BP BHEAD INT S

AN ACT Relating to modifying and clarifying requirements and responsibilities for informed consent to health care; amending RCW 7.70.065, 11.88.010, 11.94.010, 70.122.020, 70.122.060, and 70.122.110; adding a new section to chapter 11.94 RCW; and adding a new section to chapter 7.70 RCW.

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

Sec. 1. RCW 7.70.065 and 1987 c 162 s 1 are each amended to read as follows:

(1) Informed consent for health care for a patient who is not competent, as defined in RCW 11.88.010(1)((~~(b)~~)) (e), to consent may be obtained from a person who is authorized in this section to consent on behalf of ((~~such~~)) the patient. Persons authorized to provide informed consent to health care on behalf of a patient who is not competent to consent shall be a member of one of the following classes of persons in the following order of priority:

(a) The person appointed guardian of the patient who has court authority to make health care decisions for the patient, if any;

(b) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions subject to limitations of the power of attorney;

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

(e) Parents of the patient; ((~~and~~))

(f) Grandparents of the patient;

(g) Adult brothers and sisters of the patient; and

(h) The person or persons previously and most recently identified by the patient in his or her treating physician's records or in the hospital records as the person or persons with authority to make health care decisions if the patient is not competent to provide informed consent. However, the treating physician must first determine, based upon the information reasonably available to him or her, that the designation was made at a time when the patient was competent to make such a designation. Further, in an instance where there is a conflict between a written statement of the patient's wishes in regard to authority to make health care decisions, that is signed by the patient, and the patient's oral statements as noted in the physician's or hospital records, the written statement controls.

(2) If the physician seeking informed consent for proposed health care of the patient who is not competent to consent 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 may provide informed consent to health care:

(a) If a person of higher priority under this section who is competent to so act and willing to make the health care decision has refused to give ((~~such~~)) or withhold the authorization; or

(b) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class who are willing to participate in such decision.

(3) Before any person authorized to provide informed consent on behalf of a patient not competent to consent exercises that authority, the person must first determine in good faith that that patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient's best interests. In making a determination of the patient's wishes, the stated preferences of a patient who is considered by the treating physician to be unable to give informed consent must nonetheless be given substantial deference by the person or persons authorized to provide informed consent.

Sec. 2. RCW 11.88.010 and 1991 c 289 s 1 are each amended to read as follows:

(1) The superior court of each county shall have power to appoint guardians for either the persons ((~~and/or~~)) or estates, or both, of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention.

(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.

(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

(c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone ((~~shall~~)) is not ((be)) sufficient to justify a finding of incapacity.

(d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010.

(e) For purposes of giving informed consent for health care ((~~pursuant to~~)) under RCW 7.70.050 and 7.70.065, an "incompetent" person is any person who is (i) incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of ((~~either managing his or her property or~~)) caring for himself or herself((~~, or both,~~)) or (ii) incapacitated as defined in (a)((~~, (b),~~)) and (c) or (d) of this subsection.

(f) For purposes of the terms "incompetent," "disabled," or "not legally competent," as those terms are used in the Revised Code of Washington to apply to persons incapacitated under this chapter, those terms shall be interpreted to mean "incapacitated" persons for purposes of this chapter.

(2) The superior court for each county shall have power to appoint limited guardians for the persons and estates, or either thereof, of incapacitated persons, who by reason of their incapacity have need for protection and assistance, but who are capable of managing some of their personal and financial affairs. After considering all evidence presented as a result of ((~~such~~)) the investigation, the court shall impose, by order, only ((~~such~~)) the specific limitations and restrictions on an incapacitated person to be placed under a limited guardianship as the court finds necessary for ((~~such~~)) the person's protection and assistance. A person shall not be presumed to be incapacitated nor shall a person lose any legal rights or suffer any legal disabilities as the result of being placed under a limited guardianship, except as to those rights and disabilities specifically set forth in the court order establishing such a limited guardianship. In addition, the court order shall state the period of time for which it shall be applicable.

(3) Venue for petitions for guardianship or limited guardianship shall lie in the county wherein the alleged incapacitated person is domiciled, or if ((~~such~~)) the person resides in a facility supported in whole or in part by local, state, or federal funding sources, in either the county where the facility is located, the county of domicile prior to residence in the supported facility, or the county where a parent or spouse of the alleged incapacitated person is domiciled.

