HOUSE AMENDED
PRIOR PRINTER'S NOS. 689, 2533 PRINTER'S NO. 2632
No. 646 Session of 1989
INTRODUCED BY WILT, SHUMAKER, LEMMOND, PORTERFIELD, HESS,
SHAFFER, AFFLERBACH, MADIGAN, FISHER, ROCKS AND MELLOW,
MARCH 6, 1989
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
NOVEMBER 20, 1990
AN ACT
1 Establishing a procedure whereby a person may execute in advance
2 a written declaration indicating to a physician the person's
3 desire for a physician to initiate, continue, withhold or
4 withdraw certain life-sustaining medical treatment in the
5 event the person is incompetent and is determined to be in a
6 terminal condition or to be permanently unconscious;
7 PROVIDING FOR A RIGHT OF CONSCIENCE; REQUIRING LIFE- <--
8 SUSTAINING TREATMENT TO PREGNANT WOMEN IN CERTAIN CASES;
9 REQUIRING IN CERTAIN CASES THE PROVISION OF NUTRITION AND
10 HYDRATION; LIMITING THE POWER OF ATTORNEY; and providing
11 penalties.
12 TABLE OF CONTENTS
13 Section 1. Short title.
14 Section 2. Legislative findings; intent.
15 Section 3. Definitions.
16 Section 4. Declaration.
17 Section 5. When declaration becomes operative.
18 Section 6. Revocation.
19 Section 7. Liability.
20 Section 8. Duty of physician to confirm terminal condition.
1 Section 9. Transfer of declarant CONSCIENCE CLAUSE. <--
2 Section 10. Effect on suicide and life insurance; declaration
3 optional.
4 Section 11. Preservation of existing rights; REQUIRED TREATMENT <--
5 OF PREGNANT WOMEN; power of attorney.
6 SECTION 12. NUTRITION AND HYDRATION. <--
7 Section 12 13. Penalties. <--
8 Section 13 14. Effective date. <--
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Short title.
12 This act shall be known and may be cited as the Advance
13 Directive for Health Care Act.
14 Section 2. Legislative findings; intent.
15 (a) Findings.--The General Assembly finds that all competent
16 adults have a qualified right to control decisions relating to
17 their own medical care. This right is subject to certain
18 interests of society, such as the maintenance of ethical
19 standards in the medical profession and the preservation and
20 protection of human life. Modern medical technological
21 procedures make possible the prolongation of human life beyond
22 natural limits. The application of some procedures to an
23 individual suffering a difficult and uncomfortable process of
24 dying may cause loss of patient dignity and secure only
25 continuation of a precarious and burdensome prolongation of
26 life.
27 (b) Intent.--Nothing in this act is intended to condone,
28 authorize or approve mercy killing, or to permit any affirmative
29 or deliberate act or omission to end life other than as defined
30 in this act. Furthermore, this act shall create no presumption
19890S0646B2632 - 2 -
1 concerning the intent of any person who has not executed a
2 declaration to consent to the use or withholding of life-
3 sustaining procedures in the event of a terminal condition or a
4 state of permanent unconsciousness, EXCEPT WITH RESPECT TO THE <--
5 PROVISION OF NUTRITION AND HYDRATION.
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 "Attending physician." The physician who has primary
11 responsibility for the treatment and care of the declarant.
12 "Declarant." A person who makes a declaration in accordance
13 with this act.
14 "Declaration." A written document, voluntarily executed by
15 the declarant in accordance with this act.
16 "Health care provider." A person who is licensed by the laws
17 of this Commonwealth to administer health care in the ordinary
18 course of business or practice of a profession OR ONE WHO IS IN <--
19 THE EMPLOY OF SUCH A PERSON.
20 "Incompetent." The lack of sufficient capacity for a person
21 to make or communicate decisions concerning himself.
22 "Life-sustaining treatment." Any medical procedure or
23 intervention that, when administered to a qualified patient,
24 will serve only to prolong the process of dying or to maintain
25 the patient in a state of permanent unconsciousness. Life-
26 sustaining treatment shall include nutrition and hydration
27 administered by gastric tube or intravenously or any other
28 artificial or invasive means if the declaration of the qualified
29 patient so specifically provides.
