Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
Barcode 393562
CHAMBER ACTION
Senate House
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11 The Committee on Judiciary (Webster) recommended the following
12 amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Subsections (1), (2), and (3) of section
19 765.401, Florida Statutes, are amended to read:
20 765.401 The proxy.--
21 (1) If an incapacitated or developmentally disabled
22 patient has not executed an advance directive, or designated a
23 surrogate to execute an advance directive, or the designated
24 or alternate surrogate is no longer available to make health
25 care decisions, health care decisions, other than the decision
26 to withhold or withdraw artificially provided sustenance or
27 hydration for a person in a persistent vegetative state, may
28 be made for the patient by any of the following individuals,
29 in the following order of priority, if no individual in a
30 prior class is reasonably available, willing, or competent to
31 act:
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1 (a) The judicially appointed guardian of the patient
2 or the guardian advocate of the person having a developmental
3 disability as defined in s. 393.063, who has been authorized
4 to consent to medical treatment, if such guardian has
5 previously been appointed; however, this paragraph shall not
6 be construed to require such appointment before a treatment
7 decision can be made under this subsection;
8 (b) The patient's spouse;
9 (c) An adult child of the patient, or if the patient
10 has more than one adult child, a majority of the adult
11 children who are reasonably available for consultation;
12 (d) A parent of the patient;
13 (e) The adult sibling of the patient or, if the
14 patient has more than one sibling, a majority of the adult
15 siblings who are reasonably available for consultation;
16 (f) An adult relative of the patient who has exhibited
17 special care and concern for the patient and who has
18 maintained regular contact with the patient and who is
19 familiar with the patient's activities, health, and religious
20 or moral beliefs; or
21 (g) A close friend of the patient.
22 (h) A clinical social worker licensed pursuant to
23 chapter 491, or who is a graduate of a court-approved
24 guardianship program. Such a proxy must be selected by the
25 provider's bioethics committee and must not be employed by the
26 provider. If the provider does not have a bioethics committee,
27 then such a proxy may be chosen through an arrangement with
28 the bioethics committee of another provider. The proxy will be
29 notified that, upon request, the provider shall make available
30 a second physician, not involved in the patient's care to
31 assist the proxy in evaluating treatment. Decisions to
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
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1 withhold or withdraw life-prolonging procedures will be
2 reviewed by the facility's bioethics committee. Documentation
3 of efforts to locate proxies from prior classes must be
4 recorded in the patient record.
5 (2) Any health care decision made under this part must
6 be based on the proxy's informed consent and on the decision
7 the proxy reasonably believes the patient would have made
8 under the circumstances. If there is no indication of what the
9 patient would have chosen, the proxy may consider the
10 patient's best interest in deciding that proposed treatments,
11 other than artificially provided sustenance or hydration for a
12 person in a persistent vegetative state, are to be withheld or
13 that treatments currently in effect are to be withdrawn.
14 (3) Before exercising the incapacitated patient's
15 rights to select or decline health care, the proxy must comply
16 with the provisions of ss. 765.205 and 765.305, except that a
17 proxy's decision to withhold or withdraw life-prolonging
18 procedures, other than artificially provided sustenance or
19 hydration for a person in a persistent vegetative state, must
20 be supported by clear and convincing evidence that the
21 decision would have been the one the patient would have chosen
22 had the patient been competent or, if there is no indication
23 of what the patient would have chosen, that the decision is in
24 the patient's best interest.
25 Section 2. Section 765.404, Florida Statutes, is
26 amended to read:
27 765.404 Persistent vegetative state.--For persons in a
28 persistent vegetative state, as determined by the attending
29 physician in accordance with currently accepted medical
30 standards, who have no advance directive and for whom there is
31 no evidence indicating what the person would have wanted under
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
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1 such conditions, and for whom, after a reasonably diligent
2 inquiry, no family or friends are available or willing to
3 serve as a proxy to make health care decisions for them,
4 life-prolonging procedures, other than artificially provided
5 sustenance or hydration, may be withheld or withdrawn under
6 the following conditions:
7 (1) The person has a judicially appointed guardian
8 representing his or her best interest with authority to
9 consent to medical treatment; and
10 (2) The guardian and the person's attending physician,
11 in consultation with the medical ethics committee of the
12 facility where the patient is located, conclude that the
13 condition is permanent and that there is no reasonable medical
14 probability for recovery and that withholding or withdrawing
15 life-prolonging procedures, other than artificially provided
16 sustenance or hydration, is in the best interest of the
17 patient. If there is no medical ethics committee at the
18 facility, the facility must have an arrangement with the
19 medical ethics committee of another facility or with a
20 community-based ethics committee approved by the Florida
21 Bio-ethics Network. The ethics committee shall review the case
22 with the guardian, in consultation with the person's attending
23 physician, to determine whether the condition is permanent and
24 there is no reasonable medical probability for recovery. The
25 individual committee members and the facility associated with
26 an ethics committee shall not be held liable in any civil
27 action related to the performance of any duties required in
28 this subsection.
