PERSONS WITH DISABILITIES PREVENTION ACT"; TO PROVIDE THAT AN INCOMPETENT PERSON IS PRESUMED TO HAVE DIRECTED HEALTH CARE PROVIDERS TO PROVIDE THE NECESSARY NUTRITION AND HYDRATION TO SUSTAIN LIFE; TO PROHIBIT A COURT, PROXY OR SURROGATE FROM WITHHOLDING OR WITHDRAWING NUTRITION OR HYDRATION EXCEPT UNDER SPECIFIED CIRCUMSTANCES; TO PROVIDE THAT SAID PRESUMPTION IS INAPPLICABLE UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTIONS 41-41-205, 41-41-209, 41-39-15, 41-41-3 AND 41-41-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following provision shall be codified as Section 41-41-301, Mississippi Code of 1972:
41-41-301. (1) This section shall be known and may be cited as the "Starvation and Dehydration of Persons with Disabilities Prevention Act."
(2) As used in this section, the term:
(a) "Express and informed consent" means consent voluntarily given with sufficient knowledge of the subject matter involved to enable the person giving consent to make a knowing and understanding decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion. Sufficient knowledge of the subject matter involved includes a general understanding of:
(i) The proposed treatment or procedure for which consent is sought;
(ii) The medical condition of the person for whom consent for the proposed treatment or procedure is sought;
(iii) Any medically acceptable alternative treatment or procedure; and
(iv) The substantial risks and hazards inherent if the proposed treatment or procedure is carried out and if the proposed treatment or procedure is not carried out.
(b) "Nutrition" means sustenance administered by way of the gastrointestinal tract.
(c) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(3) Each incompetent person shall be presumed to have directed his or her health care providers to supply him or her with the nutrition and hydration necessary to sustain life.
(4) A family member, proxy, surrogate or court may not decide on behalf of an incompetent person to withhold or withdraw hydration or nutrition from that person except in the circumstances and under the conditions specifically provided in subsection (5).
(5) The presumption in subsection (4) does not apply if:
(a) In reasonable medical judgment:
(i) The provision of nutrition or hydration is not medically possible;
(ii) The provision of nutrition or hydration would hasten death; or
(iii) The medical condition of the incompetent person is such that provision of nutrition or hydration would not contribute to sustaining the incompetent person's life or provide comfort to the incompetent person;
(b) The incompetent person has executed a written living will or advance directive executed in this or another state in accordance with Section 44-41-201 et seq., any of which specifically authorizes the withholding or withdrawal of nutrition or hydration, to the extent that the authorization applies; or
(c) There is clear and convincing evidence that the incompetent person, when competent, gave express and informed consent to withdrawing or withholding nutrition or hydration in the applicable circumstances.
(6) The provisions of this section are cumulative to the existing law regarding an individual's right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor, competent or incompetent person, or a patient's family may have under the common law, federal constitution, state constitution or statutes of this state; however, this subsection (6) may not be construed to authorize a violation of Section 41-41-301.
(7) This section shall not be construed to repeal by implication any provision of the Mississippi Medical Consent Law, Sections 41-41-3, 41-41-7 or the Uniform Health Care Decisions Act, Section 41-41-201 et seq., and said provisions shall be considered an alternative to provisions of this Section 41-41-301; however, this section may not be construed to authorize a violation of Section 41-41-301.

SECTION 2. Section 41-41-205, Mississippi Code of 1972, is amended as follows:
41-41-205. (1) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
(2) An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of a residential long-term health care institution at which the principal is receiving care. The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one (1) of the following methods:
(a) Be signed by at least two (2) individuals each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgement of the signature or of the instrument, each witness making the following declaration in substance: "I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility." In addition, the declaration of at least one (1) of the witnesses must include the following: "I am not related to the principal by blood, marriage or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law."
(b) Be acknowledged before a notary public at any place within this state, the notary public certifying to the substance of the following:
"State of __________________
County of _________________
On this _______ day of __________, in the year ____, before me, _______________ (insert name of notary public) appeared _______________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under the penalty of perjury that the person whose name is subscribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
Notary Seal
_____________________________
(Signature of Notary Public)"
(3) None of the following may be used as witness for a power of attorney for health care:
(a) A health care provider;
(b) An employee of a health care provider or facility; or
(c) The agent.
(4) At least one (1) of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:
(a) A relative of the principal by blood, marriage or adoption; nor
(b) An individual who would be entitled to any portion of the estate of the principal upon his or her death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.
(5) Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
(6) Unless otherwise specified in a written advance health care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the primary physician.
(7) An agent shall make a health care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
(8) A health care decision made by an agent for a principal is effective without judicial approval.
(9) A written advance health care directive may include the individual's nomination of a guardian of the person.
(10) An advance health care directive is valid for purposes of this chapter if it complies with Sections 41-41-201 through 41-41-229, regardless of when or where executed or communicated.
(11) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.
SECTION 3. Section 41-41-209, Mississippi Code of 1972, is amended as follows:
41-41-209. The following form may be used to create an advance health care directive. Sections 41-41-201 through 41-41-207 and 41-41-211 through 41-41-229 govern the effect of this or any other writing used to create an advanced health care directive. An individual may complete or modify all or any part of the following form:

