Senate Bill 2228
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Florida Senate - 1999 SB 2228
By Senator Klein
28-409A-99 See HB 343
1 A bill to be entitled
2 An act relating to end-of-life care; amending
3 ss. 395.1041, 400.142, 400.4255, 400.487,
4 400.6095, and 400.621, F.S.; authorizing
5 personnel of hospital emergency services,
6 long-term care facilities, assisted living
7 facilities, home health agencies, hospices, and
8 adult family-care homes to withhold or withdraw
9 cardiopulmonary resuscitation pursuant to an
10 order not to resuscitate; providing for rules;
11 providing certain protection from prosecution
12 and liability; amending s. 401.23, F.S.;
13 providing a definition; amending s. 401.245,
14 F.S.; conforming a cross-reference; amending s.
15 401.45, F.S.; revising authority of emergency
16 medical technicians and paramedics to withhold
17 or withdraw resuscitation or life-prolonging
18 techniques; providing for rules; directing the
19 Department of Health to develop standardized
20 do-not-resuscitate identification cards or
21 devices; authorizing a fee; amending s.
22 732.912, F.S.; revising provisions relating to
23 who may make anatomical gifts; amending s.
24 732.914, F.S.; providing for amendment and
25 revocation of anatomical gifts; amending s.
26 765.101, F.S.; revising definitions; amending
27 s. 765.102, F.S.; revising legislative intent
28 relating to advance directives; amending s.
29 765.103, F.S.; providing for effect of existing
30 advance directives; amending s. 765.104, F.S.;
31 providing for amendment of an advance directive
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 or designation of a surrogate; amending s.
2 765.110, F.S.; prohibiting certain actions by a
3 health care facility or provider with respect
4 to a patient's advance directive; increasing a
5 penalty; requiring that advance directives
6 become part of patients' medical records;
7 providing for rules; amending s. 765.113, F.S.;
8 conforming a cross-reference; amending s.
9 765.204, F.S.; revising provisions relating to
10 evaluation of a patient's capacity to make
11 health care decisions; amending s. 765.205,
12 F.S.; revising responsibilities of the
13 surrogate; amending s. 765.301, F.S.;
14 conforming a cross-reference; amending s.
15 765.302, F.S.; revising procedure for making a
16 living will; amending s. 765.303, F.S.;
17 revising suggested form of a living will;
18 amending s. 765.304, F.S.; revising procedure
19 for implementing a living will; amending s.
20 765.305, F.S.; revising procedure in the
21 absence of a living will; amending s. 765.306,
22 F.S.; revising provisions relating to
23 determination of the patient's condition;
24 renumbering and amending s. 765.308, F.S.;
25 providing for transfer of a patient under
26 certain circumstances; providing penalties for
27 failure to comply with a patient's advance
28 directive or the treatment decision of a
29 surrogate; renumbering and amending s. 765.310,
30 F.S.; providing penalties for falsification,
31 forgery, or willful concealment, cancellation,
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 or destruction of an advance directive, or a
2 revocation or amendment thereof; amending s.
3 765.401, F.S.; revising provisions relating to
4 who may act as a proxy; creating s. 765.404,
5 F.S.; providing conditions for withholding or
6 withdrawing life-prolonging procedures for
7 certain persons in a persistent vegetative
8 state; directing the Department of Elderly
9 Affairs to convene a workgroup to develop model
10 advance directive forms; amending s. 395.1027,
11 F.S.; conforming a cross-reference; repealing
12 s. 732.916, F.S., relating to amendment or
13 revocation of an anatomical gift; providing an
14 effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Paragraph (l) is added to subsection (3) of
19 section 395.1041, Florida Statutes, 1998 Supplement, to read:
20 395.1041 Access to emergency services and care.--
21 (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF
22 FACILITY OR HEALTH CARE PERSONNEL.--
23 (l) Hospital emergency services personnel may withhold
24 or withdraw cardiopulmonary resuscitation if presented with an
25 order not to resuscitate executed pursuant to s. 401.45.
26 Facility staff shall not be subject to criminal prosecution or
27 civil liability, nor be considered to have engaged in
28 negligent or unprofessional conduct, for withholding or
29 withdrawing cardiopulmonary resuscitation pursuant to such an
30 order.
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 Section 2. Section 400.142, Florida Statutes, is
2 amended to read:
3 400.142 Emergency medication kits; orders not to
4 resuscitate.--
5 (1) Other provisions of this chapter or of chapter
6 465, chapter 499, or chapter 893 to the contrary
7 notwithstanding, each nursing home operating pursuant to a
8 license issued by the agency may maintain an emergency
9 medication kit for the purpose of storing medicinal drugs to
10 be administered under emergency conditions to residents
11 residing in such facility.
12 (2) The agency shall adopt such rules as it may deem
13 appropriate to the effective implementation of this act,
14 including, but not limited to, rules which:
15 (a) Define the term "emergency medication kit."
16 (b) Describe the medicinal drugs eligible to be placed
17 in emergency medication kits.
18 (c) Establish requirements for the storing of
19 medicinal drugs in emergency medication kits and the
20 maintenance of records with respect thereto.
21 (d) Establish requirements for the administration of
22 medicinal drugs to residents under emergency conditions from
23 emergency medication kits.
