House Bill 0249

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    Florida House of Representatives - 1999                 HB 249

        By Representative Heyman






  1                      A bill to be entitled

  2         An act relating to health care advance

  3         directives; amending s. 765.101, F.S.; defining

  4         the term "palliative care"; redefining the term

  5         "terminal condition" to provide that such a

  6         condition is not necessary for ensuring a right

  7         to refuse treatment; amending s. 765.102, F.S.;

  8         providing legislative intent; amending s.

  9         765.302, F.S.; revising a provision relating to

10         the procedure for making a living will to

11         remove reference to a terminal condition;

12         amending s. 765.303, F.S.; revising the

13         suggested form of a living will; amending s.

14         765.304, F.S.; removing reference to a physical

15         condition which is terminal with respect to the

16         procedure for a living will; amending s.

17         765.305, F.S.; removing reference to a terminal

18         condition with respect to the procedure in the

19         absence of a living will; amending s. 765.306,

20         F.S.; removing reference to a terminal

21         condition with respect to the determination of

22         a patient's condition under the Life-Prolonging

23         Procedure Act of Florida; providing an

24         effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

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28         Section 1.  Subsections (11), (12), (13), (14), (15),

29  and (16) of section 765.101, Florida Statutes, are renumbered

30  as subsections (12), (13), (14), (15), (16), and (17),

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  1  respectively, a new subsection (11) is added to said section,

  2  and subsection (15) is amended, to read:

  3         765.101  Definitions.--As used in this chapter:

  4         (11)  "Palliative care" means efforts to eliminate or

  5  reduce mental or physical pain, suffering, and discomfort.

  6         (16)(15)  "Terminal condition" means:

  7         (a)  A condition caused by injury, disease, or illness

  8  from which there is no reasonable probability of recovery and

  9  which, without treatment, can be expected to cause death; or

10         (b)  A persistent vegetative state characterized by a

11  permanent and irreversible condition of unconsciousness in

12  which there is:

13         1.  The absence of voluntary action or cognitive

14  behavior of any kind; and

15         2.  An inability to communicate or interact

16  purposefully with the environment.

17

18  "Terminal condition" is not necessary for ensuring a right to

19  refuse treatment.

20         Section 2.  Section 765.102, Florida Statutes, is

21  amended to read:

22         765.102  Legislative findings and intent.--

23         (1)  The Legislature finds that every competent adult

24  has the fundamental right of self-determination regarding

25  decisions pertaining to his or her own health, including the

26  right to choose or refuse medical treatment. This right is

27  subject to certain interests of society, such as the

28  protection of human life and the preservation of ethical

29  standards in the medical profession. Furthermore, the

30  fundamental right of self-determination, including the right

31  to refuse treatment, provides for informed, competent, and

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  1  uncoerced adults to refuse any medical treatment, including

  2  life-sustaining treatment. Such a refusal may be set out in an

  3  advance directive.

  4         (2)  The Legislature intends that nothing in this

  5  chapter shall be construed to prevent or discourage the

  6  provision of medically and pharmacologically appropriate pain

  7  control or other forms of palliative care. In accordance with

  8  standard and accepted medical and ethical principles, the use

  9  of pharmacological substances with the intent of alleviating

10  or eliminating pain and other discomfort is encouraged. Such

11  use is not to be regarded as ethically or legally blameworthy,

12  even if appropriate pain control occurs during, and so

13  precedes the outcome of, the dying process.

14         (3)(2)  To ensure that such right is not lost or

15  diminished by virtue of later physical or mental incapacity,

16  the Legislature intends that a procedure be established to

17  allow a person to plan for incapacity by designating another

18  person to direct the course of his or her medical treatment

19  upon his or her incapacity. Such procedure should be less

20  expensive and less restrictive than guardianship and permit a

21  previously incapacitated person to exercise his or her full

22  right to make health care decisions as soon as the capacity to

23  make such decisions has been regained.

24         (4)(3)  The Legislature further finds that the

25  artificial prolongation of life for a person with a terminal

26  condition may secure for him or her only a precarious and

27  burdensome existence, while providing nothing medically

28  necessary or beneficial to the patient. In order that the

29  rights and intentions of a person with such a condition may be

30  respected even after he or she is no longer able to

31  participate actively in decisions concerning himself or

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  1  herself, and to encourage communication among such patient,

  2  his or her family, and his or her physician, the Legislature

  3  declares that the laws of this state recognize the right of a

  4  competent adult to make an advance directive instructing his

  5  or her physician to provide, withhold, or withdraw

  6  life-prolonging procedures, or to designate another to make

  7  the treatment decision for him or her in the event that such

  8  person should be found to be incompetent and suffering from a

  9  terminal condition.