ADVANCE HEALTH CARE DIRECTIVE
Explanation
You have the right to give instructions about your own health care. You also have the right to name someone else to make health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a residential long-term health care institution at which you are receiving care.
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;
(b) Select or discharge health care providers and institutions;
(c) Approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
(d) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.
Part 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.
Part 3 of this form lets you designate a physician to have primary responsibility for your health care.
Part 4 of this form lets you authorize the donation of your organs at your death, and declares that this decision will supersede any decision by a member of your family.
After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
PART 1
POWER OF ATTORNEY FOR HEALTH CARE
(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health care decisions for me:
__________________________________________________________________
(name of individual you choose as agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent:
__________________________________________________________________
(name of individual you choose as first alternate agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health care decision for me, I designate as my second alternate agent:
__________________________________________________________________
(name of individual you choose as second alternate agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
(2) AGENT'S AUTHORITY: My agent is authorized to make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive, except as I state here:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(Add additional sheets if needed.)
(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines that I am unable to make my own health care decisions unless I mark the following box. If I mark this box [ ], my agent's authority to make health care decisions for me takes effect immediately.
(4) AGENT'S OBLIGATION: My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.
(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

PART 2
INSTRUCTIONS FOR HEALTH CARE
If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.
(6) END-OF-LIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold or withdraw treatment in accordance with the choice I have marked below:
[ ] (a) Choice Not To Prolong Life
I do not want my life to be prolonged if (i) I have an incurable and irreversible condition that will result in my death within a relatively short time, (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (iii) the likely risks and burdens of treatment would outweigh the expected benefits, or
[ ] (b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
(7) ARTIFICIAL NUTRITION AND HYDRATION: Artificial nutrition and hydration must be provided, withheld or withdrawn in accordance with the choice I have made in paragraph (6) unless I mark the following box. If I mark this box [ ], artificial nutrition and hydration must be provided regardless of my condition and regardless of the choice I have made in paragraph (6).
(8) RELIEF FROM PAIN: Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death:
__________________________________________________________________
__________________________________________________________________
(9) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:
__________________________________________________________________
__________________________________________________________________
(Add additional sheets if needed.)

PART 3
PRIMARY PHYSICIAN
(OPTIONAL)
(10) I designate the following physician as my primary physician:
__________________________________________________________________
(name of physician)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(phone)
OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:
__________________________________________________________________
(name of physician)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(phone)
(11) EFFECT OF COPY: A copy of this form has the same effect as the original.
(12) SIGNATURES: Sign and date the form here:
_______________________________ ______________________________
(date) (sign your name)
_______________________________ ______________________________
(address) (print your name)
_______________________________
(city) (state)

PART 4
CERTIFICATE OF AUTHORIZATION FOR ORGAN DONATION
(OPTIONAL)
I, the undersigned, this ____________ day of ___________, 20__, desire that my ________________ organ(s) be made available after my demise for:
(a) Any licensed hospital, surgeon or physician, for medical education, research, advancement of medical science, therapy or transplantation to individuals;
(b) Any accredited medical school, college or university engaged in medical education or research, for therapy, educational research or medical science purposes or any accredited school of mortuary science;
(c) Any person operating a bank or storage facility for blood, arteries, eyes, pituitaries, or other human parts, for use in medical education, research, therapy or transplantation to individuals;
(d) The donee specified below, for therapy or transplantation needed by him or her, do donate my _________ for that purpose to ______________________________________ (name) at
_______________________________________________________ (address).
I authorize a licensed physician or surgeon to remove and preserve for use my ____________________________ for that purpose.
I specifically provide that this declaration shall supersede and take precedence over any decision by my family to the contrary.
Witnessed this ________ day of _______________________, 20__.
__________________________________________________________________
(donor)
__________________________________________________________________
(address)
__________________________________________________________________
(telephone)
__________________________________________________________________
(witness)
__________________________________________________________________
(witness)
(13) WITNESSES: This power of attorney will not be valid for making health care decisions unless it is either (a) signed by two (2) qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the state.

