AN ACT Relating to consent for health care; amending RCW 70.122.010, 70.122.020, 70.122.030, 70.122.050, 70.122.060, 70.122.070, 70.122.080, and 70.122.090; adding new sections to chapter 70.122 RCW; and adding new sections to chapter 11.94 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 2, chapter 112, Laws of 1979 and RCW 70.122.010 are each amended to read as follows:

The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own ((~~medical~~)) health care, including the decision to have life-sustaining ((~~procedures~~)) treatment withheld or withdrawn in instances of a terminal condition.

The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.

The legislature further finds that, in the interest of protecting individual autonomy, such ((~~prolongation of life~~)) postponement of the moment of death for persons with a terminal condition may cause loss of patient dignity, and unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient.

The legislature further finds that there exists considerable uncertainty in the medical and legal professions as to the legality of terminating the use or application of life-sustaining ((~~procedures~~)) treatment where the patient has voluntarily and in sound mind evidenced a desire that such ((~~procedures~~)) treatment be withheld or withdrawn.

In recognition of the dignity and privacy which patients have a right to expect, the legislature hereby declares that the laws of the state of Washington shall recognize the right of an adult person to make a written directive instructing such person's physician to withhold or withdraw life-sustaining ((~~procedures~~)) treatment in the event of a terminal condition.

The legislature further recognizes that a person in a terminal condition may not have executed such a written directive and that therefore there is a need to establish a means of authorizing the withholding or withdrawing of life-sustaining treatment in the absence of a written directive.

The legislature further recognizes that in the absence of controversy, the court is normally not the proper forum in which to make decisions regarding life-sustaining treatment.

To avoid needless suffering and loss of dignity and to avoid treatment that is not desired by a person in a terminal condition, the legislature declares this chapter to be in the interest of the public health and welfare.

Sec. 2. Section 3, chapter 112, Laws of 1979 and RCW 70.122.020 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions contained in this section shall apply throughout this chapter.

(1) "Attending physician" means the physician selected by, or assigned to, the patient who has primary responsibility for the treatment and care of the patient.

(2) "Directive" means a written document voluntarily executed by the declarer in accordance with the requirements of RCW 70.122.030.

(3) "Health facility" means a hospital as defined in RCW ((~~70.38.020(7) or~~)) 70.41.020(2), a nursing home as defined in RCW ((~~70.38.020(8)~~)) 18.51.010, or a hospice care agency as defined in RCW 70.126.010.

(4) "Life-sustaining ((~~procedure~~)) treatment" means any medical or surgical ((~~procedure or intervention which utilizes mechanical or other~~)) care that uses artificial means to sustain, restore, or ((~~supplant~~)) replace a vital function, which, when applied to a qualified patient, would serve only to ((~~artificially prolong~~)) postpone the moment of death ((~~and where, in the judgment of the attending physician, death is imminent whether or not such procedures are utilized~~)). "Life-sustaining ((~~procedure~~)) treatment" shall not include the administration of medication or the performance of any medical ((~~procedure~~)) or surgical care deemed necessary solely to alleviate pain. It shall also not include the provision of basic nutrition by whatever route necessary.

(5) "Physician" means a person licensed under chapters 18.71 or 18.57 RCW.

(6) "Qualified patient" means a patient diagnosed and certified in writing to be afflicted with a terminal condition by ((~~two~~)) three physicians one of whom shall be the attending physician, who have personally examined the patient.

(7) "Terminal condition" means ((~~an incurable~~)):

(a) A condition caused by injury, disease, or illness, ((~~which, regardless of the application of life-sustaining procedures, would~~)) that, within reasonable medical judgment, ((~~produce~~)) is incurable and will cause death, and where the application of life-sustaining ((~~procedures~~)) treatment serves only to postpone the moment of death ((~~of the patient~~)); or

(b) A condition in which the patient is medically assessed as having no reasonable probability of recovery from a comatose or persistent vegetative state.

(8) "Adult person" means a person ((~~attaining~~)) who has attained the age of majority as defined in RCW 26.28.010 and 26.28.015.

Sec. 3. Section 4, chapter 112, Laws of 1979 and RCW 70.122.030 are each amended to read as follows:

(1) Any adult person may execute a directive directing the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment in a terminal condition. The directive shall be signed by the declarer in the presence of two witnesses not related to the declarer by blood or marriage and who would not be entitled to any portion of the estate of the declarer upon declarer's decease under any will of the declarer or codicil thereto then existing or, at the time of the directive, by operation of law then existing. In addition, a witness to a directive shall not be the attending physician, an employee of the attending physician or a health facility in which the declarer is a patient, or any person who has a claim against any portion of the estate of the declarer upon declarer's decease at the time of the execution of the directive. The directive, or a copy thereof, shall be made part of the patient's medical records retained by the attending physician, a copy of which shall be forwarded to the health facility upon ((~~the withdrawal of life-sustaining procedures~~)) admission. The directive shall be essentially in the following form, but in addition may include other specific directions:

DIRECTIVE TO PHYSICIANS

Directive made this ____ day of __________ (month, year).