30 "Permanently unconscious." A medical condition that has been
19890S0646B2632 - 3 -
1 diagnosed in accordance with currently accepted medical
2 standards and with reasonable medical certainty as total and
3 irreversible loss of consciousness and capacity for interaction
4 with the environment. The term includes without limitation a
5 persistent vegetative state or irreversible coma.
6 "Person." An individual, corporation, partnership,
7 association, or Federal, State or local government or
8 governmental agency.
9 "Qualified patient." A person who has executed a declaration
10 and who has been determined to be in a terminal condition or to
11 be permanently unconscious.
12 "Terminal condition." An incurable and irreversible medical
13 condition caused by injury, disease or physical illness which
14 will, in the opinion of the attending physician, to a reasonable
15 degree of medical certainty, result in death IN A SHORT PERIOD <--
16 OF TIME regardless of the continued application of life-
17 sustaining treatment.
18 Section 4. Declaration.
19 (a) Execution.--An individual of sound mind who is 18 years
20 of age or older or who is otherwise authorized to give medical
21 consent on his behalf pursuant to the act of February 13, 1970
22 (P.L.19, No.10), entitled "An act enabling certain minors to
23 consent to medical, dental and health services, declaring
24 consent unnecessary under certain circumstances," may execute at
25 any time a declaration governing the initiation, continuation,
26 withholding or withdrawal of life-sustaining treatment. The
27 declaration must be signed by the declarant, or by another on
28 behalf of and at the direction of the declarant, and must be
29 witnessed by two individuals each of whom is 18 years of age or
30 older. A witness shall not be the person who signed the
19890S0646B2632 - 4 -
1 declaration on behalf of and at the direction of the declarant.
2 (b) Form.--A declaration may but need not be in the
3 following form and may include other specific directions
4 including, but not limited to, designation of another person to
5 make the treatment decision for the declarant if the declarant
6 is incompetent and is determined to be in a terminal condition
7 or to be permanently unconscious:
8 DECLARATION
9 I, , being of sound mind, willfully and
10 voluntarily make this declaration to be followed if I become
11 incompetent. This declaration reflects my firm and settled
12 commitment to refuse life-sustaining treatment under the
13 circumstances indicated below.
14 I direct my attending physician to withhold or withdraw
15 life-sustaining treatment that serves only to prolong the
16 process of my dying, if I should be in a terminal condition
17 or in a state of permanent unconsciousness.
18 I direct that treatment be limited to measures to keep me
19 comfortable and to relieve pain, including any pain that
20 might occur by withholding or withdrawing life-sustaining
21 treatment.
22 In addition, if I am in the condition described above, I
23 feel especially strongly about the following forms of
24 treatment:
25 I ( ) do ( ) do not want cardiac resuscitation.
26 I ( ) do ( ) do not want mechanical respiration.
27 I ( ) do ( ) do not want tube feeding or any other
28 artificial or invasive form of nutrition (food) or hydration
29 (water).
30 I ( ) do ( ) do not want blood or blood products.
19890S0646B2632 - 5 -
1 I ( ) do ( ) do not want any form of surgery or invasive
2 diagnostic tests.
3 I ( ) do ( ) do not want kidney dialysis.
4 I ( ) do ( ) do not want antibiotics.
5 I realize that if I do not specifically indicate my
6 preference regarding any of the forms of treatment listed
7 above, I may receive that form of treatment.
8 Other instructions: <--
9 I ( ) do ( ) do not want to designate another person as
10 my surrogate to make medical treatment decisions for me if I
11 should be incompetent and in a terminal condition or in a
12 state of permanent unconsciousness. Name and address of
13 surrogate (if applicable):
14 Name and address of substitute surrogate (if surrogate
15 designated above is unable to serve):
16 I made this declaration on the day of
17 (month, year).
18 OTHER INSTRUCTIONS: <--
19 .............................................................
20 .............................................................
