AN ACT Relating to natural death; adding new sections to chapter 11.94 RCW; adding a new chapter to Title 70 RCW; repealing RCW 70.122.010, 70.122.020, 70.122.030, 70.122.040, 70.122.050, 70.122.060, 70.122.070, 70.122.080, 70.122.090, 70.122.100, 70.122.900, and 70.122.905; prescribing penalties; and declaring an emergency.

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

NEW SECTION. Sec. 1. (1) The legislature finds that there is a fundamental right to life, which is objective and foundational to all other human rights, and which may not be denied or abridged by oneself or another without just cause and due process.

The fundamental right to life takes precedence over considerations of quality of life. Decisions regarding the care of the dying person made by oneself or others, should not abridge the right to life because of considerations for the quality of life, which include the presence or absence of consciousness, higher mental functioning, usefulness or functional ability, the ability to experience the affairs and things of life or to feel pleasure, the presence or absence of suffering, or any other utilitarian or aesthetic consideration. The right to privacy shall not take precedence over the right to life in decisions regarding medical treatment for the dying person.

(2) The legislature also finds that adults have a fundamental right and responsibility to make decisions and choices regarding their medical care. The legislature further finds that adults have the right to choose to experience the natural process of dying, which is what occurs due to disease, injury, or old age, without the use of extraordinary medical technology. The legislature further recognizes the need to distinguish between the natural process of dying and committing a deliberate act or omission for the purpose of hastening or causing death, which is hereby prohibited. For that reason, the right to experience the natural process of dying and to withhold or withdraw life-sustaining medical treatment shall not extend to the withdrawal of access to air, food, water, naturally occurring bodily hormones, or other care which is necessary to the comfort and dignity of the dying person.

(3) The legislature finds that modern technology has made possible the technological prolongation of human life beyond natural limits.

(4) The legislature further finds that such technological postponement of the moment of death for persons with terminal conditions, whose death is imminent, may cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient.

(5) The legislature hereby declares that the laws of the state of Washington shall recognize the right of adults to make a written directive outlining their choices regarding medical treatment during the time of dying, within the limitations of this chapter.

(6) 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 to provide such a directive through the legal and orderly establishment of an appropriate surrogate decision-making person or entity.

(7) The legislature recognizes that suicide and euthanasia are not ethically acceptable forms of behavior; however, there is uncertainty over which acts or omissions of medical treatment or comfort care constitute suicide or euthanasia. The legislature declares, in accordance with established legal precedent, that there is no legal right to suicide or euthanasia. The legislature further declares that wilfully or intentionally intervening with, or withholding, medical treatments which are known without any doubt or uncertainty to cause death, is hereby prohibited. The withholding or withdrawal of life-sustaining treatments which do not necessarily cause death without any doubt or uncertainty, and the administration of medicines or medical or surgical treatments for the purpose of comfort care, though they may increase the risk of dying, are hereby permitted.

(8) Food and water are necessary to life, and therefore the withdrawal of food or water constitutes suicide or euthanasia, except in the case when two physicians determine that death is imminent, that is, death is reasonably expected under contemporary medical standards to occur within three days despite nutrition and hydration, or the person is physically unable to tolerate food and water. If death is not imminent, and oral food and water is not physically tolerated, then a feeding tube should be placed. A feeding tube should be left in place until the moment of death, unless the person is physically unable to tolerate tube feedings. Intravenous or tube feeding is not considered extraordinary medical treatment for purposes of this chapter.

(9) Access to air is necessary to life, and natural access to air shall therefore be provided at all times. Artificial respiratory support shall be continued until brain death has been appropriately determined and documented. Respirator support may be withdrawn if brain death has been documented. By advance directive or other appropriate directive by the person or his or her delegated representative, initiation of extraordinary respiratory support or other such forms of resuscitation may be declined in the event of cardiac or respiratory arrest. Artificial respiratory support is not considered extraordinary medical treatment for purposes of this chapter.

NEW SECTION. Sec. 2. 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 section 3 of this act.

(3) "Health facility" means a hospital as defined in RCW 70.41.010(2), a nursing home as defined in RCW 18.51.010, or a home health agency or hospice agency as defined in RCW 70.126.010.

