House Bill 0343

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    Florida House of Representatives - 1999                 HB 343

        By Representative Brooks






  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.; correcting 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         732.922, F.S.; conforming provisions relating

27         to duty of certain hospital administrators;

28         amending s.765.101, F.S.; revising definitions;

29         amending s. 765.102, F.S.; revising legislative

30         intent relating to advance directives; amending

31         s. 765.103, F.S.; providing for effect of

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  1         existing advance directives; amending s.

  2         765.104, F.S.; providing for amendment of an

  3         advance directive or designation of a

  4         surrogate; amending s. 765.110, F.S.;

  5         prohibiting certain actions by a health care

  6         facility or provider with respect to a

  7         patient's advance directive; increasing a

  8         penalty; requiring that advance directives

  9         become part of patients' medical records;

10         providing for rules; amending s. 765.113, F.S.;

11         correcting a cross reference; amending s.

12         765.204, F.S.; revising provisions relating to

13         evaluation of a patient's capacity to make

14         health care decisions; amending s. 765.205,

15         F.S.; revising responsibilities of the

16         surrogate; amending s. 765.301, F.S.;

17         correcting a cross reference; amending s.

18         765.302, F.S.; revising procedure for making a

19         living will; amending s. 765.303, F.S.;

20         revising suggested form of a living will;

21         amending s. 765.304, F.S.; revising procedure

22         for implementing a living will; amending s.

23         765.305, F.S.; revising procedure in the

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

25         F.S.; revising provisions relating to

26         determination of the patient's condition;

27         renumbering and amending s. 765.308, F.S.;

28         providing for transfer of a patient under

29         certain circumstances; providing penalties for

30         failure to comply with a patient's advance

31         directive or the treatment decision of a

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  1         surrogate; renumbering and amending s. 765.310,

  2         F.S.; providing penalties for falsification,

  3         forgery, or willful concealment, cancellation,

  4         or destruction of an advance directive, or a

  5         revocation or amendment thereof; amending s.

  6         765.401, F.S.; revising provisions relating to

  7         who may act as a proxy; creating s. 765.404,

  8         F.S.; providing conditions for withholding or

  9         withdrawing life-prolonging procedures for

10         certain persons in a persistent vegetative

11         state; directing the Department of Elderly

12         Affairs to convene a workgroup to develop model

13         advance directive forms; amending s. 395.1027,

14         F.S.; correcting a cross reference; repealing

15         s. 732.916, F.S., relating to amendment or

16         revocation of an anatomical gift; providing an

17         effective date.

18

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

20

21         Section 1.  Paragraph (l) is added to subsection (3) of

22  section 395.1041, Florida Statutes, 1998 Supplement, to read:

23         395.1041  Access to emergency services and care.--

24         (3)  EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF

25  FACILITY OR HEALTH CARE PERSONNEL.--

26         (l)  Hospital emergency services personnel may withhold

27  or withdraw cardiopulmonary resuscitation if presented with an

28  order not to resuscitate executed pursuant to s. 401.45.

29  Facility staff shall not be subject to criminal prosecution or

30  civil liability, nor be considered to have engaged in

31  negligent or unprofessional conduct, for withholding or

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  1  withdrawing cardiopulmonary resuscitation pursuant to such an

  2  order.

  3         Section 2.  Subsection (3) is added to section 400.142,

  4  Florida Statutes, to read:

  5         400.142  Emergency medication kits; orders not to

  6  resuscitate.--

  7         (3)  Facility staff may withhold or withdraw

  8  cardiopulmonary resuscitation if presented with an order not

  9  to resuscitate executed pursuant to s. 401.45. The agency

10  shall adopt rules providing for the implementation of such

11  orders. Facility staff shall not be subject to criminal

12  prosecution or civil liability, nor be considered to have

13  engaged in negligent or unprofessional conduct, for

14  withholding or withdrawing cardiopulmonary resuscitation

15  pursuant to such an order and rules adopted by the agency.

16         Section 3.  Subsection (3) is added to section

17  400.4255, Florida Statutes, to read:

18         400.4255  Use of licensed personnel; emergency care.--

19         (3)  Facility staff may withhold or withdraw

20  cardiopulmonary resuscitation if presented with an order not

21  to resuscitate executed pursuant to s. 401.45. The department

22  shall adopt rules providing for the implementation of such

23  orders. Facility staff shall not be subject to criminal

24  prosecution or civil liability, nor be considered to have

25  engaged in negligent or unprofessional conduct, for

26  withholding or withdrawing cardiopulmonary resuscitation

27  pursuant to such an order and rules adopted by the department.