21 I ( ) DO ( ) DO NOT WANT TO DESIGNATE ANOTHER PERSON AS
22 MY SURROGATE TO MAKE LIFE-SUSTAINING TREATMENT DECISIONS FOR
23 ME IF I SHOULD BE INCOMPETENT AND IN A TERMINAL CONDITION OR
24 IN A STATE OF PERMANENT UNCONSCIOUSNESS. I UNDERSTAND THAT MY
25 DESIGNATED SURROGATE IS NOT AUTHORIZED TO CONSENT TO THE
26 WITHHOLDING OR WITHDRAWAL OF ARTIFICIAL NUTRITION AND
27 HYDRATION UNLESS I HAVE PROVIDED SPECIFIC DIRECTIONS. MY
28 SPECIFIC DIRECTIONS TO MY SURROGATE IN CONNECTION WITH
29 ARTIFICIAL NUTRITION AND HYDRATION ARE:
30 .............................................................
19890S0646B2632 - 6 -
1 .............................................................
2 NAME AND ADDRESS OF SURROGATE (IF APPLICABLE):
3 .............................................................
4 .............................................................
5 NAME AND ADDRESS OF SUBSTITUTE SURROGATE (IF SURROGATE
6 DESIGNATED ABOVE IS UNABLE TO SERVE):
7 .............................................................
8 .............................................................
9 I MADE THIS DECLARATION ON THE DAY OF
10 (MONTH, YEAR).
11 Declarant's signature:
12 Declarant's address:
13 The declarant or the person on behalf of and at the
14 direction of the declarant knowingly and voluntarily signed
15 this writing by signature or mark in my presence.
16 Witness's signature:
17 Witness's address:
18 Witness's signature:
19 Witness's address:
20 (c) Invalidity of specific direction.--Should any specific
21 direction in the declaration be held to be invalid, the
22 invalidity shall not offset other directions of the declaration
23 which can be effected without the invalid direction.
24 (d) Medical record.--A physician or other health care
25 provider who is furnished a copy of the declaration shall make
26 it a part of the declarant's medical record and, if unwilling to
27 comply with the declaration, promptly so advise the declarant.
28 Section 5. When declaration becomes operative.
29 A declaration becomes operative when:
30 (1) a copy is provided to the attending physician; and
19890S0646B2632 - 7 -
1 (2) the declarant is determined by the attending
2 physician to be incompetent and in a terminal condition or in
3 a state of permanent unconsciousness.
4 When the declaration becomes operative, the attending physician
5 and other health care providers shall act in accordance with its
6 provisions or comply with the transfer PURSUANT TO THE <--
7 provisions of section 9.
8 Section 6. Revocation.
9 (a) General rule.--A declaration may be revoked at any time
10 and in any manner by the declarant, without regard to the
11 declarant's mental or physical condition. A revocation is
12 effective upon communication to the attending physician or other
13 health care provider by the declarant or a witness to the
14 revocation.
15 (b) Medical record.--The attending physician or other health
16 care provider shall make the revocation a part of the
17 declarant's medical record.
18 Section 7. Liability.
19 (a) General rule.--No physician or other health care
20 provider who, consistent with this act, causes or participates
21 in the initiating, continuing, withholding or withdrawal of
22 life-sustaining treatment from a qualified patient who is
23 incompetent shall, as a result thereof, be subject to criminal
24 or civil liability, or be found to have committed an act of
25 unprofessional conduct, if the attending physician has followed
26 the declarant's wishes as expressed earlier by the declarant in
27 the form of a declaration executed pursuant to this act.
28 (b) Absence of declaration.--The absence of a declaration by
29 a patient shall not give rise to any presumption as to the
30 intent of the patient to consent to or to refuse the initiation,
19890S0646B2632 - 8 -
1 continuation or termination of life-sustaining treatment.
2 Section 8. Duty of physician to confirm terminal condition.
3 For purposes of section 5, an attending physician shall,
4 without delay after the diagnosis that the declarant is in a
5 terminal condition or in a state of permanent unconsciousness,
6 certify in writing that the declarant is in a terminal condition
7 or in a state of permanent unconsciousness and arrange for the
8 physical examination and confirmation of the terminal condition
9 or state of permanent unconsciousness of the declarant by a
10 second physician.
