PRINTER'S NO. 4254
No. 2996 Session of 1990
INTRODUCED BY JOSEPHS, J. TAYLOR, TIGUE, CARN, MOEHLMANN,
HARPER, SAURMAN, ITKIN, TRELLO, BILLOW, RICHARDSON, WILLIAMS
AND PISTELLA, NOVEMBER 12, 1990
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, NOVEMBER 12, 1990
AN ACT
1 Providing for the rights of an individual to specify wishes on
2 medical treatment and to appoint an agent for making
3 decisions on medical treatment; regulating the exercise of
4 such rights; imposing penalties; and conferring powers and
5 duties upon the Department of Health.
6 TABLE OF CONTENTS
7 Section 1. Short title.
8 Section 2. Legislative purpose.
9 Section 3. Definitions.
10 Section 4. Declaration.
11 Section 5. Appointment of Health Care Agent.
12 Section 6. Health care proxy.
13 Section 7. Determination of lack of capacity to make health
14 care decisions.
15 Section 8. Obligation of health care providers.
16 Section 9. Revocation.
17 Section 10. Requiring or prohibiting execution of a proxy.
18 Section 11. Immunities.
19 Section 12. Penalties.
1 Section 13. Effect on other rights and obligations.
2 Section 14. Recognition of out-of-State instruments.
3 Section 15. Special proceeding authorized.
4 Section 16. Consent by others.
5 Section 17. Rights to be publicized.
6 Section 18. Creation and use of health care proxies in
7 residential health care and mental health
8 facilities.
9 Section 19. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Short title.
13 This act shall be known and may be cited as the Patient's
14 Self-Determination Act.
15 Section 2. Legislative purpose.
16 The General Assembly finds and declares as follows:
17 (1) Individuals should have the right to make decisions
18 for themselves concerning medical treatment.
19 (2) Such decisions must be balanced with the interests
20 of the Commonwealth, which include the preservation and
21 protection of human life as well as maintaining the ethical
22 standards of the medical profession.
23 (3) Certain medical procedures often do not improve the
24 condition of the terminally ill patient nor prolong the
25 patient's life, but often serve instead to prolong the pain
26 and suffering of the patient and the family.
27 (4) A competent adult has the right to execute a written
28 declaration concerning the utilization of certain medical
29 treatments in the event that the individual becomes
30 incapacitated or is diagnosed as suffering from a terminal
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1 condition.
2 (5) A competent adult also has the right to designate
3 another competent adult to act as an agent if that adult
4 becomes incapacitated and is determined to be unable to make
5 decisions concerning medical treatment.
6 Section 3. Definitions.
7 The following words and phrases when used in this act shall
8 have the meanings given to them in this section unless the
9 context clearly indicates otherwise:
10 "Adult." An individual 18 years of age or older.
11 "Attending physician." The physician, selected by or
12 assigned to a patient, who has primary responsibility for the
13 treatment and care of the patient. Where more than one physician
14 shares such responsibility or where a physician is acting on the
15 attending physician's behalf, any such physician may act as the
16 attending physician.
17 "Capacity to make health care decisions." The ability to
18 understand and appreciate the nature and consequences of health
19 care decisions, including the benefits and risks of and
20 alternatives to proposed health care, and to reach an informed
21 decision.
22 "Declaration." A writing executed in accordance with the
23 requirements of section 4.
24 "Department." The Department of Health of the Commonwealth.
25 "Domestic partner." One of two adults who are not related by
26 blood or marriage, who share the common necessities of life and
27 who are responsible for each other's welfare.
28 "Euthanasia." The intentional causing of the death of an
29 individual, whether by act or omission, in order to relieve the
30 suffering of the individual or to relieve psychological,
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1 financial, social or other burdens of other persons or entities.
2 "Health care." Treatment, service or procedure to diagnose
3 or treat an individual's physical or mental condition.
4 "Health care agent." An adult to whom authority to make
5 health care decisions is delegated under a health care proxy.
6 "Health care decision." A decision to consent or to refuse
7 to consent to health care.
