HB 0701

CS

CHAMBER ACTION

1	The Health Care Regulation Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to the withholding or withdrawal of
7	nutrition or hydration from incompetent persons; creating
8	part VI of ch. 765, F.S.; providing a part title;
9	providing guaranteed protections and presumptions;
10	providing definitions; declaring that an incompetent
11	person is presumed to have directed health care providers
12	to provide the necessary nutrition and hydration to
13	sustain life; prohibiting a court, proxy, or surrogate
14	from withholding or withdrawing nutrition or hydration
15	except under specified circumstances; providing that the
16	presumption to provide nutrition and hydration is
17	inapplicable under certain circumstances; amending ss.
18	765.106, 765.107, 765.204, 765.305, 765.401, and 765.404,
19	F.S.; conforming provisions to changes made by the act;
20	prohibiting an inference of incapacity due to a person's
21	developmental disability; requiring a guardian to have
22	spent a specified amount of time with a patient or ward
23	before seeking to have nutrition or hydration withheld
24	from the patient or ward; creating s. 765.405, F.S.;
25	providing for limitations on authority to apply the
26	provisions of ch. 765, F.S.; providing for the act to
27	apply to pending litigation and to apply retroactively;
28	providing an effective date.
29
30	WHEREAS, every individual is endowed by his or her Creator
31	with an unalienable right to life, and
32	WHEREAS, the state has a high duty and responsibility to
33	protect human life, without which no liberty or other interest
34	can be enjoyed, and
35	WHEREAS, a competent individual has a fundamental liberty
36	interest in directing his or her own medical treatment,
37	including the refusal of life-prolonging treatment, and
38	WHEREAS, an incompetent individual retains his or her
39	liberty interest in directing his or her own medical treatment,
40	including the refusal of life-prolonging treatment, and
41	WHEREAS, the state has a strong interest in the prevention
42	of homicide, euthanasia, and suicide, and
43	WHEREAS, the state has a strong interest in maintaining the
44	ethical integrity of the medical profession and of the
45	judiciary, and
46	WHEREAS, the state has a strong interest in maintaining the
47	neutrality of the medical profession and the judiciary with
48	respect to the values of medical patients and incompetents, and
49	WHEREAS, the state has a strong interest in ensuring that
50	guardians, health care surrogates, and health care proxies
51	exercise their duties and responsibilities exclusively in the
52	interests of any incapacitated patient for whom they are charged
53	by law to act, and
54	WHEREAS, the state has a strong interest in ensuring that
55	medical treatment decisions do not cause preventable deaths, and
56	WHEREAS, the liberty interest of the individual in
57	directing his or her own medical treatment, including the
58	refusal of life-prolonging treatment, can overcome the state's
59	interest in ensuring that medical treatment decisions do not
60	cause preventable deaths, but such refusal also constitutes a
61	waiver of the individual's right to life, and
62	WHEREAS, the waiver of the right to life constitutes a most
63	fundamental exercise of human autonomy of obvious and
64	overwhelming finality, and
65	WHEREAS, in light of a natural duty of each person to
66	protect and sustain human life, preventable starvation and
67	dehydration are not natural results of an inability to swallow
68	voluntarily when the body is reasonably capable of receiving and
69	processing nutrition and hydration introduced through minimally
70	sophisticated, nonintravenous means, and
71	WHEREAS, the Legislature has determined that the
72	withholding of food and water, even from animals, constitutes
73	inhumane treatment, and
74	WHEREAS, the decision to discontinue hydration and
75	nutrition of a patient constitutes a decision to terminate life
76	and is comparable to other decisions to terminate important
77	rights, and
78	WHEREAS, a waiver of such a fundamental right ought to be
79	knowing, express, and informed, and
80	WHEREAS, the state may repose judgment on these matters
81	exclusively on the patient, and
82	WHEREAS, the state has an interest to maintain social order
83	through enforcement of law and to protect the lives of those who
84	wish to live no matter what their circumstances from the actions
85	or decisions of others to terminate life, and
86	WHEREAS, the state has a strong interest in protecting
87	against mistake or fraud and otherwise guarding against
88	potential abuses in determining the desires of an incompetent
89	patient when a refusal of life-prolonging treatment is asserted,
90	and
91	WHEREAS, a withholding or withdrawal of nutrition or
92	hydration, intended to cause death by starvation or dehydration,
93	once fully completed, seriously implicates the state's interest
94	in preventing suicide, homicide, and euthanasia, and
95	WHEREAS, the point at which life becomes "worthless," and
96	the point at which the means necessary to preserve it become
97	"extraordinary" or "inappropriate," are set forth in neither the
98	Constitution of the United States nor the Constitution of the
