House Bill 2131
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Florida House of Representatives - 1999 HB 2131
By the Committee on Elder Affairs & Long-Term Care and
Representatives Argenziano, Heyman, Sobel, Reddick,
Fiorentino, Bilirakis, Littlefield, Kosmas, Bitner, Jacobs and
Levine
1 A bill to be entitled
2 An act relating to end-of-life care; providing
3 legislative findings; authorizing the Secretary
4 of Health to develop and implement
5 demonstration projects; requiring reports;
6 requesting the Chancellor of the State
7 University System to convene a working group;
8 amending ss. 395.1041, 400.142, 400.4255,
9 400.487, 400.6095, and 400.621, F.S.;
10 authorizing personnel of hospital emergency
11 services, long-term care facilities, assisted
12 living facilities, home health agencies,
13 hospices, and adult family-care homes to
14 withhold or withdraw cardiopulmonary
15 resuscitation pursuant to an order not to
16 resuscitate; providing for rules; providing
17 certain protection from prosecution and
18 liability; amending s. 401.45, F.S.; revising
19 authority of emergency medical technicians and
20 paramedics to withhold or withdraw
21 resuscitation or life-prolonging techniques;
22 directing the Department of Health to develop a
23 standardized do-not-resuscitate identification
24 system; authorizing a fee; providing for rules;
25 amending ss. 455.604, 458.319, and 459.008,
26 F.S.; providing that courses on end-of-life
27 care will fulfill certain education
28 requirements; amending s. 732.912, F.S.;
29 revising provisions relating to who may make
30 anatomical gifts; amending ss. 732.914 and
31 732.917, F.S.; correcting cross references;
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1 amending s. 732.922, F.S.; conforming
2 provisions relating to duty of certain hospital
3 administrators; amending s. 765.101, F.S.;
4 revising definitions; amending s. 765.102,
5 F.S.; revising legislative intent relating to
6 advance directives; amending s. 765.103, F.S.;
7 providing for effect of existing advance
8 directives; amending s. 765.104, F.S.;
9 providing for amendment of an advance directive
10 or designation of a surrogate; amending s.
11 765.107, F.S.; providing nonapplicability to
12 certain persons; amending s. 765.110, F.S.;
13 prohibiting certain actions by a health care
14 facility or provider with respect to a
15 patient's advance directive; increasing a
16 penalty; requiring that advance directives
17 become part of patients' medical records;
18 providing for rules; amending s. 765.204, F.S.;
19 revising provisions relating to evaluation of a
20 patient's capacity to make health care
21 decisions; amending s. 765.205, F.S.; revising
22 responsibilities of the surrogate; amending s.
23 765.301, F.S.; correcting a cross reference;
24 amending s. 765.302, F.S.; revising procedure
25 for making a living will; amending s. 765.303,
26 F.S.; revising suggested form of a living will;
27 amending s. 765.304, F.S.; revising procedure
28 for implementing a living will; amending s.
29 765.305, F.S.; revising procedure in the
30 absence of a living will; amending s. 765.306,
31 F.S.; revising provisions relating to
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1 determination of the patient's condition;
2 renumbering and amending s. 765.308, F.S.;
3 providing for transfer of a patient under
4 certain circumstances; renumbering and amending
5 s. 765.310, F.S.; providing penalties for
6 falsification, forgery, or willful concealment,
7 cancellation, or destruction of an advance
8 directive, or a revocation or amendment
9 thereof; amending s. 765.401, F.S.; revising
10 provisions relating to decisions by a proxy;
11 creating s. 765.404, F.S.; providing conditions
12 for withholding or withdrawing life-prolonging
13 procedures for certain persons in a persistent
14 vegetative state; directing the Department of
15 Elderly Affairs to convene a workgroup to
16 develop model advance directive forms;
17 repealing s. 3(6) of ch. 98-327, Laws of
18 Florida, relating to repeal of the Panel for
19 the Study of End-of-Life Care; continuing the
20 panel until a specified date; providing an
21 appropriation; providing effective dates.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. End-of-life care.--
26 (1)(a) The Legislature finds that Florida, as the
27 fourth most populous state, is highly diverse with regard to
28 race, ethnicity, urban and rural locales, religious practices,
29 and cultural traditions. Florida has the largest percentage of
30 elderly residents, the third largest incidence of AIDS, and
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1 the fourth highest death rates from heart disease and chronic
2 obstructive pulmonary disease in the nation.
3 (b) The Legislature finds that the Panel for the Study
4 of End-of-Life Care has recommended policies that will assure
5 the citizens of this state the highest quality of
6 compassionate, competent, and adequate end-of-life care.
7 (c) The Legislature finds that all persons should have
8 access to effective pain management and palliative care; that
9 adequate management of pain and other distressing symptoms at
10 the end-of-life should be available; and that all settings
11 that care for seriously ill patients should address the
12 emotional and spiritual needs of such patients. The
13 Legislature finds that education of physicians and other
14 health care providers is necessary to assure that patients in
15 pain are assessed regularly and that their pain is treated
16 aggressively without fear of undue regulatory or legal action.
17 (d) The Legislature finds that an individual's
18 experience of death and dying, and preferences about
19 end-of-life care, are rooted in ethnic and cultural values and
20 beliefs. The Legislature finds that social, health, and
21 education practitioners must be trained to understand work
22 within different cultural parameters.
