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 19900H2996B4254 - 2 -
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, 19900H2996B4254 - 3 -
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 19900H2996B4254 - 4 -
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 19900H2996B4254 - 5 -
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. 19900H2996B4254 - 6 -
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 19900H2996B4254 - 7 -
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 19900H2996B4254 - 8 -
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 19900H2996B4254 - 9 -
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 19900H2996B4254 - 10 -
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 19900H2996B4254 - 11 -
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 19900H2996B4254 - 12 -
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 19900H2996B4254 - 13 -
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 19900H2996B4254 - 14 -
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 19900H2996B4254 - 15 -
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 19900H2996B4254 - 16 -
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. 19900H2996B4254 - 17 -
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 19900H2996B4254 - 18 -
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. I14L35VDL/19900H2996B4254 - 19 -