10         (5)  The Legislature further recognizes that many

11  difficult ethical issues accompany actions and processes at

12  the end of life, and that reasonable people may disagree on

13  these issues. Therefore, the Legislature strongly urges

14  institutions that train health professionals to establish or

15  maintain educational programs to address ethical issues

16  pertaining to end-of-life care. These issues should include,

17  but not be limited to, withdrawing and withholding treatment,

18  palliative care (including pain control), surrogate

19  decisionmaking, valid refusal of treatment, and other issues

20  as appropriate and as stated in current law.

21         Section 3.  Subsection (1) of section 765.302, Florida

22  Statutes, is amended to read:

23         765.302  Procedure for making a living will; notice to

24  physician.--

25         (1)  Any informed, competent, and uncoerced adult may,

26  at any time, make a living will or written declaration

27  directing the providing, withholding, or withdrawal of

28  life-prolonging procedures in the event such person suffers

29  from a terminal condition.  A living will must be signed by

30  the principal in the presence of two subscribing witnesses,

31  one of whom is neither a spouse nor a blood relative of the

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  1  principal.  If the principal is physically unable to sign the

  2  living will, one of the witnesses must subscribe the

  3  principal's signature in the principal's presence and at the

  4  principal's direction.

  5         Section 4.  Subsection (1) of section 765.303, Florida

  6  Statutes, is amended to read:

  7         765.303  Suggested form of a living will.--

  8         (1)  A living will may, BUT NEED NOT, be in the

  9  following form:

10                           Living Will

11         Declaration made this .... day of ...., 19 .... I,

12  ........, willfully and voluntarily make known my desire that

13  my dying not be artificially prolonged under the circumstances

14  set forth below, and I do hereby declare:

15         If at any time I have a terminal condition as

16  determined by my attending physician and if my attending or

17  treating physician and another consulting physician have

18  determined that there is no medical probability of my recovery

19  from such condition, I direct that life-prolonging procedures

20  be withheld or withdrawn when the application of such

21  procedures would serve only to prolong artificially the

22  process of dying, and that I be permitted to die naturally

23  with only the administration of medication or the performance

24  of any medical procedure deemed necessary to provide me with

25  comfort care or to alleviate pain.

26         It is my intention that this declaration be honored by

27  my family and physician as the final expression of my legal

28  right to refuse medical or surgical treatment and to accept

29  the consequences for such refusal.

30         In the event that I have been determined to be unable

31  to provide express and informed consent regarding the

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  1  withholding, withdrawal, or continuation of life-prolonging

  2  procedures, I wish to designate, as my surrogate to carry out

  3  the provisions of this declaration:

  4

  5  Name:.........................................................

  6  Address:......................................................

  7  .................................................. Zip Code:...

  8  Phone:................

  9         I understand the full import of this declaration, and I

10  am emotionally and mentally competent to make this

11  declaration.

12  Additional Instructions (optional):

13  ..............................................................

14  ..............................................................

15  ..............................................................

16                         ....(Signed)....

17                         ....Witness....

18                         ....Address....

19                          ....Phone....

20                         ....Witness....

21                         ....Address....

22                          ....Phone....

23

24         Section 5.  Subsection (2) of section 765.304, Florida

25  Statutes, is amended to read:

26         765.304  Procedure for living will.--

27         (2)  Before proceeding in accordance with the

28  principal's living will, it must be determined that:

29         (a)  The principal does not have a reasonable

30  probability of recovering competency so that the right could

31  be exercised directly by the principal.

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  1         (b)  The principal's physical condition is terminal.

  2         (b)(c)  Any limitations or conditions expressed orally

  3  or in a written declaration have been carefully considered and

  4  satisfied.

  5         Section 6.  Subsection (2) of section 765.305, Florida

  6  Statutes, is amended to read:

  7         765.305  Procedure in absence of a living will.--

  8         (2)  Before exercising the incompetent patient's right

  9  to forego treatment, the surrogate must be satisfied that:

10         (a)  the patient does not have a reasonable probability

11  of recovering competency so that the right could be exercised

12  by the patient.

13         (b)  The patient's physical condition is terminal.

14         Section 7.  Section 765.306, Florida Statutes, is

15  amended to read:

16         765.306  Determination of patient condition.--In

17  determining whether the patient has a terminal condition or

18  may recover capacity, or whether a medical condition or

19  limitation referred to in an advance directive exists, the

20  patient's attending or treating physician and at least one

21  other consulting physician must separately examine the

22  patient.  The findings of each such examination must be

23  documented in the patient's medical record and signed by the

24  each examining physician before life-prolonging procedures may

25  be withheld or withdrawn.

26         Section 8.  This act shall take effect October 1, 1999.

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    Florida House of Representatives - 1999                 HB 249

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  2                          HOUSE SUMMARY

  3
      Revises provisions with respect to health care advance
  4    directives to provide that a terminal condition is not
      necessary for ensuring a right to refuse treatment.
  5    Provides Legislative intent with respect to health care
      advance directives.
  6

  7    Revises the Life-Prolonging Procedure Act of Florida to
      remove reference to terminal condition.
  8

  9    See bill for details.

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