PRIOR PRINTER'S NO. 1761 PRINTER'S NO. 2204
No. 1357 Session of 1998
INTRODUCED BY GREENLEAF, LEMMOND AND WILLIAMS, MARCH 11, 1998
SENATOR MOWERY, PUBLIC HEALTH AND WELFARE, AS AMENDED,
OCTOBER 6, 1998
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 advance directives for health care; PROVIDING FOR OUT-OF- <--
4 HOSPITAL DO-NOT-RESUSCITATE ORDERS; GRANTING POWERS TO AND
5 IMPOSING DUTIES UPON THE DEPARTMENT OF HEALTH; IMPOSING
6 PENALTIES; adding provisions relating to health care agents
7 and representatives; and making editorial changes.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. The heading of Chapter 54 of Title 20 of the
11 Pennsylvania Consolidated Statutes is amended to read:
12 CHAPTER 54
13 [ADVANCE DIRECTIVE FOR] HEALTH CARE
14 Section 2. Chapter 54 of Title 20 is amended by adding a
15 subchapter to read:
16 SUBCHAPTER A
17 PRELIMINARY PROVISIONS
18 Sec.
19 5401. Definitions.
20 § 5401. Definitions.
1 The following words and phrases when used in this chapter
2 shall have the meanings given to them in this section unless the
3 context clearly indicates otherwise:
4 "Attending physician." The physician who has primary
5 responsibility for the treatment and care of a declarant or
6 principal.
7 "Declarant." An individual who makes a declaration in
8 accordance with Subchapter B (relating to advance directive for
9 health care).
10 "Declaration." A written document voluntarily executed by
11 the declarant in accordance with Subchapter B (relating to
12 advance directive for health care).
13 "DEPARTMENT." THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH. <--
14 "DO-NOT-RESUSCITATE ORDER" OR "DNR ORDER." A DIRECTIVE THAT
15 CARDIOPULMONARY RESUSCITATION; INTUBATION, MEANING ANY ADVANCED
16 AIRWAY MANAGEMENT; DEFIBRILLATION; CARDIAC RESUSCITATION
17 MEDICATIONS; AND ARTIFICIAL VENTILATION SHOULD NOT BE
18 ADMINISTERED TO A PARTICULAR INDIVIDUAL.
19 "EMERGENCY MEDICAL SERVICES PROVIDER." A HEALTH CARE
20 PROVIDER RECOGNIZED UNDER THE ACT OF JULY 3, 1985 (P.L.164,
21 NO.45), KNOWN AS THE EMERGENCY MEDICAL SERVICES ACT.
22 "Health care." Any care, treatment, service or procedure to
23 maintain, diagnose, treat or provide for physical or mental
24 health, custodial or personal care, including any medication
25 program, therapeutical and surgical procedure and life-
26 sustaining treatment.
27 "Health care agent." An individual designated by a principal
28 in a health care power of attorney.
29 "Health care decision." A decision regarding an individual's
30 health care, including, but not limited to:
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1 (1) Selection and discharge of health care providers and
2 health care institutions.
3 (2) Approval or disapproval of diagnostic tests,
4 surgical procedures and programs of medication.
5 (3) Directions to initiate, continue, withhold or
6 withdraw all forms of life-sustaining treatment, including
7 orders not to resuscitate.
8 "Health care institution." An institution, facility or
9 agency licensed, certified or otherwise authorized or permitted
10 by law to provide health care in the ordinary course of
11 business.
12 "Health care power of attorney." A writing made by a
13 principal designating an individual to make health care
14 decisions for the principal.
15 "Health care provider." A person who is licensed, certified
16 or otherwise authorized by the laws of this Commonwealth to
17 administer health care in the ordinary course of business or
18 practice of a profession. The term includes personnel recognized
19 under the act of July 3, 1985 (P.L.164, No.45), known as the
20 Emergency Medical Services Act.
21 "Health care representative." An individual authorized under
22 section 5428 (relating to decisions by health care
23 representative) to make health care decisions for a principal.
24 "Incompetent." The lack of sufficient capacity for an
25 individual to make or communicate decisions concerning that
26 individual.
27 "Life-sustaining treatment." Any medical procedure or
28 intervention that, when administered to a declarant or principal
29 who has been determined to be in a terminal condition or to be
30 permanently unconscious, will serve only to prolong the process
19980S1357B2204 - 3 -
1 of dying or to maintain the individual in a state of permanent
2 unconsciousness.
3 "Medical command physician." A licensed physician who is
4 authorized to give medical command under the act of July 3, 1985
5 (P.L.164, No.45), known as the Emergency Medical Services Act.
6 "OUT-OF-HOSPITAL DO-NOT-RESUSCITATE BRACELET" OR "OUT-OF- <--
7 HOSPITAL DNR BRACELET." A BRACELET IN THE STANDARD FORMAT SET
8 FORTH IN SECTION 5413.1 (RELATING TO FORMAT OF OUT-OF-HOSPITAL
9 DNR ORDER AND IDENTIFICATION), SUPPLIED BY THE DEPARTMENT OF
10 HEALTH AND ISSUED BY THE ATTENDING PHYSICIAN, WHICH MAY BE WORN,
11 AT THE OPTION OF THE PERSON EXECUTING THE ORDER, TO NOTIFY
12 EMERGENCY MEDICAL SERVICES PROVIDERS OF THE PRESENCE OF A DO-
13 NOT-RESUSCITATE ORDER.
14 "OUT-OF-HOSPITAL DO-NOT-RESUSCITATE CARD" OR "OUT-OF-HOSPITAL
15 DNR CARD." A WALLET-SIZED CARD IN THE STANDARD FORMAT SET FORTH
16 IN SECTION 5413.1 (RELATING TO FORMAT OF OUT-OF-HOSPITAL DNR
17 ORDER AND IDENTIFICATION), SUPPLIED BY THE DEPARTMENT OF HEALTH
18 AND ISSUED BY THE ATTENDING PHYSICIAN, WHICH MAY BE DISPLAYED,
19 AT THE OPTION OF THE PERSON EXECUTING THE ORDER, TO NOTIFY
20 EMERGENCY MEDICAL SERVICES PROVIDERS AND OTHER HEALTH CARE
21 PROVIDERS OF THE PRESENCE OF AN OUT-OF-HOSPITAL DO-NOT-
22 RESUSCITATE ORDER.
23 "OUT-OF-HOSPITAL DO-NOT-RESUSCITATE IDENTIFICATION" OR "OUT-
24 OF-HOSPITAL DNR IDENTIFICATION." A BRACELET, NECKLACE OR CARD
25 IN THE STANDARD FORMAT SET FORTH IN SECTION 5413.1 (RELATING TO
26 FORMAT OF OUT-OF-HOSPITAL DNR ORDER AND IDENTIFICATION),
27 SUPPLIED BY THE DEPARTMENT OF HEALTH AND ISSUED BY THE ATTENDING
28 PHYSICIAN, WHICH MAY BE WORN, AT THE OPTION OF THE PERSON
29 EXECUTING THE ORDER, TO NOTIFY EMERGENCY MEDICAL SERVICES
30 PROVIDERS OF THE PRESENCE OF A DO-NOT-RESUSCITATE ORDER.
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1 "OUT-OF-HOSPITAL DO-NOT-RESUSCITATE NECKLACE" OR "OUT-OF-
2 HOSPITAL DNR NECKLACE." A NECKLACE IN THE STANDARD FORMAT SET
3 FORTH IN SECTION 5413.1 (RELATING TO FORMAT OF OUT-OF-HOSPITAL
4 DNR ORDER AND IDENTIFICATION), SUPPLIED BY THE DEPARTMENT OF
5 HEALTH AND ISSUED BY THE ATTENDING PHYSICIAN, WHICH MAY BE WORN,
6 AT THE OPTION OF THE PERSON EXECUTING THE ORDER, TO NOTIFY
7 EMERGENCY MEDICAL SERVICES PROVIDERS OF THE PRESENCE OF A DO-
8 NOT-RESUSCITATE ORDER.
9 "OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER" OR "OUT-OF-
10 HOSPITAL DNR ORDER." AN ORDER IN THE STANDARD FORMAT SET FORTH
11 IN SECTION 5413.1 (RELATING TO FORMAT OF OUT-OF-HOSPITAL DNR
12 ORDER AND IDENTIFICATION), SUPPLIED BY THE DEPARTMENT OF HEALTH
13 AND ISSUED BY THE ATTENDING PHYSICIAN, DIRECTING HEALTH CARE
14 PROVIDERS, INCLUDING ALL EMERGENCY MEDICAL SERVICES PERSONNEL,
15 TO WITHHOLD CARDIOPULMONARY RESUSCITATION (CARDIAC COMPRESSION,
16 ENDOTRACHEAL INTUBATION, ARTIFICIAL VENTILATION, DEFIBRILLATION
17 AND OTHER RELATED PROCEDURES) FROM THE PERSON EXECUTING THE
18 ORDER IN THE EVENT OF RESPIRATORY OR CARDIAC ARREST.
19 "Permanently unconscious." A medical condition that has been
20 diagnosed in accordance with currently accepted medical
21 standards and with reasonable medical certainty as total and
22 irreversible loss of consciousness and capacity for interaction
23 with the environment. The term includes, without limitation, a
24 permanent vegetative state or irreversible coma.