28         Section 4.  Subsection (7) is added to section 400.487,

29  Florida Statutes, to read:

30

31

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  1         400.487  Patient assessment; establishment and review

  2  of plan of care; provision of services; orders not to

  3  resuscitate.--

  4         (7)  Home health agency personnel may withhold or

  5  withdraw cardiopulmonary resuscitation if presented with an

  6  order not to resuscitate executed pursuant to s. 401.45. The

  7  agency shall adopt rules providing for the implementation of

  8  such orders. Home health personnel shall not be subject to

  9  criminal prosecution or civil liability, nor be considered to

10  have engaged in negligent or unprofessional conduct, for

11  withholding or withdrawing cardiopulmonary resuscitation

12  pursuant to such an order and rules adopted by the agency.

13         Section 5.  Subsection (8) of section 400.6095, Florida

14  Statutes, is renumbered as subsection (9), and a new

15  subsection (8) is added to said section to read:

16         400.6095  Patient admission; assessment; plan of care;

17  discharge; orders not to resuscitate; death.--

18         (8)  The hospice care team may withhold or withdraw

19  cardiopulmonary resuscitation if presented with an order not

20  to resuscitate executed pursuant to s. 401.45. The department

21  shall adopt rules providing for the implementation of such

22  orders. Hospice staff shall not be subject to criminal

23  prosecution or civil liability, nor be considered to have

24  engaged in negligent or unprofessional conduct, for

25  withholding or withdrawing cardiopulmonary resuscitation

26  pursuant to such an order and rules adopted by the department.

27         Section 6.  Subsection (3) of section 400.621, Florida

28  Statutes, 1998 Supplement, is renumbered as subsection (4),

29  and a new subsection (3) is added to said section to read:

30         400.621  Rules and standards relating to adult

31  family-care homes.--

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  1         (3)  The department shall adopt rules providing for the

  2  implementation of orders not to resuscitate. The provider may

  3  withhold or withdraw cardiopulmonary resuscitation if

  4  presented with an order not to resuscitate executed pursuant

  5  to s. 401.45. The provider shall not be subject to criminal

  6  prosecution or civil liability, nor be considered to have

  7  engaged in negligent or unprofessional conduct, for

  8  withholding or withdrawing cardiopulmonary resuscitation

  9  pursuant to such an order and rules adopted by the department.

10         Section 7.  Subsections (9) through (22) of section

11  401.23, Florida Statutes, are renumbered as subsections (10)

12  through (23), respectively, and a new subsection (9) is added

13  to said section to read:

14         401.23  Definitions.--As used in this part, the term:

15         (9)  "Cardiopulmonary resuscitation (CPR)" means

16  cardiac compression, endotracheal intubation and other

17  advanced airway management, artificial ventilation,

18  defibrillation, administration of cardiac resuscitation

19  medications, and related emergency medical procedures.

20         Section 8.  Paragraph (b) of subsection (2) of section

21  401.245, Florida Statutes, is amended to read:

22         401.245  Emergency Medical Services Advisory Council.--

23         (2)

24         (b)  Representation on the Emergency Medical Services

25  Advisory Council shall include: two licensed physicians who

26  are "medical directors" as defined in s. 401.23(16)(15) or

27  whose medical practice is closely related to emergency medical

28  services; two emergency medical service administrators, one of

29  whom is employed by a fire service; two certified paramedics,

30  one of whom is employed by a fire service; two certified

31  emergency medical technicians, one of whom is employed by a

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  1  fire service; one emergency medical services educator; one

  2  emergency nurse; one hospital administrator; one

  3  representative of air ambulance services; one representative

  4  of a commercial ambulance operator; and two laypersons who are

  5  in no way connected with emergency medical services, one of

  6  whom is a representative of the elderly. Ex officio members of

  7  the advisory council from state agencies shall include, but

  8  shall not be limited to, representatives from the Department

  9  of Education, the Department of Management Services, the

10  Department of Insurance, the Department of Highway Safety and

11  Motor Vehicles, the Department of Transportation, and the

12  Department of Community Affairs.

13         Section 9.  Subsection (3) of section 401.45, Florida

14  Statutes, is amended to read:

15         401.45  Denial of emergency treatment; civil

16  liability.--

17         (3)(a)  Cardiopulmonary resuscitation or

18  life-prolonging techniques may be withheld or withdrawn from a

19  patient by an emergency medical technician or paramedic if

20  evidence of an order not to resuscitate by the patient's

21  physician is presented to the emergency medical technician or

22  paramedic in a manner provided by rule of the department. The

23  department shall develop rules providing for the

24  implementation of such orders.