99	State of Florida, and
100	WHEREAS, the state can protect the right to life of
101	incapacitated persons and prevent homicide, suicide, and
102	euthanasia by ensuring that any exercise of an incapacitated
103	person's right to refuse nutrition and hydration is not
104	reasonably questionable, and
105	WHEREAS, the present governing law has allowed
106	circumstances in which decisions to starve or dehydrate a person
107	to death have been and are reasonably being questioned, and
108	WHEREAS, the Legislature is the branch of government most
109	capable of receiving public input and vested with the
110	responsibility to resolve broad public policy questions, and
111	WHEREAS, the Legislature has received uncountable e-mails,
112	letters, telephone calls, and other public input over the past
113	16 months during which a great public interest has prevailed
114	regarding the quality of present law governing starvation and
115	dehydration of incompetent persons, and
116	WHEREAS, the Legislature concludes that it is better to err
117	on the side of life even though no general rule can work
118	faultlessly and though regulations intended to protect from
119	fraud or mistake may in some cases frustrate the effectuation of
120	possible, but not fully expressed, desires of an incompetent
121	individual, and
122	WHEREAS, Floridians with severe physical and mental
123	disabilities, who are particularly vulnerable to being devalued
124	as burdens on society, should not be devalued and deemed
125	worthless, and
126	WHEREAS, it is the intent of the Legislature to safeguard
127	the personal element of the right to refuse nutrition and
128	hydration and to ensure that any action of a guardian,
129	surrogate, or proxy conforms as best it may to the wishes
130	expressed by the person while competent by imposing heightened
131	evidentiary requirements, establishing procedural safeguards
132	that will reduce the opportunity for error, and limiting
133	consideration of evidence to the prior expressed wishes of the
134	person including a clearly expressed desire that the decision to
135	terminate life-sustaining treatment be made by a designated
136	surrogate, and
137	WHEREAS, it is further the intent of the Legislature that
138	the risk of an erroneous decision respecting the starvation or
139	dehydration of an incapacitated person be on those seeking to
140	terminate life-sustaining treatment, and
141	WHEREAS, it is the further intent of the Legislature to
142	decline to make judgments about the "quality" of life that a
143	particular individual may enjoy and to hereby assert an
144	unqualified interest in the preservation of human life from
145	decisions intended to cause starvation and dehydration except
146	when a person has clearly expressed an informed consent to or
147	appointed a surrogate authorized to consent to the withholding
148	or withdrawal of nutrition and hydration necessary to sustain
149	life, NOW, THEREFORE,
150
151	Be It Enacted by the Legislature of the State of Florida:
152
153	Section 1.  Part VI of chapter 765, Florida Statutes,
154	consisting of sections 765.601, 765.6011, 765.602, 765.603, and
155	765.604, is created to read:
156	765.601  Part title.--This part may be cited as the
157	"Starvation and Dehydration of Incompetent Persons Prevention
158	Act."
159	765.6011  Scope.--Every living person is guaranteed the
160	protections and presumptions provided by this part.
161	765.602  Definitions.--As used in this part, the term:
162	(1)  "Express and informed consent" means consent
163	voluntarily given with sufficient knowledge of the subject
164	matter involved to enable the person giving consent to make a
165	knowing and understanding decision without any element of force,
166	fraud, deceit, duress, or other form of constraint or coercion.
167	Sufficient knowledge of the subject matter involved includes a
168	general understanding of:
169	(a)  The proposed treatment or procedure for which consent
170	is sought.
171	(b)  The medical condition of the person for whom consent
172	for the proposed treatment or procedure is sought.
173	(c)  Any medically acceptable alternative treatment or
174	procedure.
175	(d)  The substantial risks and hazards inherent if the
176	proposed treatment or procedure is carried out and if the
177	proposed treatment or procedure is not carried out.
178	(2)  "Nutrition" means sustenance administered by way of
179	the gastrointestinal tract.
180	(3)  "Reasonable medical judgment" means a medical judgment
181	that would be made by a reasonably prudent physician who is
182	knowledgeable about the case and the treatment possibilities
183	with respect to the medical conditions involved.
184	765.603  Presumption of nutrition and hydration sufficient
185	to sustain life.--
186	(1)  Each incompetent person shall be presumed to have
187	directed his or her health care providers to supply him or her
188	with the nutrition and hydration necessary to sustain life.
189	(2)  A proxy, surrogate, or court may not decide on behalf
190	of an incompetent person to withhold or withdraw hydration or
191	nutrition from that person except in the circumstances and under
192	the conditions specifically provided in s. 765.604.