25 "Person." Any individual, corporation, partnership,
26 association or other similar entity, or any Federal, State or
27 local government or governmental agency.
28 "Principal." An individual who executes a health care power
29 of attorney, who designates an individual to act or disqualifies
30 an individual from acting as a health care representative, or an
19980S1357B2204 - 5 -
1 individual for whom a health care representative is acting.
2 "Terminal condition." An incurable and irreversible medical
3 condition in an advanced state which will, in the opinion of the
4 attending physician, to a reasonable degree of medical
5 certainty, result in death regardless of whether life-sustaining
6 treatment would prolong the individual's life.
7 Section 3. Chapter 54 of Title 20 is amended by adding a
8 subchapter heading to read:
9 SUBCHAPTER B
10 ADVANCE DIRECTIVE FOR HEALTH CARE
11 Section 4. Sections 5401, 5402, 5403, 5404, 5405, 5407,
12 5409, 5410, 5411, 5412, 5413(a), 5415 and 5416 AND 5413 of Title <--
13 20 are amended to read:
14 § [5401] 5402. Short title of [chapter] subchapter.
15 This [chapter] subchapter shall be known and may be cited as
16 the Advance Directive for Health Care Act.
17 § [5402] 5403. Legislative findings and intent.
18 (a) Findings.--The General Assembly finds that all competent
19 adults have a qualified right to control decisions relating to
20 their own medical care. This right is subject to certain
21 interests of society, such as the maintenance of ethical
22 standards in the medical profession and the preservation and
23 protection of human life. Modern medical technological
24 procedures make possible the prolongation of human life beyond
25 natural limits. The application of some procedures to an
26 individual suffering a difficult and uncomfortable process of
27 dying may cause loss of patient dignity and secure only
28 continuation of a precarious and burdensome prolongation of
29 life.
30 (b) Intent.--Nothing in this [chapter] subchapter is
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1 intended to condone, authorize or approve mercy killing,
2 euthanasia or aided suicide or to permit any affirmative or
3 deliberate act or omission to end life other than as defined in
4 this [chapter] subchapter. Furthermore, this [chapter]
5 subchapter shall create no presumption concerning the intent of
6 any person who has not executed a declaration to consent to the
7 use or withholding of life-sustaining procedures in the event of
8 a terminal condition or a state of permanent unconsciousness.
9 [§ 5403. Definitions.
10 The following words and phrases when used in this chapter
11 shall have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Attending physician." The physician who has primary
14 responsibility for the treatment and care of the declarant.
15 "Declarant." A person who makes a declaration in accordance
16 with this chapter.
17 "Declaration." A written document voluntarily executed by
18 the declarant in accordance with this chapter.
19 "Health care provider." A person who is licensed or
20 certified by the laws of this Commonwealth to administer health
21 care in the ordinary course of business or practice of a
22 profession. The term includes personnel recognized under the act
23 of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical
24 Services Act.
25 "Incompetent." The lack of sufficient capacity for a person
26 to make or communicate decisions concerning himself.
27 "Life-sustaining treatment." Any medical procedure or
28 intervention that, when administered to a qualified patient,
29 will serve only to prolong the process of dying or to maintain
30 the patient in a state of permanent unconsciousness. Life-
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1 sustaining treatment shall include nutrition and hydration
2 administered by gastric tube or intravenously or any other
3 artificial or invasive means if the declaration of the qualified
4 patient so specifically provides.
5 "Medical command physician." A licensed physician who is
6 authorized to give medical command under the act of July 3, 1985
7 (P.L.164, No.45), known as the Emergency Medical Services Act.
8 "Permanently unconscious." A medical condition that has been
9 diagnosed in accordance with currently accepted medical
10 standards and with reasonable medical certainty as total and
11 irreversible loss of consciousness and capacity for interaction
12 with the environment. The term includes, without limitation, a
13 persistent vegetative state or irreversible coma.
14 "Person." An individual, corporation, partnership,
15 association or Federal, State or local government or
16 governmental agency.
17 "Qualified patient." A person who has executed a declaration
18 and who has been determined to be in a terminal condition or to
19 be permanently unconscious.
20 "Terminal condition." An incurable and irreversible medical
21 condition in an advanced state caused by injury, disease or
22 physical illness which will, in the opinion of the attending
23 physician, to a reasonable degree of medical certainty, result
24 in death regardless of the continued application of life-
25 sustaining treatment.]
26 § 5404. Declaration.
27 (a) Execution.--An individual of sound mind who is 18 years
28 of age or older or who has graduated from high school or has
29 married may execute [at any time] a declaration governing the
30 initiation, continuation, withholding or withdrawal of life-
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1 sustaining treatment. The declaration [must] shall be signed and
2 dated by the declarant by signature or mark, or by another on
3 behalf of and at the direction of the declarant[, and must]. If
4 the declaration is executed by mark or by another individual,
5 then it shall be witnessed by two individuals each of whom is 18
6 years of age or older. A witness shall not be the [person]
7 individual who signed the declaration on behalf of and at the
8 direction of the declarant. Neither a health care provider nor
9 its agent shall sign a declaration on behalf of and at the
10 direction of the declarant if that health care provider or agent
11 provides health care services to the declarant.
12 (b) Form.--A declaration may [but need not be in the
13 following form] be in any written form, INCLUDING THE FOLLOWING <--
14 FORM, expressing the wishes of the declarant regarding the
15 initiation, continuation, withholding or withdrawal of life-
16 sustaining treatment and may include other specific directions,
17 including, but not limited to, designation of another [person]
18 individual to make the treatment decision for the declarant if
19 the declarant is incompetent and is determined to be in a
20 terminal condition or to be permanently unconscious.
21 [DECLARATION <--
22 I, , being of sound mind, willfully and
23 voluntarily make this declaration to be followed if I become
24 incompetent. This declaration reflects my firm and settled
25 commitment to refuse life-sustaining treatment under the
26 circumstances indicated below.
27 I direct my attending physician to withhold or withdraw
28 life-sustaining treatment that serves only to prolong the
29 process of my dying, if I should be in a terminal condition
30 or in a state of permanent unconsciousness.
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1 I direct that treatment be limited to measures to keep me
2 comfortable and to relieve pain, including any pain that
3 might occur by withholding or withdrawing life-sustaining
4 treatment.
5 [In addition, if I am in the condition described above, I <--
6 feel especially strong about the following forms of
7 treatment:
8 I ( ) do ( ) do not want cardiac resuscitation.
9 I ( ) do ( ) do not want mechanical respiration.
10 I ( ) do ( ) do not want tube feeding or any other
11 artificial or invasive form of nutrition (food) or hydration
12 (water).
13 I ( ) do ( ) do not want blood or blood products.
14 I ( ) do ( ) do not want any form of surgery or invasive
15 diagnostic tests.
16 I ( ) do ( ) do not want kidney dialysis.
17 I ( ) do ( ) do not want antibiotics.
18 I realize that if I do not specifically indicate my
19 preference regarding any of the forms of treatment listed
20 above, I may receive that form of treatment.] <--
21 Other instructions:
22 I ( ) do ( ) do not want to designate another person as
23 my surrogate to make medical treatment decisions for me if I
24 should be incompetent and in a terminal condition or in a
25 state of permanent unconsciousness. Name and address of
26 surrogate (if applicable):
27 Name and address of substitute surrogate (if surrogate
28 designated above is unable to serve):
29 I ( ) do ( ) do not want to make an anatomical gift of
30 all or part of my body, subject to the following limitations,
19980S1357B2204 - 10 -
1 if any:
2 I made this declaration on the day of (month,
3 year).
4 Declarant's signature:
5 Declarant's address:
6 The declarant or the person on behalf of and at the
7 direction of the declarant knowingly and voluntarily signed
8 this writing by signature or mark in my presence.
9 Witness's signature:
10 Witness's address:
11 Witness's signature:
12 Witness's address:] <--
13 (c) Invalidity of specific direction.--Should any specific
14 direction in the declaration be held to be invalid, the
15 invalidity shall not [offset] negate other directions of the
16 declaration which can be effected without the invalid direction.
17 (d) Medical record.--A physician or other health care
18 provider [who is furnished] to whom a copy of the declaration is
19 furnished shall make it a part of the declarant's medical record
20 and, if unwilling to comply with the declaration, promptly so
21 advise the declarant.
22 § 5405. When declaration becomes operative.