8 "Health care principal." An individual who executes or
9 attempts to execute declaration in a health care proxy.
10 "Health care provider." An individual or entity otherwise
11 authorized by law to administer health care in the ordinary
12 course of business or professional practice.
13 "Health care proxy." A document delegating the authority to
14 make health care decisions, executed in accordance with the
15 requirements of this act.
16 "Life-sustaining treatment." A medical procedure or
17 intervention that, when administered to a qualified patient,
18 will serve only to prolong the process of dying.
19 "Reasonably available." Able to be contacted with diligent
20 effort by an attending physician or another individual acting on
21 behalf of an attending physician or the health care provider.
22 "Terminal conditions." An incurable and irreversible medical
23 condition, irrespective of cause, which will, in the opinion of
24 the attending physician, to a reasonable degree of medical
25 certainty, result in death regardless of the continued
26 application of medical treatment, including life-support
27 systems. The term does not include:
28 (1) senility;
29 (2) affliction with Alzheimer's disease;
30 (3) any form of mental retardation or mental illness; or
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1 (4) chronic mental or physical impairment which, alone,
2 will not result in death.
3 Section 4. Declaration.
4 (a) Authorization.--An adult may execute a declaration
5 governing the withholding or withdrawal of life-sustaining
6 treatment. The declaration must be signed by the health care
7 principal, or another at the health care principal's direction,
8 and witnessed by two individuals.
9 (b) Form.--A declaration directing a physician to withhold
10 or withdraw life-sustaining treatment may, but need not, be in
11 the following form:
12 DECLARATION
13 If I should have an incurable and irreversible condition
14 that, without the administration of life-sustaining
15 treatment, will, in the opinion of my attending
16 physician, cause my death within a relatively short time,
17 and I am no longer able to make decisions regarding my
18 medical treatment, I direct my attending physician to
19 withhold or withdraw treatment, including nutrition and
20 hydration, that only prolongs the process of dying and is
21 not necessary for my comfort or to alleviate pain.
22 Signed this day of , .
23 Signature
24 Address
25 The declarant voluntarily signed this writing in my
26 presence.
27 Witness
28 Address
29 Witness
30 Address
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1 (c) Personal representative.--The designation of an
2 attorney-in-fact, or the judicial appointment of an individual,
3 who is authorized to make decisions regarding the withholding or
4 withdrawal of life-sustaining treatment, constitutes a
5 declaration under subsection (a).
6 (d) Record.--A physician or other health care provider who
7 is furnished a copy of the declaration shall make it a part of
8 the health care principal's medical record and, if unwilling to
9 comply with the declaration, promptly so advise the health care
10 principal and any person designated to act for the health care
11 principal.
12 Section 5. Appointment of Health Care Agent.
13 (a) Authority.--An adult may appoint a health care agent.
14 (b) Presumption of competence.--For the purposes of this
15 section, every adult shall be presumed competent to appoint a
16 health care agent unless the individual has been adjudicated
17 incompetent or otherwise adjudicated not competent to appoint a
18 health care agent, or unless a guardian of the person has been
19 appointed for the individual.
20 (c) Restrictions.--
21 (1) An operator, administrator or employee of a health
22 care provider may not be appointed as a health care agent by
23 a health care principal who, at the time of the appointment,
24 is a patient or resident of, or has applied for admission to
25 the facility of the health care provider. This paragraph does
26 not apply to any of the following:
27 (i) An operator, administrator or employee of a
28 health care provider who is related to the health care
29 principal by blood, marriage, domestic partnership or
30 adoption.
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1 (ii) A physician. However, no physician affiliated
2 with a residential mental facility or psychiatric unit of
3 a general hospital may serve as a health care agent for a
4 health care principal residing in or being treated by the
5 facility or unit unless the physician is related to the
6 health care principal by blood, marriage, domestic
7 partnership or adoption.
8 (2) If a physician is appointed a health care agent, the
9 physician may not act as the health care principal's
10 attending physician after the authority under the health care
11 proxy pursuant to section 6 commences. This paragraph shall
12 not apply if the physician declines the appointment as health
13 care agent by the time the authority commences.