23 (e) The Legislature finds that to provide better pain
24 management, health care providers are to be encouraged to add
25 the assessment of pain as a "fifth vital sign." Further, the
26 Legislature intends that in accordance with standard and
27 accepted medical and ethical principles, the use of
28 pharmacological substances with the intent of alleviating or
29 eliminating pain and other discomfort is encouraged. Such use
30 should not be regarded as legally blameworthy, even if
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1 appropriate pain control occurs during, and so precedes the
2 outcome of, the dying process.
3 (f) The Legislature finds that the State Supreme Court
4 has declared that, based on the constitutional right to
5 privacy, competent adults can express their wishes to receive,
6 refuse, withhold, or withdraw any medical treatment and that
7 right continues even when a person becomes incapacitated.
8 (2) The Secretary of Health is authorized to develop
9 and implement up to two demonstration projects to evaluate
10 strategies recommended by the Panel for the Study of
11 End-of-Life Care. The Department of Health is authorized to
12 accept for that purpose any special grant of money, services,
13 property, gifts, or donations from any organization, medical
14 school, or Federal Government agency, and to apply for grants
15 to support the demonstration projects. The secretary shall
16 report to the President of the Senate, the Speaker of the
17 House of Representatives, and the majority and minority
18 leaders and relevant substantive committees of both chambers,
19 on the demonstration projects, no later than January 30 of
20 each year.
21 (3) The Chancellor of the State University System is
22 requested to convene a working group composed of one
23 representative from each of the Boards of Medicine,
24 Osteopathic Medicine, Nursing, Pharmacy, Nursing Home
25 Administrators, and Social Work, and the chairs of the four
26 medical schools' curriculum committees, to review available
27 curricula for end-of-life care and make recommendations
28 through the respective boards for content and materials to be
29 incorporated into the basic curriculum of each medical school,
30 school of social work, and allied health discipline.
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1 Section 2. Paragraph (l) is added to subsection (3) of
2 section 395.1041, Florida Statutes, 1998 Supplement, to read:
3 395.1041 Access to emergency services and care.--
4 (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF
5 FACILITY OR HEALTH CARE PERSONNEL.--
6 (l) Hospital emergency services personnel may withhold
7 or withdraw cardiopulmonary resuscitation if presented with an
8 order not to resuscitate executed pursuant to s. 401.45.
9 Facility staff and facilities shall not be subject to criminal
10 prosecution or civil liability, nor be considered to have
11 engaged in negligent or unprofessional conduct, for
12 withholding or withdrawing cardiopulmonary resuscitation
13 pursuant to such an order.
14 Section 3. Subsection (3) is added to section 400.142,
15 Florida Statutes, to read:
16 400.142 Emergency medication kits; orders not to
17 resuscitate.--
18 (3) Facility staff may withhold or withdraw
19 cardiopulmonary resuscitation if presented with an order not
20 to resuscitate executed pursuant to s. 401.45. The agency
21 shall adopt rules providing for the implementation of such
22 orders. Facility staff and facilities shall not be subject to
23 criminal prosecution or civil liability, nor be considered to
24 have engaged in negligent or unprofessional conduct, for
25 withholding or withdrawing cardiopulmonary resuscitation
26 pursuant to such an order and rules adopted by the agency.
27 Section 4. Subsection (3) is added to section
28 400.4255, Florida Statutes, to read:
29 400.4255 Use of licensed personnel; emergency care.--
30 (3) Facility staff may withhold or withdraw
31 cardiopulmonary resuscitation if presented with an order not
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1 to resuscitate executed pursuant to s. 401.45. The department
2 shall adopt rules providing for the implementation of such
3 orders. Facility staff and facilities shall not be subject to
4 criminal prosecution or civil liability, nor be considered to
5 have engaged in negligent or unprofessional conduct, for
6 withholding or withdrawing cardiopulmonary resuscitation
7 pursuant to such an order and rules adopted by the department.
8 Section 5. Subsection (7) is added to section 400.487,
9 Florida Statutes, to read:
10 400.487 Patient assessment; establishment and review
11 of plan of care; provision of services; orders not to
12 resuscitate.--
13 (7) Home health agency personnel may withhold or
14 withdraw cardiopulmonary resuscitation if presented with an
15 order not to resuscitate executed pursuant to s. 401.45. The
16 agency shall adopt rules providing for the implementation of
17 such orders. Home health personnel and agencies shall not be
18 subject to criminal prosecution or civil liability, nor be
19 considered to have engaged in negligent or unprofessional
20 conduct, for withholding or withdrawing cardiopulmonary
21 resuscitation pursuant to such an order and rules adopted by
22 the agency.
23 Section 6. Subsection (8) of section 400.6095, Florida
24 Statutes, is renumbered as subsection (9), and a new
25 subsection (8) is added to said section to read:
26 400.6095 Patient admission; assessment; plan of care;
27 discharge; orders not to resuscitate; death.--
28 (8) The hospice care team may withhold or withdraw
29 cardiopulmonary resuscitation if presented with an order not
30 to resuscitate executed pursuant to s. 401.45. The department
31 shall adopt rules providing for the implementation of such
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1 orders. Hospice staff shall not be subject to criminal
2 prosecution or civil liability, nor be considered to have
3 engaged in negligent or unprofessional conduct, for
4 withholding or withdrawing cardiopulmonary resuscitation
5 pursuant to such an order and rules adopted by the department.