23 A declaration becomes operative when:
24 (1) a copy is provided to the attending physician; and
25 (2) the declarant is determined by the attending
26 physician to be incompetent and in a terminal condition or in
27 a state of permanent unconsciousness.
28 When the declaration becomes operative, the attending physician
29 and other health care providers shall act in accordance with its
30 provisions or comply with the transfer provisions of section
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1 5409 (relating to unwillingness to comply[;] and transfer of
2 declarant).
3 § 5407. Liability.
4 (a) General rule.--No physician or other health care
5 provider who, consistent with this [chapter] subchapter, causes
6 or participates in the initiating, continuing, withholding or
7 withdrawal of life-sustaining treatment from a [qualified
8 patient] declarant who has been determined to be in a terminal
9 condition or to be permanently unconscious and who is
10 incompetent shall, as a result thereof, be subject to criminal
11 or civil liability or be found to have committed an act of
12 unprofessional conduct if the attending physician has followed
13 the declarant's wishes as expressed earlier by the declarant in
14 the form of a declaration executed pursuant to this [chapter]
15 subchapter.
16 (b) Absence of declaration.--The absence of a declaration by
17 a patient shall not give rise to any presumption as to the
18 intent of the patient to consent to or to refuse the initiation,
19 continuation [or termination], withholding or withdrawal of
20 life-sustaining treatment.
21 § 5409. Unwillingness to comply[;] and transfer of declarant.
22 (a) Attending physician or health care provider.--If an
23 attending physician or other health care provider cannot in good
24 conscience comply with a declaration or if the policies of the
25 health care provider preclude compliance with a declaration, the
26 attending physician or health care provider shall so inform the
27 declarant, or, if the declarant is incompetent, shall so inform
28 the [declarant's surrogate] individual designated in the <--
29 declaration to make life-sustaining treatment decisions for the
30 declarant, or, if [a surrogate] such an individual is not named <--
19980S1357B2204 - 12 -
1 in the declaration, shall so inform the family, guardian or
2 other representative of the declarant. The attending physician
3 or health care provider shall make every reasonable effort to
4 assist in the transfer of the declarant to another physician or
5 health care provider who will comply with the declaration.
6 (b) Employee or staff member of health care provider.--An
7 employee or staff member of a health care provider shall not be
8 required to participate in the withholding or withdrawal of
9 life-sustaining treatment. It shall be unlawful for an employer
10 to discharge or in any other manner to discriminate against an
11 employee or staff member who informs the employer [that he does
12 not] of a wish not to participate in the withholding or
13 withdrawal of life-sustaining treatment. The employer may
14 require the employee or staff member to express [his] such
15 wishes in writing.
16 (c) Liability.--If transfer under subsection (a) is not
17 possible, the provision of life-sustaining treatment to a
18 declarant shall not subject a health care provider to criminal
19 or civil liability or administrative sanction for failure to
20 carry out the provisions of a declaration.
21 § 5410. Effect on suicide and life insurance.
22 (a) Criminal effect.--The withholding or withdrawal of life-
23 sustaining treatment from a [qualified patient] declarant who
24 has been determined to be in a terminal condition or to be
25 permanently unconscious in accordance with the provisions of
26 this [chapter] subchapter shall not, for any purpose, constitute
27 suicide or homicide.
28 (b) Life insurance.--The making of or failure to make a
29 declaration in accordance with this [chapter] subchapter shall
30 not affect in any manner the sale, procurement or issuance of
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1 any policy of life insurance nor shall it be deemed to modify
2 the terms of an existing policy of life insurance. No policy of
3 life insurance shall be legally impaired or invalidated in any
4 manner by the withholding or withdrawal of life-sustaining
5 treatment from an insured patient, notwithstanding any term of
6 the policy to the contrary.
7 § 5411. Declaration optional.
8 No physician or other health care provider and no health care
9 service plan, health maintenance organization, insurer issuing
10 disability insurance, self-insured employee welfare benefit
11 plan, nonprofit hospital plan or Federal, State or local
12 government sponsored or operated program shall:
13 (1) require any [person] individual to execute a
14 declaration as a condition for being insured for or receiving
15 health care services; or
16 (2) charge any [person] individual a different rate or
17 fee whether or not the [person] individual executes or has
18 executed a declaration.
19 § 5412. Preservation of existing rights.
20 The provisions of this [chapter] subchapter shall not impair
21 or supersede any existing rights or responsibilities not
22 addressed in this [chapter] subchapter.
23 § 5413. Emergency medical services.
24 (a) Care given prior to declaration taking effect.--Nothing
25 in this [chapter] subchapter shall be construed to make the
26 provisions of a declaration apply to care given to a patient by
27 emergency medical services personnel prior to the declaration's
28 becoming operative under sections 5405 (relating to when
29 declaration becomes operative) and 5408 (relating to duty of
30 physician to confirm terminal condition).