11 Section 9. Transfer of declarant. <--
12 An attending physician or other health care provider who is
13 unwilling to comply with this act shall, as promptly as
14 practical, take all reasonable steps to transfer care of the
15 declarant to another physician or health care provider.
16 SECTION 9. CONSCIENCE CLAUSE. <--
17 (A) GENERAL RULE.--NOTHING IN THIS ACT SHALL OBLIGATE A
18 HEALTH CARE PROVIDER TO FOLLOW ANY DECLARATION OR DIRECTION WITH
19 RESPECT TO THE LIFE-SUSTAINING TREATMENT OR CARE OF A PERSON IF
20 SUCH DECLARATION OR DIRECTION WOULD BE CONTRARY TO THE
21 CONSCIENCE OF A HEALTH CARE PROVIDER WHO IS AN INDIVIDUAL OR
22 WOULD BE CONTRARY TO THE STATED ETHICAL OR MORAL PRINCIPLES OR
23 POLICIES OF AN INSTITUTIONAL HEALTH CARE PROVIDER.
24 (B) PROCEDURE.--AN ATTENDING PHYSICIAN WHO OR HEALTH CARE
25 PROVIDER WHICH IS UNWILLING TO FOLLOW A DECLARATION FOR REASONS
26 AS SET FORTH IN SUBSECTION (A) SHALL SO ADVISE THE DECLARANT'S
27 REPRESENTATIVE, GUARDIAN OR FAMILY OF THAT UNWILLINGNESS AND
28 SHALL TAKE ALL REASONABLE STEPS TO TRANSFER CARE OF THE
29 DECLARANT TO ANOTHER PHYSICIAN OR HEALTH CARE PROVIDER WHICH
30 TRANSFER SHALL BE AT THE EXPENSE OF THAT PERSON OR ENTITY
19890S0646B2632 - 9 -
1 RESPONSIBLE FOR THE COST OF DECLARANT'S CARE.
2 (C) EFFECT.--IF SUCH TRANSFER IS NOT POSSIBLE, THE PROVISION
3 OF LIFE-SUSTAINING TREATMENT TO A DECLARANT SHALL NOT SUBJECT
4 ANY HEALTH CARE PROVIDER TO CRIMINAL OR CIVIL LIABILITY OR
5 ADMINISTRATIVE SANCTION FOR FAILURE TO CARRY OUT THE PROVISIONS
6 OF AN ADVANCE DIRECTIVE FOR HEALTH CARE.
7 Section 10. Effect on suicide and life insurance; declaration
8 optional.
9 (a) Criminal effect.--The withholding or withdrawal of life-
10 sustaining treatment from a qualified patient in accordance with
11 the provisions of this act shall not, for any purpose,
12 constitute suicide or homicide.
13 (b) Life insurance.--The making of, or failure to make, a
14 declaration in accordance with this act shall not affect in any
15 manner the sale, procurement or issuance of any policy of life
16 insurance, nor shall it be deemed to modify the terms of an
17 existing policy of life insurance. No policy of life insurance
18 shall be legally impaired or invalidated in any manner by the
19 withholding or withdrawal of life-sustaining treatment from an
20 insured patient, notwithstanding any term of the policy to the
21 contrary.
22 (c) Declaration optional.--No physician or other health care
23 provider, and no health care service plan, health maintenance
24 organization, insurer issuing disability insurance, self-insured
25 employee welfare benefit plan, nonprofit hospital plan or
26 Federal, State or local government-sponsored or operated program
27 shall:
28 (1) require any person to execute a declaration as a
29 condition for being insured for, or receiving, health care
30 services; or
19890S0646B2632 - 10 -
1 (2) charge any person a different rate or fee whether or
2 not the person executes or has executed a declaration.
3 Section 11. Preservation of existing rights; REQUIRED TREATMENT <--
4 OF PREGNANT WOMEN; power of attorney.
5 (a) Legal rights not impaired.--The provisions of this act
6 are cumulative with existing law regarding the right of an <--
7 individual to consent or refuse to consent to life-sustaining
8 treatment and shall not impair or supersede any existing rights
9 or responsibilities which a health care provider, a patient,
10 including a minor or incompetent patient, or the family of a
11 patient may have in regard to the withholding or withdrawal of
12 life-sustaining treatment under the laws of this Commonwealth.