If the alleged incapacitated person's residency has changed within one year of the filing of the petition, any interested person may move for a change of venue for any proceedings seeking the appointment of a guardian or a limited guardian under this chapter to the county of the alleged incapacitated person's last place of residence of one year or more. The motion shall be granted when it appears to the court that ((~~such~~)) the venue would be in the best interests of the alleged incapacitated person and would promote more complete consideration of all relevant matters.

(4) Under RCW 11.94.010, a principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if guardianship proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

(5) When a court imposes a full guardianship for an incapacitated person, the person shall be considered incompetent for purposes of rationally exercising the right to vote and shall lose the right to vote, unless the court specifically finds that the person is rationally capable of exercising the franchise. Imposition of a limited guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise.

NEW SECTION. Sec. 3. A new section is added to chapter 11.94 RCW to read as follows:

A durable power of attorney to make health care decisions for the principal, as authorized by RCW 7.70.065(1)(b), that is executed on or after January 1, 1997, must:

(1) Name the person who is being appointed as attorney in fact to make health care decisions for the principal. The document may also name an alternative attorney in fact for this purpose and successive alternates;

(2) Describe the circumstances under which the powers granted take effect. Examples of these statements include, but are not limited to: "When I am unable to communicate in any manner"; "when I am not competent to give informed consent"; and "when my attending physician certifies in writing that I am not able to understand my medical condition and make a choice regarding recommended treatment";

(3) State that the powers being conferred are to be in effect only during the disability of the principal; and

(4) Be signed by the principal either before two witnesses who are not heirs at law of the principal or before a notary public.

Sec. 4. RCW 11.94.010 and 1995 c 297 s 9 are each amended to read as follows:

(1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency.

(2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.

(3) A principal may authorize his or her attorney-in-fact to provide informed consent for health care decisions on the principal's behalf. Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal: Any of the principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health care facility where the principal resides or receives care. This authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) ((~~(a) through (c)~~)) and 11.92.190.

Sec. 5. RCW 70.122.020 and 1992 c 98 s 2 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) "Adult person" means a person who has attained the age of majority as defined in RCW 26.28.010 and 26.28.015, and who has the capacity to make health care decisions.

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

(3) "Authorized representative" means the individual or individuals who have authority to give or withhold informed consent for medical care for a person who is not competent to give consent in accordance with RCW 7.70.065.

(4) "Directive" means a written document voluntarily executed by the declarer generally consistent with the guidelines of RCW 70.122.030.

((~~(4)~~)) (5) "Health facility" means a hospital as defined in RCW 70.41.020(2) or a nursing home as defined in RCW 18.51.010, a home health agency or hospice agency as defined in RCW 70.126.010, or a boarding home as defined in RCW 18.20.020.

((~~(5)~~)) (6) "Life-sustaining treatment" means any medical or surgical intervention that uses mechanical or other artificial means, including artificially provided nutrition and hydration, to sustain, restore, or replace a vital function, which, when applied to a qualified patient, would serve only to prolong the process of dying. "Life-sustaining treatment" shall not include the administration of medication or the performance of any medical or surgical intervention deemed necessary solely to alleviate pain.

((~~(6)~~)) (7) "Permanent unconscious condition" means an incurable and irreversible condition in which the patient is medically assessed within reasonable medical judgment as having no reasonable probability of recovery from an irreversible coma or a persistent vegetative state.

((~~(7)~~)) (8) "Physician" means a person licensed under chapters 18.71 or 18.57 RCW.

((~~(8)~~)) (9) "Qualified patient" means an adult person who is a patient diagnosed in writing to have a terminal condition by the patient's attending physician, who has personally examined the patient, or a patient who is diagnosed in writing to be in a permanent unconscious condition in accordance with accepted medical standards by two physicians, one of whom is the patient's attending physician, and both of whom have personally examined the patient.

((~~(9)~~)) (10) "Terminal condition" means an incurable and irreversible condition caused by injury, disease, or illness, that, within reasonable medical judgment, will cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of life-sustaining treatment serves only to prolong the process of dying.

Sec. 6. RCW 70.122.060 and 1992 c 98 s 6 are each amended to read as follows:

(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 RCW 70.122.030 and, if the patient is capable of making health care decisions, 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. However, where the patient is not competent to give informed consent for health care in the attending physician's judgment, prior to giving effect to the directive, the physician must, to the extent reasonably possible, consult with the patient's authorized representative and consider any information known to the authorized representative, in interpreting and applying the patient's wishes regarding the directive under the specific medical facts known to the physician.