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1 * * * <--
2 (B) CARE GIVEN AFTER DECLARATION TAKES EFFECT.--THE <--
3 PROVISIONS OF A DECLARATION SHALL APPLY TO CARE GIVEN TO A
4 PATIENT BY EMERGENCY MEDICAL SERVICES PERSONNEL AFTER THE
5 DECLARATION BECOMES OPERATIVE UNDER SECTIONS 5405 AND 5408 ONLY
6 IF:
7 (1) AN ORIGINAL DECLARATION, SIGNED BY THE DECLARANT OR
8 OTHER AUTHORIZED PERSON, IS PRESENTED TO THE EMERGENCY
9 MEDICAL SERVICES PERSONNEL. THE EMERGENCY MEDICAL SERVICES
10 PERSONNEL MUST IMMEDIATELY NOTIFY THE MEDICAL COMMAND
11 PHYSICIAN OF THE PRESENCE OF THE DECLARATION; OR
12 (2) THE MEDICAL COMMAND PHYSICIAN, BASED ON PRIOR
13 NOTIFICATION BY THE ATTENDING PHYSICIAN OR OTHER HEALTH CARE
14 PROVIDER THAT A VALID AND OPERATIVE DECLARATION EXISTS,
15 DIRECTS THE EMERGENCY MEDICAL SERVICE PERSONNEL ACCORDING TO
16 THE PROVISIONS OF THE DECLARATION.
17 (C) UNCERTAINTY REGARDING VALIDITY OF DECLARATION.--
18 EMERGENCY MEDICAL SERVICES PERSONNEL CONFRONTED WITH ANY
19 CONFLICTING INFORMATION REGARDING THE PATIENT'S WISHES FOR LIFE-
20 SUSTAINING TREATMENT SHALL ACT ACCORDING TO THE ACCEPTED
21 TREATMENT PROTOCOLS AND STANDARDS APPROPRIATE TO THEIR LEVEL OF
22 CERTIFICATION.
23 (D) APPLICABILITY.--THIS SECTION IS APPLICABLE ONLY IN THOSE
24 INSTANCES WHERE AN OUT-OF-HOSPITAL DNR ORDER IS NOT IN EFFECT.
25 SECTION 5. TITLE 20 IS AMENDED BY ADDING SECTIONS TO READ:
26 § 5413.1. FORMAT OF OUT-OF-HOSPITAL DNR ORDER AND
27 IDENTIFICATION.
28 (A) FORMAT OF OUT-OF-HOSPITAL DNR ORDER.--THE DEPARTMENT
29 SHALL MAKE AVAILABLE WITHIN 180 DAYS OF THE EFFECTIVE DATE OF
30 THIS SUBSECTION STANDARD OUT-OF-HOSPITAL DNR ORDERS FOR ISSUANCE
19980S1357B2204 - 15 -
1 TO PERSONS BY ATTENDING PHYSICIANS OF THIS COMMONWEALTH. THE
2 FORM OF THE ORDER SHALL CONTAIN, BUT IS NOT LIMITED TO, THE
3 FOLLOWING:
4 PENNSYLVANIA EMERGENCY MEDICAL SERVICES
5 OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER
6 PATIENT'S FULL LEGAL NAME:
7 I, THE UNDERSIGNED, STATE THAT I AM THE ATTENDING PHYSICIAN
8 OF THE PATIENT NAMED ABOVE. THE ABOVE-NAMED PATIENT, THROUGH THE
9 SIGNING OF THIS DOCUMENT BY THE ABOVE-NAMED PATIENT OR THE
10 ABOVE-NAMED PATIENT'S SURROGATE, HAS EXECUTED AN OUT-OF-HOSPITAL
11 DO-NOT-RESUSCITATE ORDER.
12 I DIRECT ANY AND ALL EMERGENCY MEDICAL SERVICES PERSONNEL,
13 COMMENCING ON THE EFFECTIVE DATE OF THIS ORDER, TO WITHHOLD
14 CARDIOPULMONARY RESUSCITATION (CARDIAC COMPRESSION, ENDOTRACHEAL
15 INTUBATION, ARTIFICIAL VENTILATION, DEFIBRILLATION AND OTHER
16 RELATED PROCEDURES) FROM THE ABOVE-NAMED PATIENT IN THE EVENT OF
17 THE ABOVE-NAMED PATIENT'S RESPIRATORY OR CARDIAC ARREST. I
18 FURTHER DIRECT SUCH PERSONNEL TO PROVIDE TO THE PATIENT OTHER
19 MEDICAL INTERVENTIONS, SUCH AS INTRAVENOUS FLUIDS, OXYGEN OR
20 OTHER THERAPIES NECESSARY TO PROVIDE COMFORT CARE OR TO
21 ALLEVIATE PAIN, UNLESS OTHERWISE DIRECTED BY THE ABOVE-NAMED
22 PATIENT OR THE ABOVE-NAMED PATIENT'S SURROGATE.
23 SIGNATURE OF ATTENDING PHYSICIAN:
24 PRINTED NAME OF ATTENDING PHYSICIAN:
25 DATED:
26 ATTENDING PHYSICIAN'S EMERGENCY TELEPHONE NUMBER:
27 SIGNATURE OF PATIENT (IF CAPABLE OF MAKING INFORMED DECISIONS):
28 I, THE UNDERSIGNED HEREBY DIRECT THAT IN THE EVENT OF MY
29 CARDIAC AND/OR RESPIRATORY ARREST, EFFORTS AT CARDIOPULMONARY
30 RESUSCITATION NOT BE INITIATED. I UNDERSTAND THAT I MAY REVOKE
19980S1357B2204 - 16 -
1 THESE DIRECTIONS AT ANY TIME BY GIVING VERBAL INSTRUCTIONS TO
2 THE EMERGENCY MEDICAL SERVICES PROVIDERS, BY PHYSICAL
3 CANCELLATION OR DESTRUCTION OF THIS FORM OR MY OUT-OF-HOSPITAL
4 DO-NOT-RESUSCITATE BRACELET, NECKLACE OR CARD, OR BY SIMPLY NOT
5 DISPLAYING THIS FORM OR THE OUT-OF-HOSPITAL DO-NOT-RESUSCITATE
6 BRACELET, NECKLACE OR CARD TO MY EMERGENCY MEDICAL SERVICES
7 CAREGIVERS.
8 SIGNATURE OF SURROGATE (IF PATIENT IS INCAPABLE OF MAKING
9 INFORMED DECISIONS):
10 I, THE UNDERSIGNED, HEREBY CERTIFY THAT I AM AUTHORIZED TO
11 PROVIDE CONSENT ON THE PATIENT'S BEHALF BY VIRTUE OF HAVING BEEN
12 DESIGNATED AS THE PATIENT'S SURROGATE AND/OR BY VIRTUE OF MY
13 RELATIONSHIP TO THE PATIENT (SPECIFY RELATIONSHIP: ). I
14 HEREBY DIRECT THAT IN THE EVENT OF THE PATIENT'S CARDIAC AND/OR
15 RESPIRATORY ARREST, EFFORTS AT CARDIOPULMONARY RESUSCITATION NOT
16 BE INITIATED. I UNDERSTAND THAT I MAY REVOKE THESE DIRECTIONS AT
17 ANY TIME BY GIVING VERBAL INSTRUCTIONS TO THE EMERGENCY MEDICAL
18 SERVICES PROVIDERS, BY PHYSICAL CANCELLATION OR DESTRUCTION OF
19 THIS FORM AND/OR THE PATIENT'S OUT-OF-HOSPITAL DO-NOT-
20 RESUSCITATE BRACELET, NECKLACE OR CARD, OR BY SIMPLY NOT
21 DISPLAYING THIS FORM OR THE OUT-OF-HOSPITAL DO-NOT-RESUSCITATE
22 BRACELET, NECKLACE OR CARD TO THE PATIENT'S EMERGENCY MEDICAL
23 SERVICES CAREGIVERS.
24 (B) FORMAT OF OUT-OF-HOSPITAL DNR BRACELET.--THE DEPARTMENT
25 SHALL MAKE AVAILABLE WITHIN 180 DAYS OF THE EFFECTIVE DATE OF
26 THIS SUBSECTION STANDARD OUT-OF-HOSPITAL DNR BRACELETS FOR
27 ISSUANCE TO PERSONS BY ATTENDING PHYSICIANS. THE BRACELETS SHALL
28 BE UNIFORM IN DESIGN AND SHALL ON THE FACE CLEARLY INDICATE, BUT
29 NOT BE LIMITED TO, THE FOLLOWING INFORMATION:
30 (1) OUT-OF-HOSPITAL DO-NOT-RESUSCITATE STATUS.
19980S1357B2204 - 17 -
1 (2) THE NAME OF THE PATIENT.
2 (3) THE NAME OF THE ATTENDING PHYSICIAN.
3 (C) FORMAT OF OUT-OF-HOSPITAL DNR NECKLACE.--THE DEPARTMENT
4 SHALL MAKE AVAILABLE WITHIN 180 DAYS OF THE EFFECTIVE DATE OF
5 THIS SUBSECTION STANDARD OUT-OF-HOSPITAL DNR NECKLACES FOR
6 ISSUANCE TO PERSONS BY ATTENDING PHYSICIANS. THE NECKLACES SHALL
7 BE UNIFORM IN DESIGN AND SHALL ON THE FACE CLEARLY INDICATE, BUT
8 NOT BE LIMITED TO, THE FOLLOWING INFORMATION:
9 (1) OUT-OF-HOSPITAL DO-NOT-RESUSCITATE STATUS.
10 (2) THE NAME OF THE PATIENT.
11 (3) THE NAME OF THE ATTENDING PHYSICIAN.
12 (D) FORMAT OF OUT-OF-HOSPITAL DNR CARD.--THE DEPARTMENT
13 SHALL MAKE AVAILABLE WITHIN 180 DAYS OF THE EFFECTIVE DATE OF
14 THIS SUBSECTION STANDARD OUT-OF-HOSPITAL DO-NOT-RESUSCITATE
15 CARDS FOR ISSUANCE TO PERSONS BY ATTENDING PHYSICIANS. THE CARDS
16 SHALL BE WALLET-SIZED AND CONTAIN, BUT NOT BE LIMITED TO, THE
17 FOLLOWING:
18 PENNSYLVANIA EMERGENCY MEDICAL SERVICES
19 OUT-OF-HOSPITAL DO-NOT-RESUSCITATE CARD
20 PATIENT'S FULL LEGAL NAME:
21 ATTENDING PHYSICIAN'S NAME:
22 THIS PATIENT HAS EXECUTED AN OUT-OF-HOSPITAL DO-NOT-
23 RESUSCITATE ORDER. EMERGENCY MEDICAL SERVICES PERSONNEL ARE
24 INSTRUCTED NOT TO PERFORM CARDIOPULMONARY RESUSCITATION
25 (CARDIAC COMPRESSION, ENDOTRACHEAL INTUBATION, ARTIFICIAL
26 VENTILATION, DEFIBRILLATION AND OTHER RELATED PROCEDURES) ON
27 THIS PATIENT IN THE EVENT OF THE PATIENT'S RESPIRATORY OR
28 CARDIAC ARREST. DO PROVIDE TO THE PATIENT OTHER MEDICAL
29 INTERVENTIONS, SUCH AS INTRAVENOUS FLUIDS, OXYGEN OR OTHER
30 THERAPIES DEEMED NECESSARY TO PROVIDE COMFORT CARE OR TO
19980S1357B2204 - 18 -
1 ALLEVIATE PAIN, UNLESS DIRECTED OTHERWISE BY THE ABOVE-NAMED
2 PATIENT OR THE ABOVE-NAMED PATIENT'S SURROGATE.
3 (E) DEPARTMENT CONTRACTING PERMITTED.--THE DEPARTMENT MAY
4 CONTRACT WITH ANY PUBLIC OR PRIVATE ENTITY IN ORDER TO
5 FACILITATE ALL OR PART OF ITS RESPONSIBILITIES UNDER THIS
6 SECTION.
7 § 5413.2. OUT-OF-HOSPITAL DNR ORDER AND IDENTIFICATION.
