HB 0701

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

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