13 (b) Power of attorney.--Nothing in this act shall limit a
14 power of attorney executed under 20 Pa.C.S. Ch. 56 (relating to
15 powers of attorney). SHALL NOT IMPAIR ANY EXISTING RIGHT OF A <--
16 COMPETENT INDIVIDUAL TO CONSENT TO OR REFUSE TO CONSENT TO HIS
17 OR HER MEDICAL TREATMENT. ALL OTHER EXISTING RIGHTS WHICH A
18 PERSON OR HEALTH CARE PROVIDER MAY HAVE REGARDING THE
19 INITIATION, WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING
20 TREATMENT SHALL CONTINUE IN EFFECT EXCEPT AS SUPERSEDED BY THE
21 PROVISIONS OF THIS ACT.
22 (B) POWER OF ATTORNEY.--AN ATTORNEY-IN-FACT APPOINTED UNDER
23 A POWER OF ATTORNEY SHALL HAVE NO AUTHORITY TO CONSENT TO THE
24 WITHHOLDING OR WITHDRAWAL OF NUTRITION AND HYDRATION FROM THE
25 PRINCIPAL WHO EXECUTED THE POWER UNLESS SUCH POWER OF ATTORNEY
26 EXPRESSLY GRANTS SUCH AUTHORITY TO THE ATTORNEY-IN-FACT AND
27 SPECIFIES THE CONDITIONS UNDER WHICH SUCH WITHHOLDING OR
28 WITHDRAWAL MAY OCCUR.
29 (C) PREGNANCY.--NOTWITHSTANDING THE EXISTENCE OF ANY
30 DECLARATION OR DIRECTION TO THE CONTRARY, LIFE-SUSTAINING
19890S0646B2632 - 11 -
1 TREATMENT MUST BE PROVIDED TO A PREGNANT WOMAN WHO IS
2 INCOMPETENT AND HAS A TERMINAL CONDITION OR WHO IS PERMANENTLY
3 UNCONSCIOUS UNLESS, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY
4 AS CERTIFIED ON THE PATIENT'S MEDICAL CHART BY THE ATTENDING
5 PHYSICIAN AND AN OBSTETRICIAN WHO HAS EXAMINED THE PATIENT, SUCH
6 LIFE-SUSTAINING TREATMENT WILL NOT MAINTAIN THE PREGNANT WOMAN
7 IN SUCH A WAY AS TO PERMIT THE CONTINUING DEVELOPMENT AND LIVE
8 BIRTH OF THE UNBORN CHILD OR WILL BE PHYSICALLY HARMFUL TO THE
9 PREGNANT WOMAN OR WOULD CAUSE PAIN TO THE PREGNANT WOMAN WHICH
10 CANNOT BE ALLEVIATED BY MEDICATION.
11 SECTION 12. NUTRITION AND HYDRATION.
12 (A) PRESUMPTION.--IT IS PRESUMED THAT EVERY INCOMPETENT
13 PERSON HAS DIRECTED HIS HEALTH CARE PROVIDERS TO PROVIDE HIM
14 WITH NUTRITION AND HYDRATION TO A DEGREE THAT IS SUFFICIENT TO
15 SUSTAIN LIFE. THIS PRESUMPTION SHALL NOT APPLY IN ANY OF THE
16 FOLLOWING CIRCUMSTANCES:
17 (1) IF THE INCOMPETENT PERSON HAS A DECLARATION EXECUTED
18 PURSUANT TO THE ACT WHICH SPECIFICALLY AUTHORIZED THE
19 WITHHOLDING OR WITHDRAWAL OF NUTRITION AND HYDRATION AND THE
20 PERSON HAS A TERMINAL CONDITION OR IS PERMANENTLY
21 UNCONSCIOUS.
22 (2) IF THE INCOMPETENT PERSON HAS A TERMINAL CONDITION
23 OR IS PERMANENTLY UNCONSCIOUS AND THE ATTENDING PHYSICIAN
24 KNOWS, BY CLEAR AND CONVINCING EVIDENCE, THAT THE PERSON
25 WHILE COMPETENT HAD MADE THE DECISION TO FOREGO NUTRITION AND
26 HYDRATION OR TO HAVE NUTRITION AND HYDRATION WITHDRAWN,
27 PROVIDED THAT SUCH DECISION WAS CLEARLY EXPRESSED AND