25         (b)  Any licensee, physician, medical director, or

26  emergency medical technician or paramedic who acts under the

27  direction of a medical director is not subject to criminal

28  prosecution or civil liability, and has not engaged in

29  negligent or unprofessional conduct, as a result of the

30  withholding or withdrawal of cardiopulmonary resuscitation or

31

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  1  life-prolonging techniques from a patient pursuant to this

  2  subsection and rules adopted by the department.

  3         (c)  The department, in consultation with the

  4  Department of Elderly Affairs and the Agency for Health Care

  5  Administration, shall develop standardized do-not-resuscitate

  6  identification cards, forms, necklaces, bracelets, or other

  7  devices that signify, when carried or worn, that the possessor

  8  is a patient for whom a physician has issued an order not to

  9  administer cardiopulmonary resuscitation. The department may

10  charge a reasonable fee to cover the cost of producing and

11  distributing such identification devices.

12         (4)  Any licensee or emergency medical technician or

13  paramedic who in good faith provides emergency medical care or

14  treatment within the scope of their employment and pursuant to

15  oral or written instructions of a medical director shall be

16  deemed to be providing emergency medical care or treatment for

17  the purposes of s. 768.13(2)(b).

18         Section 10.  Section 732.912, Florida Statutes, 1998

19  Supplement, is amended to read:

20         732.912  Persons who may make an anatomical gift.--

21         (1)  Any person who may make a will may give all or

22  part of his or her body for any purpose specified in s.

23  732.910, the gift to take effect upon death.  An anatomical

24  gift made by an adult donor and not revoked by the donor as

25  provided in s. 732.916 is irrevocable and does not require the

26  consent or concurrence of any person after the donor's death.

27         (2)  If the decedent has not executed an agreement

28  concerning an anatomical gift, a member of one of the classes

29  of persons listed below, in the order of priority stated and

30  in the absence of actual notice of contrary indications by the

31  decedent or actual notice of opposition by a member of the

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  1  same or a prior class, may give all or any part of the

  2  decedent's body for any purpose specified in s. 732.910:

  3         (a)  A health care surrogate designated by the decedent

  4  pursuant to part II of chapter 765 The spouse of the decedent;

  5  or

  6         (b)  A proxy selected pursuant to part IV of chapter

  7  765. An adult son or daughter of the decedent;

  8         (c)  Either parent of the decedent;

  9         (d)  An adult brother or sister of the decedent;

10         (e)  A grandparent of the decedent;

11         (f)  A guardian of the person of the decedent at the

12  time of his or her death; or

13         (g)  A representative ad litem who shall be appointed

14  by a court of competent jurisdiction forthwith upon a petition

15  heard ex parte filed by any person, which representative ad

16  litem shall ascertain that no person of higher priority exists

17  who objects to the gift of all or any part of the decedent's

18  body and that no evidence exists of the decedent's having made

19  a communication expressing a desire that his or her body or

20  body parts not be donated upon death;

21

22  but no gift shall be made by the spouse if any adult son or

23  daughter objects, and provided that those of higher priority,

24  if they are reasonably available, have been contacted and made

25  aware of the proposed gift, and further provided that a

26  reasonable search is made to show that there would have been

27  no objection on religious grounds by the decedent.

28         (3)  If the donee has actual notice of contrary

29  indications by the decedent or, in the case of a spouse making

30  the gift, an objection of an adult son or daughter or actual

31  notice that a gift by a member of a class is opposed by a

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  1  member of the same or a prior class, the donee shall not

  2  accept the gift.

  3         (3)(4)  The person authorized by subsection (2) may

  4  make the gift after the decedent's death or immediately before

  5  the decedent's death.

  6         (4)(5)  A gift of all or part of a body authorizes any

  7  examination necessary to assure medical acceptability of the

  8  gift for the purposes intended.

  9         (5)(6)  Once the gift has been made, the rights of the

10  donee are paramount to the rights of others, except as

11  provided by s. 732.917.

12         Section 11.  Subsection (6) is added to section

13  732.914, Florida Statutes, 1998 Supplement, to read:

14         732.914  Manner of executing, amending, and revoking

15  anatomical gifts.--

16         (6)  A gift may be amended or revoked in the manner

17  provided in s. 765.104. An amendment or revocation addressed

18  to an attending physician must be communicated by that

19  physician to the designated procurement organization.

20         Section 12.  Subsection (2) of section 732.922, Florida

21  Statutes, 1998 Supplement, is amended to read:

22         732.922  Duty of certain hospital administrators;

23  liability of hospital administrators, organ procurement

24  organizations, eye banks, and tissue banks.--

25         (2)  Where, based on accepted medical standards, a

26  hospital patient is a suitable candidate for organ or tissue

27  donation, the hospital administrator or the hospital

28  administrator's designee shall, at or near the time of death,

29  access the organ and tissue donor registry created by s.