I __________, being of sound mind, wilfully, and voluntarily make known my desire that my life shall not be artificially prolonged under the circumstances set forth below, and do hereby declare that:

(a) If at any time I should have an incurable injury, disease, or illness certified to be a terminal condition by ((~~two~~)) three physicians, and where the application of life-sustaining ((~~procedures~~)) treatment would serve only to artificially ((~~prolong~~)) postpone the moment of my death ((~~and where my physician determines that my death is imminent whether or not life-sustaining procedures are utilized~~)), I direct that such ((~~procedures~~)) treatment be withheld or withdrawn, and that I be permitted to die naturally.

(b) In the absence of my ability to give directions regarding the use of such life-sustaining ((~~procedures~~)) treatment, it is my intention that this directive shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical ((~~treatment~~)) care and I accept the consequences ((~~from~~)) of such refusal.

(c) If I have been diagnosed as pregnant and that diagnosis is known to my physician, this directive shall have no force or effect during the course of my pregnancy.

(d) I understand the full import of this directive and I am emotionally and mentally competent to make this directive.

!sc ,34Signed!w_

City, County, and State of Residence

!ixThe declarer has been personally known to me and I believe him or her to be of sound mind.

!sc ,34Witness!w_

(2) Prior to effectuating a directive the diagnosis of a terminal condition by ((~~two~~)) three physicians shall be verified in writing, attached to the directive, and made a permanent part of the patient's medical records.

NEW SECTION. Sec. 4. A new section is added to chapter 70.122 RCW to read as follows:

(1) Life-sustaining treatment as defined in RCW 70.122.020 that would otherwise be applied to a qualified patient may be withheld or withdrawn according to subsections (2), (3), and (4) of this section if:

(a) The qualified patient is incapable of expressing his or her wishes as to the withholding or withdrawal of life-sustaining treatment;

(b) It is determined by the attending physician that the qualified patient has a terminal condition as defined in RCW 70.122.020(7); and

(c) There is certification in writing of such qualified patient's terminal condition by at least two additional physicians with relevant qualifications, consulting specifically to assess the terminal condition after having personally examined the patient.

(2) If a qualified patient's condition has been determined to meet the conditions set forth in subsection (1) of this section and no directive has been executed according to RCW 70.122.030, life-sustaining treatment may be withheld or withdrawn upon the direction and under the supervision of the attending physician after the physician has obtained authorization from a member of one of the following classes of persons in the following order of priority:

(a) The appointed guardian of the qualified patient, if any;

(b) The individual, if any, to whom the qualified patient has given a durable power of attorney that encompasses the authority to make health care decisions pursuant to section 12 of this act;

(d) Children of the qualified patient who are at least eighteen years of age;

(e) Parents of the qualified patient;

(f) Adult brother(s) and sister(s) of the qualified patient.

If the physician seeking authority to withhold or withdraw life-sustaining treatment from a qualified patient makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and finds no such person available, authorization may be given by any person in the next class in the order of descending priority. However, no person under this section shall have the power to authorize the withholding or withdrawal of life-sustaining treatment from a qualified patient, (i) if a person of higher priority under this section has refused to give such authorization, or (ii) if there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.

(3) Before any person described in subsection (2) of this section authorizes the physician to withhold or withdraw life-sustaining treatment from a qualified patient, he or she must first determine in good faith that the qualified patient, if competent, would choose to forgo life-sustaining treatment. If such a determination cannot be made, the decision to authorize the physician to withhold or withdraw life-sustaining treatment may be made only after determining that forgoing life-sustaining treatment is in the qualified patient's best interests.

(4) If none of the persons described in subsection (2) of this section are available, then life-sustaining treatment may be withheld or withdrawn from a qualified patient upon the direction and under the supervision of the attending physician only after the attending physician determines that the conditions set forth in subsections (1) and (3) of this section have been met.

Sec. 5. Section 6, chapter 112, Laws of 1979 and RCW 70.122.050 are each amended to read as follows:

No physician or health facility ((~~which~~)) that, acting in good faith in accordance with the requirements of this chapter, ((~~causes the withholding or withdrawal of~~)) withholds or withdraws life-sustaining ((~~procedures~~)) treatment from a qualified patient, shall be subject to civil liability therefrom. No licensed health personnel, acting under the direction of a physician, who participates in good faith in the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment in accordance with the provisions of this chapter shall be subject to any civil liability. No physician, or licensed health personnel acting under the direction of a physician, who participates in good faith in the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment in accordance with the provisions of this chapter shall be guilty of any criminal act or of unprofessional conduct.