ALTERNATIVE NO. 1
Witness
I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.
______________________________ ______________________________
(date) (signature of witness)
______________________________ ______________________________
(address) (printed name of witness)
______________________________
(city) (state)
Witness
I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility.
_____________________________ _____________________________
(date) (signature of witness)
_____________________________ _____________________________
(address) (printed name of witness)
_____________________________
(city) (state)
ALTERNATIVE NO. 2
State of __________________
County of _________________
On this _______ day of __________, in the year ____, before me, _______________ (insert name of notary public) appeared _______________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under the penalty of perjury that the person whose name is subscribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
Notary Seal
____________________________
(Signature of Notary Public)
Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.

SECTION 4. Section 41-39-15, Mississippi Code of 1972, is amended as follows:
41-39-15. (1) For the purposes of this section:
(a) "Potential organ donor" means a patient with a severe neurological insult who exhibits loss of cranial nerve response or who has a Glasgow Coma Scale score of five (5) or less.
(b) "Potential tissue donor" means any patient who dies due to cardiac arrest.
(c) "Organ procurement organization" means the federally designated agency charged with coordinating the procurement of human organs in the State of Mississippi for the purpose of transplantation and research.
(d) "Tissue bank" or "tissue procurement organization" means a not-for-profit agency certified by the Mississippi State Department of Health to procure tissues, other than solid organs, in the State of Mississippi.
(2) Before November 1, 1998, each licensed acute care hospital in the state shall develop, with the concurrence of the hospital medical staff and the organ procurement organization, a protocol for identifying all potential organ and tissue donors. The protocol shall include a procedure for family consultation. This protocol shall not be applicable in cases where a declaration by the organ donor (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under the Anatomical Gift Law under Section 41-39-39, has been provided to the attending physician.
(3) The protocol shall require each hospital to contact the organ procurement organization by telephone when a patient in the hospital becomes either a potential organ donor or potential tissue donor as defined in this section. The organ procurement organization shall determine the suitability of the patient for organ or tissue donation after a review of the patient's medical history and present condition. The organ procurement organization representative shall notify the attending physician or designee of its assessment. The hospital shall note in the patient's chart the organ procurement organization's assessment of suitability for donation. The organ procurement organization representative shall provide information about donation options to the family or persons specified in Section 41-39-35 when consent for donation is requested.
(4) If the patient becomes brain dead and is still suitable as a potential donor, the organ procurement organization representative shall approach the deceased patient's legal next of kin or persons specified in Section 41-39-35 for consent to donate the patient's organs. The organ procurement organization representative shall initiate the consent process with reasonable discretion and sensitivity to the family's circumstances, values and beliefs.
To discourage multiple requests for donation consent, the organ procurement organization representative shall make a request for tissue donation during the organ donation consent process. When the possibility of tissue donation alone exists, a tissue bank representative or their designee may request the donation.
(5) The option of organ and/or tissue donation shall be made to the deceased patient's family upon the occurrence of brain death and while mechanical ventilation of the patient is in progress.
The protocol shall require that the decision to donate be noted in the patient's medical record. The organ procurement organization shall provide a form to the hospital for the documentation. The form shall be signed by the patient's family pursuant to Sections 41-39-31 through 41-39-51. The form shall be placed in each deceased patient's chart documenting the family's decision regarding donation of organs or tissues from the patient.
(6) (a) If the deceased patient is medically suitable to be an organ and/or tissue donor, as determined by the protocol in this section, and the donor and/or family has authorized the donation and transplantation, the donor's organs and/or tissues shall be removed for the purpose of donation and transplantation by the organ procurement organization, in accordance with paragraph (b) of this subsection.
(b) If the deceased patient is the subject of a medical-legal death investigation, the organ procurement organization shall immediately notify the appropriate medical examiner that the deceased patient is medically suitable to be an organ and/or tissue donor. If the medical examiner determines that examination, analysis or autopsy of the organs and/or tissue is necessary for the medical examiner's investigation, the medical examiner may be present while the organs and/or tissues are removed for the purpose of transplantation. The physician, surgeon or technician removing the organs and/or tissues shall file with the medical examiner a report detailing the donation, which shall become part of the medical examiner's report. When requested by the medical examiner, the report shall include a biopsy or medically approved sample, as specified by the medical examiner, from the donated organs and/or tissues.
(c) In a medical-legal death investigation, decisions about organ and/or tissue donation and transplantation shall be made in accordance with a protocol established and agreed upon by majority vote no later than July 1, 2005, by the organ procurement organization, a certified state pathologist who shall be appointed by the Mississippi Commissioner of Public Safety, a representative from the University of Mississippi Medical Center, a representative from the Mississippi Coroners Association, an organ recipient who shall be appointed by the Governor, the Director of the Mississippi Bureau of Investigation of the Mississippi Department of Public Safety, and a representative of the Mississippi Prosecutor's Association appointed by the Attorney General. The protocol shall be established so as to maximize the total number of organs and/or tissues available for donation and transplantation. Organs and/or tissues designated by virtue of this protocol shall be recovered. The protocol shall be reviewed and evaluated on an annual basis.
(d) This subsection (6) shall stand repealed on June 30, 2007.
(7) Performance improvement record reviews of deceased patients' medical records shall be conducted by the organ procurement organization for each hospital having more than ninety-five (95) licensed acute care beds and general surgical capability. These reviews must be performed in the first four (4) months of a calendar year for the previous calendar year. If the organ procurement organization and hospital mutually agree, the performance improvement record reviews may be performed more frequently. Aggregate data concerning these reviews shall be submitted by the organ procurement organization to the State Department of Health by July 1 of each year for the preceding year.
(8) No organ or tissue recovered in the State of Mississippi may be shipped out of the state except through an approved organ sharing network or, at the family's request, to an approved organ transplant program.
(9) Any hospital, administrator, physician, surgeon, nurse, technician, organ procurement organization, tissue procurement organization or donee who acts in good faith to comply with this section shall not be liable in any civil action to a claimant who alleges that his consent for the donation was required.
(10) Nothing in this section shall be construed to supersede or revoke, by implication or otherwise, any valid gift of the entire body to a medical school.
(11) A gift of all or part of the body made (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under an Anatomical Gift Act declaration under Section 41-39-39, shall supersede and have precedence over any decision by the family of the individual making the organ donation.
(12) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.

