Senate Bill sb2128

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                  SB 2128

    By Senator Wise





    5-1186-05                                           See HB 701

  1                      A bill to be entitled

  2         An act relating to the withholding or

  3         withdrawal of nutrition or hydration from

  4         incompetent persons; creating part VI of ch.

  5         765, F.S.; providing a part title; providing

  6         definitions; declaring that an incompetent

  7         person is presumed to have directed health care

  8         providers to provide the necessary nutrition

  9         and hydration to sustain life; prohibiting a

10         court, proxy, or surrogate from withholding or

11         withdrawing nutrition or hydration except under

12         specified circumstances; providing that the

13         presumption to provide nutrition and hydration

14         is inapplicable under certain circumstances;

15         amending ss. 765.106, 765.107, 765.204,

16         765.305, 765.401, and 765.404, F.S.; conforming

17         provisions to changes made by the act;

18         prohibiting an inference of incapacity due to a

19         person's developmental disability; providing

20         for the act to apply to pending litigation;

21         declaring that the act supersedes existing

22         court orders otherwise applicable on or after

23         the effective date of the act; providing an

24         effective date.

25  

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

27  

28         Section 1.  Part VI of chapter 765, Florida Statutes,

29  consisting of sections 765.601, 765.602, 765.603, and 765.604,

30  is created to read:

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1         765.601  Part title.--This part may be cited as the

 2  "Starvation and Dehydration of Persons with Disabilities

 3  Prevention Act."

 4         765.602  Definitions.--As used in this part, the term:

 5         (1)  "Express and informed consent" means consent

 6  voluntarily given with sufficient knowledge of the subject

 7  matter involved to enable the person giving consent to make a

 8  knowing and understanding decision without any element of

 9  force, fraud, deceit, duress, or other form of constraint or

10  coercion. Sufficient knowledge of the subject matter involved

11  includes a general understanding of:

12         (a)  The proposed treatment or procedure for which

13  consent is sought.

14         (b)  The medical condition of the person for whom

15  consent for the proposed treatment or procedure is sought.

16         (c)  Any medically acceptable alternative treatment or

17  procedure.

18         (d)  The substantial risks and hazards inherent if the

19  proposed treatment or procedure is carried out and if the

20  proposed treatment or procedure is not carried out.

21         (2)  "Nutrition" means sustenance administered by way

22  of the gastrointestinal tract.

23         (3)  "Reasonable medical judgment" means a medical

24  judgment that would be made by a reasonably prudent physician

25  who is knowledgeable about the case and the treatment

26  possibilities with respect to the medical conditions involved.

27         765.603  Presumption of nutrition and hydration

28  sufficient to sustain life.--

29         (1)  Each incompetent person shall be presumed to have

30  directed his or her health care providers to supply him or her

31  with the nutrition and hydration necessary to sustain life.

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1         (2)  A proxy, surrogate, or court may not decide on

 2  behalf of an incompetent person to withhold or withdraw

 3  hydration or nutrition from that person except in the

 4  circumstances and under the conditions specifically provided

 5  in s. 765.604.

 6         765.604  Presumption of nutrition and hydration; when

 7  inapplicable.--The presumption in s. 765.603 does not apply

 8  if:

 9         (1)  In reasonable medical judgment:

10         (a)  The provision of nutrition or hydration is not

11  medically possible;

12         (b)  The provision of nutrition or hydration would

13  hasten death; or

14         (c)  The medical condition of the incompetent person is

15  such that provision of nutrition or hydration would not

16  contribute to sustaining the incompetent person's life or

17  provide comfort to the incompetent person;

18         (2)  The incompetent person has executed a written

19  advance directive executed in another state in accordance with

20  s. 765.112, executed a designation of a health care surrogate

21  prepared in accordance with s. 765.202, or executed a written

22  living will prepared in accordance with s. 765.302, any of

23  which specifically authorizes the withholding or withdrawal of

24  nutrition or hydration, to the extent that the authorization

25  applies; or

26         (3)  There is clear and convincing evidence that the

27  incompetent person, when competent, gave express and informed

28  consent to withdrawing or withholding nutrition or hydration

29  in the applicable circumstances.