14 (3) An individual may not be appointed a health care
15 agent if, at the time of appointment, the individual is a
16 health care agent for 10 other health care principals. This
17 paragraph does not apply to an individual who is the spouse,
18 domestic partner, sibling, grandparent or issue of the health
19 care principal seeking to make the appointment.
20 (d) Commencement of authority.--The health care agent's
21 authority commences upon a determination under section 7(f),
22 that the health care principal lacks capacity to make health
23 care decisions.
24 (e) Alternate agent.--A health care principal may designate
25 an alternate health care agent in the health care proxy to serve
26 in place of the health care agent under any of the following
27 circumstances:
28 (1) The attending physician determined, in a signed
29 writing, that the original health care agent is not
30 reasonably available, and is not expected to become
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1 reasonably available to make a timely decision given the
2 patient's medical circumstances.
3 (2) The health care agent is disqualified from acting on
4 the principal's behalf under subsection f(2).
5 (3) The occurrences of conditions set forth in the
6 health care proxy.
7 (f) Rights and duties of health care agent.
8 (1) Subject to any express limitations in the health
9 care proxy, a health care agent shall have the authority to
10 make health care decisions on behalf of the health care
11 principal.
12 (2) After consultation with a health care provider, the
13 health care agent shall make health care decisions in
14 accordance with the health care principal's religious and
15 moral beliefs. If the health care principal's wishes are not
16 reasonably known and cannot with reasonable diligence be
17 ascertained, the decision shall be made in accordance with
18 the health care principal's best interests.
19 (3) The health care agent shall have the right to
20 receive medical information and medical and clinical records
21 necessary to make informed decisions regarding the health
22 care principal's health care.
23 Section 6. Health care proxy.
24 (a) Authority.--An adult may appoint a health care agent by
25 a health care proxy, signed and dated by the adult in the
26 presence of two witnesses, who must sign the proxy. Another
27 individual may sign and date the health care proxy for the
28 health care principal if the health care principal is unable to
29 do so, at the adult's direction and in the adult's presence. The
30 witnesses must state that the health care principal appeared to
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1 execute the proxy willingly and free from duress. The health
2 care agent may not act as witness to execution of the health
3 care proxy. For adults who reside in mental health facilities,
4 at least one witness must be an individual who is not affiliated
5 with the facility; and at least one witness shall be a physician
6 who is certified by the American Board of Psychiatry and
7 Neurology.
8 (b) Contents and form.--
9 (1) The health care proxy shall do all of the following:
10 (i) Identify the health care principal and health
11 care agent.
12 (ii) Indicate that the health care principal intends
13 the health care agent to have authority to make health
14 care decisions on behalf of the health care principal.
15 (2) The health care proxy may include the following:
16 (i) The health care principal's wishes or
17 instructions about health care decisions and limitations
18 upon the health care agent's authority.
19 (ii) A specific date of or condition of expiration.
20 If, prior to the expiration of a proxy, the authority of
21 the agent has commenced, the proxy shall not expire upon
22 the date or condition set forth in the proxy while the
23 health care principal lacks capacity.
24 (c) Form.--A health care proxy may, but need not, be in the
25 following form:
26 HEALTH CARE PROXY
27 I, (name of principal), hereby appoint (name, address and
28 telephone number of agent), as my health care agent to
29 make any and all health care decisions for me, except to
30 the extent I state otherwise. This health care proxy
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1 shall take effect in the event I become unable to make my
2 own health care decisions. I direct my health care agent
3 to make health care decisions in accordance with my
4 wishes and instructions as stated below or as otherwise
5 known to him or her. I also direct my agent to abide by
6 any limitations on his or her authority as stated below
7 or as otherwise known to him or her. In the event the
8 person I appoint above is unable, unwilling or
9 unavailable to act as my health care agent, I hereby
10 appoint (name, address and telephone number of alternate
11 agent) as my health care agent. I understand that, unless
12 I revoke it, this proxy will remain in effect
13 indefinitely or until the date or occurrence of the
14 conditions I have stated below:
15 (The following is to be completed in the event that
16 this health care proxy is not to be in effect for an
17 indefinite period of time).
