PRINTER'S NO. 11
No. 21 Session of 1991
INTRODUCED BY CALTAGIRONE, GIGLIOTTI AND DALEY, JANUARY 15, 1991
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, JANUARY 15, 1991
AN ACT
1 Relating to consent to health care.
2 The General Assembly of the Commonwealth of Pennsylvania
3 hereby enacts as follows:
4 Section 1. Short title.
5 This act shall be known and may be cited as the Health Care
6 Consent Act.
7 Section 2. Definitions.
8 The following words and phrases when used in this act shall
9 have the meanings given to them in this section unless the
10 context clearly indicates otherwise:
11 "Adult." An individual 18 years of age or older.
12 "Health care." Care, treatment, service or procedure to
13 maintain, diagnose or treat an individual's physical or mental
14 condition.
15 "Health care provider." A person who is licensed, certified
16 or otherwise authorized by the laws of this Commonwealth to
17 administer health care in the ordinary course of business or
18 practice of a profession.
1 "Minor." An individual who is not an adult.
2 "Person." An individual, corporation, business trust,
3 estate, trust, partnership, association, government,
4 governmental subdivision or agency, or any other legal entity.
5 Section 3. Individuals who may consent to health care.
6 Unless incapable of consenting under section 4, an individual
7 may consent to personal health care for himself if the
8 individual is:
9 (1) an adult; or
10 (2) a minor and:
11 (i) is emancipated;
12 (ii) has attained 14 years of age and, regardless of
13 the source of his income, is living apart from his
14 parents or guardian and is managing his own affairs;
15 (iii) is or has been married;
16 (iv) is in the military service of the United
17 States; or
18 (v) is authorized to consent to the health care by
19 any other law of this Commonwealth.
20 Section 4. Individuals incapable of consenting.
21 An individual otherwise authorized under this act may consent
22 to health care unless, in the good faith opinion of the health
23 care provider, the individual is incapable of making a decision
24 regarding the proposed health care.
25 Section 5. Individuals who may consent to health care for
26 others.
27 (a) Individuals incapable of consenting.--If an individual
28 incapable of consenting under section 4 has not appointed a
29 health care representative under section 7 or the health care
30 representative appointed under section 7 is not reasonably
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1 available or declines to act, consent to health care may be
2 given as follows:
3 (1) Any of the following may give consent to health care
4 in the listed order of priority unless departure from this
5 order is reasonably necessary under the circumstances:
6 (i) A guardian over the person of the individual.
7 (ii) A representative of the individual appointed
8 under section 8.
9 (iii) A representative of the individual appointed
10 or designated under the laws of this Commonwealth.
11 (2) If there is no person described in paragraph (1), if
12 the person described in paragraph (1) is not reasonably
13 available or declines to act, or if the existence of the
14 person described in paragraph (1) is not known to the health
15 care provider, any of the following, unless disqualified
16 under section 9, may give consent to health care in the
17 listed order of priority unless departure from this order is
18 reasonably necessary under the circumstances:
19 (i) The spouse of the individual.
20 (ii) A parent of the individual.
21 (iii) An adult child of the individual.
22 (iv) An adult sibling of the individual.
23 (b) Minors.--Consent to health care for a minor not
24 authorized to consent under section 3 may be given:
25 (1) by a guardian over the person of the minor, a
26 representative of the minor appointed under section 8 or a
27 representative of the minor designated or appointed under the
28 laws of this Commonwealth;
29 (2) by a parent or an individual in loco parentis, if
30 there is no guardian or other representative described in
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1 paragraph (1), if the guardian or other representative
2 described in paragraph (1) is not reasonably available or
3 declines to act or if the existence of the guardian or other
4 representative described in paragraph (1) is unknown to the
5 health care provider; or
6 (3) by an adult sibling of the minor, if a parent or an
7 individual in loco parentis is not reasonably available or
8 declines to act or if the existence of a parent or individual
9 in loco parentis is unknown to the health care provider.
10 (c) Delegated authority.--An individual delegated authority
11 to consent under section 6 has the same authority and
12 responsibility as the individual delegating the authority.
13 (d) Good faith.--A person authorized to consent for another
14 under this section shall act in good faith and in the best
15 interest of the individual incapable of consenting.
16 Section 6. Delegation of power to consent to health care for
17 another.
18 (a) General rule.--An individual who is authorized to
19 consent to health care for another under section 5(a)(2) or
20 (b)(2) or (3) and who, for a period of time, will not be
21 reasonably available to exercise the authority may delegate the
22 authority to consent during that period to a person who is not
23 disqualified under section 9. The delegation must be in writing
24 and signed and may specify conditions on the authority
25 delegated. Unless the writing expressly provides otherwise, the
26 delegate may not delegate the authority to another.