6 Section 7. Subsection (3) of section 400.621, Florida
7 Statutes, 1998 Supplement, is renumbered as subsection (4),
8 and a new subsection (3) is added to said section to read:
9 400.621 Rules and standards relating to adult
10 family-care homes.--
11 (3) The department shall adopt rules providing for the
12 implementation of orders not to resuscitate. The provider may
13 withhold or withdraw cardiopulmonary resuscitation if
14 presented with an order not to resuscitate executed pursuant
15 to s. 401.45. The provider shall not be subject to criminal
16 prosecution or civil liability, nor be considered to have
17 engaged in negligent or unprofessional conduct, for
18 withholding or withdrawing cardiopulmonary resuscitation
19 pursuant to such an order and rules adopted by the department.
20 Section 8. Subsection (3) of section 401.45, Florida
21 Statutes, is amended and subsection (5) is added to said
22 section, to read:
23 401.45 Denial of emergency treatment; civil
24 liability.--
25 (3)(a) Resuscitation or life-prolonging techniques may
26 be withheld or withdrawn from a patient by an emergency
27 medical technician or paramedic if evidence of an order not to
28 resuscitate by the patient's physician is presented to the
29 emergency medical technician or paramedic in a manner provided
30 by rule of the department.
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1 (b) Any licensee, physician, medical director, or
2 emergency medical technician or paramedic who acts under the
3 direction of a medical director is not subject to criminal
4 prosecution or civil liability, and has not engaged in
5 negligent or unprofessional conduct, as a result of the
6 withholding or withdrawal of resuscitation or life-prolonging
7 techniques from a patient pursuant to this subsection and
8 rules adopted by the department.
9 (c) The department, in consultation with the
10 Department of Elderly Affairs and the Agency for Health Care
11 Administration, shall develop a standardized
12 do-not-resuscitate identification system with devices that
13 signify, when carried or worn, that the possessor is a patient
14 for whom a physician has issued an order not to administer
15 cardiopulmonary resuscitation. The department may charge a
16 reasonable fee to cover the cost of producing and distributing
17 such identification devices. Use of such devices shall be
18 voluntary.
19 (4) Any licensee or emergency medical technician or
20 paramedic who in good faith provides emergency medical care or
21 treatment within the scope of their employment and pursuant to
22 oral or written instructions of a medical director shall be
23 deemed to be providing emergency medical care or treatment for
24 the purposes of s. 768.13(2)(b).
25 (5) The department shall adopt and enforce all rules
26 necessary to implement this section.
27 Section 9. Subsection (9) is added to section 455.604,
28 Florida Statutes, 1998 Supplement, to read:
29 455.604 Requirement for instruction for certain
30 licensees on human immunodeficiency virus and acquired immune
31 deficiency syndrome.--
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1 (9) In lieu of completing a course as required in
2 subsection (1), the licensee may complete a course in
3 end-of-life care and palliative health care, so long as the
4 licensee completed an approved AIDS/HIV course in the
5 immediately preceding biennium.
6 Section 10. Subsection (4) is added to section
7 458.319, Florida Statutes, 1998 Supplement, to read:
8 458.319 Renewal of license.--
9 (4) Notwithstanding the provisions of s. 455.604, a
10 physician may complete continuing education on end-of-life
11 care and palliative health care in lieu of continuing
12 education in AIDS/HIV, if that physician has completed the
13 AIDS/HIV continuing education in the immediately preceding
14 biennium.
15 Section 11. Subsection (5) is added to section
16 459.008, Florida Statutes, 1998 Supplement, to read:
17 459.008 Renewal of licenses and certificates.--
18 (5) Notwithstanding the provisions of s. 455.604, an
19 osteopathic physician may complete continuing education on
20 end-of-life and palliative health care in lieu of continuing
21 education in AIDS/HIV, if that physician has completed the
22 AIDS/HIV continuing education in the immediately preceding
23 biennium.
24 Section 12. Section 732.912, Florida Statutes, 1998
25 Supplement, is amended to read:
26 732.912 Persons who may make an anatomical gift.--
27 (1) Any person who may make a will may give all or
28 part of his or her body for any purpose specified in s.
29 732.910, the gift to take effect upon death. An anatomical
30 gift made by an adult donor and not revoked by the donor as
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1 provided in s. 732.916 is irrevocable and does not require the
2 consent or concurrence of any person after the donor's death.