18 This proxy shall expire (specify date or condition).
19 Signature:
20 Address:
21 Date:
22 I declare that the person who signed or asked another to sign
23 this document is personally known to me and appears to be of
24 sound mind and free from duress. He or she signed (or asked
25 another to sign for him or her) this document in my presence and
26 that person signed in my presence. I am not the person appointed
27 as agent by this document.
28 Witness: Witness:
29 Address: Address:
30 (d) Separate form.--The health care proxy may not be
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1 executed on a form or other writing that also includes the
2 execution of a power of attorney. Nothing in this subsection
3 shall invalidate a delegation of the authority to make health
4 care decisions executed prior to the effective date of this act.
5 (e) Duration.--If there is no date or condition of
6 expiration under subsection (f)(2)(ii), a health care proxy
7 shall remain in effect until revocation.
8 Section 7. Determination of lack of capacity to make health
9 care decisions.
10 (a) By attending physician.--A determination that a health
11 care principal lacks capacity shall be made by the attending
12 physician to a reasonable degree of medical certainty. The
13 determination must be made in writing and must contain the
14 attending physician's opinion regarding the cause and nature of
15 the health care principal's incapacity as well as its extent and
16 probably duration. The determination shall be included in the
17 patient's medical record.
18 (1) If an attending physician of a resident in a mental
19 health facility determines that a health care principal lacks
20 capacity because of mental illness, the attending physician
21 who makes the determination must be, or must consult with,
22 for the purpose of confirming the determination, a physician
23 who is certified by the American Board of Psychiatry and
24 Neurology. A record of the consultation shall be included in
25 the patient's medical record.
26 (2) A physician who has been appointed as a health care
27 agent may not make the determination of the health care
28 principal's capacity to make health care decisions.
29 (b) Request for determination.--Upon request of a health
30 care agent, an attending physician shall make a determination
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1 regarding the principal's capacity to make health care
2 decisions.
3 (c) Notice of determination.--Notice of a determination that
4 a principal lacks capacity to make health care decisions shall
5 be promptly given to the following:
6 (1) The health care principal. Notice under this
7 paragraph shall be given orally and in writing if there is
8 any indication of the principal's ability to comprehend the
9 notice.
10 (2) The health care agent.
11 (3) If the principal is in or is transferred to a mental
12 health facility, the facility director.
13 (4) The guardian of the person of the health care
14 principal.
15 (d) Limited purpose of determination.--A determination made
16 under this section that a health care principal lacks capacity
17 to make health care decisions shall not be construed as a
18 finding that a person lacks capacity for any other purpose.
19 (e) Priority of decision.--Notwithstanding a determination
20 under this section that the health care principal lacks capacity
21 to make health care decisions, if a health care principal
22 objects to the determination of incapacity or to a health care
23 decision made by the health care agent, the health care
24 principal's objection or decision shall prevail unless the
25 health care principal is determined by a court of competent
26 jurisdiction to lack capacity to make health care decisions.
27 (f) Confirmation of a lack of capacity.--The attending
28 physician shall confirm the health care principal's continued
29 incapacity before complying with a health care agent's health
30 care decisions, other than those decisions made at or about the
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1 time of the initial determination under subsection (a). The
2 confirmation must be stated in writing and shall be included in
3 the principal's medical record.
4 (g) Effect of recovery of capacity.--If the attending
5 physician determines that the health care principal has regained
6 capacity, the authority of the health care agent shall cease.
7 Section 8. Obligations of health care providers.
8 (a) Records.--A health care provider who is provided with a
9 health care proxy shall arrange for the proxy to be inserted in
10 the health care principal's medical record.
11 (b) Obedience.--A health care provider shall comply with
12 health care decisions made by a health care agent in good faith
13 under a health care proxy to the same extent as if its decisions
14 had been made by the health care principal, subject to
15 limitations in the health care proxy and section 5(f)(2).
