CHAPTER 54
ADVANCE DIRECTIVE FOR HEALTH CARE
Sec.
5402. Legislative findings and intent.
5405. When declaration becomes operative.
5408. Duty of physician to confirm terminal condition.
5409. Unwillingness to comply; transfer of declarant.
5410. Effect on suicide and life insurance.
5412. Preservation of existing rights.
5413. Emergency medical services.
§ 5401. Short title of chapter.
This chapter shall be known and may be cited as the Advance Directive for Health Care Act.
§ 5402. Legislative findings and intent.
(a) Findings. - The General Assembly finds that all competent adults have a qualified right to control decisions relating to their own medical care. This right is subject to certain interests of society, such as the maintenance of ethical standards in the medical profession and the preservation and protection of human life. Modern medical technological procedures make possible the prolongation of human life beyond natural limits. The application of some procedures to an individual suffering a difficult and uncomfortable process of dying may cause loss of patient dignity and secure only continuation of a precarious and burdensome prolongation of life.
(b) Intent. - Nothing in this chapter is intended to condone, authorize or approve mercy killing, euthanasia or aided suicide or to permit any affirmative or deliberate act or omission to end life other than as defined in this chapter. Furthermore, this chapter shall create no presumption concerning the intent of any person who has not executed a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition or a state of permanent unconsciousness.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Attending physician." The physician who has primary responsibility for the treatment and care of the declarant.
"Declarant." A person who makes a declaration in accordance with this chapter. The term includes an emancipated minor.
"Declaration." A written document voluntarily executed by the declarant in accordance with this chapter.
"Health care provider." A person who is licensed or certified by the laws of this Commonwealth to administer health care in the ordinary course of business or practice of a profession. The term includes personnel recognized under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act.
"Incompetent." The lack of sufficient capacity for a person to make or communicate decisions concerning himself.
"Life-sustaining treatment." Any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. Life-sustaining treatment shall include nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration of the qualified patient so specifically provides.
"Medical command physician." A licensed physician who is authorized to give medical command under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act.
"Permanently unconscious." A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma.
"Person." An individual, corporation, partnership, association or Federal, State or local government or governmental agency.
"Qualified patient." A person who has executed a declaration and who has been determined to be in a terminal condition or to be permanently unconscious.
"Terminal condition." An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life-sustaining treatment.
(a) Execution. - An individual of sound mind who is 18 years of age or older or who has graduated from high school or has married may execute at any time a declaration governing the initiation, continuation, withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or by another on behalf of and at the direction of the declarant, and must be witnessed by two individuals each of whom is 18 years of age or older. A witness shall not be the person who signed the declaration on behalf of and at the direction of the declarant.
(b) Form. - A declaration may but need not be in the following form and may include other specific directions, including, but not limited to, designation of another person to make the treatment decision for the declarant if the declarant is incompetent and is determined to be in a terminal condition or to be permanently unconscious.
DECLARATION
I, __________________, being of sound mind, willfully and voluntarily make this declaration to be followed if I become incompetent. This declaration reflects my firm and settled commitment to refuse life-sustaining treatment under the circumstances indicated below.
I direct my attending physician to withhold or withdraw life-sustaining treatment that serves only to prolong the process of my dying, if I should be in a terminal condition or in a state of permanent unconsciousness.
I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing life-sustaining treatment.
In addition, if I am in the condition described above, I feel especially strong about the following forms of treatment:
I ( ) do ( ) do not want cardiac resuscitation.
I ( ) do ( ) do not want mechanical respiration.
I ( ) do ( ) do not want tube feeding or any other artificial or invasive form of nutrition (food) or hydration (water).
I ( ) do ( ) do not want blood or blood products.
I ( ) do ( ) do not want any form of surgery or invasive diagnostic tests.
I ( ) do ( ) do not want kidney dialysis.
I ( ) do ( ) do not want antibiotics.