(4) "Life-sustaining treatment" means any medical or surgical care which uses technological means to sustain, restore, or replace a vital function, which, when applied to a qualified patient, would serve only to postpone the moment of death. Life-sustaining treatment shall not include the provision of food and water by oral, intravenous, or feeding-tube administration, the provision of air by artificial respiratory support, the administration of naturally occurring bodily hormones, or the administration of medication or the performance of any medical or surgical care required by the patient for comfort and/or to alleviate pain.

(5) "Physician" means a person licensed under chapter 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 physicians, one of whom shall be the attending physician, who have personally examined the patient.

(7) "Terminal condition" means a condition caused by injury, disease, or illness, that, within reasonable medical judgment, is incurable and will cause death imminently, and where the application of life-sustaining treatment serves only to postpone the moment of death.

(8) "Imminent death" means death which will occur within three days by the natural progression of the terminal condition, despite the continuance of nutrition and hydration.

(9) The "natural process of dying" is that movement towards death which occurs due to disease, injury, or old age, without the use of extraordinary medical technology.

(10) "Extraordinary medical technology" means any medical technology which may be applied to the medical care of a person, but specifically excluding that which is used to maintain access, whether natural or artificial, to air, food, water, naturally occurring bodily hormones, or comfort care.

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

NEW SECTION. Sec. 3. (1) Any adult person may execute a directive providing for the withholding or withdrawal of life-sustaining 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 any 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 two witnesses shall sign an affidavit before a notary public and the notarized affidavit shall become part of the directive. The directive, or a copy thereof, shall be recorded in the county in which it was executed and in which the declarant resides, and shall be made part of the patient's medical records retained by the attending physician. The directive shall be essentially in the following form, but in addition may include other specific directions:

DIRECTIVE TO PHYSICIANS

@l4 !ixDirective made this .......... day of .......... (month, year).

I, ............... , being of sound mind, hereby knowingly, wilfully, and voluntarily declare my desire that my life shall not be technologically prolonged and that I be permitted to die naturally under the circumstances set forth below, and do hereby declare that:

@ig(a) If at any time I should have a incurable injury, disease, or illness certified to be a terminal condition by two physicians, and where the application of life-sustaining treatment would serve only to technologically 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 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 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 and I accept the consequences of such refusal.

(c) I understand that if I have been diagnosed as pregnant and that the diagnosis is known to my physician, this directive shall have no force or effect during the course of my pregnancy and that this section cannot be deleted or otherwise changed in any way.

(d) I understand that withdrawal of life-sustaining treatment does not include withdrawal of access to air, food, water, naturally occurring bodily hormones, or the administration of medicines or medical or surgical treatments for the purpose of comfort care and that this section cannot be deleted or otherwise changed in any way.

(e) If I am in a terminal condition, and if I should experience cardiorespiratory arrest (heart stoppage or respiratory failure), the following best expresses my choices for medical care at that time: (Choose only one and initial)

@ie¨!sc-,1!il*,2Use maximum therapeutic resuscitation and support without limitations ("Full Code").

@ie¨!sc-,1!il*,2Attempt to restart my heart beat but do not initiate extraordinary resuscitation and support. ("Partial Code").

@ie¨!sc-,1!il*,2Use only those measures which provide for my comfort and dignity; do not resuscitate me. ("No Code").

@ie¨!sc-,1!il*,2I prefer to leave these decisions to my attending physician and/or my family or delegated representative.

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

(g) I understand that I can add to or delete from or otherwise change the wording of this document, unless otherwise prohibited, before I sign it. I also understand that I may revoke this directive at any time.

(h) (Optional)-other directions.

!tp1,1 !tlSigned!sc ,3!w_

City,!sc ,1county,!sc ,1and!sc ,1state!sc ,1residence!sc ,2!w_

!ixSTATE OF WASHINGTON!sc ,002ü!sc ,002ss

!ixCOUNTY OF .......... !sc ,001_

!ixThe declarer has been personally known to me and I believe him or her to be of sound mind and that he or she signed this directive knowingly, willingly, and voluntarily, and not under duress or coercion.

!tlWitness!sc ,2!w_

!tlSigned or attested before

!tlme this .. day of ...., 19...

!tlNotary!sc ,2!w_

(2) Prior to effectuating a directive, the diagnosis of a terminal condition by two physicians shall be verified in writing, attached to the directive, and made a permanent part of the patient's records, including a detailed description of the diagnostic criteria used.

