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

NEW SECTION. Sec. 2. (1) The legislature finds that there is an inalienable and fundamental right to life, which is foundational to the securement and enjoyment of all other human rights, and which may not be denied, alienated, or abridged by oneself or by another without just cause and due process under law.

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 by others should not abridge the right to life because of considerations for the quality of life, which considerations include the presence or absence of consciousness, of higher mental functioning, of usefulness or functional ability, of the ability to experience the affairs and things of life or to feel pleasure, of the presence or absence of suffering, or of any other utilitarian, esoteric, or aesthetic consideration. The right to privacy shall not take precedence over the right to life in decisions regarding medical treatment or care 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 treatment and 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 or care shall not extend to the withdrawal of access to air, food, water, naturally occurring bodily hormones, or other treatment or 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, and that the 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.

(4) 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 and care to be provided during the time of dying, within the limitations of this chapter.

The legislature further recognizes that a person in a terminal condition may not have executed such a written directive, and 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.

(5) 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 care constitute suicide or euthanasia. The legislature declares that there is no legal right for a person to commit suicide or euthanasia or to aid another person in committing suicide or euthanasia.

The legislature further declares that wilfully or intentionally intervening with or withdrawing or withholding medical treatment or care, which intervention, withdrawal, or withholding is known without any doubt or uncertainty to cause death, is hereby prohibited. The intervention, withdrawal, or withholding of life-sustaining treatment or care which does not necessarily cause death without any doubt or uncertainty, and the administration of medicines or medical or surgical treatments or care for the purpose of comfort care, though they may increase the risk of dying, are hereby permitted.

(6) The legislature finds that food and water are necessary to life, and, therefore, the withdrawal or withholding of food or water constitutes suicide or euthanasia, except in the case when two physicians independently determine that death is imminent, that is, death is reasonably expected under contemporary medical standards to occur within three days despite the application or continuation of nutrition and hydration, or the person is physically unable to tolerate the provision of such food and water. If death is not imminent, and oral food and water is not physically tolerated, then a feeding tube shall be placed, if possible. A feeding tube, including nasogastric and intravenous feeding, shall not be withdrawn or withheld except when two physicians independently determine that death is imminent, or the person is physically unable to tolerate tube feedings. Tube feeding, including nasogastric and intravenous feeding, is not considered extraordinary medical treatment for purposes of this chapter.

(7) The legislature further finds that access to air is necessary to life, and, therefore, access to air shall be provided at all times. Artificial respiratory support is not considered extraordinary medical treatment for purposes of this chapter.

(8) Death of a person shall occur when the person is brain dead.

NEW SECTION. Sec. 3. 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 and 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 this chapter.

(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 and/or care" means any medical or surgical procedure, treatment, or 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 or feeding-tube, including intravenous and nasogastric, administration, the administration of naturally occurring bodily hormones, or the administration of medication or the performance of any medical or surgical procedure, treatment, or care required by the patient for comfort 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 independently, one of whom shall be the attending physician, who have each personally examined the patient.

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

(8) "Imminent death" means death which is reasonably expected under contemporary medical standards to occur within three days by the natural progression of the terminal condition, despite the application or continuance of nutrition and hydration.

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

(10) "Extraordinary medical technology" means any medical technology which may be applied for the medical treatment or 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. 4. (1) Any adult person may execute a directive providing for the withholding or withdrawal of life-sustaining treatment or care 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 of 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 certified copy thereof, shall be recorded in the county in which it was executed and in the county 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 not in violation of any law:

DIRECTIVE TO PHYSICIANS

@igI, .......... , being an adult 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 an incurable injury, disease, or illness certified to be a terminal condition by two physicians independently, and where the application of life-sustaining treatment or care would serve only to technologically postpone the moment of my death, and where both physicians independently determine that my death is imminent, whether or not life-sustaining treatment or care is utilized, I direct that such treatment or care 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, or care, 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 procedures, treatment, or care and I accept the consequences of such refusal.