I realize that if I do not specifically indicate my preference regarding any of the forms of treatment listed above, I may receive that form of treatment.
Other instructions:
I ( ) do ( ) do not want to designate another person as my surrogate to make medical treatment decisions for me if I should be incompetent and in a terminal condition or in a state of permanent unconsciousness. Name and address of surrogate (if applicable):
Name and address of substitute surrogate (if surrogate designated above is unable to serve):
I ( ) do ( ) do not want to make an anatomical gift of all or part of my body, subject to the following limitations, if any:
I made this declaration on the _____ day of (month, year).
Declarant's signature:
Declarant's address:
The declarant or the person on behalf of and at the direction of the declarant knowingly and voluntarily signed this writing by signature or mark in my presence.
Witness's signature:
Witness's address:
Witness's signature:
Witness's address:
(c) Invalidity of specific direction. - Should any specific direction in the declaration be held to be invalid, the invalidity shall not offset other directions of the declaration which can be effected without the invalid direction.
(d) Medical record. - A physician or other health care provider who is furnished a copy of the declaration shall make it a part of the declarant's medical record and, if unwilling to comply with the declaration, promptly so advise the declarant.
§ 5405. When declaration becomes operative.
A declaration becomes operative when:
(1) a copy is provided to the attending physician; and
(2) the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness.
When the declaration becomes operative, the attending physician and other health care providers shall act in accordance with its provisions or comply with the transfer provisions of section 5409 (relating to unwillingness to comply; transfer of declarant).
(a) General rule. - A declaration may be revoked at any time and in any manner by the declarant without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation.
(b) Medical record. - The attending physician or other health care provider shall make the revocation a part of the declarant's medical record.
(a) General rule. - No physician or other health care provider who, consistent with this chapter, causes or participates in the initiating, continuing, withholding or withdrawal of life-sustaining treatment from a qualified patient who is incompetent shall, as a result thereof, be subject to criminal or civil liability or be found to have committed an act of unprofessional conduct if the attending physician has followed the declarant's wishes as expressed earlier by the declarant in the form of a declaration executed pursuant to this chapter.
(b) Absence of declaration. - The absence of a declaration by a patient shall not give rise to any presumption as to the intent of the patient to consent to or to refuse the initiation, continuation or termination of life-sustaining treatment.
§ 5408. Duty of physician to confirm terminal condition.
For purposes of section 5405 (relating to when declaration becomes operative), an attending physician shall, without delay after the diagnosis that the declarant is in a terminal condition or in a state of permanent unconsciousness, certify in writing that the declarant is in a terminal condition or in a state of permanent unconsciousness and arrange for the physical examination and confirmation of the terminal condition or state of permanent unconsciousness of the declarant by a second physician.
§ 5409. Unwillingness to comply; transfer of declarant.
(a) Attending physician or health care provider. - If an attending physician or other health care provider cannot in good conscience comply with a declaration or if the policies of the health care provider preclude compliance with a declaration, the attending physician or health care provider shall so inform the declarant, or, if the declarant is incompetent, shall so inform the declarant's surrogate, or, if a surrogate is not named in the declaration, shall so inform the family, guardian or other representative of the declarant. The attending physician or health care provider shall make every reasonable effort to assist in the transfer of the declarant to another physician or health care provider who will comply with the declaration.
(b) Employee or staff member of health care provider. - An employee or staff member of a health care provider shall not be required to participate in the withholding or withdrawal of life-sustaining treatment. It shall be unlawful for an employer to discharge or in any other manner to discriminate against an employee or staff member who informs the employer that he does not wish to participate in the withholding or withdrawal of life-sustaining treatment. The employer may require the employee or staff member to express his wishes in writing.
(c) Liability. - If transfer under subsection (a) is not possible, the provision of life-sustaining treatment to a declarant shall not subject a health care provider to criminal or civil liability or administrative sanction for failure to carry out the provisions of a declaration.
§ 5410. Effect on suicide and life insurance.