193	765.604  Presumption of nutrition and hydration; when
194	inapplicable.--The presumption in s. 765.603 does not apply if:
195	(1)  In reasonable medical judgment:
196	(a)  The provision of nutrition or hydration is not
197	medically possible;
198	(b)  The provision of nutrition or hydration would hasten
199	death;
200	(c)  The medical condition of the incompetent person is
201	such that provision of nutrition or hydration:
202	1.  Would itself cause severe, intractable, or significant
203	long-lasting pain to the incompetent person;
204	2.  Would itself cause significant medical harm to the
205	incompetent person; or
206	3.  Would not contribute to sustaining the incompetent
207	person's life or provide comfort to the incompetent person; or
208	(d)  In the reasonable medical judgment of the incompetent
209	person's attending physician and a second consulting physician:
210	1.  Death is imminent;
211	2.  Even with the use of medical treatment, the incompetent
212	person will die within a reasonably short period of time of a
213	terminal illness or injury; and
214	3.  It is not the purpose of withdrawing or withholding
215	nutrition or hydration to cause death by starvation or
216	dehydration.
217	(2)  The incompetent person has executed a written advance
218	directive executed in another state in accordance with s.
219	765.112, executed a designation of a health care surrogate
220	prepared in accordance with s. 765.202, or executed a written
221	living will prepared in accordance with s. 765.302, any of which
222	authorizes the withholding or withdrawal of nutrition or
223	hydration, to the extent that the authorization applies; or
224	(3)  There is clear and convincing evidence that the
225	incompetent person, when competent, expressly authorized
226	withdrawing or withholding nutrition or hydration in applicable
227	circumstances.
228	Section 2.  Section 765.106, Florida Statutes, is amended
229	to read:
230	765.106  Preservation of existing rights.--The provisions
231	of this chapter are cumulative to the existing law regarding an
232	individual's right to consent, or refuse to consent, to medical
233	treatment and do not impair any existing rights or
234	responsibilities which a health care provider, a patient,
235	including a minor, competent or incompetent person, or a
236	patient's family may have under the common law, Federal
237	Constitution, State Constitution, or statutes of this state;
238	however, this section may not be construed to authorize a
239	violation of part VI.
240	Section 3.  Subsection (1) of section 765.107, Florida
241	Statutes, is amended to read:
242	765.107  Construction.--
243	(1)  This chapter shall not be construed to repeal by
244	implication any provision of s. 766.103, the Florida Medical
245	Consent Law. For all purposes, the Florida Medical Consent Law
246	shall be considered an alternative to provisions of this
247	section; however, this section may not be construed to authorize
248	a violation of part VI.
249	Section 4.  Section 765.204, Florida Statutes, is amended
250	to read:
251	765.204  Capacity of principal; procedure.--
252	(1)  A principal is presumed to be capable of making health
253	care decisions for herself or himself unless she or he is
254	determined to be incapacitated. Incapacity may not be inferred
255	from the person's voluntary or involuntary hospitalization for
256	mental illness or from her or his mental retardation or
257	developmental disability.
258	(2)  If a principal's capacity to make health care
259	decisions for herself or himself or provide informed consent is
260	in question, the attending physician shall evaluate the
261	principal's capacity and, if the physician concludes that the
262	principal lacks capacity, enter that evaluation in the
263	principal's medical record. If the attending physician has a
264	question as to whether the principal lacks capacity, another
265	physician shall also evaluate the principal's capacity, and if
266	the second physician agrees that the principal lacks the
267	capacity to make health care decisions or provide informed
268	consent, the health care facility shall enter both physician's
269	evaluations in the principal's medical record. If the principal
270	has designated a health care surrogate or has delegated
271	authority to make health care decisions to an attorney in fact
272	under a durable power of attorney, the facility shall notify
273	such surrogate or attorney in fact in writing that her or his
274	authority under the instrument has commenced, as provided in
275	chapter 709 or s. 765.203.
276	(3)  The surrogate's authority shall commence upon a
277	determination under subsection (2) that the principal lacks
278	capacity, and the such authority shall remain in effect until a
279	determination that the principal has regained such capacity.
280	Upon commencement of the surrogate's authority, a surrogate who
281	is not the principal's spouse shall notify the principal's
282	spouse or adult children of the principal's designation of the
283	surrogate. If In the event the attending physician determines
284	that the principal has regained capacity, the authority of the
285	surrogate shall cease, but shall recommence if the principal
286	subsequently loses capacity as determined under pursuant to this
287	section.
288	(4)  A determination made under pursuant to this section
289	that a principal lacks capacity to make health care decisions
290	shall not be construed as a finding that a principal lacks
291	capacity for any other purpose.