30  732.915(4) to ascertain the existence of a donor card or

31  document executed by the decedent.  In the absence of a donor

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  1  card, organ donation sticker or organ donation imprint on a

  2  driver's license, or other properly executed document, the

  3  hospital administrator or designee shall request the patient's

  4  health care surrogate or proxy, as any of the persons

  5  specified in s. 732.912, in the order and manner of priority

  6  stated in s. 732.912, to consent to the gift of all or any

  7  part of the decedent's body for any purpose specified in this

  8  part. Except as provided in s. 732.912, in the absence of

  9  actual notice of opposition, consent need only be obtained

10  from the person or persons in the highest priority class

11  reasonably available.

12         Section 13.  Section 765.101, Florida Statutes, is

13  amended to read:

14         765.101  Definitions.--As used in this chapter:

15         (1)  "Advance directive" means a witnessed written

16  document or oral statement in which instructions are given by

17  a principal or in which the principal's desires are expressed

18  concerning any aspect of the principal's health care, and

19  includes, but is not limited to, the designation of a health

20  care surrogate, a living will, or an anatomical gift made

21  pursuant to part X of chapter 732 orders not to resuscitate

22  issued pursuant to s. 401.45.

23         (2)  "Attending physician" means the primary physician

24  who has responsibility for the treatment and care of the

25  patient.

26         (3)  "Close personal friend" means any person 18 years

27  of age or older who has exhibited special care and concern for

28  the patient, and who presents an affidavit to the health care

29  facility or to the attending or treating physician stating

30  that he or she is a friend of the patient; is willing and able

31  to become involved in the patient's health care; and has

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  1  maintained such regular contact with the patient so as to be

  2  familiar with the patient's activities, health, and religious

  3  or moral beliefs.

  4         (4)  "Health care decision" means:

  5         (a)  Informed consent, refusal of consent, or

  6  withdrawal of consent to any and all health care, including

  7  life-prolonging procedures.

  8         (b)  The decision to apply for private, public,

  9  government, or veterans' benefits to defray the cost of health

10  care.

11         (c)  The right of access to all records of the

12  principal reasonably necessary for a health care surrogate to

13  make decisions involving health care and to apply for

14  benefits.

15         (d)  The decision to make an anatomical gift pursuant

16  to part X of chapter 732.

17         (5)  "Health care facility" means a hospital, nursing

18  home, hospice, home health agency, or health maintenance

19  organization licensed in this state, or any facility subject

20  to part I of chapter 394.

21         (6)  "Health care provider" or "provider" means any

22  person licensed, certified, or otherwise authorized by law to

23  administer health care in the ordinary course of business or

24  practice of a profession.

25         (7)  "Incapacity" or "incompetent" means the patient is

26  physically or mentally unable to communicate a willful and

27  knowing health care decision. For the purposes of making an

28  anatomical gift, the term also includes a patient who is

29  deceased.

30         (8)  "Informed consent" means consent voluntarily given

31  by a person after a sufficient explanation and disclosure of

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  1  the subject matter involved to enable that person to have a

  2  general understanding of the treatment or procedure and the

  3  medically acceptable alternatives, including the substantial

  4  risks and hazards inherent in the proposed treatment or

  5  alternative procedures, and to make a knowing health care

  6  decision without coercion or undue influence.

  7         (9)  "Life-prolonging procedure" means any medical

  8  procedure, treatment, or intervention, including artificially

  9  provided sustenance and hydration, which sustains, restores,

10  or supplants a spontaneous vital function. which:

11         (a)  Utilizes mechanical or other artificial means to

12  sustain, restore, or supplant a spontaneous vital function;

13  and

14         (b)  When applied to a patient in a terminal condition,

15  serves only to prolong the process of dying.

16

17  The term "life-prolonging procedure" does not include the

18  administration of medication or performance of medical

19  procedure, when such medication or procedure is deemed

20  necessary to provide comfort care or to alleviate pain.

21         (10)  "Living will" or "declaration" means:

22         (a)  A witnessed document in writing, voluntarily

23  executed by the principal in accordance with s. 765.302; or

24         (b)  A witnessed oral statement made by the principal

25  expressing the principal's instructions concerning

26  life-prolonging procedures.

27         (11)  "Persistent vegetative state" means a permanent

28  and irreversible condition of unconsciousness in which there

29  is:

30         (a)  The absence of voluntary action or cognitive

31  behavior of any kind.