SECTION 5. Section 41-41-3, Mississippi Code of 1972, is amended as follows:
41-41-3. (1) It is hereby recognized and established that, in addition to such other persons as may be so authorized and empowered, any one (1) of the following persons who is reasonably available, in descending order of priority, is authorized and empowered to consent on behalf of an unemancipated minor, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:
(a) The minor's guardian or custodian.
(b) The minor's parent.
(c) An adult brother or sister of the minor.
(d) The minor's grandparent.
(2) If none of the individuals eligible to act under subsection (1) is reasonably available, an adult who has exhibited special care and concern for the minor and who is reasonably available may act; the adult shall communicate the assumption of authority as promptly as practicable to the individuals specified in subsection (1) who can be readily contacted.
(3) Any female, regardless of age or marital status, is empowered to give consent for herself in connection with pregnancy or childbirth.
(4) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.

SECTION 6. Section 41-41-7, Mississippi Code of 1972, is amended as follows:
41-41-7. In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures, suggested, recommended, prescribed or directed by a duly licensed physician, will be implied where an emergency exists if there has been no protest or refusal of consent by a person authorized and empowered to consent or, if so, there has been a subsequent change in the condition of the person affected that is material and morbid, and there is no one immediately available who is authorized, empowered, willing and capacitated to consent. For the purposes hereof, an emergency is defined as a situation wherein, in competent medical judgment, the proposed surgical or medical treatment or procedures are immediately or imminently necessary and any delay occasioned by an attempt to obtain a consent would reasonably jeopardize the life, health or limb of the person affected, or would reasonably result in disfigurement or impairment of faculties.
Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.
SECTION 7. This act shall apply prospectively in litigation pending on the effective date of this act and shall supersede any court order issued under the law in effect before the effective date of this act to the extent that the court order conflicts with this act and would otherwise be applied on or after the effective date of this act. This act shall apply with respect to every person living on or after the effective date of this act.
SECTION 8. This act shall take effect and be in force from and after its passage.