3 (2) If the decedent has not executed an agreement
4 concerning an anatomical gift, including signing an organ and
5 tissue donor card, expressing his or her wish to donate in a
6 living will or advance directive, or signifying his or her
7 intent to donate on his or her driver's license or in some
8 other written form has indicated his or her wish to make an
9 anatomical gift, a member of one of the classes of persons
10 listed below, in the order of priority stated and in the
11 absence of actual notice of contrary indications by the
12 decedent or actual notice of opposition by a member of the
13 same or a prior class, the surrogate designated by the
14 decedent pursuant to part II of chapter 765 may give all or
15 any part of the decedent's body for any purpose specified in
16 s. 732.910.:
17 (3) If the decedent has not executed an agreement
18 concerning an anatomical gift or designated a surrogate
19 pursuant to part II of chapter 765 to make an anatomical gift
20 pursuant to the conditions of subsection (2), a member of one
21 of the classes of persons listed below, in the order of
22 priority stated and in the absence of actual notice of
23 contrary indications by the decedent or actual notice of
24 opposition by a member of the same or a prior class, may give
25 all or any part of the decedent's body for any purpose
26 specified in s. 732.910:
27 (a) The spouse of the decedent;
28 (b) An adult son or daughter of the decedent;
29 (c) Either parent of the decedent;
30 (d) An adult brother or sister of the decedent;
31 (e) A grandparent of the decedent;
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1 (f) A guardian of the person of the decedent at the
2 time of his or her death; or
3 (g) A representative ad litem who shall be appointed
4 by a court of competent jurisdiction forthwith upon a petition
5 heard ex parte filed by any person, which representative ad
6 litem shall ascertain that no person of higher priority exists
7 who objects to the gift of all or any part of the decedent's
8 body and that no evidence exists of the decedent's having made
9 a communication expressing a desire that his or her body or
10 body parts not be donated upon death;
11
12 but no gift shall be made by the spouse if any adult son or
13 daughter objects, and provided that those of higher priority,
14 if they are reasonably available, have been contacted and made
15 aware of the proposed gift, and further provided that a
16 reasonable search is made to show that there would have been
17 no objection on religious grounds by the decedent.
18 (4)(3) If the donee has actual notice of contrary
19 indications by the decedent or, in the case of a spouse making
20 the gift, an objection of an adult son or daughter or actual
21 notice that a gift by a member of a class is opposed by a
22 member of the same or a prior class, the donee shall not
23 accept the gift.
24 (5)(4) The person authorized by subsection (3) (2) may
25 make the gift after the decedent's death or immediately before
26 the decedent's death.
27 (6)(5) A gift of all or part of a body authorizes any
28 examination necessary to assure medical acceptability of the
29 gift for the purposes intended.
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1 (7)(6) Once the gift has been made, the rights of the
2 donee are paramount to the rights of others, except as
3 provided by s. 732.917.
4 Section 13. Subsection (5) of section 732.914, Florida
5 Statutes, 1998 Supplement, is amended to read:
6 732.914 Manner of executing anatomical gifts.--
7 (5) Any gift by a member of a class designated in s.
8 732.912(3)(2) must be made by a document signed by that person
9 or made by that person's witnessed telephonic discussion,
10 telegraphic message, or other recorded message.
11 Section 14. Subsection (3) of section 732.917, Florida
12 Statutes, is amended to read:
13 732.917 Rights and duties at death.--
14 (3) The organ procurement organization, tissue bank,
15 or eye bank, or hospital medical professionals under the
16 direction thereof, may perform any and all tests to evaluate
17 the deceased as a potential donor and any invasive procedures
18 on the deceased body in order to preserve the potential
19 donor's organs. These procedures do not include the surgical
20 removal of an organ or penetrating any body cavity,
21 specifically for the purpose of donation, until a properly
22 executed donor card or document is located or, if a properly
23 executed donor card or document cannot be located, a person
24 specified in s. 732.912(3)(2) has been located, has been
25 notified of the death, and has granted legal permission for
26 the donation.
27 Section 15. Subsection (2) of section 732.922, Florida
28 Statutes, 1998 Supplement, is amended to read:
29 732.922 Duty of certain hospital administrators;
30 liability of hospital administrators, organ procurement
31 organizations, eye banks, and tissue banks.--
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1 (2) Where, based on accepted medical standards, a
2 hospital patient is a suitable candidate for organ or tissue
3 donation, the hospital administrator or the hospital
4 administrator's designee shall, at or near the time of death,
5 access the organ and tissue donor registry created by s.
6 732.915(4) to ascertain the existence of a donor card or
7 document executed by the decedent. In the absence of a donor
8 card, organ donation sticker or organ donation imprint on a
9 driver's license, or other properly executed document, the
10 hospital administrator or designee shall request:
11 (a) The patient's health care surrogate, as permitted
12 in s. 732.912(2); or
13 (b) If the patient does not have a surrogate, or the
14 surrogate is not reasonably available, any of the persons
15 specified in s. 732.912, in the order and manner of priority
16 stated in s. 732.912,
17
18 to consent to the gift of all or any part of the decedent's
19 body for any purpose specified in this part. Except as
20 provided in s. 732.912, in the absence of actual notice of
21 opposition, consent need only be obtained from the person or
22 persons in the highest priority class reasonably available.
23 Section 16. Section 765.101, Florida Statutes, is
24 amended to read:
25 765.101 Definitions.--As used in this chapter:
26 (1) "Advance directive" means a witnessed written
27 document or oral statement in which instructions are given by
28 a principal or in which the principal's desires are expressed
29 concerning any aspect of the principal's health care, and
30 includes, but is not limited to, the designation of a health
31 care surrogate, a living will, or an anatomical gift made
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1 pursuant to part X of chapter 732 orders not to resuscitate
2 issued pursuant to s. 401.45.
3 (2) "Attending physician" means the primary physician
4 who has responsibility for the treatment and care of the
5 patient.