16 (c) Exemption for private health care providers.--
17 (1) Notwithstanding subsection (b), a private health
18 care provider is not required to honor a health care agent's
19 health care decision that the health care provider would not
20 honor if made by the health care principal because the
21 decision is contrary to a formally adopted policy of the
22 health care provider which is expressly based on religious
23 beliefs and that the health care provider would be permitted
24 by law to refuse to honor if made by the health care
25 principal as long as all of the following apply:
26 (i) The health care provider has informed the health
27 care principal or the health care agent of its policy
28 prior to or upon admission, if reasonably possible.
29 (ii) The health care principal is transferred
30 promptly to another health care provider that is
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1 reasonably accessible under the circumstances and is
2 willing to honor the health care agent's decision.
3 (2) If the health care provider or the health care agent
4 is unable to arrange a transfer under paragraph (1)(ii), the
5 health care provider shall seek judicial relief or honor the
6 health care agent's decision.
7 Section 9. Revocation.
8 (a) Presumption of competence.--For the purposes of this
9 section, every adult shall be presumed competent unless
10 determined otherwise pursuant to court order.
11 (b) General rule.--A competent adult may revoke a health
12 care proxy by notifying the health care agent or a health care
13 provider orally or in writing or by any other act evidencing a
14 specific intent to revoke the proxy. A health care proxy shall
15 also be revoked upon execution by the health care principal of a
16 subsequent health care proxy.
17 (c) Instructions or limitations.--A health care principal's
18 written instructions about health care or limitations upon the
19 health care agent's authority, shall not revoke a health care
20 proxy unless the instructions or limitations expressly provide
21 so. Such instructions or limitations constitute evidence of the
22 health care principal's wishes for purposes of section 5(f)(2).
23 (d) Duty to record revocation.--
24 (1) A physician who is informed of or provided with a
25 revocation of a health care proxy shall immediately record
26 the revocation in the health care principal's medical record
27 and notify the health care agent and the medical staff
28 responsible for the care of the revocation.
29 (2) Any member of the staff of a health care provider
30 informed of or provided with a revocation of a health care
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1 proxy under this section shall immediately notify a physician
2 of the revocation.
3 Section 10. Requiring or prohibiting execution of a proxy.
4 No person may require or prohibit the execution of a health
5 care proxy by an individual as a condition for providing health
6 care services or insurance to the individual.
7 Section 11. Immunities.
8 (a) Provider immunity.--No health care provider shall be
9 subjected to criminal or civil liability for making a health
10 care decision in good faith pursuant to this act.
11 (b) Agent immunity.--No health care agent pursuant to a
12 health care proxy shall be subjected to criminal or civil
13 liability for making a health care decision in good faith
14 pursuant to this act.
15 Section 12. Penalties.
16 The following penalties apply:
17 (1) A health care provider who intentionally fails to
18 transfer the care of a patient under section 8(c)(1)(ii)
19 commits a misdemeanor of the third degree.
20 (2) A health care provider who intentionally fails to
21 record a determination of terminal condition or the terms of
22 a declaration or a health care proxy under section 4(d) or
23 7(a) commits a misdemeanor of the second degree.
24 (3) A person commits a misdemeanor of the third degree
25 if the person does any of the following:
26 (i) Intentionally conceals, cancels, defaces or
27 destroys a declaration or health care proxy of another
28 health care principal without the consent of that
29 principal.
30 (ii) Intentionally falsifies or forges a revocation
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1 of a declaration or health care proxy.
2 (iii) Intentionally falsifies or forges a
3 declaration or health care proxy.
4 (iv) Intentionally conceals or withholds personal
5 knowledge of a revocation under section 9.
6 (v) Intentionally coerces or fraudulently induces an
7 individual to execute a declaration or a health care
8 proxy or a revocation of a declaration or a health care
9 proxy.