 

South Carolina General Assembly
116th Session, 2005-2006

H. 4013

STATUS INFORMATION

General Bill
Sponsors: Reps. Clark, Pinson, Davenport, Altman, Frye and Hosey
Document Path: l:\council\bills\nbd\11747ac05.doc

Introduced in the House on April 28, 2005
Currently residing in the House Committee on Judiciary

Summary: Starvation and Dehydration of Persons with Disabilities Act


HISTORY OF LEGISLATIVE ACTIONS

Date Body Action Description with journal page number
4/28/2005 House Introduced and read first time HJ 46
4/28/2005 House Referred to Committee on Judiciary HJ 47

View the latest legislative information at the LPITS web site


VERSIONS OF THIS BILL

4/28/2005


A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 65 TO TITLE 44, SO AS TO ENACT THE "SOUTH CAROLINA STARVATION AND DEHYDRATION OF PERSONS WITH DISABILITIES PREVENTION ACT" WHICH PROVIDES A PRESUMPTION THAT EVERY PERSON LEGALLY INCAPABLE OF MAKING HEALTH CARE DECISIONS HAS DIRECTED TO BE PROVIDED WITH NUTRITION AND HYDRATION SUFFICIENT TO SUSTAIN LIFE AND TO PROVIDE EXCEPTIONS, INCLUDING, AMONG OTHER THINGS, THAT PROVIDING NUTRITION AND HYDRATION IS NOT MEDICALLY POSSIBLE OR WOULD HASTEN DEATH OR THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE PERSON, WHEN CAPABLE, GAVE CONTRARY DIRECTIVES; AND TO AUTHORIZE SEEKING INJUNCTIVE RELIEF AGAINST A PERSON IN VIOLATION OF THIS CHAPTER.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 44 of the 1976 Code is amended by adding:

"CHAPTER 65

Starvation and Dehydration of Persons with Disabilities Prevention

Section 44 65 10. This act may be cited as the 'South Carolina Starvation and Dehydration of Persons with Disabilities Prevention Act'.

Section 44 65 20. As used in this chapter:
(1) 'Attending physician' means the physician who has primary responsibility for the overall medical treatment and care of a person.
(2) 'Health care provider' means a person who is licensed, certified, or otherwise authorized by the law of this State to administer health care in the ordinary course of business or practice of a profession.
(3) 'Express and informed consent' means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
(4) 'Nutrition' means sustenance administered by way of the gastrointestinal tract.
(5) 'Person legally incapable of making health care decisions' means a person who:
(a) has been declared legally incompetent to make decisions affecting medical treatment or care;
(b) in the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services; or
(c) is a minor.
(6) 'Physician' means a physician licensed pursuant to Chapter 47, Title 40.
(7) 'Reasonable medical judgment' means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

Section 44 65 30. (A) It is presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.
(B) No guardian, surrogate, public or private agency, court, or any other person has the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person except in the circumstances and under the conditions specifically provided for in Section 44 65 40.

Section 44 65 40. The presumption provided for in Section 44 65 30 does not apply:
(1) to the extent that, in reasonable medical judgment:
(a) provision of nutrition and hydration is not medically possible;
(b) provision of nutrition and hydration would hasten death; or
(c) because of the medical condition of the person legally incapable of making health care decisions, that person would be incapable of digesting or absorbing the nutrition and hydration so that its provision would not contribute to sustaining the person's life;
(2) if the person executed a directive in accordance with Chapter 77 specifically authorizing the withholding or withdrawal of nutrition or hydration, or both, to the extent the authorization applies;
(3) if there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.

Section 44 65 50. (A) Injunctive relief may be sought against a person who is reasonably believed to be about to violate or who is in the course of violating this chapter or to secure a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
(B) The action provided for in subsection (A) may be brought by:
(1) the spouse, parent, child, or sibling of the person;
(2) a current or former health care provider of the person;
(3) a legally appointed guardian of the person;
(4) Protection and Advocacy for People with Disabilities, Inc.; or
(5) a public official with appropriate jurisdiction to prosecute or enforce the laws of this State.
(C) Pending the final determination of the court, the court shall direct that nutrition and hydration be provided unless it determines that Section 44 65 40(1) is applicable."