6 (3) "Close personal friend" means any person 18 years
7 of age or older who has exhibited special care and concern for
8 the patient, and who presents an affidavit to the health care
9 facility or to the attending or treating physician stating
10 that he or she is a friend of the patient; is willing and able
11 to become involved in the patient's health care; and has
12 maintained such regular contact with the patient so as to be
13 familiar with the patient's activities, health, and religious
14 or moral beliefs.
15 (4) "Health care decision" means:
16 (a) Informed consent, refusal of consent, or
17 withdrawal of consent to any and all health care, including
18 life-prolonging procedures.
19 (b) The decision to apply for private, public,
20 government, or veterans' benefits to defray the cost of health
21 care.
22 (c) The right of access to all records of the
23 principal reasonably necessary for a health care surrogate to
24 make decisions involving health care and to apply for
25 benefits.
26 (d) The decision to make an anatomical gift pursuant
27 to part X of chapter 732.
28 (5) "Health care facility" means a hospital, nursing
29 home, hospice, home health agency, or health maintenance
30 organization licensed in this state, or any facility subject
31 to part I of chapter 394.
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1 (6) "Health care provider" or "provider" means any
2 person licensed, certified, or otherwise authorized by law to
3 administer health care in the ordinary course of business or
4 practice of a profession.
5 (7) "Incapacity" or "incompetent" means the patient is
6 physically or mentally unable to communicate a willful and
7 knowing health care decision. For the purposes of making an
8 anatomical gift, the term also includes a patient who is
9 deceased.
10 (8) "Informed consent" means consent voluntarily given
11 by a person after a sufficient explanation and disclosure of
12 the subject matter involved to enable that person to have a
13 general understanding of the treatment or procedure and the
14 medically acceptable alternatives, including the substantial
15 risks and hazards inherent in the proposed treatment or
16 alternative procedures, and to make a knowing health care
17 decision without coercion or undue influence.
18 (9) "Life-prolonging procedure" means any medical
19 procedure, treatment, or intervention, including artificially
20 provided sustenance and hydration, which sustains, restores,
21 or supplants a spontaneous vital function. which:
22 (a) Utilizes mechanical or other artificial means to
23 sustain, restore, or supplant a spontaneous vital function;
24 and
25 (b) When applied to a patient in a terminal condition,
26 serves only to prolong the process of dying.
27
28 The term "life-prolonging procedure" does not include the
29 administration of medication or performance of medical
30 procedure, when such medication or procedure is deemed
31 necessary to provide comfort care or to alleviate pain.
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1 (10) "Living will" or "declaration" means:
2 (a) A witnessed document in writing, voluntarily
3 executed by the principal in accordance with s. 765.302; or
4 (b) A witnessed oral statement made by the principal
5 expressing the principal's instructions concerning
6 life-prolonging procedures.
7 (11) "Persistent vegetative state" means a permanent
8 and irreversible condition of unconsciousness in which there
9 is:
10 (a) The absence of voluntary action or cognitive
11 behavior of any kind.
12 (b) An inability to communicate or interact
13 purposefully with the environment.
14 (12)(11) "Physician" means a person licensed pursuant
15 to chapter 458 or chapter 459.
16 (13)(12) "Principal" means a competent adult executing
17 an advance directive and on whose behalf health care decisions
18 are to be made.
19 (14)(13) "Proxy" means a competent adult who has not
20 been expressly designated to make health care decisions for a
21 particular incapacitated individual, but who, nevertheless, is
22 authorized pursuant to s. 765.401 to make health care
23 decisions for such individual.
24 (15)(14) "Surrogate" means any competent adult
25 expressly designated by a principal to make health care
26 decisions on behalf of the principal upon the principal's
27 incapacity.
28 (15) "Terminal condition" means:
29 (a) A condition caused by injury, disease, or illness
30 from which there is no reasonable probability of recovery and
31 which, without treatment, can be expected to cause death; or
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1 (b) A persistent vegetative state characterized by a
2 permanent and irreversible condition of unconsciousness in
3 which there is:
4 1. The absence of voluntary action or cognitive
5 behavior of any kind; and
6 2. An inability to communicate or interact
7 purposefully with the environment.
8 (16) "Treating physician" means the physician who has
9 treated or is treating the patient for any condition directly
10 related to the condition resulting in the patient's
11 incapacity.
12 Section 17. Subsection (3) of section 765.102, Florida
13 Statutes, is amended to read:
14 765.102 Legislative findings and intent.--
15 (3) The Legislature recognizes further finds that for
16 some the administration of life-prolonging medical procedures
17 may result in the artificial prolongation of life for a person
18 with a terminal condition may secure for him or her only a
19 precarious and burdensome existence, while providing nothing
20 medically necessary or beneficial to the patient. In order to
21 ensure that the rights and intentions of a person with such a
22 condition may be respected even after he or she is no longer
23 able to participate actively in decisions concerning himself
24 or herself, and to encourage communication among such patient,
25 his or her family, and his or her physician, the Legislature
26 declares that the laws of this state recognize the right of a
27 competent adult to make an advance directive instructing his
28 or her physician to provide, withhold, or withdraw
29 life-prolonging procedures, or to designate another to make
30 the treatment decision for him or her in the event that such
31 person should become incapacitated and unable to personally
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1 direct his or her medical care be found to be incompetent and
2 suffering from a terminal condition.