24 (3) Facility staff may withhold or withdraw
25 cardiopulmonary resuscitation if presented with an order not
26 to resuscitate executed pursuant to s. 401.45. The agency
27 shall adopt rules providing for the implementation of such
28 orders. Facility staff shall not be subject to criminal
29 prosecution or civil liability, nor be considered to have
30 engaged in negligent or unprofessional conduct, for
31
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 withholding or withdrawing cardiopulmonary resuscitation
2 pursuant to such an order and rules adopted by the agency.
3 Section 3. Subsection (3) is added to section
4 400.4255, Florida Statutes, to read:
5 400.4255 Use of licensed personnel.--
6 (3) Facility staff may withhold or withdraw
7 cardiopulmonary resuscitation if presented with an order not
8 to resuscitate executed pursuant to s. 401.45. The department
9 shall adopt rules providing for the implementation of such
10 orders. Facility staff shall not be subject to criminal
11 prosecution or civil liability, nor be considered to have
12 engaged in negligent or unprofessional conduct, for
13 withholding or withdrawing cardiopulmonary resuscitation
14 pursuant to such an order and rules adopted by the department.
15 Section 4. Section 400.487, Florida Statutes, is
16 amended to read:
17 400.487 Patient assessment; establishment and review
18 of plan of care; provision of services; orders not to
19 resuscitate.--
20 (1) The home health agency providing care and
21 treatment must make an assessment of the patient's needs
22 within 48 hours after the start of services.
23 (2) The attending physician for a patient receiving
24 care or treatment provided by a licensed nurse or by a
25 physical, occupational, or speech therapist must establish a
26 plan of care for the patient on behalf of the home health
27 agency that provides services to the patient. The original
28 plan of treatment must be signed by the physician and
29 reviewed, at least every 62 days or more frequently if the
30 patient's illness requires, by the physician in consultation
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 with home health agency personnel that provide services to the
2 patient.
3 (3) Each patient has the right to be informed of and
4 to participate in the planning of his or her care. Each
5 patient must be provided, upon request, a copy of the plan of
6 care established and maintained for that patient by the home
7 health agency.
8 (4) Home health services that are provided to a
9 patient must be evaluated in the patient's home by a physician
10 licensed under chapter 458, chapter 459, chapter 460, or
11 chapter 461 or by a registered nurse licensed under chapter
12 464 as frequently as necessary to assure safe and adequate
13 care, but not less frequently than once every 62 days.
14 (5) A home health agency must provide at least one
15 home health service to patients for whom it has agreed to
16 provide care. Services provided by others under contractual
17 arrangements to a home health agency's patients must be
18 monitored and controlled by the home health agency.
19 (6) The services provided by a home health agency,
20 directly or under contract, must be supervised and coordinated
21 in accordance with the plan of care.
22 (7) Home health agency personnel may withhold or
23 withdraw cardiopulmonary resuscitation if presented with an
24 order not to resuscitate executed pursuant to s. 401.45. The
25 agency shall adopt rules providing for the implementation of
26 such orders. Home health personnel shall not be subject to
27 criminal prosecution or civil liability, nor be considered to
28 have engaged in negligent or unprofessional conduct, for
29 withholding or withdrawing cardiopulmonary resuscitation
30 pursuant to such an order and rules adopted by the agency.
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 Section 5. Present subsection (8) of section 400.6095,
2 Florida Statutes, is renumbered as subsection (9), and a new
3 subsection (8) is added to that section, to read:
4 400.6095 Patient admission; assessment; plan of care;
5 discharge; death.--
6 (8) The hospice care team may withhold or withdraw
7 cardiopulmonary resuscitation if presented with an order not
8 to resuscitate executed pursuant to s. 401.45. The department
9 shall adopt rules providing for the implementation of such
10 orders. Hospice staff shall not be subject to criminal
11 prosecution or civil liability, nor be considered to have
12 engaged in negligent or unprofessional conduct, for
13 withholding or withdrawing cardiopulmonary resuscitation
14 pursuant to such an order and rules adopted by the department.
15 Section 6. Present subsection (3) of section 400.621,
16 Florida Statutes, 1998 Supplement, is renumbered as subsection
17 (4), and a new subsection (3) is added to that section, to
18 read:
19 400.621 Rules and standards relating to adult
20 family-care homes.--
21 (3) The department shall adopt rules providing for the
22 implementation of orders not to resuscitate. The provider may
23 withhold or withdraw cardiopulmonary resuscitation if
24 presented with an order not to resuscitate executed pursuant
25 to s. 401.45. The provider shall not be subject to criminal
26 prosecution or civil liability, nor be considered to have
27 engaged in negligent or unprofessional conduct, for
28 withholding or withdrawing cardiopulmonary resuscitation
29 pursuant to such an order and rules adopted by the department.
30 Section 7. Present subsections (9) through (22) of
31 section 401.23, Florida Statutes, are renumbered as
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 subsections (10) through (23), respectively, and a new
2 subsection (9) is added to that section, to read:
3 401.23 Definitions.--As used in this part, the term:
4 (9) "Cardiopulmonary resuscitation (CPR)" means
5 cardiac compression, endotracheal intubation and other
6 advanced airway management, artificial ventilation,
7 defibrillation, administration of cardiac resuscitation
8 medications, and related emergency medical procedures.