SECTION 2. This act takes effect upon approval by the Governor.
XX

 


Florida Senate - 2004 (Corrected Copy) SB 692
By Senator Wise
5-674B-04

1 A bill to be entitled
2 An act relating to the withholding or
3 withdrawal of nutrition or hydration from
4 incompetent persons; creating part VI of ch.
5 765, F.S.; providing a short title; providing
6 definitions relating to the withholding or
7 withdrawal of nutrition or hydration; declaring
8 that an incompetent person is presumed to have
9 directed health care providers to provide the
10 necessary nutrition and hydration to sustain
11 life; prohibiting a court, proxy, or surrogate
12 from withholding or withdrawing nutrition or
13 hydration except under specified circumstances;
14 providing that the presumption to provide
15 nutrition and hydration is inapplicable under
16 certain circumstances; amending ss. 765.106,
17 765.107, 765.204, 765.305, 765.401, and
18 765.404, F.S.; conforming provisions to changes
19 made by the act; prohibiting an inference of
20 incapacity due to a person's developmental
21 disability; providing for the act to apply to
22 pending litigation; declaring that the act
23 supersedes existing court orders otherwise
24 applicable on or after the effective date of
25 the act; providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Part VI of chapter 765, consisting of
30 sections 765.601, 765.602, 765.603, and 765.604, Florida
31 Statutes, is created to read:

1 765.601 Short title.--Sections 765.602-765.604 may be
2 cited as the "Starvation and Dehydration of Persons with
3 Disabilities Prevention Act."
4 765.602 Definitions.--As used in ss. 765.602-765.604,
5 the term:
6 (1) "Express and informed consent" means consent
7 voluntarily given with sufficient knowledge of the subject
8 matter involved to enable the person giving consent to make a
9 knowing and understanding decision without any element of
10 force, fraud, deceit, duress, or other form of constraint or
11 coercion. Sufficient knowledge of the subject matter involved
12 includes a general understanding of:
13 (a) The proposed treatment or procedure for which
14 consent is sought;
15 (b) The medical condition of the person for whom
16 consent for the proposed treatment or procedure is sought;
17 (c) Any medically acceptable alternative treatment or
18 procedure; and
19 (d) The substantial risks and hazards inherent if the
20 proposed treatment or procedure is carried out and if the
21 proposed treatment or procedure is not carried out.
22 (2) "Nutrition" means sustenance administered by way
23 of the gastrointestinal tract.
24 (3) "Reasonable medical judgment" means a medical
25 judgment that would be made by a reasonably prudent physician
26 who is knowledgeable about the case and the treatment
27 possibilities with respect to the medical conditions involved.
28 765.603 Presumption of nutrition and hydration
29 sufficient to sustain life.--

1 (1) Each incompetent person shall be presumed to have
2 directed his or her health care providers to supply him or her
3 with the nutrition and hydration necessary to sustain life.
4 (2) A proxy, surrogate, or court may not decide on
5 behalf of an incompetent person to withhold or withdraw
6 hydration or nutrition from that person except in the
7 circumstances and under the conditions specifically provided
8 in s. 765.604.
9 765.604 Presumption of nutrition and hydration; when
10 inapplicable.--The presumption in s. 765.603 does not apply to
11 the extent that:
12 (1) In reasonable medical judgment:
13 (a) The provision of nutrition or hydration is not
14 medically possible;
15 (b) The provision of nutrition or hydration would
16 hasten death; or
17 (c) The medical condition of the incompetent person is
18 such that provision of nutrition or hydration would not
19 contribute to sustaining the incompetent person's life or
20 provide comfort to the incompetent person;
21 (2) The incompetent person has executed a written
22 advance directive prepared in accordance with s. 765.112,
23 executed a designation of a health care surrogate prepared in
24 accordance with s. 765.202, or executed a written living will
25 prepared in accordance with s. 765.302, any of which
26 specifically authorizes the withholding or withdrawal of
27 nutrition or hydration, to the extent that the authorization
28 applies; or
29 (3) There is clear and convincing evidence that the
30 incompetent person, when competent, gave express and informed

1 consent to withdrawing or withholding nutrition or hydration
2 in the applicable circumstances.
3 Section 2. Section 765.106, Florida Statutes, is
4 amended to read:
5 765.106 Preservation of existing rights.--The
6 provisions of this chapter are cumulative to the existing law
7 regarding an individual's right to consent, or refuse to
8 consent, to medical treatment and do not impair any existing
9 rights or responsibilities that which a health care provider,
10 a patient, including a minor, competent or incompetent person,
11 or a patient's family may have under the common law, Federal
12 Constitution, State Constitution, or statutes of this state;
13 however, this section may not be construed to authorize a
14 violation of ss. 765.602-765.604.
15 Section 3. Section 765.107, Florida Statutes, is
16 amended to read:
17 765.107 Construction.--
18 (1) This chapter may shall not be construed to repeal
19 by implication any provision of s. 766.103, the Florida
20 Medical Consent Law. For all purposes, the Florida Medical
21 Consent Law shall be considered an alternative to provisions
22 of this section; however, this section may not be construed to
23 authorize a violation of ss. 765.602-765.604.
24 (2) Procedures provided in this chapter permitting the
25 withholding or withdrawal of life-prolonging procedures do not
26 apply to a person who never had capacity to designate a health
27 care surrogate or execute a living will.
28 Section 4. Section 765.204, Florida Statutes, is
29 amended to read:
30 765.204 Capacity of principal; procedure.--