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  1         (b)  An inability to communicate or interact

  2  purposefully with the environment.

  3         (12)(11)  "Physician" means a person licensed pursuant

  4  to chapter 458 or chapter 459.

  5         (13)(12)  "Principal" means a competent adult executing

  6  an advance directive and on whose behalf health care decisions

  7  are to be made.

  8         (14)(13)  "Proxy" means a competent adult who has not

  9  been expressly designated to make health care decisions for a

10  particular incapacitated individual, but who, nevertheless, is

11  authorized pursuant to s. 765.401 to make health care

12  decisions for such individual.

13         (15)(14)  "Surrogate" means any competent adult

14  expressly designated by a principal to make health care

15  decisions on behalf of the principal upon the principal's

16  incapacity.

17         (15)  "Terminal condition" means:

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

19  from which there is no reasonable probability of recovery and

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

21         (b)  A persistent vegetative state characterized by a

22  permanent and irreversible condition of unconsciousness in

23  which there is:

24         1.  The absence of voluntary action or cognitive

25  behavior of any kind; and

26         2.  An inability to communicate or interact

27  purposefully with the environment.

28         (16)  "Treating physician" means the physician who has

29  treated or is treating the patient for any condition directly

30  related to the condition resulting in the patient's

31  incapacity.

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  1         Section 14.  Subsection (3) of section 765.102, Florida

  2  Statutes, is amended to read:

  3         765.102  Legislative findings and intent.--

  4         (3)  The Legislature recognizes further finds that for

  5  some the administration of life-prolonging medical procedures

  6  may result in the artificial prolongation of life for a person

  7  with a terminal condition may secure for him or her only a

  8  precarious and burdensome existence, while providing nothing

  9  medically necessary or beneficial to the patient. In order to

10  ensure that the rights and intentions of a person with such a

11  condition may be respected even after he or she is no longer

12  able to participate actively in decisions concerning himself

13  or herself, and to encourage communication among such patient,

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

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

16  competent adult to make an advance directive instructing his

17  or her physician to provide, withhold, or withdraw

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

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

20  person should become incapacitated and unable to personally

21  direct his or her medical care be found to be incompetent and

22  suffering from a terminal condition.

23         Section 15.  Section 765.103, Florida Statutes, is

24  amended to read:

25         765.103  Existing advance directives.--Any advance

26  directive made prior to the effective date of this act April

27  10, 1992, shall be given effect as executed, as provided in

28  this chapter provided such directive was legally effective

29  when written.

30         Section 16.  Subsections (1) and (3) of section

31  765.104, Florida Statutes, are amended to read:

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  1         765.104  Amendment or revocation.--

  2         (1)  An advance directive or designation of a surrogate

  3  may be amended or revoked at any time by a competent

  4  principal:

  5         (a)  By means of a signed, dated writing;

  6         (b)  By means of the physical cancellation or

  7  destruction of the advance directive by the principal or by

  8  another in the principal's presence and at the principal's

  9  direction;

10         (c)  By means of an oral expression of intent to amend

11  or revoke; or

12         (d)  By means of a subsequently executed advance

13  directive that is materially different from a previously

14  executed advance directive.

15         (3)  Any such amendment or revocation will be effective

16  when it is communicated to the surrogate, health care

17  provider, or health care facility.  No civil or criminal

18  liability shall be imposed upon any person for a failure to

19  act upon an amendment or a revocation unless that person has

20  actual knowledge of such amendment or revocation.

21         Section 17.  Section 765.110, Florida Statutes, is

22  amended to read:

23         765.110  Health care facilities and providers;

24  discipline.--

25         (1)  A health care facility, pursuant to Pub. L. No.

26  101-508, ss. 4206 and 4751, shall provide to each patient

27  written information concerning the individual's rights

28  concerning advance directives and the health care facility's

29  policies respecting the implementation of such rights, and

30  shall document in the patient's medical records whether or not

31  the individual has executed an advance directive.

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  1         (2)  A health care provider or health care facility may

  2  not require a patient to execute an advance directive or to

  3  execute a new advance directive using the facility's or

  4  provider's forms. The patient's advance directives shall

  5  travel with the patient as part of the patient's medical

  6  record.

  7         (3)(2)  A health care provider or health care facility

  8  shall be subject to professional discipline and revocation of

  9  license or certification, and a fine of not more than $1,000

10  $500 per incident, or both, if the health care provider or

11  health care facility, as a condition of treatment or

12  admission, requires an individual to execute or waive an

13  advance directive.