9 Section 8. Paragraph (b) of subsection (2) of section
10 401.245, Florida Statutes, is amended to read:
11 401.245 Emergency Medical Services Advisory Council.--
12 (2)
13 (b) Representation on the Emergency Medical Services
14 Advisory Council shall include: two licensed physicians who
15 are "medical directors" as defined in s. 401.23(16)(15) or
16 whose medical practice is closely related to emergency medical
17 services; two emergency medical service administrators, one of
18 whom is employed by a fire service; two certified paramedics,
19 one of whom is employed by a fire service; two certified
20 emergency medical technicians, one of whom is employed by a
21 fire service; one emergency medical services educator; one
22 emergency nurse; one hospital administrator; one
23 representative of air ambulance services; one representative
24 of a commercial ambulance operator; and two laypersons who are
25 in no way connected with emergency medical services, one of
26 whom is a representative of the elderly. Ex officio members of
27 the advisory council from state agencies shall include, but
28 shall not be limited to, representatives from the Department
29 of Education, the Department of Management Services, the
30 Department of Insurance, the Department of Highway Safety and
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 Motor Vehicles, the Department of Transportation, and the
2 Department of Community Affairs.
3 Section 9. Subsection (3) of section 401.45, Florida
4 Statutes, is amended to read:
5 401.45 Denial of emergency treatment; civil
6 liability.--
7 (3)(a) Cardiopulmonary resuscitation or
8 life-prolonging techniques may be withheld or withdrawn from a
9 patient by an emergency medical technician or paramedic if
10 evidence of an order not to resuscitate by the patient's
11 physician is presented to the emergency medical technician or
12 paramedic in a manner provided by rule of the department. The
13 department shall develop rules providing for the
14 implementation of such orders.
15 (b) Any licensee, physician, medical director, or
16 emergency medical technician or paramedic who acts under the
17 direction of a medical director is not subject to criminal
18 prosecution or civil liability, and has not engaged in
19 negligent or unprofessional conduct, as a result of the
20 withholding or withdrawal of cardiopulmonary resuscitation or
21 life-prolonging techniques from a patient pursuant to this
22 subsection and rules adopted by the department.
23 (c) The department, in consultation with the
24 Department of Elderly Affairs and the Agency for Health Care
25 Administration, shall develop standardized do-not-resuscitate
26 identification cards, forms, necklaces, bracelets, or other
27 devices that signify, when carried or worn, that the possessor
28 is a patient for whom a physician has issued an order not to
29 administer cardiopulmonary resuscitation. The department may
30 charge a reasonable fee to cover the cost of producing and
31 distributing such identification devices.
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 (4) Any licensee or emergency medical technician or
2 paramedic who in good faith provides emergency medical care or
3 treatment within the scope of their employment and pursuant to
4 oral or written instructions of a medical director shall be
5 deemed to be providing emergency medical care or treatment for
6 the purposes of s. 768.13(2)(b).
7 Section 10. Section 732.912, Florida Statutes, 1998
8 Supplement, is amended to read:
9 732.912 Persons who may make an anatomical gift.--
10 (1) Any person who may make a will may give all or
11 part of his or her body for any purpose specified in s.
12 732.910, the gift to take effect upon death. An anatomical
13 gift made by an adult donor and not revoked by the donor as
14 provided in s. 732.916 is irrevocable and does not require the
15 consent or concurrence of any person after the donor's death.
16 (2) If the decedent has not executed an agreement
17 concerning an anatomical gift, a member of one of the classes
18 of persons listed below, in the order of priority stated and
19 in the absence of actual notice of contrary indications by the
20 decedent or actual notice of opposition by a member of the
21 same or a prior class, may give all or any part of the
22 decedent's body for any purpose specified in s. 732.910:
23 (a) The spouse of the decedent;
24 (b) An adult son or daughter of the decedent;
25 (c) Either parent of the decedent;
26 (d) An adult brother or sister of the decedent;
27 (e) A grandparent of the decedent;
28 (f) A guardian of the person of the decedent at the
29 time of his or her death; or
30 (g) A health care surrogate designated by the decedent
31 under part II of chapter 765; or
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Florida Senate - 1999 SB 2228
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1 (h)(g) A representative ad litem who shall be
2 appointed by a court of competent jurisdiction forthwith upon
3 a petition heard ex parte filed by any person, which
4 representative ad litem shall ascertain that no person of
5 higher priority exists who objects to the gift of all or any
6 part of the decedent's body and that no evidence exists of the
7 decedent's having made a communication expressing a desire
8 that his or her body or body parts not be donated upon death;
9
10 but no gift shall be made by the spouse if any adult son or
11 daughter objects, and provided that those of higher priority,
12 if they are reasonably available, have been contacted and made
13 aware of the proposed gift, and further provided that a
14 reasonable search is made to show that there would have been
15 no objection on religious grounds by the decedent.
16 (3) If the donee has actual notice of contrary
17 indications by the decedent or, in the case of a spouse making
18 the gift, an objection of an adult son or daughter or actual
19 notice that a gift by a member of a class is opposed by a
20 member of the same or a prior class, the donee shall not
21 accept the gift.
22 (4) The person authorized by subsection (2) may make
23 the gift after the decedent's death or immediately before the
24 decedent's death.
25 (5) A gift of all or part of a body authorizes any
26 examination necessary to assure medical acceptability of the
27 gift for the purposes intended.
28 (6) Once the gift has been made, the rights of the
29 donee are paramount to the rights of others, except as
30 provided by s. 732.917.