1 (1) A principal is presumed to be capable of making
2 health care decisions for herself or himself unless she or he
3 is determined to be incapacitated. Incapacity may not be
4 inferred from the person's voluntary or involuntary
5 hospitalization for mental illness or from her or his mental
6 retardation or developmental disability.
7 (2) If a principal's capacity to make health care
8 decisions for herself or himself or provide informed consent
9 is in question, the attending physician shall evaluate the
10 principal's capacity and, if the physician concludes that the
11 principal lacks capacity, enter that evaluation in the
12 principal's medical record. If the attending physician has a
13 question as to whether the principal lacks capacity, another
14 physician shall also evaluate the principal's capacity, and if
15 the second physician agrees that the principal lacks the
16 capacity to make health care decisions or provide informed
17 consent, the health care facility shall enter both physician's
18 evaluations in the principal's medical record. If the
19 principal has designated a health care surrogate or has
20 delegated authority to make health care decisions to an
21 attorney in fact under a durable power of attorney, the
22 facility shall notify such surrogate or attorney in fact in
23 writing that her or his authority under the instrument has
24 commenced, as provided in chapter 709 or s. 765.203.
25 (3) The surrogate's authority shall commence upon a
26 determination under subsection (2) that the principal lacks
27 capacity, and the such authority shall remain in effect until
28 a determination that the principal has regained such capacity.
29 Upon commencement of the surrogate's authority, a surrogate
30 who is not the principal's spouse shall notify the principal's
31 spouse or adult children of the principal's designation of the

1 surrogate. In the event the attending physician determines
2 that the principal has regained capacity, the authority of the
3 surrogate shall cease, but shall recommence if the principal
4 subsequently loses capacity as determined under pursuant to
5 this section.
6 (4) A determination made under pursuant to this
7 section that a principal lacks capacity to make health care
8 decisions shall not be construed as a finding that a principal
9 lacks capacity for any other purpose.
10 (5) In the event the surrogate is required to consent
11 to withholding or withdrawing life-prolonging procedures, the
12 provisions of parts part III and VI shall apply.
13 Section 5. Subsection (1) of section 765.305, Florida
14 Statutes, is amended to read:
15 765.305 Procedure in absence of a living will.--
16 (1) In the absence of a living will, the decision to
17 withhold or withdraw life-prolonging procedures from a patient
18 may be made by a health care surrogate designated by the
19 patient under pursuant to part II unless the designation
20 limits the surrogate's authority to consent to the withholding
21 or withdrawal of life-prolonging procedures or unless the
22 surrogate's authority is limited by part VI.
23 Section 6. Section 765.401, Florida Statutes, is
24 amended to read:
25 765.401 The proxy.--
26 (1) If an incapacitated or developmentally disabled
27 patient has not executed an advance directive, or designated a
28 surrogate to execute an advance directive, or the designated
29 or alternate surrogate is no longer available to make health
30 care decisions, health care decisions may be made for the
31 patient by any of the following individuals, in the following

1 order of priority, if no individual in a prior class is
2 reasonably available, willing, or competent to act:
3 (a) The judicially appointed guardian of the patient
4 or the guardian advocate of the person having a developmental
5 disability as defined in s. 393.063, who has been authorized
6 to consent to medical treatment, if the such guardian has
7 previously been appointed; however, this paragraph shall not
8 be construed to require the such appointment before a
9 treatment decision can be made under this subsection;
10 (b) The patient's spouse;
11 (c) An adult child of the patient, or if the patient
12 has more than one adult child, a majority of the adult
13 children who are reasonably available for consultation;
14 (d) A parent of the patient;
15 (e) The adult sibling of the patient or, if the
16 patient has more than one sibling, a majority of the adult
17 siblings who are reasonably available for consultation;
18 (f) An adult relative of the patient who has exhibited
19 special care and concern for the patient and who has
20 maintained regular contact with the patient and who is
21 familiar with the patient's activities, health, and religious
22 or moral beliefs; or
23 (g) A close friend of the patient; or.
24 (h) A clinical social worker licensed under pursuant
25 to chapter 491, or who is a graduate of a court-approved
26 guardianship program. The Such a proxy must be selected by the
27 provider's bioethics committee and must not be employed by the
28 provider. If the provider does not have a bioethics committee,
29 then the such a proxy may be chosen through an arrangement
30 with the bioethics committee of another provider. The proxy
31 will be notified that, upon request, the provider shall make