8 (A) LIABILITY.--NO PHYSICIAN, EMERGENCY MEDICAL SERVICES
9 PROVIDER OR OTHER HEALTH CARE PROVIDER WHO, CONSISTENT WITH THIS
10 SECTION, WITHHOLDS LIFE-SUSTAINING TREATMENT IN COMPLIANCE WITH
11 AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER OR IDENTIFICATION
12 SHALL, AS A RESULT OF WITHHOLDING SUCH TREATMENT, BE SUBJECT TO
13 CRIMINAL OR CIVIL LIABILITY OR BE FOUND TO HAVE COMMITTED AN ACT
14 OF UNPROFESSIONAL CONDUCT.
15 (B) OUT-OF-HOSPITAL DNR ORDERS AND IDENTIFICATION.--THROUGH
16 THE USE OF AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER,
17 BRACELET, NECKLACE OR CARD A PERSON MAY SIGNIFY TO A HEALTH CARE
18 PROVIDER, INCLUDING ALL EMERGENCY MEDICAL SERVICES PERSONNEL,
19 THAT THE PERSON'S ATTENDING PHYSICIAN HAS ISSUED AN OUT-OF-
20 HOSPITAL DO-NOT-RESUSCITATE ORDER. THE CHOICE OF WHETHER TO WEAR
21 AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE BRACELET OR NECKLACE OR TO
22 CARRY AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE CARD IS THAT OF THE
23 INDIVIDUAL EXERCISING HIS RIGHT TO EXECUTE AN OUT-OF-HOSPITAL
24 DO-NOT-RESUSCITATE ORDER, AND THIS CHOICE DOES NOT AFFECT THE
25 OUT-OF-HOSPITAL DO-NOT-RESUSCITATE STATUS OF THIS INDIVIDUAL.
26 (C) ISSUANCE OF OUT-OF-HOSPITAL DNR ORDERS AND
27 IDENTIFICATION.--THE ATTENDING PHYSICIAN OF A PERSON WHO CHOOSES
28 TO EXERCISE HIS RIGHT TO EXECUTE AN OUT-OF-HOSPITAL DO-NOT-
29 RESUSCITATE ORDER SHALL ISSUE TO THIS PERSON AN OUT-OF-HOSPITAL
30 DO-NOT-RESUSCITATE ORDER, AND MAY ISSUE, AT THE REQUEST OF THE
19980S1357B2204 - 19 -
1 PERSON EXECUTING THE ORDER, AN OUT-OF-HOSPITAL DO-NOT-
2 RESUSCITATE BRACELET, NECKLACE AND CARD.
3 (D) REVOCATION.--AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER
4 MAY BE REVOKED AT ANY TIME AND IN ANY MANNER, INCLUDING REMOVAL
5 BY A PERSON OR HIS SURROGATE OF THE PERSON'S OUT-OF-HOSPITAL DO-
6 NOT-RESUSCITATE IDENTIFICATION WITHOUT REGARD TO THE PERSON'S
7 MENTAL OR PHYSICAL CONDITION.
8 (E) EMERGENCY MEDICAL SERVICES.--EMERGENCY MEDICAL SERVICES
9 PERSONNEL SHALL COMPLY WITH AN OUT-OF-HOSPITAL DO-NOT-
10 RESUSCITATE ORDER IF ANY ONE OR MORE THAN ONE OF THE FOLLOWING
11 APPLY:
12 (1) THE ORDER IS APPARENT.
13 (2) OUT-OF-HOSPITAL DNR IDENTIFICATION, SUCH AS AN OUT-
14 OF-HOSPITAL DNR BRACELET, NECKLACE OR CARD, IS IMMEDIATELY
15 AVAILABLE AS PROVIDED FOR IN SUBSECTION (B).
16 (3) EMERGENCY MEDICAL SERVICES PERSONNEL ARE EITHER
17 AWARE OF OR ARE MADE AWARE OF THE EXISTENCE OF AN OUT-OF-
18 HOSPITAL DNR ORDER.
19 (F) EFFECT ON SUICIDE AND LIFE INSURANCE.--THE WITHHOLDING
20 OF LIFE-SUSTAINING TREATMENT IN COMPLIANCE WITH AN OUT-OF-
21 HOSPITAL DO-NOT-RESUSCITATE ORDER SHALL NOT CONSTITUTE SUICIDE
22 OR HOMICIDE AND SHALL NOT HAVE ANY EFFECT ON LIFE INSURANCE.
23 (G) NO PRESUMPTION.--THIS SECTION SHALL NOT CREATE A
24 PRESUMPTION CONCERNING THE INTENT OF ANY PERSON WHO DOES NOT
25 POSSESS OUT-OF-HOSPITAL DO-NOT-RESUSCITATE IDENTIFICATION WITH
26 RESPECT TO THE WITHHOLDING OF THE LIFE-SUSTAINING PROCEDURES
27 ENCOMPASSED BY AN OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDER.
28 (H) PERSONS TO WHOM SECTION IS APPLICABLE.--THIS SECTION IS
29 APPLICABLE TO ALL PERSONS WHO HAVE EXECUTED AN OUT-OF-HOSPITAL
30 DO-NOT-RESUSCITATE ORDER.
19980S1357B2204 - 20 -
1 (I) RECOGNITION OF OTHER STATES' OUT-OF-HOSPITAL DNR
2 ORDERS.--OUT-OF-HOSPITAL DNR ORDERS VALID IN STATES OTHER THAN
3 THIS COMMONWEALTH WILL BE RECOGNIZED IN THIS COMMONWEALTH TO THE
4 EXTENT THAT THESE ORDERS ARE CONSISTENT WITH THE LAW OF THIS
5 COMMONWEALTH. THIS COMMONWEALTH HAS RECOGNIZED THE RIGHT OF
6 PERSONS IN THE EXERCISE OF THEIR RIGHT OF SELF-DETERMINATION
7 WITH RESPECT TO THEIR HEALTH CARE TO HAVE PHYSICIANS PROVIDE FOR
8 THE ISSUANCE OF OUT-OF-HOSPITAL DNR ORDERS AS WELL AS
9 APPROPRIATE IDENTIFICATION, SUCH AS AN OUT-OF-HOSPITAL DNR
10 BRACELET, NECKLACE OR CARD, THAT AN OUT-OF-HOSPITAL DNR ORDER
11 EXISTS. SINCE THIS PERSON MAY BE IN A STATE OTHER THAN THIS
12 COMMONWEALTH WHEN THE RECOGNITION OF THE RIGHT TO FOREGO
13 CARDIOPULMONARY RESUSCITATION OCCURS, THIS COMMONWEALTH
14 ENCOURAGES ALL OF ITS SISTER STATES TO RECOGNIZE THIS ORDER AS A
15 RECOGNITION OF THE PERSON'S RIGHT TO REFUSE THIS FORM OF MEDICAL
16 TREATMENT.
17 SECTION 6. SECTIONS 5415 AND 5416 OF TITLE 20 ARE AMENDED TO
18 READ:
19 § 5415. Penalties.
20 [Any person who willfully conceals, cancels, alters, defaces, <--
21 obliterates or damages the declaration of another without the
22 consent of the declarant commits a felony of the third degree.
23 Any person who falsifies or forges the declaration of another,
24 or willfully conceals or withholds personal knowledge of a
25 revocation as provided in section 5406 (relating to revocation),
26 with the intent to cause a withholding or withdrawal of life-
27 sustaining treatment contrary to the wishes of the declarant
28 and, because of such an act, directly causes life-sustaining
29 treatment to be withheld or withdrawn and death to be hastened
30 shall be subject to prosecution for criminal homicide as
19980S1357B2204 - 21 -
1 provided in 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
2 Any person who willfully, by undue influence, fraud or duress,
3 causes a person to execute a declaration pursuant to this
4 [chapter] subchapter commits a felony of the third degree.] <--
5 (A) UNAUTHORIZED CHANGE.--A PERSON COMMITS A FELONY OF THE <--
6 THIRD DEGREE IF THAT PERSON WILLFULLY CONCEALS, CANCELS, ALTERS,
7 DEFACES, OBLITERATES OR DAMAGES ANY ONE OF THE FOLLOWING:
8 (1) THE DECLARATION OF ANOTHER, WITHOUT THE CONSENT OF
9 THE DECLARANT.
10 (2) THE OUT-OF-HOSPITAL DNR ORDER OF ANOTHER, WITHOUT
11 THE CONSENT OF THE INDIVIDUAL WHO EXECUTED THE ORDER.
12 (3) THE OUT-OF-HOSPITAL DNR IDENTIFICATION AS SET FORTH
13 IN SECTION 5413.1(B), (C) AND (D) (RELATING TO FORMAT OF OUT-
14 OF-HOSPITAL DNR ORDER AND IDENTIFICATION), WITHOUT THE
15 CONSENT OF THE INDIVIDUAL WHO POSSESSES THE IDENTIFICATION.
16 (B) CRIMINAL HOMICIDE.--A PERSON IS SUBJECT TO PROSECUTION
17 FOR CRIMINAL HOMICIDE AS PROVIDED IN 18 PA.C.S. CH. 25 (RELATING
18 TO CRIMINAL HOMICIDE) IF THAT PERSON, WITH THE INTENT TO CAUSE A
19 WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT CONTRARY
20 TO THE WISHES OF ANOTHER, DIRECTLY CAUSES LIFE-SUSTAINING
21 TREATMENT TO BE WITHHELD OR WITHDRAWN AND DEATH TO BE HASTENED
22 BY EITHER:
23 (1) FALSIFYING OR FORGING THE DECLARATION OF ANOTHER, OR
24 WILLFULLY CONCEALING OR WITHHOLDING PERSONAL KNOWLEDGE OF A
25 REVOCATION AS PROVIDED IN SECTION 5406 (RELATING TO
26 REVOCATION).
27 (2) FALSIFYING OR FORGING THE OUT-OF-HOSPITAL DNR ORDER
28 OR OUT-OF-HOSPITAL DNR IDENTIFICATION OF ANOTHER, OR
29 WILLFULLY CONCEALING OR WITHHOLDING PERSONAL KNOWLEDGE OF A
30 REVOCATION AS PROVIDED IN SECTION 5413.2 (RELATING TO OUT-OF-
19980S1357B2204 - 22 -
1 HOSPITAL DNR ORDER AND IDENTIFICATION).
2 (C) UNDUE INFLUENCE, FRAUD AND DURESS.--A PERSON COMMITS A
3 FELONY OF THE THIRD DEGREE IF THAT PERSON WILLFULLY, BY UNDUE
4 INFLUENCE, FRAUD OR DURESS, CAUSES AN INDIVIDUAL TO EXECUTE A
5 DECLARATION OR OUT-OF-HOSPITAL DNR ORDER PURSUANT TO THIS
6 SUBCHAPTER.
7 [§ 5416. Severability.