30         Section 2.  Section 765.106, Florida Statutes, is

31  amended to read:

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1         765.106  Preservation of existing rights.--The

 2  provisions of this chapter are cumulative to the existing law

 3  regarding an individual's right to consent, or refuse to

 4  consent, to medical treatment and do not impair any existing

 5  rights or responsibilities which a health care provider, a

 6  patient, including a minor, competent or incompetent person,

 7  or a patient's family may have under the common law, Federal

 8  Constitution, State Constitution, or statutes of this state;

 9  however, this section may not be construed to authorize a

10  violation of part VI.

11         Section 3.  Subsection (1) of section 765.107, Florida

12  Statutes, is amended to read:

13         765.107  Construction.--

14         (1)  This chapter shall not be construed to repeal by

15  implication any provision of s. 766.103, the Florida Medical

16  Consent Law. For all purposes, the Florida Medical Consent Law

17  shall be considered an alternative to provisions of this

18  section; however, this section may not be construed to

19  authorize a violation of part VI.

20         Section 4.  Section 765.204, Florida Statutes, is

21  amended to read:

22         765.204  Capacity of principal; procedure.--

23         (1)  A principal is presumed to be capable of making

24  health care decisions for herself or himself unless she or he

25  is determined to be incapacitated. Incapacity may not be

26  inferred from the person's voluntary or involuntary

27  hospitalization for mental illness or from her or his mental

28  retardation or developmental disability.

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

30  decisions for herself or himself or provide informed consent

31  is in question, the attending physician shall evaluate the

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




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

 2  principal lacks capacity, enter that evaluation in the

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

 4  question as to whether the principal lacks capacity, another

 5  physician shall also evaluate the principal's capacity, and if

 6  the second physician agrees that the principal lacks the

 7  capacity to make health care decisions or provide informed

 8  consent, the health care facility shall enter both physician's

 9  evaluations in the principal's medical record. If the

10  principal has designated a health care surrogate or has

11  delegated authority to make health care decisions to an

12  attorney in fact under a durable power of attorney, the

13  facility shall notify such surrogate or attorney in fact in

14  writing that her or his authority under the instrument has

15  commenced, as provided in chapter 709 or s. 765.203.

16         (3)  The surrogate's authority shall commence upon a

17  determination under subsection (2) that the principal lacks

18  capacity, and the such authority shall remain in effect until

19  a determination that the principal has regained such capacity.

20  Upon commencement of the surrogate's authority, a surrogate

21  who is not the principal's spouse shall notify the principal's

22  spouse or adult children of the principal's designation of the

23  surrogate. If In the event the attending physician determines

24  that the principal has regained capacity, the authority of the

25  surrogate shall cease, but shall recommence if the principal

26  subsequently loses capacity as determined under pursuant to

27  this section.

28         (4)  A determination made under pursuant to this

29  section that a principal lacks capacity to make health care

30  decisions shall not be construed as a finding that a principal

31  lacks capacity for any other purpose.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1         (5)  In the event the surrogate is required to consent

 2  to withholding or withdrawing life-prolonging procedures, the

 3  provisions of parts part III and VI shall apply.

 4         Section 5.  Subsection (1) of section 765.305, Florida

 5  Statutes, is amended to read:

 6         765.305  Procedure in absence of a living will.--

 7         (1)  In the absence of a living will, the decision to

 8  withhold or withdraw life-prolonging procedures from a patient

 9  may be made by a health care surrogate designated by the

10  patient under pursuant to part II unless the designation

11  limits the surrogate's authority to consent to the withholding

12  or withdrawal of life-prolonging procedures or unless the

13  surrogate's authority is limited by part VI.

14         Section 6.  Section 765.401, Florida Statutes, is

15  amended to read:

16         765.401  The proxy.--

17         (1)  If an incapacitated or developmentally disabled

18  patient has not executed an advance directive, or designated a

19  surrogate to execute an advance directive, or the designated

20  or alternate surrogate is no longer available to make health

21  care decisions, health care decisions may be made for the

22  patient by any of the following individuals, in the following

23  order of priority, if no individual in a prior class is

24  reasonably available, willing, or competent to act:

25         (a)  The judicially appointed guardian of the patient

26  or the guardian advocate of the person having a developmental

27  disability as defined in s. 393.063, who has been authorized

28  to consent to medical treatment, if such guardian has

29  previously been appointed; however, this paragraph shall not

30  be construed to require such appointment before a treatment

31  decision can be made under this subsection;

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1         (b)  The patient's spouse;

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

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

 4  children who are reasonably available for consultation;

 5         (d)  A parent of the patient;

 6         (e)  The adult sibling of the patient or, if the

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

 8  siblings who are reasonably available for consultation;

 9         (f)  An adult relative of the patient who has exhibited

10  special care and concern for the patient and who has

11  maintained regular contact with the patient and who is

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

13  or moral beliefs; or

14         (g)  A close friend of the patient; or.