29 Section 3. Section 765.405, Florida Statutes, is
30 created to read:
31 765.405 Prohibition against withholding or withdrawing
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1 artificially provided sustenance or hydration in specific
2 circumstances.--
3 (1) Artificially provided sustenance or hydration
4 shall not be withheld or withdrawn from a person in a
5 persistent vegetative state, except as provided in subsection
6 (2).
7 (2) The prohibition in subsection (1) does not apply
8 under the conditions prescribed in paragraph (a), paragraph
9 (b), paragraph (c), or paragraph (d).
10 (a) A written advance directive, written living will,
11 or written designation of a health care surrogate prepared in
12 accordance with s. 765.202 authorizes withholding or
13 withdrawing life-prolonging procedures, as defined in s.
14 765.101.
15 (b) Clear and convincing evidence exists that the
16 person, while competent and prior to entering into a
17 persistent vegetative state, expressly directed or instructed
18 the withholding or withdrawing of artificially provided
19 sustenance or hydration. For purposes of this section, this
20 paragraph does not authorize the application of substituted
21 judgment.
22 (c) In the reasonable medical judgment of the person's
23 attending physician and a second consulting physician, and in
24 consultation with the medical ethics committee of the facility
25 where the person is located, maintenance of artificially
26 provided sustenance or hydration:
27 1. Is not medically possible;
28 2. Would hasten death;
29 3. Would cause severe, intractable, or significant
30 long-lasting pain to the person; or
31 4. Would not contribute to sustaining the person's
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
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1 life or providing comfort to the person.
2 (d) In the reasonable medical judgment of the person's
3 attending physician and a second consulting physician, and in
4 consultation with the medical ethics committee of the facility
5 where the person is located:
6 1. Death is imminent;
7 2. Even with artificially provided sustenance or
8 hydration, the person will die within a reasonably short
9 period of time due to a terminal illness or injury; and
10 3. The purpose of withholding or withdrawing
11 artificially provided sustenance or hydration is not to cause
12 death by starvation or dehydration.
13 (3) For purposes of making the determination in
14 paragraph (2)(c) or paragraph (2)(d), if there is no medical
15 ethics committee at the facility, the facility must have an
16 arrangement with the medical ethics committee of another
17 facility or with a community-based ethics committee approved
18 by the Florida Bio-ethics Network. The individual committee
19 members and the facility associated with an ethics committee
20 shall not be held liable in any civil action related to the
21 performance of any duties required in paragraph (2)(c) or
22 paragraph (2)(d).
23 (4) Any interested person may petition a court of
24 competent jurisdiction at any time, based upon the prohibition
25 in subsection (1), to prevent the withholding or withdrawing
26 of artificially provided sustenance or hydration.
27 Section 4. The provisions of this act are remedial and
28 apply to every living person on the effective date of this
29 act. Specifically, it is the intent of the Legislature and the
30 policy of this state to apply the provisions of this act to
31 all situations in which a person is in a persistent vegetative
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
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1 state on or after the effective date of this act.
2 Section 5. This act shall take effect upon becoming a
3 law.
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6 ================ T I T L E A M E N D M E N T ===============
7 And the title is amended as follows:
8 Delete everything before the enacting clause
9
10 and insert:
11 A bill to be entitled
12 An act relating to artificially provided
13 sustenance and hydration; amending ss. 765.401
14 and 765.404, F.S.; excluding the withholding or
15 withdrawing of artificially provided sustenance
16 or hydration from certain authority to make
17 health care decisions; creating s. 765.405,
18 F.S.; prohibiting the withholding or
19 withdrawing of artificially provided sustenance
20 or hydration from a person in a persistent
21 vegetative state in specific circumstances;
22 providing conditions under which the
23 prohibition does not apply; requiring
24 consultation with an in-house or outside
25 medical ethics committee under certain
26 conditions; providing that certain individuals
27 and facilities are not liable for decisions
28 relating to the withholding or withdrawing of
29 artificially provided sustenance or hydration;
30 authorizing interested persons to petition the
31 court to prevent the withholding or withdrawing
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 804
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1 of artificially provided sustenance or
2 hydration based upon the prohibition;
3 specifying that the act is remedial; providing
4 for application of the act; providing an
5 effective date.
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7 WHEREAS, the Legislature fully recognizes, respects,
8 and preserves the right of a person to express his or her
9 health care decisions through means such as advance
10 directives, living wills, and designations of health care
11 surrogates, and
12 WHEREAS, withholding or withdrawing artificially
13 provided sustenance or hydration necessary to sustain life
14 represents an action having the ultimate and profound
15 consequence of death, and
16 WHEREAS, a person in a persistent vegetative state is,
17 at that time, unable to express his or her decision regarding
18 withholding or withdrawing artificially provided sustenance or
19 hydration, and
20 WHEREAS, there are medically ethical reasons to
21 withhold or withdraw artificially provided sustenance or
22 hydration necessary to sustain life, and
23 WHEREAS, the state has a compelling interest in
24 providing standards and procedural safeguards relating to
25 withholding or withdrawing artificially provided sustenance or
26 hydration for a person who is in a persistent vegetative state
27 and whose decisions are not expressed, NOW, THEREFORE,
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