8 The provisions of this chapter are severable, and, if any
9 word, phrase, clause, sentence, section or provision of the
10 chapter is for any reason held to be unconstitutional, the
11 decision of the court shall not affect or impair any of the
12 remaining provisions of this chapter. It is hereby declared as
13 the legislative intent that this chapter would have been adopted
14 had such unconstitutional word, phrase, clause, sentence,
15 section or provision thereof not been included herein.]
16 Section 5 7. Chapter 54 is amended by adding a subchapter to <--
17 read:
18 SUBCHAPTER C
19 HEALTH CARE AGENTS AND REPRESENTATIVES
20 Sec.
21 5421. Short title of subchapter.
22 5422. General provisions.
23 5423. Form of health care power of attorney.
24 5424. Countermand, amendment and revocation.
25 5425. Operation of health care power of attorney.
26 5426. Appointment of health care agents.
27 5427. Relation of health care agent to court-appointed
28 guardian and other agents.
29 5428. Decisions by health care representative.
30 5429. Duties of attending physician and health care provider.
19980S1357B2204 - 23 -
1 5430. Limitations on liability.
2 5431. Unwillingness to comply and transfer of principal.
3 5432. Effect on life insurance.
4 5433. Conditioning services or action.
5 5434. Criminal penalties.
6 5435. Effect on other State law.
7 5436. Conflicting health care powers of attorney.
8 5437. Validity.
9 § 5421. Short title of subchapter.
10 This subchapter shall be known and may be cited as the Health
11 Care Agents and Representatives Act.
12 § 5422. General provisions.
13 (a) Who may execute a health care power of attorney.--An
14 individual of sound mind who is 18 years of age or older or has
15 graduated from high school or has married may execute a health
16 care power of attorney.
17 (b) Execution.--A health care power of attorney shall be
18 signed and dated by the principal by signature or mark, or by
19 another on behalf of and at the direction of the principal. If
20 the health care power of attorney is executed by mark or by
21 another individual, then it shall be witnessed by two
22 individuals, each of whom is 18 years of age or older. A witness
23 shall not be the individual who signed the health care power of
24 attorney on behalf of and at the direction of the principal.
25 Neither a health care provider nor its agent shall sign a health
26 care power of attorney on behalf of and at the direction of the
27 principal if that health care provider or agent provides health
28 care services to the principal.
29 § 5423. Form of health care power of attorney.
30 (a) Requirements.--A health care power of attorney shall:
19980S1357B2204 - 24 -
1 (1) Identify the principal and appoint the health care
2 agent.
3 (2) Declare that the principal authorizes the health
4 care agent to have authority to make health care decisions on
5 behalf of the principal.
6 (b) Optional provisions.--A health care power of attorney
7 may, but need not:
8 (1) Describe the limitations, if any, that the principal
9 imposes upon the authority of the health care agent.
10 (2) Indicate the intent of the principal regarding the
11 initiation, continuation, withholding or withdrawal of life-
12 sustaining treatment.
13 (3) Disqualify an individual from acting as a health
14 care representative, prohibit the appointment of a health
15 care representative or provide for an order of priority of
16 appointment of a health care representative pursuant to
17 section 5428(c) (relating to decisions by health care
18 representative).
19 (4) Nominate a guardian of the person of the principal
20 as provided in section 5427(b) (relating to relation of
21 health care agent to court-appointed guardian and other
22 agents).
23 (5) Contain other provisions as the principal may
24 specify regarding the implementation of health care decisions
25 and related actions by the health care agent.
26 (c) Invalidity of specific direction.--Should any specific
27 direction in the health care power of attorney be held to be
28 invalid, the invalidity shall not negate other directions of the
29 health care power of attorney which can be effected without the
30 invalid direction.
19980S1357B2204 - 25 -
1 § 5424. Countermand, amendment and revocation.
2 (a) Countermand of health care decision.--A principal may
3 countermand a health care decision made by the principal's
4 health care agent at any time and in any manner without regard
5 to the principal's mental or physical capacity by personally
6 informing the attending physician or health care provider. The
7 attending physician or health care provider shall make
8 reasonable efforts to inform promptly the health care agent of
9 the countermand. A countermand shall not affect the authority of
10 the health care agent to make other health care decisions in
11 accordance with the health care power of attorney.
12 (b) Amendment.--A principal while of sound mind may amend a
13 health care power of attorney by a writing executed in
14 accordance with the provisions of section 5422(b) (relating to
15 general provisions). An amendment may include the revocation in
16 part of the health care power of attorney or the designation of
17 new or additional health care agents.
18 (c) Divorce.--If the principal's spouse is designated as the
19 principal's health care agent and thereafter either spouse files
20 an action in divorce, the designation of the spouse as health
21 care agent shall be deemed revoked as of the time the action is
22 filed, unless it clearly appears from the health care power of
23 attorney that the designation was intended to continue to be
24 effective notwithstanding the filing of an action in divorce by
25 either spouse.
26 (d) Revocation.--A principal while of sound mind may revoke
27 a health care power of attorney by a writing executed in
28 accordance with the provisions of section 5422(b) or by
29 personally informing the attending physician, health care
30 provider or health care agent that the health care power of
19980S1357B2204 - 26 -
1 attorney is revoked.
2 (e) Effect of revocation.--A physician or other health care
3 provider may rely on the effectiveness of a health care power of
4 attorney unless notified of its revocation. A health care agent,
5 knowing of the revocation, shall not make or attempt to make
6 health care decisions for the principal.
7 § 5425. Operation of health care power of attorney.
8 (a) When operative.--Unless specifically provided otherwise
9 in the health care power of attorney, a health care power of
10 attorney becomes operative when a copy of the health care power
11 of attorney is provided to the attending physician and the
12 attending physician determines that the principal is unable to
13 make or communicate health care decisions and becomes
14 inoperative during such time as, in the determination of the
15 attending physician, the principal is able to make and
16 communicate health care decisions.
17 (b) Duration.--Unless the health care power of attorney
18 states a time of termination, it is valid until revoked by the
19 principal or the principal's guardian of the person,
20 notwithstanding the lapse of time since its execution. Unless
21 specifically provided otherwise in the health care power of
22 attorney, a health care power of attorney becomes inoperative
23 during such time as, in the determination of the attending
24 physician, the principal has the ability to make and communicate
25 health care decisions.
26 (c) Extent of authority of agent.--Except as expressly
27 provided otherwise in a health care power of attorney, and
28 subject to subsection (d), a health care agent shall have the
29 authority to make any and all health care decisions and to
30 exercise any and all rights and powers concerning the
19980S1357B2204 - 27 -
1 principal's care, custody and health care treatment that the
2 principal could have made and exercised.
3 (d) Life-sustaining treatment decisions.--All life-
4 sustaining treatment decisions made by a health care agent shall
5 be subject to sections 5405 (relating to when declaration
6 becomes operative), 5408 (relating to duty of physician to
7 confirm terminal condition) and 5414 (relating to pregnancy).
8 (e) Health care decisions.--After consultation with health
9 care providers, and after consideration of the prognosis and
10 acceptable medical alternatives regarding diagnosis, treatments
11 and side effects, the health care agent shall make health care
12 decisions in accordance with the health care agent's
13 understanding and interpretation of any instructions given by
14 the principal at a time when the principal had the capacity to
15 make and communicate health care decisions. Instructions shall
16 include any declaration made by the principal and any clear
17 written or oral directions which cover the situation presented.