14         (4)(3)  The Department of Elderly Affairs for hospices

15  and, in consultation with the Department of Elderly Affairs,

16  the Department of Health for health care providers, and

17  Rehabilitative Services and the Agency for Health Care

18  Administration for hospitals, nursing homes, home health

19  agencies, and health maintenance organizations, and the

20  Department of Children and Family Services for facilities

21  subject to part I of chapter 394 shall adopt rules to

22  implement the provisions of the section.

23         Section 18.  Subsection (2) of section 765.113, Florida

24  Statutes, is amended to read:

25         765.113  Restrictions on providing consent.--Unless the

26  principal expressly delegates such authority to the surrogate

27  in writing, or a surrogate or proxy has sought and received

28  court approval pursuant to rule 5.900 of the Florida Probate

29  Rules, a surrogate or proxy may not provide consent for:

30

31

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  1         (2)  Withholding or withdrawing life-prolonging

  2  procedures from a pregnant patient prior to viability as

  3  defined in s. 390.0111 s. 390.001(5).

  4         Section 19.  Subsection (2) of section 765.204, Florida

  5  Statutes, is amended to read:

  6         765.204  Capacity of principal; procedure.--

  7         (2)  If a principal's capacity to make health care

  8  decisions for herself or himself or provide informed consent

  9  is in question, the attending physician shall evaluate the

10  principal's capacity and, if the physician concludes that the

11  principal lacks capacity, enter that evaluation in the

12  principal's medical record. If the attending physician has a

13  question as to whether concludes that the principal lacks such

14  capacity, another physician shall also evaluate the

15  principal's capacity. If the second physician agrees that the

16  principal lacks the capacity to make health care decisions or

17  provide informed consent, the health care facility shall enter

18  both physician's evaluations in the principal's clinical

19  record and, if the principal has designated a health care

20  surrogate, shall notify such surrogate in writing that her or

21  his authority under the instrument has commenced.

22         Section 20.  Subsection (2) of section 765.205, Florida

23  Statutes, is amended to read:

24         765.205  Responsibility of the surrogate.--

25         (2)  The surrogate may authorize the release of

26  information and clinical records to appropriate persons to

27  ensure the continuity of the principal's health care and may

28  authorize the transfer and admission, discharge, or transfer

29  of the principal to or from a health care facility or other

30  facility or program licensed under chapter 400.

31

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  1         Section 21.  Section 765.301, Florida Statutes, is

  2  amended to read:

  3         765.301  Short title.--Sections 765.302-765.309

  4  765.302-765.310 may be cited as the "Life-Prolonging Procedure

  5  Act of Florida."

  6         Section 22.  Subsection (1) of section 765.302, Florida

  7  Statutes, is amended to read:

  8         765.302  Procedure for making a living will; notice to

  9  physician.--

10         (1)  Any competent adult may, at any time, make a

11  living will or written declaration directing the providing,

12  withholding, or withdrawal of life-prolonging procedures in

13  the event such person suffers from a terminal condition. A

14  living will must be signed by the principal in the presence of

15  two subscribing witnesses, one of whom is neither a spouse nor

16  a blood relative of the principal. If the principal is

17  physically unable to sign the living will, one of the

18  witnesses must subscribe the principal's signature in the

19  principal's presence and at the principal's direction.

20         Section 23.  Subsection (1) of section 765.303, Florida

21  Statutes, is amended to read:

22         765.303  Suggested form of a living will.--

23         (1)  A living will may, but need not, be in the

24  following form:

25                           Living Will

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

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

28  my dying not be artificially prolonged under the circumstances

29  set forth below, and I do hereby declare:

30         If at any time I am both mentally and physically

31  incapacitated have a terminal condition and if my attending or

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  1  treating physician and another consulting physician have

  2  determined that there is no reasonable medical probability of

  3  my recovery from such condition, I direct that life-prolonging

  4  procedures be withheld or withdrawn when the application of

  5  such procedures would serve only to prolong artificially the

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

  7  with only the administration of medication or the performance

  8  of any medical procedure deemed necessary to provide me with

  9  comfort care or to alleviate pain.

10         It is my intention that this declaration be honored by

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

12  right to refuse medical or surgical treatment and to accept

13  the consequences for such refusal.

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

15  to provide express and informed consent regarding the

16  withholding, withdrawal, or continuation of life-prolonging

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

18  the provisions of this declaration:

19

20  Name:.........................................................

21  Address:......................................................

22  .................................................. Zip Code:....

23  Phone:................

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

25  am emotionally and mentally competent to make this

26  declaration.

27  Additional Instructions (optional):

28  ..............................................................

29  ..............................................................

30  ..............................................................

31                         ....(Signed)....

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  1                         ....Witness....

  2                         ....Address....

  3                          ....Phone....