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Florida Senate - 1999 SB 2228
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1 Section 11. Section 732.914, Florida Statutes, 1998
2 Supplement, is amended to read:
3 732.914 Manner of executing, amending, and revoking
4 anatomical gifts.--
5 (1) A gift of all or part of the body under s.
6 732.912(1) may be made by will. The gift becomes effective
7 upon the death of the testator without waiting for probate.
8 If the will is not probated or if it is declared invalid for
9 testamentary purposes, the gift is nevertheless valid to the
10 extent that it has been acted upon in good faith.
11 (2)(a) A gift of all or part of the body under s.
12 732.912(1) may also be made by a document other than a will.
13 The gift becomes effective upon the death of the donor. The
14 document must be signed by the donor in the presence of two
15 witnesses who shall sign the document in the donor's presence.
16 If the donor cannot sign, the document may be signed for him
17 or her at the donor's direction and in his or her presence and
18 the presence of two witnesses who must sign the document in
19 the donor's presence. Delivery of the document of gift during
20 the donor's lifetime is not necessary to make the gift valid.
21 (b) The following form of written instrument shall be
22 sufficient for any person to give all or part of his or her
23 body for the purposes of this part:
24
25 UNIFORM DONOR CARD
26
27 The undersigned hereby makes this anatomical gift, if
28 medically acceptable, to take effect on death. The words and
29 marks below indicate my desires:
30 I give:
31 (a) .... any needed organs or parts;
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Florida Senate - 1999 SB 2228
28-409A-99 See HB 343
1 (b) .... only the following organs or parts
2 ...[Specify the organ(s) or part(s)]...
3 for the purpose of transplantation, therapy, medical research,
4 or education;
5 (c) .... my body for anatomical study if needed.
6 Limitations or special wishes, if any:
7 ...(If applicable, list specific donee)...
8
9 Signed by the donor and the following witnesses in the
10 presence of each other:
11
12 ...(Signature of donor)... ...(Date of birth of donor)...
13 ...(Date signed)... ...(City and State)...
14
15 ...(Witness)... ...(Witness)...
16 ...(Address)... ...(Address)...
17
18 (3) The gift may be made to a donee specified by name.
19 If the donee is not specified by name, the gift may be
20 accepted by the attending physician as donee upon or following
21 the donor's death. If the gift is made to a specified donee
22 who is not available at the time and place of death, the
23 attending physician may accept the gift as donee upon or
24 following death in the absence of any expressed indication
25 that the donor desired otherwise. However, the Legislature
26 declares that the public policy of this state prohibits
27 restrictions on the possible recipients of an anatomical gift
28 on the basis of race, color, religion, sex, national origin,
29 age, physical handicap, health status, marital status, or
30 economic status, and such restrictions are hereby declared
31 void and unenforceable. The physician who becomes a donee
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Florida Senate - 1999 SB 2228
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1 under this subsection shall not participate in the procedures
2 for removing or transplanting a part.
3 (4) Notwithstanding s. 732.917(2), the donor may
4 designate in his or her will or other document of gift the
5 surgeon or physician to carry out the appropriate procedures.
6 In the absence of a designation or if the designee is not
7 available, the donee or other person authorized to accept the
8 gift may employ or authorize any surgeon or physician for the
9 purpose.
10 (5) Any gift by a member of a class designated in s.
11 732.912(2) must be made by a document signed by that person or
12 made by that person's witnessed telephonic discussion,
13 telegraphic message, or other recorded message.
14 (6) A gift may be amended or revoked in the manner
15 provided in s. 765.104. An amendment or revocation addressed
16 to an attending physician must be communicated by that
17 physician to the designated procurement organization.
18 Section 12. Section 765.101, Florida Statutes, is
19 amended to read:
20 765.101 Definitions.--As used in this chapter:
21 (1) "Advance directive" means a witnessed written
22 document or oral statement in which instructions are given by
23 a principal or in which the principal's desires are expressed
24 concerning any aspect of the principal's health care, and
25 includes, but is not limited to, the designation of a health
26 care surrogate, a living will, or an anatomical gift made
27 pursuant to part X of chapter 732 orders not to resuscitate
28 issued pursuant to s. 401.45.
29 (2) "Attending physician" means the primary physician
30 who has responsibility for the treatment and care of the
31 patient.
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Florida Senate - 1999 SB 2228
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1 (3) "Close personal friend" means any person 18 years
2 of age or older who has exhibited special care and concern for
3 the patient, and who presents an affidavit to the health care
4 facility or to the attending or treating physician stating
5 that he or she is a friend of the patient; is willing and able
6 to become involved in the patient's health care; and has
7 maintained such regular contact with the patient so as to be
8 familiar with the patient's activities, health, and religious
9 or moral beliefs.
10 (4) "Health care decision" means:
11 (a) Informed consent, refusal of consent, or
12 withdrawal of consent to any and all health care, including
13 life-prolonging procedures.
14 (b) The decision to apply for private, public,
15 government, or veterans' benefits to defray the cost of health
16 care.
17 (c) The right of access to all records of the
18 principal reasonably necessary for a health care surrogate to
19 make decisions involving health care and to apply for
20 benefits.
21 (d) The decision to make an anatomical gift pursuant
22 to part X of chapter 732.