10 Section 13. Effect on other rights and obligations.
11 (a) Rights.--Nothing in this act creates, expends,
12 diminishes, impairs or supersedes any authority that a health
13 care principal may have to make or express decisions, wishes or
14 instructions regarding health care, including decisions about
15 life-sustaining treatment, whether or not expressed in a health
16 care proxy.
17 (b) Obligations.--This act is not intended to permit or
18 promote suicide, assisted suicide, or euthanasia accordingly,
19 nothing in this act shall be construed to permit a health care
20 agent to consent to any act or omission to which the health care
21 principal could not consent under law.
22 Section 14. Recognition of out-of-State instruments.
23 A health care proxy, declaration or similar instrument
24 executed in another state or jurisdiction in compliance with the
25 law of that state or jurisdiction shall be considered validly
26 executed for purposes of this act.
27 Section 15. Special proceeding authorized.
28 A health care provider, a guardian of the person of the
29 health care principal, members of the health care principal's
30 family, the health care principal's domestic partner, the
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1 department or the Department of Public Welfare may commence a
2 special proceeding with respect to any dispute arising under
3 this act, including, but not limited to, any of the following
4 proceedings:
5 (1) Determine the validity of the health care proxy.
6 (2) Have a health care agent removed on the ground that
7 the agent:
8 (i) is not reasonably available; or
9 (ii) is acting in bad faith.
10 (3) Override the health care agent's decision about
11 health care treatment on the grounds that:
12 (i) the decision was made in bad faith; or
13 (ii) the decision is not in accordance with the
14 standards set forth in section 5(f)(2).
15 Section 16. Consent by others.
16 (a) General rule.--If written consent to the withholding or
17 withdrawal of treatment, including nutrition and hydration, is
18 witnessed by two individuals and given to the attending
19 physician, the attending physician may withhold or withdraw
20 life-sustaining treatment from an individual who:
21 (1) has been determined by the attending physician to be
22 in a terminal condition and no longer able to make decisions
23 regarding administration of life-sustaining treatment; and
24 (2) has no effective declaration.
25 (b) Authority.--
26 (1) The authority to consent or to withhold consent
27 under subsection (a) may be exercised by the following
28 individuals in order of priority:
29 (i) The spouse of the individual unless separated by
30 mutual consent.
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1 (ii) The domestic partner of the individual.
2 (iii) The parents of the individual.
3 (iv) An adult child of the individual. If there is
4 more than one adult child, a majority of the adult
5 children who are reasonably available.
6 (v) An adult sibling of the individual. If there is
7 more than one adult sibling, a majority of the adult
8 siblings who are reasonably available.
9 (vi) The nearest other adult relative of the
10 principal by blood or adoption who is reasonably
11 available.
12 (2) If a class under paragraph (1) is not reasonably
13 available or competent to consent, or declines to consent,
14 the next class is authorized to consent. An equal division in
15 a class does not authorize the next class to consent.
16 (c) Requirements.--A decision to grant or withhold consent
17 must be made in good faith. A consent is not valid if it
18 conflicts with the expressed intention of the individual.
19 (d) Attending physician.--A decision of the attending
20 physician acting in good faith that a consent is valid or
21 invalid is conclusive.
22 Section 17. Rights to be publicized.
23 (a) Statement.--The department shall prepare a statement
24 summarizing the rights and obligations under this act.
25 (b) Dissemination.--
26 (1) The department shall require that a copy of its
27 statement:
28 (i) be furnished to patients or their families at or
29 prior to the time of admission to a hospital;
30 (ii) be furnished to each member of the hospital
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1 staff; and
2 (iii) be posted in a public place in each hospital.
3 (2) The statement of rights required by subsection (a)
4 shall be included in any other statement of patients' rights
5 required by law.
6 Section 18. Creation and use of health care proxies in
7 residential health care and mental health
8 facilities.
9 Residential health care and mental health facilities shall
10 establish procedures to provide information to adult residents
11 about the right to create a health care proxy and to educate
12 adult residents about the authority delegated under a health
13 care proxy, what a health care proxy may include or omit and how
14 a health care proxy is created and revoked.
15 Section 19. Effective date.
16 This act shall take effect in 180 days.
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