292	(5)  In the event the surrogate is required to consent to
293	withholding or withdrawing life-prolonging procedures, the
294	provisions of parts part III and VI shall apply.
295	Section 5.  Subsection (1) of section 765.305, Florida
296	Statutes, is amended to read:
297	765.305  Procedure in absence of a living will.--
298	(1)  In the absence of a living will, the decision to
299	withhold or withdraw life-prolonging procedures from a patient
300	may be made by a health care surrogate designated by the patient
301	under pursuant to part II unless the designation limits the
302	surrogate's authority to consent to the withholding or
303	withdrawal of life-prolonging procedures or unless the
304	surrogate's authority is limited by part VI.
305	Section 6.  Section 765.401, Florida Statutes, is amended
306	to read:
307	765.401  The proxy.--
308	(1)  If an incapacitated or developmentally disabled
309	patient has not executed an advance directive, or designated a
310	surrogate to execute an advance directive, or the designated or
311	alternate surrogate is no longer available to make health care
312	decisions, health care decisions may be made for the patient by
313	any of the following individuals, in the following order of
314	priority, if no individual in a prior class is reasonably
315	available, willing, or competent to act:
316	(a)  The judicially appointed guardian of the patient or
317	the guardian advocate of the person having a developmental
318	disability as defined in s. 393.063, who has been authorized to
319	consent to medical treatment, if such guardian has previously
320	been appointed; however, this paragraph shall not be construed
321	to require such appointment before a treatment decision can be
322	made under this subsection;
323	(b)  The patient's spouse;
324	(c)  An adult child of the patient, or if the patient has
325	more than one adult child, a majority of the adult children who
326	are reasonably available for consultation;
327	(d)  A parent of the patient;
328	(e)  The adult sibling of the patient or, if the patient
329	has more than one sibling, a majority of the adult siblings who
330	are reasonably available for consultation;
331	(f)  An adult relative of the patient who has exhibited
332	special care and concern for the patient and who has maintained
333	regular contact with the patient and who is familiar with the
334	patient's activities, health, and religious or moral beliefs; or
335	(g)  A close friend of the patient; or.
336	(h)  A clinical social worker licensed pursuant to chapter
337	491, or who is a graduate of a court-approved guardianship
338	program. Such a proxy must be selected by the provider's
339	bioethics committee and must not be employed by the provider. If
340	the provider does not have a bioethics committee, then the such
341	a proxy may be chosen through an arrangement with the bioethics
342	committee of another provider. The proxy will be notified that,
343	upon request, the provider shall make available a second
344	physician, not involved in the patient's care to assist the
345	proxy in evaluating treatment. Decisions to withhold or withdraw
346	life-prolonging procedures shall will be reviewed by the
347	facility's bioethics committee involved in the proxy's
348	selection. Documentation of efforts to locate proxies from prior
349	classes shall must be recorded in the patient record.
350	(2)  Any health care decision made under this part must be
351	based on the proxy's informed consent and on the decision the
352	proxy reasonably believes the patient would have made under the
353	circumstances. If there is no indication of what the patient
354	would have chosen, the proxy may consider the patient's best
355	interest in deciding that proposed treatments are to be withheld
356	or that treatments currently in effect are to be withdrawn. Any
357	decision concerning the withholding or withdrawal of nutrition
358	or hydration must comply with part VI.
359	(3)  Before exercising the incapacitated patient's rights
360	to select or decline health care, the proxy must comply with the
361	provisions of ss. 765.205 and 765.305, except that a proxy's
362	decision to withhold or withdraw life-prolonging procedures must
363	be supported by clear and convincing evidence that the decision
364	would have been the one the patient would have chosen had the
365	patient been competent or, if there is no indication of what the
366	patient would have chosen, that the decision is in the patient's
367	best interest. Any decision concerning the withholding or
368	withdrawal of nutrition or hydration must comply with part VI.
369	(4)  Nothing in this section shall be construed to preempt
370	the designation of persons who may consent to the medical care
371	or treatment of minors established under pursuant to s.
372	743.0645.
373	(5)  No incompetent person living in this state on the date
374	of enactment of this act shall have nutrition or hydration
375	withheld from him or her pursuant to this section by a guardian
376	pursuant to chapter 744 or other proxy until the guardian or
377	proxy has been present with the ward or patient for a minimum of
378	2 hours per week over a 12-week period or for an average of 10
379	hours each month over a 3-month period either:
380	(a)  Before a decision is made under this section for
381	removal of nutrition and hydration; or
382	(b)  Before nutrition and hydration is actually removed
383	from the patient or ward.