18 In the absence of instructions, the health care agent shall make
19 health care decisions in conformity with the health care agent's
20 assessment of the principal's preferences and values, including
21 religious and moral beliefs. If the health care agent does not
22 know enough about the principal's instructions, preferences and
23 values to make a decision, the health care agent shall act in
24 accordance with the health care agent's assessment of the
25 principal's best interests.
26 (f) Health care information.--Unless specifically provided
27 otherwise in the health care power of attorney, a health care
28 agent has the same rights and limitations as the principal to
29 request, examine, copy and consent or refuse to consent to the
30 disclosure of medical or other health care information.
19980S1357B2204 - 28 -
1 Disclosure of medical or other health care information to a
2 health care agent does not constitute a waiver of any
3 evidentiary privilege or of a right to assert confidentiality.
4 Any health care provider that discloses such information to a
5 health care agent in good faith shall not be liable for that
6 disclosure. A health care agent shall not disclose health care
7 information regarding the principal except as is reasonably
8 necessary to perform the agent's obligations to the principal or
9 as otherwise required by law.
10 (g) Court approval unnecessary.--A health care decision made
11 by a health care agent for a principal is effective without
12 court approval.
13 § 5426. Appointment of health care agents.
14 (a) Multiple and successor health care agents.--A principal
15 may in a health care power of attorney provide for:
16 (1) The appointment of more than one health care agent,
17 who shall act jointly unless the health care power of
18 attorney provides otherwise.
19 (2) The appointment of one or more successor agents who
20 shall serve in the order named in the health care power of
21 attorney, unless the principal expressly directs to the
22 contrary.
23 (b) Limitation on appointment of agent.--Unless related by
24 blood, marriage or adoption, a health care agent may not be the
25 principal's attending physician or other health care provider,
26 nor an owner, operator or employee of a health care institution
27 in which the principal is receiving care.
28 § 5427. Relation of health care agent to court-appointed
29 guardian and other agents.
30 (a) Accountability of health care agent.--If a principal who
19980S1357B2204 - 29 -
1 has executed a health care power of attorney is later
2 adjudicated an incapacitated person and a guardian of the person
3 to make health care decisions is appointed, the health care
4 agent is accountable to the guardian as well as to the
5 principal. The guardian shall have the same power to revoke or
6 amend the health care power of attorney that the principal would
7 have if the principal were not incapacitated.
8 (b) Nomination of guardian of person.--A principal may in a
9 health care power of attorney nominate the guardian of the
10 person for that principal for consideration by the court if
11 incapacity proceedings for the principal's person are thereafter
12 commenced. If the court determines that the appointment of a
13 guardian is necessary, the court shall make its appointment in
14 accordance with the principal's most recent nomination except
15 for good cause or disqualification.
16 (c) Reasonable expenses.--A health care agent may incur
17 reasonable expenses, including the purchase of health care
18 insurance, in fulfilling the health care needs for the principal
19 to the extent the expenses are not otherwise covered by
20 insurance or other similar benefits. Any guardian of the estate
21 of the principal or agent acting on behalf of the principal
22 under a power of attorney if that agent has the power to
23 disburse the principal's funds shall pay for the expenses or
24 reimburse the health care agent for the expenses from the
25 principal's funds.
26 § 5428. Decisions by health care representative.
27 (a) General rule.--A health care representative may make a
28 health care decision for an individual whose attending physician
29 has determined that the individual lacks the ability to make or
30 communicate health care decisions if:
19980S1357B2204 - 30 -
1 (1) the individual is 18 years of age or older or has
2 graduated from high school or has married;
3 (2) the individual does not have a health care power of
4 attorney, or the individual's health care agent is not
5 reasonably available or has indicated an unwillingness to act
6 and no alternate health care agent is reasonably available;
7 and
8 (3) a guardian of the person to make health care
9 decisions has not been appointed for the individual.
10 (b) Extent of authority of health care representative.--The
11 authority of a health care representative shall be the same as
12 provided for a health care agent in sections 5425(c), (d), (e),
13 (f) and (g) (relating to operation of health care power of
14 attorney) and 5427(c) (relating to relation of health care agent
15 to court-appointed guardian and other agents).
16 (c) Who may act as health care representative.--An
17 individual of sound mind may, by a signed writing or by
18 personally informing the attending physician or the health care
19 provider, designate one or more individuals to act as health
20 care representative. In the absence of a designation or if no
21 designee is reasonably available, any member of the following
22 classes who is reasonably available, in descending order of
23 priority, may act as health care representative:
24 (1) the spouse unless an action for divorce is pending;
25 (2) an adult child;
26 (3) a parent;
27 (4) an adult brother or sister;
28 (5) an adult grandchild; or
29 (6) an adult who has exhibited special care and concern
30 for the principal and who is familiar with the principal's
19980S1357B2204 - 31 -
1 personal values.
2 An individual may by a signed writing, including a health care
3 power of attorney, provide for a different order of priority. An
4 individual with a higher priority who is willing to act as a
5 health care representative may assume the authority to act
6 notwithstanding the fact that another individual has previously
7 assumed that authority.
8 (d) Disqualification.--An individual of sound mind may
9 disqualify one or more individuals from acting as health care
10 representative in the same manner as subsection (c) provides for
11 the designation of a health care representative. An individual
12 may also disqualify one or more individuals from acting as
13 health care representative by a health care power of attorney.
14 Upon the petition of any member of the classes set forth in
15 subsection (c), the court may for cause shown disqualify an
16 individual otherwise eligible to serve as a health care
17 representative.
18 (e) Limitation on designation of health care
19 representative.--Unless related by blood, marriage or adoption,
20 a health care representative may not be the principal's
21 attending physician or other health care provider, nor an owner,
22 operator or employee of a health care institution in which the
23 principal is receiving care.
24 (f) Decision of health care representative.--If more than
25 one member of a class assumes authority to act as a health care
26 representative, and they do not agree on a health care decision
27 and the attending physician or health care provider is so
28 informed, the attending physician or health care provider may
29 rely on the decision of a majority of the members of that class
30 who have communicated their views to the attending physician or
19980S1357B2204 - 32 -
1 health care provider. If the class of health care
2 representatives is evenly divided concerning the health care
3 decision and the attending physician or health care provider is
4 so informed, an individual having a lower priority may not act
5 as a health care representative. So long as the class remains
6 evenly divided, no decision shall be deemed made until such time
7 as the parties resolve their disagreement. Notwithstanding such
8 disagreement, nothing in this subsection shall preclude the
9 administration of health care treatment in accordance with
10 accepted standards of medical practice.
11 (g) Duty of health care representative.--Immediately upon
12 assuming authority to act, a health care representative shall
13 communicate the assumption of authority to the members of the
14 principal's family specified in subsection (c) who can be
15 readily contacted.
16 (h) Countermand of health care decision.--A principal may
17 countermand a health care decision made by the health care
18 representative at any time and in any manner without regard to
19 the principal's mental or physical capacity by personally
20 informing the attending physician or health care provider. The
21 attending physician or health care provider shall make
22 reasonable efforts to inform promptly the health care
23 representative of the countermand. A countermand shall not
24 affect the authority of the health care representative to make
25 other health care decisions.
26 (i) Court approval unnecessary.--A health care decision made
27 by a health care representative for a principal is effective
28 without court approval.
29 (j) Written declaration of health care representative.--An
30 attending physician or health care provider may require a person
19980S1357B2204 - 33 -
1 claiming the right to act as health care representative for a
2 principal to provide a written declaration made under penalty of
3 perjury stating facts and circumstances reasonably sufficient to
4 establish the claimed authority.
5 § 5429. Duties of attending physician and health care provider.
6 (a) Communication of health care decision.--Before
7 implementing a health care decision made by a health care agent
8 or by a health care representative, an attending physician or
9 health care provider, whenever possible, shall promptly
10 communicate to the principal the decision made and the identity
11 of the person making the decision.
12 (b) Compliance with decisions of health care agent or health
13 care representative.--An attending physician or health care
14 provider shall comply with health care decisions made by a
15 health care agent, subject to any specific limitations contained
16 in the health care power of attorney, or by a health care
17 representative to the same extent as if the decisions had been
18 made by the principal.
19 (c) Medical record.--Any attending physician or health care
20 provider who is given a health care power of attorney shall
21 arrange for the health care power of attorney or a copy to be
22 placed in the principal's medical record.
23 (d) Medical record entry.--Any attending physician or health
24 care provider to whom an amendment or revocation of a health
25 care power of attorney is communicated or to whom the
26 designation or disqualification of a health care representative
27 is communicated shall promptly enter the information in the
28 principal's medical record and maintain a copy if one is
29 furnished.
30 (e) Record of determination.--Any attending physician who
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1 makes a determination that a principal is unable or has regained
2 the ability to make and communicate health care decisions or
3 makes a determination which affects the authority of a health
4 care agent or health care representative shall enter the
5 determination in the principal's medical record and, if
6 possible, shall inform promptly the principal and any health
7 care agent or health care representative of the determination.
