HB 0701

CS

CHAMBER ACTION

1	The Judiciary 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 artificially provided sustenance and
7	hydration; amending ss. 765.401 and 765.404, F.S.;
8	excluding the withholding or withdrawing of artificially
9	provided sustenance or hydration from certain authority to
10	make health care decisions; creating s. 765.405, F.S.;
11	prohibiting the withholding or withdrawing of artificially
12	provided sustenance or hydration from a person in a
13	persistent vegetative state in specific circumstances;
14	providing conditions under which the prohibition does not
15	apply; requiring consultation with an in-house or outside
16	medical ethics committee under certain conditions;
17	providing that certain individuals and facilities are not
18	liable for decisions relating to the withholding or
19	withdrawing of artificially provided sustenance or
20	hydration; authorizing interested persons to petition the
21	court to prevent the withholding or withdrawing of
22	artificially provided sustenance or hydration based upon
23	the prohibition; specifying that the act is remedial;
24	providing for application of the act; providing an
25	effective date.
26
27	WHEREAS, the Legislature fully recognizes, respects, and
28	preserves the right of a person to express his or her health
29	care decisions through means such as advance directives, living
30	wills, and designations of health care surrogates, and
31	WHEREAS, withholding or withdrawing artificially provided
32	sustenance or hydration necessary to sustain life represents an
33	action having the ultimate and profound consequence of death,
34	and
35	WHEREAS, a person in a persistent vegetative state is, at
36	that time, unable to express his or her decision regarding
37	withholding or withdrawing artificially provided sustenance or
38	hydration, and
39	WHEREAS, there are medically ethical reasons to withhold or
40	withdraw artificially provided sustenance or hydration necessary
41	to sustain life, and
42	WHEREAS, the state has a compelling interest in providing
43	standards and procedural safeguards relating to withholding or
44	withdrawing artificially provided sustenance or hydration for a
45	person who is in a persistent vegetative state and whose
46	decisions are not expressed, NOW, THEREFORE,
47
48	Be It Enacted by the Legislature of the State of Florida:
49
50	Section 1.  Subsections (1), (2), and (3) of section
51	765.401, Florida Statutes, are amended to read:
52	765.401  The proxy.--
53	(1)  If an incapacitated or developmentally disabled
54	patient has not executed an advance directive, or designated a
55	surrogate to execute an advance directive, or the designated or
56	alternate surrogate is no longer available to make health care
57	decisions, health care decisions, other than the decision to
58	withhold or withdraw artificially provided sustenance or
59	hydration for a person in a persistent vegetative state, may be
60	made for the patient by any of the following individuals, in the
61	following order of priority, if no individual in a prior class
62	is reasonably available, willing, or competent to act:
63	(a)  The judicially appointed guardian of the patient or
64	the guardian advocate of the person having a developmental
65	disability as defined in s. 393.063, who has been authorized to
66	consent to medical treatment, if such guardian has previously
67	been appointed; however, this paragraph shall not be construed
68	to require such appointment before a treatment decision can be
69	made under this subsection;
70	(b)  The patient's spouse;
71	(c)  An adult child of the patient, or if the patient has
72	more than one adult child, a majority of the adult children who
73	are reasonably available for consultation;
74	(d)  A parent of the patient;
75	(e)  The adult sibling of the patient or, if the patient
76	has more than one sibling, a majority of the adult siblings who
77	are reasonably available for consultation;
78	(f)  An adult relative of the patient who has exhibited
79	special care and concern for the patient and who has maintained
80	regular contact with the patient and who is familiar with the
81	patient's activities, health, and religious or moral beliefs; or
82	(g)  A close friend of the patient; or.
83	(h)  A clinical social worker licensed pursuant to chapter
84	491, or who is a graduate of a court-approved guardianship
85	program. Such a proxy must be selected by the provider's
86	bioethics committee and must not be employed by the provider. If
87	the provider does not have a bioethics committee, then such a
88	proxy may be chosen through an arrangement with the bioethics
89	committee of another provider. The proxy will be notified that,
90	upon request, the provider shall make available a second
91	physician, not involved in the patient's care to assist the
92	proxy in evaluating treatment. Decisions to withhold or withdraw
93	life-prolonging procedures will be reviewed by the facility's
94	bioethics committee. Documentation of efforts to locate proxies
95	from prior classes must be recorded in the patient record.
96	(2)  Any health care decision made under this part must be
97	based on the proxy's informed consent and on the decision the
98	proxy reasonably believes the patient would have made under the
99	circumstances. If there is no indication of what the patient
100	would have chosen, the proxy may consider the patient's best
101	interest in deciding that proposed treatments, other than
102	artificially provided sustenance or hydration for a person in a
103	persistent vegetative state, are to be withheld or that
104	treatments currently in effect are to be withdrawn.
105	(3)  Before exercising the incapacitated patient's rights
106	to select or decline health care, the proxy must comply with the
107	provisions of ss. 765.205 and 765.305, except that a proxy's
108	decision to withhold or withdraw life-prolonging procedures,
109	other than artificially provided sustenance or hydration for a