Sec. 6. Section 7, chapter 112, Laws of 1979 and RCW 70.122.060 are each amended to read as follows:

(1) Prior to ((~~effectuating a~~)) the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment from a qualified patient pursuant to the directive, the attending physician shall make a reasonable effort to determine that the directive complies with RCW 70.122.030 and, if the patient is mentally competent, that the directive and all steps proposed by the attending physician to be undertaken are currently in accord with the desires of the qualified patient.

(2) The directive shall be conclusively presumed, unless revoked, to be the directions of the patient regarding the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment. No physician, and no licensed health personnel acting in good faith under the direction of a physician, shall be criminally or civilly liable for failing to effectuate the directive of the qualified patient pursuant to this subsection. If the physician refuses to effectuate the directive, such physician shall make a good faith effort to transfer the qualified patient to another physician who will effectuate the directive of the qualified patient.

Sec. 7. Section 8, chapter 112, Laws of 1979 and RCW 70.122.070 are each amended to read as follows:

(1) The withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment from a qualified patient pursuant to the patient's directive in accordance with the provisions of this chapter shall not, for any purpose, constitute a suicide.

(2) The making of a directive pursuant to RCW 70.122.030 shall not restrict, inhibit, or impair in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment from an insured qualified patient, notwithstanding any term of the policy to the contrary.

(3) No physician, health facility, or other health provider, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital service plan, shall require any person to execute a directive as a condition for being insured for, or receiving, health care services.

Sec. 8. Section 10, chapter 112, Laws of 1979 and RCW 70.122.080 are each amended to read as follows:

The act of withholding or withdrawing life-sustaining ((~~procedures~~)) treatment from a qualified patient, when done pursuant to a directive described in RCW 70.122.030 ((~~and which causes the death of the declarer~~)) or the procedures authorized in this chapter, shall not be construed to be an intervening force or to affect the chain of proximate cause between the conduct of ((~~any person~~)) anyone that placed the declarer in a terminal condition and the death of the declarer.

Sec. 9. Section 9, chapter 112, Laws of 1979 and RCW 70.122.090 are each amended to read as follows:

Any person who wilfully conceals, cancels, defaces, obliterates, or damages the directive of another without such declarer's consent shall be guilty of a gross misdemeanor. Any person who falsifies or forges the directive of another, or wilfully conceals or withholds personal knowledge of a revocation as provided in RCW 70.122.040 with the intent to cause a withholding or withdrawal of life-sustaining ((~~procedures~~)) treatment contrary to the wishes of the declarer, and thereby, because of any such act, directly causes life-sustaining ((~~procedures~~)) treatment to be withheld or withdrawn and death to thereby be hastened, shall be subject to prosecution for murder in the first degree as defined in RCW 9A.32.030.

NEW SECTION. Sec. 10. A new section is added to chapter 70.122 RCW to read as follows:

This chapter shall not be construed as providing the exclusive means by which individuals, their legal representatives or next of kin as identified in section 4(2) of this act, may make decisions regarding their health treatment.

NEW SECTION. Sec. 11. A new section is added to chapter 70.122 RCW to read as follows:

This chapter shall not be construed as requiring a physician, registered nurse, or licensed practical nurse to provide futile care in an emergency situation.

NEW SECTION. Sec. 12. A new section is added to chapter 11.94 RCW to read as follows:

(1) A principal may empower his attorney-in-fact to make health care decisions on the principal's behalf, without limiting the powers otherwise granted by this durable power of attorney, by inclusion of the following words, or of other language showing a similar intent: "This durable power of attorney includes but is not limited to authorization: (a) To consent to medical and surgical care and nontreatment; (b) to consent to the withholding or withdrawal of life-sustaining treatment; (c) to consent to the admission to a medical, nursing, residential, or a similar facility; and (d) to enter into agreements for my care."

(2) The authorization in subsection (1) of this section to consent to the withholding or withdrawal of life-sustaining treatment may be exercised only following the unanimous concurrence of the principal's attending physician and no fewer than two other physicians, after having personally examined the principal, that the principal has a terminal condition as defined in RCW 70.122.020(7).

(3) The authorization given the attorney-in-fact under this section shall not include the following:

(a) Therapy or other procedure given for the purpose of inducing convulsion;

(b) Surgery solely for the purpose of psychosurgery;

(c) Commitment to or placement in a mental health treatment facility, except pursuant to the provisions of chapter 71.05 RCW;

(d) Sterilization.

NEW SECTION. Sec. 13. A new section is added to chapter 11.94 RCW to read as follows:

Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing, or to permit any affirmative or deliberate act or omission to end life other than the withholding or withdrawal of life-sustaining treatment pursuant to a durable power of attorney for health care so as to permit the natural process of dying.

NEW SECTION. Sec. 14. A new section is added to chapter 11.94 RCW to read as follows:

The durable power of attorney provided for under this chapter shall continue in effect until revoked or terminated by the principal, by a court-appointed guardian, or by court order.

NEW SECTION. Sec. 15. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.