(3) The attending physician or health care facility is required to acknowledge receipt of the person's advance directive to the person or his or her delegated representative. If the attending physician or health care facility disagrees with the content of the person's advance directive, he or she or the director of the facility is required to notify the person or their delegated representative of their disagreement upon becoming aware of the advance directive and its contents.

(4) Upon admission of a person to a hospital, health care facility, or other nonmedical residential facility, the attending physician and the director of the facility, or his or her representative, shall be required to make discovery of the choices of the person regarding the withholding or withdrawal of cardiopulmonary resuscitation by suitable means. Such information shall come first from the person, if competent, then from his or her delegated representative, if available. If no such person is available, a reasonable attempt shall be made by the attending physician or the director of the facility or his or her representative to determine if an advance directive exists. If no such advance directive exists, decisions regarding cardiopulmonary resuscitation shall be made by the attending physician based upon the person's medical status and prognosis. Upon discovering the choice of the person regarding the withholding or withdrawal of life-sustaining treatment, the attending physician shall insure that the person presently knows and understands all the choices available regarding such treatment and the effect of making a particular choice, if the person is competent at the time of discovery.

NEW SECTION. Sec. 4. (1) A directive may be revoked at any time by the declarer, without regard to declarer's mental state or competency, by any of the following methods:

(a) By being canceled, defaced, obliterated, burned, torn, or otherwise destroyed by the declarer or by some person in declarer's presence, and by declarer's direction.

(b) By a written revocation of the declarer expressing declarer's intent to revoke, signed and dated by the declarer. Such revocation shall become effective only upon communication to the attending physician by the declarer or by a person acting on behalf of the declarer. The attending physician shall record in the patient's medical record the time and date when said physician received notification of the written revocation.

(c) By a verbal expression by the declarer of declarer's intent to revoke the directive. Such revocation shall become effective only upon communication to the attending physician by the declarer or by a person acting on behalf of the declarer. The attending physician shall record in the patient's medical record the time, date, and place of the revocation, if given by the declarer directly or, if not given directly, the name of the notifier and the time, date, and place when said physician received notification of the revocation.

(2) There shall be no criminal or civil liability on the part of any person for failure to act upon a revocation made pursuant to this section unless that person has actual or constructive knowledge of the revocation.

(3) If the declarer becomes comatose or is rendered incapable of communicating with the attending physician, the directive shall remain in effect for the duration of the comatose condition or until such time as the declarer's condition renders declarer able to communicate with the attending physician.

NEW SECTION. Sec. 5. (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 section 2(7) of this act; and

(c) There is certification in writing including a detailed description of the diagnostic criteria used of such qualified patient's terminal condition by at least one additional physician with relevant qualifications, consulting specifically to assess the terminal condition.

(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 section 3 of this act, 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;

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

(e) Parents of the qualified patient; or

(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 and immediately succeeding class and finds no such person available, authorization may be given by any person in the next class in 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 if a person of higher priority under this section has refused to give such authorization, or 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 forego life-sustaining treatment. Such person shall put their reasons in writing, shall date and sign the writing which shall then become part of the qualified patient's medical file.

(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.

NEW SECTION. Sec. 6. No physician or health facility that, acting in good faith in accordance with the requirements of this chapter and having documentation by two physicians of a terminal condition, withholds, or withdraws life-sustaining treatment from a qualified patient shall be subject to civil liability therefrom. No health personnel, acting under the direction of a physician, who participates in good faith in the withholding or withdrawal of life-sustaining treatment in accordance with the provisions of this chapter shall be subject to any civil liability. No physician, or health facility or its agents, or health personnel acting under the direction of a physician, who participates in good faith in the withholding or withdrawal of life-sustaining treatment in accordance with the provisions of this chapter shall be guilty of any criminal act or unprofessional conduct.