(c) I understand that if I have been diagnosed as pregnant and 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 and care does not include withdrawal of access, whether natural or artificial, to air, food, water, naturally occurring bodily hormones, or the administration of medicines or medical or surgical procedures, treatments, or care for the purpose of comfort care, and that this section cannot be deleted or otherwise changed in any way.

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

(f) I understand that I can add to or delete from or otherwise change the wording of this document, unless such changes are otherwise prohibited by this chapter or other law, before I sign it. I also understand that I may revoke this directive at any time.

(g) (Optional)-other directions.

Signed this .......... day of .......... , 19.. .

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

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@igSigned and attested to before me this .......... day of .......... , 19.. .

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(2) Prior to effectuating a directive, the diagnosis of a terminal condition by two physicians independently 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 shall acknowledge receipt of the person's 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 directive, he or she or the director of the facility shall notify the person or their delegated representative of their disagreement upon becoming aware of the directive and its contents.

(4) Upon admission of a person to a hospital, health care facility, or any nonmedical residential facility, the attending physician and the director of the facility shall determine if a directive exists and shall make a reasonable attempt to obtain such directive. If no directive exists or it cannot be found, the attending physician and the director of the facility shall make discovery of the choices of the person regarding the withholding or withdrawal of life-sustaining treatment or care. Upon discovering the choices of the person regarding the withholding or withdrawal of life-sustaining treatment or care and if the person is competent, the attending physician or the director of the facility shall insure that the person presently knows and understands the choices available regarding such treatment and care and the effect of making any particular choice, and shall insure that a directive is made, if the person wants a directive.

NEW SECTION. Sec. 5. (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 damaged or 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 or the director of the facility by the declarer or by a person acting on behalf of the declarer. The attending physician or the director of the facility shall record in the patient's medical record the time and date when said physician or director 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 or the director of the facility by the declarer or by a person acting on behalf of the declarer. The attending physician or director of the facility 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 or director 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 or comply with 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 or director of the facility, 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 or director, either directly or by a person acting on behalf of the declarer.

NEW SECTION. Sec. 6. (1) Life-sustaining treatment or care 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 or care;

(b) It is determined by two physicians independently that the qualified patient has a terminal condition as defined in section 3(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 both physicians having relevant qualifications.

(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 4 of this act, life-sustaining treatment and care 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, if competent, 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 or care from a qualified patient makes every reasonable effort to locate and secure authorization from a competent person in the first and immediately succeeding class and is unable to locate such person, 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 or care 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 competent 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 or care from a qualified patient, he or she must first make a reasonable determination in good faith that the qualified patient, if competent, would choose to forego life-sustaining treatment or care. Such persons 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 or care may be withheld or withdrawn from a qualified patient upon the direction and under the supervision of the attending physician only after three other physicians determine independently that the conditions set forth in subsection (1) of this section have been met.

(5) If any qualified patient indicates by words, actions, or in writing that he or she wishes to die at home with his or her family and the family agrees, the health care facility shall discharge him or her immediately. The health care facility and the attending physician shall not be liable for any claims arising from such discharge.

NEW SECTION. Sec. 7. No physician or health care facility that, acting in accordance with the requirements of this chapter and having independent documentation by two physicians of a terminal condition, withholds or withdraws life-sustaining treatment or care from a qualified patient shall be subject to civil liability therefrom. No health care personnel, acting under the direction of a physician, who participate in the withholding or withdrawal of life-sustaining treatment in accordance with the provisions of this chapter shall be subject to any civil liability therefrom. No physician, health care facility, or health care personnel acting under the direction of a physician, who participate in the withholding or withdrawal of life-sustaining treatment or care in accordance with the provisions of this chapter shall be guilty of any criminal act or unprofessional conduct.