23 (5) "Health care facility" means a hospital, nursing
24 home, hospice, home health agency, or health maintenance
25 organization licensed in this state, or any facility subject
26 to part I of chapter 394.
27 (6) "Health care provider" or "provider" means any
28 person licensed, certified, or otherwise authorized by law to
29 administer health care in the ordinary course of business or
30 practice of a profession.
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1 (7) "Incapacity" or "incompetent" means the patient is
2 physically or mentally unable to communicate a willful and
3 knowing health care decision. For the purposes of making an
4 anatomical gift, the term also includes a patient who is
5 deceased.
6 (8) "Informed consent" means consent voluntarily given
7 by a person after a sufficient explanation and disclosure of
8 the subject matter involved to enable that person to have a
9 general understanding of the treatment or procedure and the
10 medically acceptable alternatives, including the substantial
11 risks and hazards inherent in the proposed treatment or
12 alternative procedures, and to make a knowing health care
13 decision without coercion or undue influence.
14 (9) "Life-prolonging procedure" means any medical
15 procedure, treatment, or intervention, including artificially
16 provided sustenance and hydration, which sustains, restores,
17 or supplants a spontaneous vital function. which:
18 (a) Utilizes mechanical or other artificial means to
19 sustain, restore, or supplant a spontaneous vital function;
20 and
21 (b) When applied to a patient in a terminal condition,
22 serves only to prolong the process of dying.
23
24 The term "life-prolonging procedure" does not include the
25 administration of medication or performance of medical
26 procedure, when such medication or procedure is deemed
27 necessary to provide comfort care or to alleviate pain.
28 (10) "Living will" or "declaration" means:
29 (a) A witnessed document in writing, voluntarily
30 executed by the principal in accordance with s. 765.302; or
31
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Florida Senate - 1999 SB 2228
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1 (b) A witnessed oral statement made by the principal
2 expressing the principal's instructions concerning
3 life-prolonging procedures.
4 (11) "Persistent vegetative state" means a permanent
5 and irreversible condition of unconsciousness in which there
6 is:
7 (a) The absence of voluntary action or cognitive
8 behavior of any kind.
9 (b) An inability to communicate or interact
10 purposefully with the environment.
11 (12)(11) "Physician" means a person licensed pursuant
12 to chapter 458 or chapter 459.
13 (13)(12) "Principal" means a competent adult executing
14 an advance directive and on whose behalf health care decisions
15 are to be made.
16 (14)(13) "Proxy" means a competent adult who has not
17 been expressly designated to make health care decisions for a
18 particular incapacitated individual, but who, nevertheless, is
19 authorized pursuant to s. 765.401 to make health care
20 decisions for such individual.
21 (15)(14) "Surrogate" means any competent adult
22 expressly designated by a principal to make health care
23 decisions on behalf of the principal upon the principal's
24 incapacity.
25 (15) "Terminal condition" means:
26 (a) A condition caused by injury, disease, or illness
27 from which there is no reasonable probability of recovery and
28 which, without treatment, can be expected to cause death; or
29 (b) A persistent vegetative state characterized by a
30 permanent and irreversible condition of unconsciousness in
31 which there is:
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1 1. The absence of voluntary action or cognitive
2 behavior of any kind; and
3 2. An inability to communicate or interact
4 purposefully with the environment.
5 (16) "Treating physician" means the physician who has
6 treated or is treating the patient for any condition directly
7 related to the condition resulting in the patient's
8 incapacity.
9 Section 13. Subsection (3) of section 765.102, Florida
10 Statutes, is amended to read:
11 765.102 Legislative findings and intent.--
12 (3) The Legislature recognizes further finds that for
13 some the administration of life-prolonging medical procedures
14 may result in the artificial prolongation of life for a person
15 with a terminal condition may secure for him or her only a
16 precarious and burdensome existence, while providing nothing
17 medically necessary or beneficial to the patient. In order to
18 ensure that the rights and intentions of a person with such a
19 condition may be respected even after he or she is no longer
20 able to participate actively in decisions concerning himself
21 or herself, and to encourage communication among such patient,
22 his or her family, and his or her physician, the Legislature
23 declares that the laws of this state recognize the right of a
24 competent adult to make an advance directive instructing his
25 or her physician to provide, withhold, or withdraw
26 life-prolonging procedures, or to designate another to make
27 the treatment decision for him or her in the event that such
28 person should become incapacitated and unable to personally
29 direct his or her medical care be found to be incompetent and
30 suffering from a terminal condition.
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1 Section 14. Section 765.103, Florida Statutes, is
2 amended to read:
3 765.103 Existing advance directives.--Any advance
4 directive made prior to October 1, 1999 April 10, 1992, shall
5 be given effect as executed, as provided in this chapter
6 provided such directive was legally effective when written.
7 Section 15. Section 765.104, Florida Statutes, is
8 amended to read:
9 765.104 Amendment or revocation.--
10 (1) An advance directive or designation of a surrogate
11 may be amended or revoked at any time by a competent
12 principal:
13 (a) By means of a signed, dated writing;
14 (b) By means of the physical cancellation or
15 destruction of the advance directive by the principal or by
16 another in the principal's presence and at the principal's
17 direction;
18 (c) By means of an oral expression of intent to amend
19 or revoke; or
20 (d) By means of a subsequently executed advance
21 directive that is materially different from a previously
22 executed advance directive.