8 § 5430. Limitations on liability.
9 (a) Attending physician, health care provider and health
10 care institution.--Any attending physician, health care
11 provider, health care institution and other person who acts in
12 good faith shall not be subject to civil or criminal liability,
13 discipline for unprofessional conduct or administrative
14 sanctions for:
15 (1) complying with any direction or decision of an
16 individual who the health care provider believes in good
17 faith has authority to act as the principal's health care
18 agent or health care representative so long as, in the case
19 of a health care agent, the direction or decision is not
20 clearly contrary to the terms of the health care power of
21 attorney;
22 (2) declining to comply with a direction or decision of
23 an individual based on a good faith belief that the
24 individual lacks authority to act as the principal's health
25 care agent or health care representative;
26 (3) complying with a health care power of attorney under
27 the assumption that it was valid when made and has not been
28 amended or revoked; or
29 (4) disclosing health care information to another person
30 based upon a good faith belief that the disclosure would be
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1 authorized, permitted or required by this subchapter.
2 Any attending physician, health care provider, health care
3 institution and other person so acting is protected and released
4 to the same extent as if dealing directly with a competent
5 principal.
6 (b) Health care agent.--No health care agent who in good
7 faith acts for the principal and in accordance with the terms of
8 a health care power of attorney, or who fails to act, shall be
9 subject to civil or criminal liability for the action or
10 inaction.
11 (c) Health care representative.--No health care
12 representative who in good faith acts for the principal, or who
13 fails to act, shall be subject to civil or criminal liability
14 for the action or inaction.
15 (d) Death not suicide or homicide.--Death resulting from the
16 withholding or withdrawal of life-sustaining treatment in
17 accordance with the provisions of this subchapter shall not for
18 any purpose constitute suicide or homicide.
19 § 5431. Unwillingness to comply and transfer of principal.
20 (a) Attending physician or health care provider.--If an
21 attending physician or health care provider cannot in good
22 conscience comply with a health care decision of a health care
23 agent or health care representative or if the policies of the
24 health care institution preclude compliance with the health care
25 decision, the attending physician or health care provider shall
26 so inform the health care agent or health care representative.
27 The attending physician or health care provider shall make every
28 reasonable effort to assist in the transfer of the principal to
29 another physician or health care provider who will comply with
30 the health care decision of the health care agent or health care
19980S1357B2204 - 36 -
1 representative.
2 (b) Employee or staff member of health care provider.--An
3 employee or staff member of a health care provider shall not be
4 required to comply with a health care decision of a health care
5 agent or health care representative if the employee's or staff
6 member's good conscience dictates otherwise. It shall be
7 unlawful for an employer to discharge or in any other manner to
8 discriminate against the employee or staff member who informs
9 the employer of an unwillingness to comply based upon good
10 conscience. The employer may require the employee or staff
11 member to express the unwillingness in writing.
12 (c) Liability.--If transfer under subsection (a) is not
13 possible, the provision of life-sustaining treatment to a
14 principal shall not subject an attending physician, health care
15 provider or health care institution to criminal or civil
16 liability or administrative sanctions for failure to carry out
17 the health care decision.
18 § 5432. Effect on life insurance.
19 The making of or failure to make a health care power of
20 attorney or a designation of a health care representative in
21 accordance with this subchapter shall not affect in any manner
22 the sale, procurement or issuance of any policy of life
23 insurance nor shall it be deemed to modify the terms of an
24 existing policy of life insurance. No policy of life insurance
25 shall be legally impaired or invalidated in any manner by the
26 withholding or withdrawal of life-sustaining treatment from an
27 insured principal, notwithstanding any term of the policy to the
28 contrary.
29 § 5433. Conditioning services or action.
30 No person may require or prevent the execution of a health
19980S1357B2204 - 37 -
1 care power of attorney or the designation of a health care
2 representative as a condition of insuring or providing any type
3 of health care service.
4 § 5434. Criminal penalties.
5 (a) Tampering with a health care power of attorney.--Any
6 person who, without the consent of the principal, willfully
7 conceals, cancels, alters, defaces, obliterates or damages a
8 health care power of attorney or any amendment or revocation or
9 who falsifies or forges a health care power of attorney, its
10 amendment or revocation, and, as a result of that act, directly
11 changes the health care provided to the principal commits a
12 felony of the third degree.
13 (b) Tampering resulting in death.--A person who falsifies or
14 forges a health care power of attorney or willfully conceals or
15 withholds personal knowledge of an amendment or revocation of a
16 health care power of attorney with the intent to cause a
17 withholding or withdrawal of life-sustaining treatment contrary
18 to the intent of the principal and, as a result of that act,
19 directly causes life-sustaining treatment to be withheld or
20 withdrawn and death to the principal to be hastened shall be
21 subject to prosecution for criminal homicide as provided in 18
22 Pa.C.S. Ch. 25 (relating to criminal homicide).
23 § 5435. Effect on other State law.
24 (a) Mental health.--This subchapter shall not affect the
25 requirements of any other laws of this Commonwealth concerning
26 consent to observation, diagnosis, treatment or hospitalization
27 for a mental illness.
28 (b) Prohibited care.--This subchapter shall not authorize a
29 health care agent or health care representative to consent to
30 any health care prohibited by the laws of this Commonwealth.
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1 (c) Consent.--This subchapter shall not affect the laws of
2 this Commonwealth concerning:
3 (1) the standard of care of a health care provider
4 required in the administration of health care;
5 (2) when consent is required for health care;
6 (3) informed consent for health care; or
7 (4) consent to health care in an emergency.
8 (d) Preservation of religious rights.--This subchapter shall
9 not prevent a health care agent or health care representative
10 from consenting to health care administered in good faith
11 pursuant to religious tenets of the principal or from
12 withholding consent to health care which is contrary to
13 religious tenets of the principal.
14 (e) Individual's rights.--This subchapter shall not affect
15 the right of an individual to make health care decisions.
16 (f) Disclosure.--The disclosure requirements of section
17 5425(f) (relating to operation of health care power of attorney)
18 shall supersede any provision in any other State statute or
19 regulation which requires the principal to consent to disclosure
20 or which otherwise conflicts with section 5425(f), including,
21 but not limited to:
22 (1) Section 8 of the act of April 14, 1972 (P.L.221,
23 No.63), known as the Pennsylvania Drug and Alcohol Abuse
24 Control Act.
25 (2) Section 111 of the act of July 9, 1976 (P.L.817,
26 No.143), known as the Mental Health Procedures Act.
27 (3) Section 15 of the act of October 5, 1978 (P.L.1109,
28 No.261), known as the Osteopathic Medical Practice Act.
29 (4) Section 41 of the act of December 20, 1985 (P.L.457,
30 No.112), known as the Medical Practice Act of 1985.
19980S1357B2204 - 39 -
1 (5) Section 7 of the act of November 29, 1990 (P.L.585,
2 No.148), known as the Confidentiality of HIV-Related
3 Information Act.
4 The disclosure requirements under section 5425(f) shall not
5 apply to the extent that the disclosure would be prohibited by
6 Federal laws and implementing regulations.
7 § 5436. Conflicting health care powers of attorney.
8 If a provision of a health care power of attorney conflicts
9 with another provision of a health care power of attorney or
10 with a provision of a declaration under Subchapter B (relating
11 to advance directive for health care), the provision of the
12 instrument latest in date of execution shall prevail to the
13 extent of the conflict.
14 § 5437. Validity.
15 This subchapter shall not limit the validity of a health care
16 power of attorney executed prior to the effective date of this
17 subchapter. A health care power of attorney executed in another
18 state or jurisdiction and in conformity with the laws of that
19 state or jurisdiction shall be considered valid in this
20 Commonwealth, except to the extent that the health care power of
21 attorney executed in another state or jurisdiction would allow a
22 health care agent to make a health care decision inconsistent
23 with the laws of this Commonwealth.
24 Section 6 8. Sections 5602(a)(8) and (9) and 5603(h) of <--
25 Title 20 are repealed.
26 Section 7 9. The repeal AMENDMENT of the form of declaration <--
27 in 20 Pa.C.S. § 5404(b) shall not affect the validity of any
28 declaration executed pursuant to that form before, on or after
29 the effective date of this act.
30 Section 8. This act shall take effect in 60 days. <--
19980S1357B2204 - 40 -
1 SECTION 10. THIS ACT SHALL TAKE EFFECT AS FOLLOWS: <--
2 (1) THE ADDITION OF 20 PA.C.S. § 5413.1 SHALL TAKE
3 EFFECT IMMEDIATELY.
4 (2) THE ADDITION OF 20 PA.C.S. §§ 5413(D) AND 5413.2
5 SHALL TAKE EFFECT IN 180 DAYS.
6 (3) THIS SECTION SHALL TAKE EFFECT IMMEDIATELY.
7 (4) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT IN 60
8 DAYS.
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