3 Section 18. Section 765.103, Florida Statutes, is
4 amended to read:
5 765.103 Existing advance directives.--Any advance
6 directive made prior to the effective date of this act April
7 10, 1992, shall be given effect as executed, as provided in
8 this chapter provided such directive was legally effective
9 when written.
10 Section 19. Subsections (1) and (3) of section
11 765.104, Florida Statutes, are amended to read:
12 765.104 Amendment or revocation.--
13 (1) An advance directive or designation of a surrogate
14 may be amended or revoked at any time by a competent
15 principal:
16 (a) By means of a signed, dated writing;
17 (b) By means of the physical cancellation or
18 destruction of the advance directive by the principal or by
19 another in the principal's presence and at the principal's
20 direction;
21 (c) By means of an oral expression of intent to amend
22 or revoke; or
23 (d) By means of a subsequently executed advance
24 directive that is materially different from a previously
25 executed advance directive.
26 (3) Any such amendment or revocation will be effective
27 when it is communicated to the surrogate, health care
28 provider, or health care facility. No civil or criminal
29 liability shall be imposed upon any person for a failure to
30 act upon an amendment or a revocation unless that person has
31 actual knowledge of such amendment or revocation.
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1 Section 20. Section 765.107, Florida Statutes, is
2 amended to read:
3 765.107 Construction.--
4 (1) This chapter shall not be construed to repeal by
5 implication any provision of s. 766.103, the Florida Medical
6 Consent Law. For all purposes, the Florida Medical Consent
7 Law shall be considered an alternative to provisions of this
8 section.
9 (2) Procedures provided in this chapter permitting the
10 withholding or withdrawal of life-prolonging procedures do not
11 apply to a person who never had capacity to designate a health
12 care surrogate or execute a living will.
13 Section 21. Section 765.110, Florida Statutes, is
14 amended to read:
15 765.110 Health care facilities and providers;
16 discipline.--
17 (1) A health care facility, pursuant to Pub. L. No.
18 101-508, ss. 4206 and 4751, shall provide to each patient
19 written information concerning the individual's rights
20 concerning advance directives and the health care facility's
21 policies respecting the implementation of such rights, and
22 shall document in the patient's medical records whether or not
23 the individual has executed an advance directive.
24 (2) A health care provider or health care facility may
25 not require a patient to execute an advance directive or to
26 execute a new advance directive using the facility's or
27 provider's forms. The patient's advance directives shall
28 travel with the patient as part of the patient's medical
29 record.
30 (3)(2) A health care provider or health care facility
31 shall be subject to professional discipline and revocation of
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1 license or certification, and a fine of not more than $1,000
2 $500 per incident, or both, if the health care provider or
3 health care facility, as a condition of treatment or
4 admission, requires an individual to execute or waive an
5 advance directive.
6 (4)(3) The Department of Elderly Affairs for hospices
7 and, in consultation with the Department of Elderly Affairs,
8 the Department of Health for health care providers, and
9 Rehabilitative Services and the Agency for Health Care
10 Administration for hospitals, nursing homes, home health
11 agencies, and health maintenance organizations, and the
12 Department of Children and Family Services for facilities
13 subject to part I of chapter 394 shall adopt rules to
14 implement the provisions of the section.
15 Section 22. Subsection (2) of section 765.204, Florida
16 Statutes, is amended to read:
17 765.204 Capacity of principal; procedure.--
18 (2) If a principal's capacity to make health care
19 decisions for herself or himself or provide informed consent
20 is in question, the attending physician shall evaluate the
21 principal's capacity. If the attending physician concludes
22 that the principal lacks such capacity, another physician
23 shall also evaluate the principal's capacity. If the second
24 physician agrees that the principal lacks the capacity to make
25 health care decisions or provide informed consent, the health
26 care facility shall enter both physician's evaluations in the
27 principal's clinical record and, if the principal has
28 designated a health care surrogate, shall notify such
29 surrogate in writing that her or his authority under the
30 instrument has commenced.
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1 Section 23. Subsection (2) of section 765.205, Florida
2 Statutes, is amended to read:
3 765.205 Responsibility of the surrogate.--
4 (2) The surrogate may authorize the release of
5 information and clinical records to appropriate persons to
6 ensure the continuity of the principal's health care and may
7 authorize the transfer and admission, discharge, or transfer
8 of the principal to or from a health care facility or other
9 facility or program licensed under chapter 400.
10 Section 24. Section 765.301, Florida Statutes, is
11 amended to read:
12 765.301 Short title.--Sections 765.302-765.309
13 765.302-765.310 may be cited as the "Life-Prolonging Procedure
14 Act of Florida."
15 Section 25. Subsection (1) of section 765.302, Florida
16 Statutes, is amended to read:
17 765.302 Procedure for making a living will; notice to
18 physician.--
19 (1) Any competent adult may, at any time, make a
20 living will or written declaration directing the providing,
21 withholding, or withdrawal of life-prolonging procedures in
22 the event such person suffers from a terminal condition. A
23 living will must be signed by the principal in the presence of
24 two subscribing witnesses, one of whom is neither a spouse nor
25 a blood relative of the principal. If the principal is
26 physically unable to sign the living will, one of the
27 witnesses must subscribe the principal's signature in the
28 principal's presence and at the principal's direction.