23 (2) Unless otherwise provided in the advance directive
24 or in an order of dissolution or annulment of marriage, the
25 dissolution or annulment of marriage of the principal revokes
26 the designation of the principal's former spouse as a
27 surrogate.
28 (3) Any such amendment or revocation will be effective
29 when it is communicated to the surrogate, health care
30 provider, or health care facility. No civil or criminal
31 liability shall be imposed upon any person for a failure to
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1 act upon an amendment or a revocation unless that person has
2 actual knowledge of such amendment or revocation.
3 Section 16. Section 765.110, Florida Statutes, is
4 amended to read:
5 765.110 Health care facilities and providers;
6 discipline.--
7 (1) A health care facility, pursuant to Pub. L. No.
8 101-508, ss. 4206 and 4751, shall provide to each patient
9 written information concerning the individual's rights
10 concerning advance directives and the health care facility's
11 policies respecting the implementation of such rights, and
12 shall document in the patient's medical records whether or not
13 the individual has executed an advance directive.
14 (2) A health care provider or health care facility may
15 not require a patient to execute an advance directive or to
16 execute a new advance directive using the facility's or
17 provider's forms. The patient's advance directives shall
18 travel with the patient as part of the patient's medical
19 record.
20 (3)(2) A health care provider or health care facility
21 shall be subject to professional discipline and revocation of
22 license or certification, and a fine of not more than $1,000
23 $500 per incident, or both, if the health care provider or
24 health care facility, as a condition of treatment or
25 admission, requires an individual to execute or waive an
26 advance directive.
27 (4)(3) The Department of Elderly Affairs for hospices
28 and, in consultation with the Department of Elderly Affairs,
29 the Department of Health for health care providers, and
30 Rehabilitative Services and the Agency for Health Care
31 Administration for hospitals, nursing homes, home health
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1 agencies, and health maintenance organizations, and the
2 Department of Children and Family Services for facilities
3 subject to part I of chapter 394 shall adopt rules to
4 implement the provisions of the section.
5 Section 17. Subsection (2) of section 765.113, Florida
6 Statutes, is amended to read:
7 765.113 Restrictions on providing consent.--Unless the
8 principal expressly delegates such authority to the surrogate
9 in writing, or a surrogate or proxy has sought and received
10 court approval pursuant to rule 5.900 of the Florida Probate
11 Rules, a surrogate or proxy may not provide consent for:
12 (2) Withholding or withdrawing life-prolonging
13 procedures from a pregnant patient prior to viability as
14 defined in s. 390.0111 s. 390.001(5).
15 Section 18. 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 and, if the physician concludes that the
22 principal lacks capacity, enter that evaluation in the
23 principal's medical record. If the attending physician has a
24 question as to whether concludes that the principal lacks such
25 capacity, another physician shall also evaluate the
26 principal's capacity. If the second physician agrees that the
27 principal lacks the capacity to make health care decisions or
28 provide informed consent, the health care facility shall enter
29 both physician's evaluations in the principal's clinical
30 record and, if the principal has designated a health care
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1 surrogate, shall notify such surrogate in writing that her or
2 his authority under the instrument has commenced.
3 Section 19. Subsection (2) of section 765.205, Florida
4 Statutes, is amended to read:
5 765.205 Responsibility of the surrogate.--
6 (2) The surrogate may authorize the release of
7 information and clinical records to appropriate persons to
8 ensure the continuity of the principal's health care and may
9 authorize the transfer and admission, discharge, or transfer
10 of the principal to or from a health care facility or other
11 facility or program licensed under chapter 400.
12 Section 20. Section 765.301, Florida Statutes, is
13 amended to read:
14 765.301 Short title.--Sections 765.302-765.309
15 765.302-765.310 may be cited as the "Life-Prolonging Procedure
16 Act of Florida."
17 Section 21. Subsection (1) of section 765.302, Florida
18 Statutes, is amended to read:
19 765.302 Procedure for making a living will; notice to
20 physician.--
21 (1) Any competent adult may, at any time, make a
22 living will or written declaration directing the providing,
23 withholding, or withdrawal of life-prolonging procedures in
24 the event such person suffers from a terminal condition. A
25 living will must be signed by the principal in the presence of
26 two subscribing witnesses, one of whom is neither a spouse nor
27 a blood relative of the principal. If the principal is
28 physically unable to sign the living will, one of the
29 witnesses must subscribe the principal's signature in the
30 principal's presence and at the principal's direction.
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1 Section 22. Subsection (1) of section 765.303, Florida
2 Statutes, is amended to read:
3 765.303 Suggested form of a living will.--
4 (1) A living will may, but need not, be in the
5 following form:
6 Living Will
7 Declaration made this .... day of ...., 19 .... I,
8 ........, willfully and voluntarily make known my desire that
9 my dying not be artificially prolonged under the circumstances
10 set forth below, and I do hereby declare:
11 If at any time I am both mentally and physically
12 incapacitated have a terminal condition and if my attending or
13 treating physician and another consulting physician have
14 determined that there is no reasonable medical probability of
15 my recovery from such condition, I direct that life-prolonging
16 procedures be withheld or withdrawn when the application of
17 such procedures would serve only to prolong artificially the
18 process of dying, and that I be permitted to die naturally
19 with only the administration of medication or the performance
20 of any medical procedure deemed necessary to provide me with
21 comfort care or to alleviate pain.