110	person in a persistent vegetative state, must be supported by
111	clear and convincing evidence that the decision would have been
112	the one the patient would have chosen had the patient been
113	competent or, if there is no indication of what the patient
114	would have chosen, that the decision is in the patient's best
115	interest.
116	Section 2.  Section 765.404, Florida Statutes, is amended
117	to read:
118	765.404  Persistent vegetative state.--For persons in a
119	persistent vegetative state, as determined by the attending
120	physician in accordance with currently accepted medical
121	standards, who have no advance directive and for whom there is
122	no evidence indicating what the person would have wanted under
123	such conditions, and for whom, after a reasonably diligent
124	inquiry, no family or friends are available or willing to serve
125	as a proxy to make health care decisions for them, life-
126	prolonging procedures, other than artificially provided
127	sustenance or hydration, may be withheld or withdrawn under the
128	following conditions:
129	(1)  The person has a judicially appointed guardian
130	representing his or her best interest with authority to consent
131	to medical treatment; and
132	(2)  The guardian and the person's attending physician, in
133	consultation with the medical ethics committee of the facility
134	where the patient is located, conclude that the condition is
135	permanent and that there is no reasonable medical probability
136	for recovery and that withholding or withdrawing life-prolonging
137	procedures, other than artificially provided sustenance or
138	hydration, is in the best interest of the patient. If there is
139	no medical ethics committee at the facility, the facility must
140	have an arrangement with the medical ethics committee of another
141	facility or with a community-based ethics committee approved by
142	the Florida Bio-ethics Network. The ethics committee shall
143	review the case with the guardian, in consultation with the
144	person's attending physician, to determine whether the condition
145	is permanent and there is no reasonable medical probability for
146	recovery. The individual committee members and the facility
147	associated with an ethics committee shall not be held liable in
148	any civil action related to the performance of any duties
149	required in this subsection.
150	Section 3.  Section 765.405, Florida Statutes, is created
151	to read:
152	765.405  Prohibition against withholding or withdrawing
153	artificially provided sustenance or hydration in specific
154	circumstances.--
155	(1)  Artificially provided sustenance or hydration shall
156	not be withheld or withdrawn from a person in a persistent
157	vegetative state, except as provided in subsection (2).
158	(2)  The prohibition in subsection (1) does not apply under
159	the conditions prescribed in paragraph (a), paragraph (b),
160	paragraph (c), or paragraph (d).
161	(a)  A written advance directive, written living will, or
162	written designation of a health care surrogate prepared in
163	accordance with s. 765.202 authorizes withholding or withdrawing
164	life-prolonging procedures, as defined in s. 765.101.
165	(b)  Clear and convincing evidence exists that the person,
166	while competent and prior to entering into a persistent
167	vegetative state, expressly directed or instructed the
168	withholding or withdrawing of artificially provided sustenance
169	or hydration. For purposes of this section, this paragraph does
170	not authorize the application of substituted judgment.
171	(c)  In the reasonable medical judgment of the person's
172	attending physician and a second consulting physician, and in
173	consultation with the medical ethics committee of the facility
174	where the person is located, maintenance of artificially
175	provided sustenance or hydration:
176	1.  Is not medically possible;
177	2.  Would hasten death;
178	3.  Would cause severe, intractable, or significant long-
179	lasting pain to the person; or
180	4.  Would not contribute to sustaining the person's life or
181	providing comfort to the person.
182	(d)  In the reasonable medical judgment of the person's
183	attending physician and a second consulting physician, and in
184	consultation with the medical ethics committee of the facility
185	where the person is located:
186	1.  Death is imminent;
187	2.  Even with artificially provided sustenance or
188	hydration, the person will die within a reasonably short period
189	of time due to a terminal illness or injury; and
190	3.  The purpose of withholding or withdrawing artificially
191	provided sustenance or hydration is not to cause death by
192	starvation or dehydration.
193	(3)  For purposes of making the determination in paragraph
194	(2)(c) or paragraph (2)(d), if there is no medical ethics
195	committee at the facility, the facility must have an arrangement
196	with the medical ethics committee of another facility or with a
197	community-based ethics committee approved by the Florida Bio-
198	ethics Network. The individual committee members and the
199	facility associated with an ethics committee shall not be held
200	liable in any civil action related to the performance of any
201	duties required in paragraph (2)(c) or paragraph (2)(d).
202	(4)  Any interested person may petition a court of
203	competent jurisdiction at any time, based upon the prohibition
204	in subsection (1), to prevent the withholding or withdrawing of
205	artificially provided sustenance or hydration.
206	Section 4.  The provisions of this act are remedial and
207	apply to every living person on the effective date of this act.
208	Specifically, it is the intent of the Legislature and the policy
209	of this state to apply the provisions of this act to all
210	situations in which a person is in a persistent vegetative state
211	on or after the effective date of this act.
212	Section 5.  This act shall take effect upon becoming a law.

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