NEW SECTION. Sec. 7. (1) Prior to the withholding or withdrawal of life-sustaining treatment from a qualified patient pursuant to the directive, the attending physician shall make a reasonable effort to determine that the directive complies with section 3 of this act 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 treatment. However, no physician, and no health care provider acting in good faith under the direction of the physician, shall be criminally or civilly liable for failing to effectuate the directive of the qualified patient pursuant to this subsection. An attending physician, health care provider, or health facility who chooses not to comply with the directive shall not be subject to discrimination, disciplinary action, or harassment of any kind from his or her employer, prospective employer, or any other party for the exercise of that choice. Where the attending physician, health care provider, or health facility chooses not to comply with the directive, it shall be the responsibility of the patient, family, or guardian to transfer the patient's care to a health care provider who will carry out the directive. If a physician, health care provider, or health care facility chooses not to comply with the directive, and there exists no clearly defined person, family member, or guardian who can take responsibility to obtain alternative health care, or the patient appears to be incompetent to make such an effort and no such responsible person has been defined, then it shall be the responsibility of the physician or health care provider to notify the director of the health care facility of such a decision. It shall then be the responsibility of the director of the health care facility to either obtain an alternative attending physician, or notify the Washington state ombudsman for nursing home patients of this decision. It shall be the responsibility of the ombudsman to make a reasonable effort to obtain such alternative attending physician or health care provider or to delegate such responsibility to another qualified person or ethics committee, and to oversee the situation until an arrangement satisfactory to the patient is achieved, with reasonable effort.

NEW SECTION. Sec. 8. (1) The withholding or withdrawal of life-sustaining treatment from a qualified patient pursuant to the patient's directive in accordance with the provision of this chapter shall not, for any purpose, constitute suicide or euthanasia.

(2) The making of a directive pursuant to section 3 of this act shall not be deemed to modify the terms of an existing policy of life insurance. No existing policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining 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.

NEW SECTION. Sec. 9. The act of withholding or withdrawing of life-sustaining treatment from a qualified patient, when done pursuant to a directive described in section 3 of this act 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 anyone that placed the declarer in a terminal condition and the death of the declarer.

NEW SECTION. Sec. 10. 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 section 4 of this act with the intent to cause a withholding or withdrawal of life-sustaining treatment contrary to the wishes of the declarer, and thereby, because of any such act, directly causes life-sustaining 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. 11. Mercy killing is not authorized. 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 to permit the natural process of dying.

NEW SECTION. Sec. 12. 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 5(2) of this act, may make decisions regarding their health treatment: PROVIDED, That decisions regarding the withholding or withdrawal of life-sustaining treatments are exclusively regulated by this chapter.

NEW SECTION. Sec. 13. 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. 14. This chapter shall be known and may be cited as the "natural death act."

NEW SECTION. Sec. 15. A new section is added to chapter 11.94 RCW to read as follows:

(1) A principal may empower his or her attorney-in-fact to make health care decisions on the principal's behalf, without limiting the powers otherwise granted by this power of attorney, by inclusion of the following words, or of other language showing a similar intent: "This 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 giving 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 one other physician, after having personally examined the principal, that the principal has a terminal condition as defined in section 2(7) of this act.

(3) The authorization given the attorney-in-fact under this statute 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; or

(d) Sterilization.

NEW SECTION. Sec. 16. 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 power of attorney for health care so as to permit the natural process of dying.

NEW SECTION. Sec. 17. 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. 18. 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.

NEW SECTION. Sec. 19. Sections 1 through 14 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 20. The following acts or parts of acts are each repealed:

(1) Section 2, chapter 112, Laws of 1979 and RCW 70.122.010;

(2) Section 3, chapter 112, Laws of 1979 and RCW 70.122.020;

(3) Section 4, chapter 112, Laws of 1979 and RCW 70.122.030;

(4) Section 5, chapter 112, Laws of 1979 and RCW 70.122.040;

(5) Section 6, chapter 112, Laws of 1979 and RCW 70.122.050;

(6) Section 7, chapter 112, Laws of 1979 and RCW 70.122.060;

(7) Section 8, chapter 112, Laws of 1979 and RCW 70.122.070;

(8) Section 10, chapter 112, Laws of 1979 and RCW 70.122.080;

(9) Section 9, chapter 112, Laws of 1979 and RCW 70.122.090;

(10) Section 11, chapter 112, Laws of 1979 and RCW 70.122.100;

(11) Section 1, chapter 112, Laws of 1979 and RCW 70.122.900; and

(12) Section 13, chapter 112, Laws of 1979 and RCW 70.122.905.

NEW SECTION. Sec. 21. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.