22 It is my intention that this declaration be honored by
23 my family and physician as the final expression of my legal
24 right to refuse medical or surgical treatment and to accept
25 the consequences for such refusal.
26 In the event that I have been determined to be unable
27 to provide express and informed consent regarding the
28 withholding, withdrawal, or continuation of life-prolonging
29 procedures, I wish to designate, as my surrogate to carry out
30 the provisions of this declaration:
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1 Name:.........................................................
2 Address:......................................................
3 .................................................. Zip Code:....
4 Phone:................
5 I understand the full import of this declaration, and I
6 am emotionally and mentally competent to make this
7 declaration.
8 Additional Instructions (optional):
9 ..............................................................
10 ..............................................................
11 ..............................................................
12 ....(Signed)....
13 ....Witness....
14 ....Address....
15 ....Phone....
16 ....Witness....
17 ....Address....
18 ....Phone....
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20 Section 23. Subsection (2) of section 765.304, Florida
21 Statutes, is amended to read:
22 765.304 Procedure for living will.--
23 (2) Before proceeding in accordance with the
24 principal's living will, it must be determined that:
25 (a) The principal does not have a reasonable
26 probability of recovering capacity competency so that the
27 right could be exercised directly by the principal.
28 (b) The principal's physical condition is terminal.
29 (b)(c) Any limitations or conditions expressed orally
30 or in a written declaration have been carefully considered and
31 satisfied.
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1 Section 24. Section 765.305, Florida Statutes, is
2 amended to read:
3 765.305 Procedure in absence of a living will.--
4 (1) In the absence of a living will executed pursuant
5 to s. 765.303, the decision to withhold or withdraw
6 life-prolonging procedures from a patient may be made by a
7 health care surrogate designated by the patient pursuant to
8 part II unless the designation limits the surrogate's
9 authority to consent to the withholding or withdrawal of
10 life-prolonging procedures.
11 (2) Before exercising the incompetent patient's right
12 to forego treatment, the surrogate must be satisfied that:
13 (a) the patient does not have a reasonable probability
14 of recovering capacity competency so that the right could be
15 exercised by the patient.
16 (b) The patient's physical condition is terminal.
17 Section 25. Section 765.306, Florida Statutes, is
18 amended to read:
19 765.306 Determination of patient condition.--In
20 determining whether the patient has a terminal condition or
21 may recover capacity, or whether a medical condition or
22 limitation referred to in an advance directive exists, the
23 patient's attending or treating physician and at least one
24 other consulting physician must separately examine the
25 patient. The findings of each such examination must be
26 documented in the patient's medical record and signed by each
27 examining physician before life-prolonging procedures may be
28 withheld or withdrawn.
29 Section 26. Section 765.308, Florida Statutes, is
30 transferred, renumbered as section 765.1105, Florida Statutes,
31 and amended to read:
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1 765.1105 765.308 Transfer of a patient; penalties.--
2 (1) A health care provider or facility that refuses to
3 comply with a patient's advance directive the declaration of a
4 patient, or the treatment decision of his or her surrogate,
5 shall make reasonable efforts to transfer the patient to
6 another health care provider or facility that will comply with
7 the directive declaration or treatment decision. This chapter
8 does not require a health care provider or facility to commit
9 any act which is contrary to the provider's or facility's
10 moral or ethical beliefs concerning life-prolonging
11 procedures, if the patient:
12 (a) Is not in an emergency condition;, and
13 (b) Has received written information upon admission
14 informing the patient of the policies of the health care
15 provider or facility regarding such moral or ethical beliefs.
16 (2) A health care provider or facility that is
17 unwilling to carry out the wishes of the patient or the
18 treatment decision of his or her surrogate because of moral or
19 ethical beliefs must within 7 days either:
20 (a) Transfer the patient to another health care
21 provider or facility. The health care provider or facility
22 shall pay the costs for transporting the patient to another
23 health care provider or facility; or
24 (b) If the patient has not been transferred, carry out
25 the wishes of the patient or the patient's surrogate, unless
26 the provisions of s. 765.105 apply.
27 (3) Except as provided under this section, a health
28 care provider or facility who fails to comply with the advance
29 directive of a patient, or the treatment decision of his or
30 her surrogate, has no right to compensation for medical
31 services provided to the patient after being informed of the
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1 existence of the advance directive or the treatment decision
2 of the surrogate. The patient, the patient's heirs, or the
3 patient's estate may bring a cause of action for the willful
4 failure to comply with the patient's advance directive or the
5 treatment decision of the patient's surrogate.
6 Section 27. Section 765.310, Florida Statutes, is
7 transferred, renumbered as section 765.1115, Florida Statutes,
8 and amended to read:
9 765.1115 765.310 Falsification, forgery, or willful
10 concealment, cancellation, or destruction of directive
11 declaration or revocation or amendment; penalties.--
12 (1) Any person who willfully conceals, cancels,
13 defaces, obliterates, or damages an advance directive a living
14 will without the principal's consent or who falsifies or
15 forges the revocation or amendment of an advance directive a
16 revocation of a living will of another, and who thereby causes
17 life-prolonging procedures to be utilized in contravention of
18 the previously expressed intent of the principal, commits a
19 felony of the third degree, punishable as provided in s.
20 775.082, s. 775.083, or s. 775.084.