1 available a second physician, not involved in the patient's
2 care to assist the proxy in evaluating treatment. Decisions to
3 withhold or withdraw life-prolonging procedures will be
4 reviewed by the facility's bioethics committee. Documentation
5 of efforts to locate proxies from prior classes shall must be
6 recorded in the patient record.
7 (2) Any health care decision made under this part must
8 be based on the proxy's informed consent and on the decision
9 the proxy reasonably believes the patient would have made
10 under the circumstances. If there is no indication of what the
11 patient would have chosen, the proxy may consider the
12 patient's best interest in deciding that proposed treatments
13 are to be withheld or that treatments currently in effect are
14 to be withdrawn. Any decision concerning the withholding or
15 withdrawal of nutrition or hydration must comply with ss.
16 765.602-765.604.
17 (3) Before exercising the incapacitated patient's
18 rights to select or decline health care, the proxy must comply
19 with the provisions of ss. 765.205 and 765.305, except that a
20 proxy's decision to withhold or withdraw life-prolonging
21 procedures must be supported by clear and convincing evidence
22 that the decision would have been the one the patient would
23 have chosen had the patient been competent or, if there is no
24 indication of what the patient would have chosen, that the
25 decision is in the patient's best interest. Any decision
26 concerning the withholding or withdrawal of nutrition or
27 hydration must comply with ss. 765.602-765.604.
28 (4) Nothing in this section shall be construed to
29 preempt the designation of persons who may consent to the
30 medical care or treatment of minors established under pursuant
31 to s. 743.0645.

1 Section 7. Section 765.404, Florida Statutes, is
2 amended to read:
3 765.404 Persistent vegetative state.--For persons in a
4 persistent vegetative state, as determined by the attending
5 physician in accordance with currently accepted medical
6 standards, who have no advance directive and for whom there is
7 no evidence indicating what the person would have wanted under
8 such conditions, and for whom, after a reasonably diligent
9 inquiry, no family or friends are available or willing to
10 serve as a proxy to make health care decisions for them,
11 life-prolonging procedures may be withheld or withdrawn under
12 the following conditions:
13 (1) The person has a judicially appointed guardian
14 representing his or her best interest with authority to
15 consent to medical treatment; and
16 (2) The guardian and the person's attending physician,
17 in consultation with the medical ethics committee of the
18 facility where the patient is located, conclude that the
19 condition is permanent and that there is no reasonable medical
20 probability for recovery and that withholding or withdrawing
21 life-prolonging procedures is in the best interest of the
22 patient. If there is no medical ethics committee at the
23 facility, the facility must have an arrangement with the
24 medical ethics committee of another facility or with a
25 community-based ethics committee approved by the Florida
26 Bio-ethics Network. The ethics committee shall review the case
27 with the guardian, in consultation with the person's attending
28 physician, to determine whether the condition is permanent and
29 there is no reasonable medical probability for recovery. The
30 individual committee members and the facility associated with
31 an ethics committee shall not be held liable in any civil

1 action related to the performance of any duties required in
2 this subsection.
3
4 Any decision concerning the withholding or withdrawal of
5 nutrition or hydration must comply with ss. 765.602-765.604.
6 Section 8. This act shall apply prospectively in
7 litigation pending on the effective date of this act and shall
8 supersede any court order issued under the law in effect
9 before the effective date of this act to the extent that the
10 court order conflicts with this act and would otherwise be
11 applied on or after the effective date of this act. This act
12 shall apply with respect to every person living on or after
13 the effective date of this act.
14 Section 9. This act shall take effect upon becoming a
15 law.

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18 SENATE SUMMARY
19 Provides definitions relating to the withholding or
withdrawal of nutrition or hydration. Declares that an
20 incompetent person is presumed to have directed his or
her health care providers to supply the necessary
21 nutrition and hydration to sustain life. Prohibits a
court, proxy, or surrogate from withholding or
22 withdrawing nutrition or hydration except under specified
circumstances. Provides that the presumption to supply
23 nutrition and hydration is inapplicable under certain
circumstances. Provides for the act to apply to pending
24 litigation and to supersede existing court orders
otherwise applicable on or after the effective date of
25 the act.