S-528 _______________________________________________
SENATE BILL NO. 5628
_______________________________________________
State of Washington 51st Legislature 1989 Regular Session
By Senators Kreidler, Lee and DeJarnatt
Read first time 1/31/89 and referred to Committee on Health Care & Corrections.
AN ACT Relating to the natural death act; 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 11.94 RCW; and adding new sections to chapter 70.122 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withheld or withdrawn in instances of a terminal condition.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treatment be withheld or withdrawn.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, commonly
known as a living will, 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.
NEW SECTION. Sec. 2. 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 5(2) of this act, may make decisions regarding their health treatment nor limiting the means provided by existing case law.
Sec. 3. 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 home health agency or hospice agency as defined in RCW
70.126.010.
(4)
"Life-sustaining ((procedure)) treatment" means any
medical or surgical ((procedure or intervention which utilizes)) care
that uses mechanical or other 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 or the provision of nutrition and hydration for comfort
care deemed necessary to alleviate pain.
(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 physicians, one of whom shall be the attending physician, who have personally examined the patient. If no family member is involved, three physicians shall diagnose and certify in writing that the patient is afflicted with a terminal condition.
(7)
"Terminal condition" means ((an incurable)) 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)).
(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. 4. 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. If a person has been diagnosed as pregnant and that diagnosis is
known to the attending physician, then the directive shall have no force and
effect during the course of the pregnancy. The directive ((shall)) may
be essentially in the following form, but in addition may include other
specific directions:
DIRECTIVE TO PHYSICIANS (LIVING WILL)
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 and that I be permitted to die naturally 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 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)), or I am in a terminal
condition in which I have been certified by two physicians as having no
reasonable probability of recovery from a comatose or persistent vegetative
state, 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.
(e) I understand that I can add or delete from or otherwise change the wording of this directive before I sign it, and that I may amend or revoke this directive at any time.
!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_
!sc ,34Witness!w_
(2) Prior
to effectuating a directive the diagnosis of a terminal condition, including
a detailed description of the diagnostic criteria used, by two physicians
shall be ((verified)) entered in writing, attached to the
directive, and made a permanent part of the patient's medical records.
NEW SECTION. Sec. 5. 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 one additional physician 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 13 of this act;
(c) The qualified patient's spouse;
(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;
(g) Adult niece(s) and nephew(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 forego 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 foregoing 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 in good faith that the conditions set forth in subsections (1) and (3) of this section have been met.
NEW SECTION. Sec. 6. If any terminally ill hospitalized patient indicates by words, actions or in writing that he or she wishes to die at home in dignity with his or her family and the family concurs, the hospital must discharge him or her immediately. The hospital and physician shall not be liable for claims arising from such discharge.
Sec. 7. Section 6, chapter 112, Laws of 1979 and RCW 70.122.050 are each amended to read as follows:
No family
member or physician or health facility ((which)) that, acting
in good faith in accordance with the requirements of this chapter, ((causes
the withholding or withdrawal of)) and having documentation by two
physicians of a terminal condition or three physicians where no family members
are involved, withholds or withdraws life-sustaining ((procedures)) treatment
from a qualified patient, shall be subject to civil liability ((therefrom))
unless otherwise negligent. 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 unless otherwise negligent. No physician, or health
facility or its agents, 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. No family member who acts in
good faith in accordance with the requirements of this chapter and participates
in a decision to withhold or withdraw life-sustaining treatment from a
qualified patient shall be subject to criminal or civil liability.
Sec. 8. 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.)) Any person or health facility that chooses not to
comply with the directive shall immediately take all reasonable steps to
transfer care of the qualified patient to another physician, health care
provider, or health facility. Any person whose conscience does not allow them
to participate in the withholding or withdrawal of life sustaining treatment
shall be unconditionally protected for nonnegligent acts against any
disciplinary action including, but not limited to, licensing, hiring,
promotion, health facility privileges, and transfers.
Sec. 9. 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. 10. 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. 11. 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. 12. 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, or a physician's trained mobile technician or paramedic certified pursuant to RCW 18.71.205, or an emergency medical technician certified pursuant to RCW 18.73.081 to provide futile treatment. A physician licensed under chapter 18.71 RCW, an osteopathic physician licensed under chapter 18.57 RCW, or a registered nurse licensed under chapter 18.88 RCW may make the determination and pronouncement of death.
NEW SECTION. Sec. 13. 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 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 withholding or withdrawing life-sustaining treatment; (c) to consent to any admission to a medical, nursing, residential, or a similar facility; and (d) to enter into agreements for my care." The principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health facility in which the principal resides, may not act as attorneys-in-fact for the principal unless related to the principal by marriage or family ties.
(2) The authorization in subsection (1) of this section to consent to withholding or withdrawing life-sustaining treatment may be exercised only after the principal's attending physician and at least one other physician have personally examined the principal and unanimously concur 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. 14. 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. 15. 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. 16. A new section is added to chapter 11.94 RCW to read as follows:
(1) A durable power of attorney executed pursuant to chapter 11.94 RCW before the effective date of this section that specifically authorizes an attorney-in-fact to make decisions relating to the health care of the principal shall be deemed valid, except for the exemptions provided for in section 13(3) of this act.
(2) Nothing in this chapter affects the validity of a decision made under a durable power of attorney executed pursuant to chapter 11.94 RCW before the effective date of this section.
NEW SECTION. Sec. 17. 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.