29 Section 26. Subsection (1) of section 765.303, Florida
30 Statutes, is amended to read:
31 765.303 Suggested form of a living will.--
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1 (1) A living will may, BUT NEED NOT, be in the
2 following form:
3 Living Will
4 Declaration made this .... day of ...., 19 .... I,
5 ........, willfully and voluntarily make known my desire that
6 my dying not be artificially prolonged under the circumstances
7 set forth below, and I do hereby declare that,: if at any time
8 I am both mentally and physically incapacitated
9
10 .... and I have a terminal condition (initial to require this
11 as a condition for your living will)
12
13 and if my attending or treating physician and another
14 consulting physician have determined that there is no
15 reasonable medical probability of my recovery from such
16 condition, I direct that life-prolonging procedures be
17 withheld or withdrawn when the application of such procedures
18 would serve only to prolong artificially the process of dying,
19 and that I be permitted to die naturally with only the
20 administration of medication or the performance of any medical
21 procedure deemed necessary to provide me with comfort care or
22 to alleviate pain.
23 It is my intention that this declaration be honored by
24 my family and physician as the final expression of my legal
25 right to refuse medical or surgical treatment and to accept
26 the consequences for such refusal.
27 In the event that I have been determined to be unable
28 to provide express and informed consent regarding the
29 withholding, withdrawal, or continuation of life-prolonging
30 procedures, I wish to designate, as my surrogate to carry out
31 the provisions of this declaration:
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1
2 Name:.........................................................
3 Address:......................................................
4 .................................................. Zip Code:..
5 Phone:................
6 I understand the full import of this declaration, and I
7 am emotionally and mentally competent to make this
8 declaration.
9 Additional Instructions (optional):
10 ..............................................................
11 ..............................................................
12 ..............................................................
13 ....(Signed)....
14 ....Witness....
15 ....Address....
16 ....Phone....
17 ....Witness....
18 ....Address....
19 ....Phone....
20
21 Section 27. Subsection (2) of section 765.304, Florida
22 Statutes, is amended to read:
23 765.304 Procedure for living will.--
24 (2) Before proceeding in accordance with the
25 principal's living will, it must be determined that:
26 (a) The principal does not have a reasonable
27 probability of recovering capacity competency so that the
28 right could be exercised directly by the principal.
29 (b) The principal's physical condition is terminal.
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1 (b)(c) Any limitations or conditions expressed orally
2 or in a written declaration have been carefully considered and
3 satisfied.
4 Section 28. Section 765.305, Florida Statutes, is
5 amended to read:
6 765.305 Procedure in absence of a living will.--
7 (1) In the absence of a living will executed pursuant
8 to s. 765.303, the decision to withhold or withdraw
9 life-prolonging procedures from a patient may be made by a
10 health care surrogate designated by the patient pursuant to
11 part II unless the designation limits the surrogate's
12 authority to consent to the withholding or withdrawal of
13 life-prolonging procedures.
14 (2) Before exercising the incompetent patient's right
15 to forego treatment, the surrogate must be satisfied that:
16 (a) The patient does not have a reasonable probability
17 of recovering capacity competency so that the right could be
18 exercised by the patient.
19 (b) The patient is both mentally and physically
20 incapacitated with no reasonable medical probability of
21 recovery or the patient's physical condition is terminal.
22 Section 29. Section 765.306, Florida Statutes, is
23 amended to read:
24 765.306 Determination of patient condition.--In
25 determining whether the patient has a terminal condition or
26 may recover mental and physical capacity, or whether a medical
27 condition or limitation referred to in an advance directive
28 exists, the patient's attending or treating physician and at
29 least one other consulting physician must separately examine
30 the patient. The findings of each such examination must be
31 documented in the patient's medical record and signed by each
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1 examining physician before life-prolonging procedures may be
2 withheld or withdrawn.
3 Section 30. Section 765.308, Florida Statutes, is
4 renumbered as section 765.1105, Florida Statutes, and amended
5 to read:
6 765.1105 765.308 Transfer of a patient.--
7 (1) A health care provider or facility that refuses to
8 comply with a patient's advance directive the declaration of a
9 patient, or the treatment decision of his or her surrogate,
10 shall make reasonable efforts to transfer the patient to
11 another health care provider or facility that will comply with
12 the directive declaration or treatment decision. This chapter
13 does not require a health care provider or facility to commit
14 any act which is contrary to the provider's or facility's
15 moral or ethical beliefs concerning life-prolonging
16 procedures, if the patient:
17 (a) Is not in an emergency condition;, and
18 (b) Has received written information upon admission
19 informing the patient of the policies of the health care
20 provider or facility regarding such moral or ethical beliefs.
21 (2) A health care provider or facility that is
22 unwilling to carry out the wishes of the patient or the
23 treatment decision of his or her surrogate because of moral or
24 ethical beliefs must within 7 days either:
25 (a) Transfer the patient to another health care
26 provider or facility. The health care provider or facility
27 shall pay the costs for transporting the patient to another
28 health care provider or facility; or
29 (b) If the patient has not been transferred, carry out
30 the wishes of the patient or the patient's surrogate, unless
31 the provisions of s. 765.105 apply.