  4                         ....Witness....

  5                         ....Address....

  6                          ....Phone....

  7

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

  9  Statutes, is amended to read:

10         765.304  Procedure for living will.--

11         (2)  Before proceeding in accordance with the

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

13         (a)  The principal does not have a reasonable

14  probability of recovering capacity competency so that the

15  right could be exercised directly by the principal.

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

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

18  or in a written declaration have been carefully considered and

19  satisfied.

20         Section 25.  Section 765.305, Florida Statutes, is

21  amended to read:

22         765.305  Procedure in absence of a living will.--

23         (1)  In the absence of a living will executed pursuant

24  to s. 765.303, the decision to withhold or withdraw

25  life-prolonging procedures from a patient may be made by a

26  health care surrogate designated by the patient pursuant to

27  part II unless the designation limits the surrogate's

28  authority to consent to the withholding or withdrawal of

29  life-prolonging procedures.

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

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

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

  2  of recovering capacity competency so that the right could be

  3  exercised by the patient.

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

  5         Section 26.  Section 765.306, Florida Statutes, is

  6  amended to read:

  7         765.306  Determination of patient condition.--In

  8  determining whether the patient has a terminal condition or

  9  may recover capacity, or whether a medical condition or

10  limitation referred to in an advance directive exists, the

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

12  other consulting physician must separately examine the

13  patient.  The findings of each such examination must be

14  documented in the patient's medical record and signed by each

15  examining physician before life-prolonging procedures may be

16  withheld or withdrawn.

17         Section 27.  Section 765.308, Florida Statutes, is

18  renumbered as section 765.1105, Florida Statutes, and amended

19  to read:

20         765.1105 765.308  Transfer of a patient; penalties.--

21         (1)  A health care provider or facility that refuses to

22  comply with a patient's advance directive the declaration of a

23  patient, or the treatment decision of his or her surrogate,

24  shall make reasonable efforts to transfer the patient to

25  another health care provider or facility that will comply with

26  the directive declaration or treatment decision. This chapter

27  does not require a health care provider or facility to commit

28  any act which is contrary to the provider's or facility's

29  moral or ethical beliefs concerning life-prolonging

30  procedures, if the patient:

31         (a)  Is not in an emergency condition;, and

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  1         (b)  Has received written information upon admission

  2  informing the patient of the policies of the health care

  3  provider or facility regarding such moral or ethical beliefs.

  4         (2)  A health care provider or facility that is

  5  unwilling to carry out the wishes of the patient or the

  6  treatment decision of his or her surrogate because of moral or

  7  ethical beliefs must within 7 days either:

  8         (a)  Transfer the patient to another health care

  9  provider or facility. The health care provider or facility

10  shall pay the costs for transporting the patient to another

11  health care provider or facility; or

12         (b)  If the patient has not been transferred, carry out

13  the wishes of the patient or the patient's surrogate, unless

14  the provisions of s. 765.105 apply.

15         (3)  Except as provided under this section, a health

16  care provider or facility who fails to comply with the advance

17  directive of a patient, or the treatment decision of his or

18  her surrogate, has no right to compensation for medical

19  services provided to the patient after being informed of the

20  existence of the advance directive or the treatment decision

21  of the surrogate. The patient, the patient's heirs, or the

22  patient's estate may bring a cause of action for the willful

23  failure to comply with the patient's advance directive or the

24  treatment decision of the patient's surrogate.

25         Section 28.  Section 765.310, Florida Statutes, is

26  renumbered as section 765.1115, Florida Statutes, and amended

27  to read:

28         765.1115 765.310  Falsification, forgery, or willful

29  concealment, cancellation, or destruction of directive

30  declaration or revocation or amendment; penalties.--

31

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  1         (1)  Any person who willfully conceals, cancels,

  2  defaces, obliterates, or damages an advance directive a living

  3  will without the principal's consent or who falsifies or

  4  forges the revocation or amendment of an advance directive a

  5  revocation of a living will of another, and who thereby causes

  6  life-prolonging procedures to be utilized in contravention of

  7  the previously expressed intent of the principal, commits a

  8  felony of the third degree, punishable as provided in s.

  9  775.082, s. 775.083, or s. 775.084.

10         (2)  Any person who falsifies or forges the advance

11  directive living will of another or who willfully conceals or

12  withholds personal knowledge of the revocation of an advance

13  directive a declaration, with the intent to cause a

14  withholding or withdrawal of life-prolonging procedures

15  contrary to the wishes of the principal, and who thereby

16  because of such act directly causes life-prolonging procedures

17  to be withheld or withdrawn and death to be hastened, commits

18  a felony of the second degree, punishable as provided in s.