28 SPECIFICALLY RELATED TO THE PROVISION OF NUTRITION AND
29 HYDRATION.
30 (3) IF, IN THE REASONABLE MEDICAL OPINION OF THE
19890S0646B2632 - 12 -
1 ATTENDING PHYSICIAN, THE ADMINISTRATION OF NUTRITION AND
2 HYDRATION:
3 (I) IS NOT MEDICALLY POSSIBLE;
4 (II) WOULD ITSELF CAUSE SEVERE, INTRACTABLE AND
5 LONG-LASTING PAIN TO THE INCOMPETENT PERSON;
6 (III) COULD NOT BE PHYSICALLY ASSIMILATED BY THE
7 INCOMPETENT PERSON; OR
8 (IV) WOULD CAUSE SERIOUS UNCORRECTABLE MEDICAL
9 COMPLICATIONS.
10 (4) IF, IN THE REASONABLE MEDICAL OPINION OF THE
11 ATTENDING PHYSICIAN, THE INCOMPETENT PERSON:
12 (I) IS CHRONICALLY AND IRREVERSIBLY INCOMPETENT; AND
13 (II) IS IN THE FINAL STAGE OF A TERMINAL CONDITION
14 AND WHOSE DEATH FROM THE UNDERLYING TERMINAL CONDITION IS
15 IMMINENT, PROVIDED HOWEVER, NUTRITION AND HYDRATION MAY
16 NOT BE WITHHELD OR WITHDRAWN IF THE INCOMPETENT PERSON
17 WOULD DIE AS A RESULT OF THE DEPRIVATION OF NUTRITION AND
18 HYDRATION RATHER THAN FROM THE UNDERLYING TERMINAL
19 CONDITION.
20 (B) PROHIBITION.--THIS ACT SPECIFICALLY PROHIBITS ANY PERSON
21 FROM AUTHORIZING THE WITHDRAWAL OR WITHHOLDING OF NUTRITION AND
22 HYDRATION, AND ANY HEALTH CARE PROVIDER OR OTHER PERSON FROM
23 WITHDRAWING OR WITHHOLDING NUTRITION OR HYDRATION FROM AN
24 INCOMPETENT PERSON EXCEPT AS PROVIDED IN THIS ACT.
25 (C) OTHER MEASURES.--NOTHING IN THIS ACT SHALL RELIEVE THE
26 PHYSICIAN, HEALTH CARE PROVIDER OR HEALTH CARE FACILITY OF THE
27 OBLIGATION TO PROVIDE OTHER MEASURES DEEMED NECESSARY TO PROVIDE
28 COMFORT TO A PERSON OR TO ALLEVIATE HIS PAIN REGARDLESS OF
29 WHETHER A PERSON HAS A TERMINAL CONDITION.
30 Section 12 13. Penalties. <--
19890S0646B2632 - 13 -
1 Any person who willfully conceals, cancels, defaces,
2 obliterates or damages the declaration of another without the
3 consent of the declarant commits a felony of the third degree.
4 Any person who falsifies or forges the declaration of another,
5 or willfully conceals or withholds personal knowledge of a
6 revocation as provided in section 6, with the intent to cause a
7 withholding or withdrawal of life-sustaining treatment contrary
8 to the wishes of the declarant and, because of such an act,
9 directly causes life-sustaining treatment to be withheld or
10 withdrawn and death to be hastened, shall be subject to
11 prosecution for criminal homicide as provided in 18 Pa.C.S. Ch.
12 25 (relating to criminal homicide). Any person who willfully, by
13 undue influence, fraud or duress, causes a person to execute a
14 declaration pursuant to this act commits a felony of the third
15 degree.
16 Section 13 14. Effective date. <--
17 This act shall take effect immediately.
A31L35WMB/19890S0646B2632 - 14 -