(a) Criminal effect. - The withholding or withdrawal of life-sustaining treatment from a qualified patient in accordance with the provisions of this chapter shall not, for any purpose, constitute suicide or homicide.
(b) Life insurance. - The making of or failure to make a declaration in accordance with this chapter shall not affect in any manner the sale, procurement or issuance of any policy of life insurance nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from an insured patient, notwithstanding any term of the policy to the contrary.
No physician or other health care provider and no health care service plan, health maintenance organization, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital plan or Federal, State or local government sponsored or operated program shall:
(1) require any person to execute a declaration as a condition for being insured for or receiving health care services; or
(2) charge any person a different rate or fee whether or not the person executes or has executed a declaration.
§ 5412. Preservation of existing rights.
The provisions of this chapter shall not impair or supersede any existing rights or responsibilities not addressed in this chapter.
§ 5413. Emergency medical services.
(a) General rule. - An emergency medical services provider shall, in the course of providing care to a declarant, at all times comply with the instructions of an authorized medical command physician to withhold or discontinue cardiopulmonary resuscitation FOR A DECLARANT WHOSE ADVANCE DIRECTIVE HAS BECOME OPERATIVE UNDER SECTION 5405 (RELATING TO WHEN DECLARATION BECOMES OPERRATIVE).
(b) Applicability. - This section is applicable only in those instances where an out-of-hospital DNR order is not in effect under section 5404-A(a) (relating to orders, bracelets and necklaces).
(a) General rule. - Notwithstanding the existence of a declaration or direction to the contrary, life-sustaining treatment, nutrition and hydration must be provided to a pregnant woman who is incompetent and has a terminal condition or who is permanently unconscious unless, to a reasonable degree of medical certainty as certified on the patient's medical record by the attending physician and an obstetrician who has examined the patient, life-sustaining treatment, nutrition and hydration:
(1) will not maintain the pregnant woman in such a way as to permit the continuing development and live birth of the unborn child;
(2) will be physically harmful to the pregnant woman; or
(3) would cause pain to the pregnant woman which cannot be alleviated by medication.
(b) Pregnancy test. - Nothing in this section shall require a physician to perform a pregnancy test unless the physician has reason to believe that the woman may be pregnant.
(c) Payment of expenses by Commonwealth. -
(1) In the event that treatment, nutrition and hydration are provided to a pregnant woman who is incompetent and has a terminal condition or who is permanently unconscious, notwithstanding the existence of a declaration or direction to the contrary, the Commonwealth shall pay all usual, customary and reasonable expenses directly and indirectly incurred by the pregnant woman to whom such treatment, nutrition and hydration are provided.
(2) The Commonwealth shall have the right of subrogation against all moneys paid by any third-party health insurer on behalf of the pregnant woman.
(3) The expenditures incurred on behalf of the pregnant woman shall constitute a grant and no lien shall be placed upon the property of the pregnant woman, her estate or her heirs.
Any person who willfully conceals, cancels, defaces, obliterates or damages the declaration of another without the consent of the declarant commits a felony of the third degree. Any person who falsifies or forges the declaration of another, or willfully conceals or withholds personal knowledge of a revocation as provided in section 5406 (relating to revocation), with the intent to cause a withholding or withdrawal of life-sustaining treatment contrary to the wishes of the declarant and, because of such an act, directly causes life-sustaining treatment to be withheld or withdrawn and death to be hastened shall be subject to prosecution for criminal homicide as provided in 18 Pa.C.S. Ch. 25 (relating to criminal homicide). Any person who willfully, by undue influence, fraud or duress, causes a person to execute a declaration pursuant to this chapter commits a felony of the third degree.
The provisions of this chapter are severable, and, if any word, phrase, clause, sentence, section or provision of the chapter is for any reason held to be unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this chapter. It is hereby declared as the legislative intent that this chapter would have been adopted had such unconstitutional word, phrase, clause, sentence, section or provision thereof not been included herein.