384	Section 7.  Section 765.404, Florida Statutes, is amended
385	to read:
386	765.404  Persistent vegetative state.--For persons in a
387	persistent vegetative state, as determined by the attending
388	physician in accordance with currently accepted medical
389	standards, who have no advance directive and for whom there is
390	no evidence indicating what the person would have wanted under
391	such conditions, and for whom, after a reasonably diligent
392	inquiry, no family or friends are available or willing to serve
393	as a proxy to make health care decisions for them, life-
394	prolonging procedures may be withheld or withdrawn under the
395	following conditions:
396	(1)  The person has a judicially appointed guardian
397	representing his or her best interest with authority to consent
398	to medical treatment.; and
399	(2)  The guardian and the person's attending physician, in
400	consultation with the medical ethics committee of the facility
401	where the patient is located, conclude that the condition is
402	permanent and that there is no reasonable medical probability
403	for recovery and that withholding or withdrawing life-prolonging
404	procedures is in the best interest of the patient. If there is
405	no medical ethics committee at the facility, the facility must
406	have an arrangement with the medical ethics committee of another
407	facility or with a community-based ethics committee approved by
408	the Florida Bioethics Bio-ethics Network. The ethics committee
409	shall review the case with the guardian, in consultation with
410	the person's attending physician, to determine whether the
411	condition is permanent and there is no reasonable medical
412	probability for recovery. The individual committee members and
413	the facility associated with an ethics committee shall not be
414	held liable in any civil action related to the performance of
415	any duties required in this subsection.
416
417	Any decision concerning the withholding or withdrawal of
418	nutrition or hydration must comply with part VI.
419	Section 8.  Section 765.405, Florida Statutes, is created
420	to read:
421	765.405  Limitation on authority to withhold or withdraw
422	nutrition or hydration.--
423	(1)  This section shall control over any inconsistent
424	provision of law. A decision to withhold or withdraw nutrition
425	or hydration from a person who is in a persistent vegetative
426	state shall not be made by a guardian who has engaged in conduct
427	prohibited under s. 744.446 or by a proxy or surrogate who is
428	the person's spouse and who has engaged in conduct prohibited
429	for guardians under s. 744.446.
430	(2)  Guardians, surrogates, and proxies may not avoid their
431	legal responsibility to make health care decisions by
432	petitioning a court to make such decisions. No judge acting in a
433	judicial capacity may make any decision to withhold or withdraw
434	nutrition or hydration from a person who is in a persistent
435	vegetative state. Any such petition is contrary to the public
436	policy of this state set forth in s. 744.309(1)(b). It is the
437	intent of the Legislature that judges serve as unbiased judges
438	to hear petitions of proper parties questioning decisions of
439	guardians, surrogates, or proxies under various statutory
440	actions authorized in the applicable statutes but that any
441	decision to withhold or withdraw nutrition or hydration from a
442	patient in a persistent vegetative state not be made by any
443	court or state officer acting in an official capacity, but only
444	by a private guardian, surrogate, or proxy acting under the
445	authority of the Florida Statutes subject to jurisdiction of the
446	guardianship court as provided for the case by the Florida
447	Statutes.
448	(3)  It is further the intent of the Legislature that the
449	Florida Statutes provide the exclusive legal basis for end-of-
450	life health care decisions in this state and that this chapter
451	shall constitute and occupy the entire body of law regulating
452	such decisions. It is the intent of the Legislature that in
453	every case in which withholding or withdrawal of nutrition and
454	hydration is not specifically authorized by statute, the public
455	policy and law of this state prohibit such withholding or
456	withdrawal if death by dehydration or starvation likely will
457	result.
458	(4)  Nothing in this section shall be construed to create a
459	cause of action against any proxy, surrogate, guardian, or
460	health care provider for making any decision prior the effective
461	date of this act pursuant to the Florida Statutes or to any
462	court order.
463	Section 9.  The provisions of this act are remedial and are
464	applicable to every living person on the effective date of this
465	act, shall be applicable in any proceeding relating to
466	withdrawal or withholding of hydration or nutrition from an
467	incompetent patient pending on the effective date of this act,
468	and shall, upon the petition of any interested party, regulate
469	withdrawal or withholding of hydration or nutrition from any
470	person living on the effective date of this act. In order to
471	ensure that no person is starved or dehydrated in a manner that
472	violates the protections afforded by this act, the provisions of
473	this act shall apply retroactively to any health care decision
474	made but not executed prior to the effective date of this act
475	with respect to any person living on the effective date of this
476	act.
477	Section 10.  This act shall take effect upon becoming a
478	law.

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