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1 Section 31. Section 765.310, Florida Statutes, is
2 renumbered as section 765.1115, Florida Statutes, and amended
3 to read:
4 765.1115 765.310 Falsification, forgery, or willful
5 concealment, cancellation, or destruction of directive
6 declaration or revocation or amendment; penalties.--
7 (1) Any person who willfully conceals, cancels,
8 defaces, obliterates, or damages an advance directive a living
9 will without the principal's consent or who falsifies or
10 forges the revocation or amendment of an advance directive a
11 revocation of a living will of another, and who thereby causes
12 life-prolonging procedures to be utilized in contravention of
13 the previously expressed intent of the principal, commits a
14 felony of the third degree, punishable as provided in s.
15 775.082, s. 775.083, or s. 775.084.
16 (2) Any person who falsifies or forges the advance
17 directive living will of another or who willfully conceals or
18 withholds personal knowledge of the revocation of an advance
19 directive a declaration, with the intent to cause a
20 withholding or withdrawal of life-prolonging procedures
21 contrary to the wishes of the principal, and who thereby
22 because of such act directly causes life-prolonging procedures
23 to be withheld or withdrawn and death to be hastened, commits
24 a felony of the second degree, punishable as provided in s.
25 775.082, s. 775.083, or s. 775.084.
26 Section 32. Subsection (3) of section 765.401, Florida
27 Statutes, is amended to read:
28 765.401 The proxy.--
29 (3) Before exercising the incapacitated patient's
30 rights to select or decline health care, the proxy must comply
31 with the pertinent provisions applicable to surrogates under
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1 this chapter, except that a proxy's decision to withhold or
2 withdraw life-prolonging procedures must either:
3 (a) Be supported by a written declaration; or
4 (b) If there is no written declaration, the patient
5 must be terminally ill or in a persistent vegetative state,
6 and the proxy's decision must be supported by clear and
7 convincing evidence that the decision would have been the one
8 the patient would have chosen had the patient been competent.
9 Section 33. Section 765.404, Florida Statutes, is
10 created to read:
11 765.404 Persistent vegetative state.--For persons in a
12 persistent vegetative state who have no advance directive and
13 for whom there is no evidence indicating what the person would
14 have wanted under such conditions, and who have no family or
15 friends available or willing to serve as a proxy to make
16 health care decisions for them, life-prolonging procedures may
17 be withheld or withdrawn under the following conditions:
18 (1) The person has a judicially appointed guardian
19 representing his or her best interest with authority to
20 consent to medical treatment; and
21 (2) The guardian, in consultation with the person's
22 attending physician and the medical ethics committee of the
23 facility where the patient is located, concludes that the
24 condition is permanent and that there is no reasonable hope
25 for recovery. If there is no medical ethics committee at the
26 facility, the facility must have an arrangement with the
27 medical ethics committee of another facility or with a
28 community-based ethics committee approved by the Florida
29 Bio-ethics Network. The ethics committee shall review the case
30 with the guardian, in consultation with the person's attending
31 physician, to determine whether the condition is permanent and
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1 there is no reasonable hope for recovery. The individual
2 committee members and the facility associated with an ethics
3 committee shall not be held liable in any civil action related
4 to the performance of any duties required in this subsection.
5 Section 34. The Department of Elderly Affairs shall
6 convene a workgroup composed of health care professionals,
7 health facilities, attorneys, consumers, clergy, academic
8 institutions, and other interested parties to develop model
9 advance directive forms. The department shall make the forms
10 available to the public. The department may reconvene the
11 workgroup as necessary to modify and update such forms.
12 Section 35. Effective July 1, 1999:
13 (1) Subsection (6) of section 3 of chapter 98-327,
14 Laws of Florida, is repealed and the Panel for the Study of
15 End-of-Life Care created by said section is continued until
16 January 31, 2000.
17 (2) To support the work of the panel, the sum of
18 $100,000 is appropriated from the General Revenue Fund to the
19 Pepper Institute on Aging and Public Policy at Florida State
20 University.
21 (3) The panel shall submit its final report to the
22 Legislature no later than January 31, 2000.
23 Section 35. Except as otherwise provide herein, this
24 act shall take effect October 1, 1999.
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2 HOUSE SUMMARY
3
Provides legislative findings regarding end-of-life care.
4 Provides for demonstration projects under the Secretary
of Health and a working group to review certain
5 curricula. Authorizes emergency medical technicians,
paramedics, and personnel of hospital emergency
6 services, long-term care facilities, assisted living
facilities, home health agencies, hospices, and adult
7 family-care homes to withhold or withdraw cardiopulmonary
resuscitation pursuant to an order not to resuscitate.
8 Provides protection from criminal prosecution, civil
liability, and charges of negligent or unprofessional
9 conduct for such action. Directs the Department of Health
to develop a standardized do-not-resuscitate
10 identification system, and authorizes a fee therefor.
Revises provisions relating to anatomical gifts of
11 advance directives, health care surrogates and proxies,
and living wills. Increases a penalty for health care
12 facilities or providers that require patients to execute
advance directives. Requires advance directives to become
13 part of patients' medical records. Provides penalties for
cancellation, or destruction of an advance directive,
14 rather than a living will. Provides conditions for
withholding or withdrawing life-prolonging procedures for
15 persons in a persistent vegetative state when there is no
advance directive or health care proxy. Directs the
16 Department of Elderly Affairs to convene a workgroup to
develop model advance directive forms. Continues the
17 Panel for the Study of End-of-Life Care until January 31,
2000, and provides an appropriation therefor. See bill
18 for details.
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