15         (h)  A clinical social worker licensed pursuant to

16  chapter 491, or who is a graduate of a court-approved

17  guardianship program. Such a proxy must be selected by the

18  provider's bioethics committee and must not be employed by the

19  provider. If the provider does not have a bioethics committee,

20  then the such a proxy may be chosen through an arrangement

21  with the bioethics committee of another provider. The proxy

22  will be notified that, upon request, the provider shall make

23  available a second physician, not involved in the patient's

24  care to assist the proxy in evaluating treatment. Decisions to

25  withhold or withdraw life-prolonging procedures shall will be

26  reviewed by the facility's bioethics committee involved in the

27  proxy's selection. Documentation of efforts to locate proxies

28  from prior classes shall must be recorded in the patient

29  record.

30         (2)  Any health care decision made under this part must

31  be based on the proxy's informed consent and on the decision

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1  the proxy reasonably believes the patient would have made

 2  under the circumstances. If there is no indication of what the

 3  patient would have chosen, the proxy may consider the

 4  patient's best interest in deciding that proposed treatments

 5  are to be withheld or that treatments currently in effect are

 6  to be withdrawn. Any decision concerning the withholding or

 7  withdrawal of nutrition or hydration must comply with part VI.

 8         (3)  Before exercising the incapacitated patient's

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

10  with the provisions of ss. 765.205 and 765.305, except that a

11  proxy's decision to withhold or withdraw life-prolonging

12  procedures must be supported by clear and convincing evidence

13  that the decision would have been the one the patient would

14  have chosen had the patient been competent or, if there is no

15  indication of what the patient would have chosen, that the

16  decision is in the patient's best interest. Any decision

17  concerning the withholding or withdrawal of nutrition or

18  hydration must comply with part VI.

19         (4)  Nothing in this section shall be construed to

20  preempt the designation of persons who may consent to the

21  medical care or treatment of minors established under pursuant

22  to s. 743.0645.

23         Section 7.  Section 765.404, Florida Statutes, is

24  amended to read:

25         765.404  Persistent vegetative state.--For persons in a

26  persistent vegetative state, as determined by the attending

27  physician in accordance with currently accepted medical

28  standards, who have no advance directive and for whom there is

29  no evidence indicating what the person would have wanted under

30  such conditions, and for whom, after a reasonably diligent

31  inquiry, no family or friends are available or willing to

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1  serve as a proxy to make health care decisions for them,

 2  life-prolonging procedures may be withheld or withdrawn under

 3  the following conditions:

 4         (1)  The person has a judicially appointed guardian

 5  representing his or her best interest with authority to

 6  consent to medical treatment.; and

 7         (2)  The guardian and the person's attending physician,

 8  in consultation with the medical ethics committee of the

 9  facility where the patient is located, conclude that the

10  condition is permanent and that there is no reasonable medical

11  probability for recovery and that withholding or withdrawing

12  life-prolonging procedures is in the best interest of the

13  patient. If there is no medical ethics committee at the

14  facility, the facility must have an arrangement with the

15  medical ethics committee of another facility or with a

16  community-based ethics committee approved by the Florida

17  Bioethics Bio-ethics Network. The ethics committee shall

18  review the case with the guardian, in consultation with the

19  person's attending physician, to determine whether the

20  condition is permanent and there is no reasonable medical

21  probability for recovery. The individual committee members and

22  the facility associated with an ethics committee shall not be

23  held liable in any civil action related to the performance of

24  any duties required in this subsection.

25  

26  Any decision concerning the withholding or withdrawal of

27  nutrition or hydration must comply with part VI.

28         Section 8.  This act shall apply prospectively in

29  litigation pending on the effective date of this act and shall

30  supersede any court order issued under the law in effect

31  before the effective date of this act to the extent that the

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 2128
    5-1186-05                                           See HB 701




 1  court order conflicts with this act and would otherwise be

 2  applied on or after the effective date of this act. This act

 3  shall apply with respect to every person living on or after

 4  the effective date of this act.

 5         Section 9.  This act shall take effect upon becoming

 6  law.

 7  

 8  

 9  

10  

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.