(2) The attending physician or health facility shall inform a patient or patient's authorized representative of the existence of any policy or practice that would preclude the honoring of the patient's directive at the time the physician or facility becomes aware of the existence of such a directive. If the patient, or his or her authorized representative, where applicable, after being informed of such policy or directive, chooses to retain the physician or facility, the physician or facility with the patient or the patient's representative shall prepare a written plan to be filed with the patient's directive that sets forth the physician's or facilities' intended actions should the patient's medical status change so that the directive would become operative. The physician or facility under this subsection has no obligation to honor the patient's directive if they have complied with the requirements of this subsection, including compliance with the written plan required under this subsection.

(3) The directive shall be conclusively presumed, unless revoked, to be the directions of the patient regarding the withholding or withdrawal of life-sustaining treatment. No physician, health facility, or health personnel acting in good faith with the directive or in accordance with the written plan in subsection (2) of this section shall be criminally or civilly liable for failing to effectuate the directive of the qualified patient pursuant to this subsection.

(4) No nurse, physician, or other health care practitioner may be required by law or contract in any circumstances to participate in the withholding or withdrawal of life-sustaining treatment if such person objects to so doing. No person may be discriminated against in employment or professional privileges because of the person's participation or refusal to participate in the withholding or withdrawal of life-sustaining treatment.

Sec. 7. RCW 70.122.110 and 1992 c 98 s 4 are each amended to read as follows:

If a qualified patient capable of making health care decisions, or, where the patient is not capable of the decisions, the patient's authorized representative, indicates that ((~~he or she~~)) the patient wishes to die at home, the patient shall be discharged as soon as reasonably possible. The health care provider or facility has an obligation to explain the medical risks of an immediate discharge to the qualified patient or the patient's authorized representative, where applicable. If the provider or facility complies with the obligation to explain the medical risks of an immediate discharge to a qualified patient, there shall be no civil or criminal liability for claims arising from such discharge.

NEW SECTION. Sec. 8. A new section is added to chapter 7.70 RCW to read as follows:

(1) For purposes of this section, the term "emergency medical directive" means a written statement of what response a medical provider is authorized to take in the event a patient experiences a medical condition that will result in death or serious permanent and irreparable injury unless immediate action is take to revive or otherwise treat the patient.

(2) Nothing in this chapter prohibits a health care provider from making available to patients or their authorized representatives the opportunity to execute emergency medical directives to govern the medical procedures to be followed in the event of a life-threatening medical emergency, such as the use of cardiopulmonary resuscitation. However, the directives are not required from the patient or his or her authorized representative, as that term is defined in RCW 70.122.020(3). Further, whenever emergency medical directives are executed and made a part of the patient's medical records, the person accepting the emergency medical directives on behalf of the health care provider must execute a separate written statement that contains the following information:

(a) The name of the person who signed the emergency medical directive;

(b) The authority under which the directives were accepted, with specific reference to the provisions of RCW 7.70.065 where the directive or directives are signed by a person other than the patient; and

(c) A statement that the person obtaining the directives explained the effect of the directives and believes the patient or, where applicable, the patient's authorized representative, to understand the full nature and effect of the directives. The written statement must be signed and dated by the patient or his or her authorized representative and witnessed and dated by the person accepting the advance medical directives.

(3) As of January 1, 1997, all emergency medical directives must contain a section for the person executing the directive to provide clarifications or limitations to the general emergency medical directive being given. However, emergency medical directives executed prior to this date remain in full force and effect until effectively revoked.

(4) Whenever a health care provider that provides residential care for a patient obtains a patient's advance medical directives, it must establish procedures for reviewing the directives with the patient or the patient's authorized representative, if applicable, at least once every ninety days, unless the patient or his or her authorized representative expressly waives the review in writing, and whenever there is a significant change in the patient's capacity or medical condition.

(5) All health care providers that provide residential care for a patient must establish procedures for reviewing a standard medical directive by physicians that address emergency medical procedures to be followed in the event of a life-threatening medical emergency, and policies to reconcile differences between the standard medical directives and the emergency medical directives by the patient, as well as applicable provisions set forth in a durable power of attorney, health care directive, or other written statement as described in this section.