19  775.082, s. 775.083, or s. 775.084.

20         Section 29.  Paragraphs (c) and (e) of subsection (1)

21  and subsection (3) of section 765.401, Florida Statutes, are

22  amended to read:

23         765.401  The proxy.--

24         (1)  If the patient has not executed an advance

25  directive, or designated a surrogate to execute an advance

26  directive, or the designated or alternate surrogate is no

27  longer available to make health care decisions, health care

28  decisions may be made for the patient by any of the following

29  individuals, in the following order of priority, if no

30  individual in a prior class is reasonably available, willing,

31  or competent to act:

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  1         (c)  An adult child of the patient, or if the patient

  2  has more than one adult child, a majority of the adult

  3  children who are reasonably available for consultation;

  4         (e)  An The adult sibling of the patient; or, if the

  5  patient has more than one sibling, a majority of the adult

  6  siblings who are reasonably available for consultation.

  7         (3)  Before exercising the incapacitated patient's

  8  rights to select or decline health care, the proxy must comply

  9  with the pertinent provisions applicable to surrogates under

10  this chapter, except that a proxy's decision to withhold or

11  withdraw life-prolonging procedures, if challenged, must be

12  supported by clear and convincing evidence that the decision

13  would have been the one the patient would have chosen had the

14  patient been competent.

15         Section 30.  Section 765.404, Florida Statutes, is

16  created to read:

17         765.404  Persistent vegetative state.--For persons in a

18  persistent vegetative state who have no advance directive and

19  for whom there is no evidence indicating what the person would

20  have wanted under such conditions, and who have no family or

21  friends available or willing to serve as a proxy to make

22  health care decisions for them, life-prolonging procedures may

23  be withheld or withdrawn under the following conditions:

24         (1)  The person has a judicially appointed guardian

25  representing his or her best interest with authority to

26  consent to medical treatment.

27         (2)  The guardian, in consultation with the person's

28  attending physician and the medical ethics committee of the

29  hospital where the patient is located, or if there is no

30  medical ethics committee, a permanent committee established by

31  the Board of Medicine to review such cases, concludes that the

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  1  condition is permanent and that there is no reasonable hope

  2  for recovery.

  3         Section 31.  The Department of Elderly Affairs shall

  4  convene a workgroup composed of health care professionals,

  5  health facilities, attorneys, consumers, clergy, academic

  6  institutions, and other interested parties to develop model

  7  advance directive forms. The department shall make the forms

  8  available to the public. The department may reconvene the

  9  workgroup as necessary to modify and update such forms.

10         Section 32.  Subsection (4) of section 395.1027,

11  Florida Statutes, 1998 Supplement, is amended to read:

12         395.1027  Regional poison control centers.--

13         (4)  By October 1, 1999, each regional poison control

14  center shall develop a prehospital emergency dispatch protocol

15  with each licensee defined by s. 401.23(14)(13) in the

16  geographic area covered by the regional poison control center.

17  The prehospital emergency dispatch protocol shall be developed

18  by each licensee's medical director in conjunction with the

19  designated regional poison control center responsible for the

20  geographic area in which the licensee operates. The protocol

21  shall define toxic substances and describe the procedure by

22  which the designated regional poison control center may be

23  consulted by the licensee. If a call is transferred to the

24  designated regional poison control center in accordance with

25  the protocol established under this section and s. 401.268,

26  the designated regional poison control center shall assume

27  responsibility and liability for the call.

28         Section 33.  Section 732.916, Florida Statutes, is

29  repealed.

30         Section 34.  This act shall take effect October 1,

31  1999.

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  1            *****************************************

  2                          HOUSE 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 how
  9    anatomical gift declarations may be amended and revoked,
      who may make an anatomical gift for a decedent, and how
10    such gifts are implemented. Revises provisions relating
      to execution and implementation of advance directives,
11    designation and responsibilities of health care
      surrogates and proxies, and procedures for executing,
12    revising, and implementing living wills. Increases a
      penalty for health care facilities or providers that
13    require patients to execute advance directives. Requires
      advance directives to become part of patients' medical
14    records. Provides that willful failure to comply with a
      patient's advance directive or the treatment decision of
15    a surrogate creates a cause of action by the patient or
      the patient's heirs or estate. Provides penalties for
16    cancellation, or destruction of an advance directive,
      rather than a living will. Provides conditions for
17    withholding or withdrawing life-prolonging procedures for
      persons in a persistent vegetative state when there is no
18    advance directive or health care proxy. Directs the
      Department of Elderly Affairs to convene a workgroup to
19    develop model advance directive forms.

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