NEW SECTION. Sec. 8. (1) Prior to the withholding or withdrawal of life-sustaining treatment or care from a qualified patient pursuant to the directive, the attending physician shall make a reasonable effort to determine that the directive complies with section 4 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 or care. However, no physician, and no health care personnel acting under the direction of the physician, shall be criminally or civilly liable for failing to effectuate the directive of the qualified patient. An attending physician, health care facility, or health care personnel who choose 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.

(3) Where the attending physician, health care facility, or health care personnel choose not to comply with the directive, it shall be the responsibility of the patient, or the patient's family or guardian, to transfer the patient to a health care provider who will carry out the directive. If a physician, health care facility, or health care personnel choose not to comply with the directive, and there exists no clearly defined person, family member, or guardian who can take responsibility to transfer the patient to an alternative health care provider, and the patient appears to be incompetent to make such an effort, then it shall be the responsibility of the physician, health care facility, or health care personnel 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 notify the Washington state ombudsman for nursing home patients of the decision not to comply with the directive, and to request they locate an alternative attending physician or health care provider and transfer the patient. 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.

Refusal to participate in the withholding or withdrawal of life-sustaining treatment or care shall not be considered a negligent act. A person or facility refusing to so participate shall not be liable for the costs of transfer of the qualified patient to an alternative health care provider and shall not be subject to criminal or civil liability for such refusal or for any act which results from such refusal.

NEW SECTION. Sec. 9. (1) The withholding or withdrawal of life-sustaining treatment or care 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 4 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 or care from an insured qualified patient, notwithstanding any term of the policy to the contrary.

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

NEW SECTION. Sec. 10. The act of withholding or withdrawing of life-sustaining treatment or care from a qualified patient, when done pursuant to a directive described in section 5 of this act or other 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. 11. Any person who wilfully conceals, cancels, defaces, obliterates, or damages the directive of a declarer 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 5 of this act with the intent to cause a withholding or withdrawal of life-sustaining treatment or care 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. 12. 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. 13. This chapter shall not be construed as providing the exclusive means by which an individual, his or her legal representatives or next of kin as identified in section 6(2) of this act, may make decisions regarding the individual's health care treatment: PROVIDED, That decisions regarding the withholding or withdrawal of life-sustaining treatment or care are exclusively regulated by this chapter.

NEW SECTION. Sec. 14. This chapter shall not be construed as requiring a physician, registered nurse, licensed practical nurse, or emergency medical technician to provide futile care in an emergency situation.

NEW SECTION. Sec. 15. This chapter shall be known and may be cited as the "natural death act."

NEW SECTION. Sec. 16. 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 or care; (c) to consent to the admission to a medical, nursing, residential, or a similar facility; and (d) to enter into agreements for my care."

The principal's physicians, the employees of such physicians, or the owners, administrators, or employees of the health care facility in which the principal resides, may not act as attorney-in-fact for the principal unless related to the principal by marriage.

(2) The authorization in subsection (1) of this section giving consent to the withholding or withdrawal of life-sustaining treatment or care may be exercised only after the unanimous concurrence of the principal's attending physician and no fewer than two other physicians, after having personally and independently examined the principal, that the principal has a terminal condition as defined in section 3(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;

(d) Sterilization; and

(e) Abortion.

(4) A principal may revoke or terminate the power of his or her attorney-in-fact, and a legal guardian of a principal may revoke or terminate the power of the principal's 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 providing to the attorney-in-fact written notice which includes the following words, or other language showing a similar intent: "I hereby revoke and terminate the power of my attorney-in-fact: (a) To consent to medical and surgical care and nontreatment; (b) to consent to the withholding or withdrawal of life-sustaining treatment or care; (c) to consent to the admission to a medical, nursing, residential, or a similar facility; and (d) to enter into agreements for my care." A revocation or termination shall become effective upon actual or constructive knowledge, or receipt, of the written revocation or termination by the attorney-in-fact.

NEW SECTION. Sec. 17. 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 or care pursuant to a power of attorney for health care so as to permit the natural process of dying.

NEW SECTION. Sec. 18. 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. 19. 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. 20. Sections 1 through 15 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 21. 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.