21 (2) Any person who falsifies or forges the advance
22 directive living will of another or who willfully conceals or
23 withholds personal knowledge of the revocation of an advance
24 directive a declaration, with the intent to cause a
25 withholding or withdrawal of life-prolonging procedures
26 contrary to the wishes of the principal, and who thereby
27 because of such act directly causes life-prolonging procedures
28 to be withheld or withdrawn and death to be hastened, commits
29 a felony of the second degree, punishable as provided in s.
30 775.082, s. 775.083, or s. 775.084.
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1 Section 28. Subsections (1) and (3) of section
2 765.401, Florida Statutes, are amended to read:
3 765.401 The proxy.--
4 (1) If the patient has not executed an advance
5 directive, or designated a surrogate to execute an advance
6 directive, or the designated or alternate surrogate is no
7 longer available to make health care decisions, health care
8 decisions may be made for the patient by any of the following
9 individuals, in the following order of priority, if no
10 individual in a prior class is reasonably available, willing,
11 or competent to act:
12 (a) The judicially appointed guardian of the patient,
13 who has been authorized to consent to medical treatment, if
14 such guardian has previously been appointed; however, this
15 paragraph shall not be construed to require such appointment
16 before a treatment decision can be made under this subsection;
17 (b) The patient's spouse;
18 (c) An adult child of the patient, or if the patient
19 has more than one adult child, a majority of the adult
20 children who are reasonably available for consultation;
21 (d) A parent of the patient;
22 (e) An The adult sibling of the patient; or, if the
23 patient has more than one sibling, a majority of the adult
24 siblings who are reasonably available for consultation.
25 (f) An adult relative of the patient who has exhibited
26 special care and concern for the patient and who has
27 maintained regular contact with the patient and who is
28 familiar with the patient's activities, health, and religious
29 or moral beliefs; or
30 (g) A close friend of the patient.
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1 (3) Before exercising the incapacitated patient's
2 rights to select or decline health care, the proxy must comply
3 with the pertinent provisions applicable to surrogates under
4 this chapter, except that a proxy's decision to withhold or
5 withdraw life-prolonging procedures, if challenged, must be
6 supported by clear and convincing evidence that the decision
7 would have been the one the patient would have chosen had the
8 patient been competent.
9 Section 29. 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.
21 (2) The guardian, in consultation with the person's
22 attending physician and the medical ethics committee of the
23 hospital where the patient is located, or if there is no
24 medical ethics committee, a permanent committee established by
25 the Board of Medicine to review such cases, concludes that the
26 condition is permanent and that there is no reasonable hope
27 for recovery.
28 Section 30. The Department of Elderly Affairs shall
29 convene a workgroup composed of health care professionals,
30 health facilities, attorneys, consumers, clergy, academic
31 institutions, and other interested parties to develop model
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1 advance directive forms. The department shall make the forms
2 available to the public. The department may reconvene the
3 workgroup as necessary to modify and update such forms.
4 Section 31. Subsection (4) of section 395.1027,
5 Florida Statutes, 1998 Supplement, is amended to read:
6 395.1027 Regional poison control centers.--
7 (4) By October 1, 1999, each regional poison control
8 center shall develop a prehospital emergency dispatch protocol
9 with each licensee defined by s. 401.23(14) s.401.23 (13) in
10 the geographic area covered by the regional poison control
11 center. The prehospital emergency dispatch protocol shall be
12 developed by each licensee's medical director in conjunction
13 with the designated regional poison control center responsible
14 for the geographic area in which the licensee operates. The
15 protocol shall define toxic substances and describe the
16 procedure by which the designated regional poison control
17 center may be consulted by the licensee. If a call is
18 transferred to the designated regional poison control center
19 in accordance with the protocol established under this section
20 and s. 401.268, the designated regional poison control center
21 shall assume responsibility and liability for the call.
22 Section 32. Section 732.916, Florida Statutes, is
23 repealed.
24 Section 33. This act shall take effect October 1,
25 1999.
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1 *****************************************
2 LEGISLATIVE SUMMARY
3
Authorizes emergency medical technicians, paramedics, and
4 personnel of hospital emergency services, long-term care
facilities, assisted living facilities, home health
5 agencies, hospices, and adult family-care homes to
withhold or withdraw cardiopulmonary resuscitation
6 pursuant to an order not to resuscitate. Provides
protection from criminal prosecution, civil liability,
7 and charges of negligent or unprofessional conduct for
such action. Directs the Department of Health to develop
8 standardized do-not-resuscitate identification cards or
devices, and authorizes a fee therefor. Revises
9 provisions relating to execution and implementation of
advance directives, designation and responsibilities of
10 health care surrogates and proxies, and procedures for
executing, revising, and implementing living wills.
11 Increases a penalty for health care facilities or
providers that require patients to execute advance
12 directives. Requires advance directives to become part of
patients' medical records. Provides that willful failure
13 to comply with a patient's advance directive or the
treatment decision of a surrogate creates a cause of
14 action by the patient or the patient's heirs or estate.
Provides penalties for cancellation or destruction of an
15 advance directive, rather than a living will. Provides
conditions for withholding or withdrawing life-prolonging
16 procedures for persons in a persistent vegetative state
when there is no advance directive or health care proxy.
17 Directs the Department of Elderly Affairs to convene a
workgroup to develop model advance directive forms.
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