27 (b) Revocation of delegation of power.--The delegate may
28 revoke the delegation at any time by notifying, orally or in
29 writing, the delegate or the health care provider.
30 Section 7. Health care representative.
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1 (a) Representative.--An individual who may consent to health
2 care under section 3 may appoint another as a health care
3 representative to act for the appointor in matters affecting the
4 appointor's health care.
5 (b) Qualifications.--A health care representative appointed
6 under this section must be an individual who may consent to
7 health care under section 3.
8 (c) Written appointment.--An appointment and any amendment
9 to an appointment must be in writing, signed by the appointor
10 and a witness other than the health care representative and
11 accepted in writing by the health care representative.
12 (d) Terms and conditions.--The appointor may specify in the
13 writing terms and conditions considered appropriate, including
14 an authorization to the health care representative to delegate
15 the authority to consent to another.
16 (e) When effective.--The authority granted becomes effective
17 according to the terms of the writing.
18 (f) Effect of incapacity.--The writing may provide that the
19 authority does not commence until, or terminates when, the
20 appointor becomes incapable of consenting. Unless expressly
21 provided otherwise, the authority granted in the writing is not
22 affected if the appointor becomes incapable of consenting.
23 (g) Priority to act.--Unless the writing provides otherwise,
24 a health care representative appointed under this section who is
25 reasonably available and willing to act has priority, except as
26 provided in section 5(a)(1)(i), to act for the appointor in all
27 matters of health care.
28 (h) Standard of conduct.--In making decisions regarding the
29 appointor's health care, a health care representative appointed
30 under this section shall act:
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1 (1) in the best interest of the appointor consistent
2 with the purposes expressed in the appointment; and
3 (2) in good faith.
4 (i) Withdrawal.--A health care representative who resigns or
5 is unwilling to comply with the written appointment may exercise
6 no further power under the appointment and shall so inform:
7 (1) the appointor;
8 (2) the appointor's legal representative, if one is
9 known; and
10 (3) the health care provider, if the health care
11 representative knows there is a health care provider.
12 (j) Revocation.--An individual who is capable of consenting
13 to health care may revoke:
14 (1) the appointment at any time by notifying the health
15 care representative orally or in writing; or
16 (2) the authority granted to the health care
17 representative by notifying the health care provider orally
18 or in writing.
19 Section 8. Court-ordered health care or court-ordered
20 appointment of representative.
21 (a) Petition to court.--A health care provider or an
22 interested individual may petition a court of common pleas to:
23 (1) make a health care decision or order health care for
24 an individual incapable of consenting; or
25 (2) appoint a representative to act for that individual.
26 (b) Notice.--Reasonable notice of the time and place of
27 hearing a petition under this section must be given to the
28 individual incapable of consenting and to individuals in the
29 classes described in section 5 who are reasonably available.
30 (c) Delay.--The court may modify or dispense with notice and
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1 hearing if it finds that delay will have a serious, adverse
2 effect upon the health of the individual.
3 (d) Order.--The court may order health care, appoint a
4 representative to make a health care decision for the individual
5 incapable of consenting to health care with limitations on the
6 authority of the representative as it considers appropriate or
7 order any other appropriate relief in the best interest of that
8 individual if it finds:
9 (1) a health care decision is required for the
10 individual;
11 (2) the individual is incapable of consenting to health
12 care; and
13 (3) there is no individual authorized to consent or an
14 individual authorized to consent to health care is not
15 reasonably available, declines to act or is not acting in the
16 best interest of the individual in need of health care.
17 Section 9. Disqualification of authorized individuals.
18 (a) General rule.--An individual who may consent to health
19 care under section 3 may disqualify others from consenting to
20 health care for him.
21 (b) Written disqualification.--The disqualification must be
22 in writing, be signed by the individual and designate those
23 disqualified.
24 (c) Knowledge of provider.--A health care provider who knows
25 of a written disqualification may not accept consent to health
26 care from a disqualified person.
27 (d) Disqualified person may not act.--A person who knows he
28 has been disqualified to consent to health care for another may
29 not act for the other under this act.
30 Section 10. Limitations of liability.
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1 (a) Relying on invalid authority to consent.--A health care
2 provider acting or declining to act in reliance on the consent
3 or refusal of consent of a person who he believes in good faith
4 is authorized by this act or other law of this Commonwealth to
5 consent to health care is not subject to criminal prosecution,
6 civil liability or professional disciplinary action on the
7 ground that the person who consented or refused to consent
8 lacked authority or capacity.
9 (b) Relying on incapability to consent.--A health care
10 provider who believes in good faith an individual is incapable
11 of consenting under section 4 is not subject to criminal
12 prosecution, civil liability or professional disciplinary action
13 for failing to follow that individual's direction.
14 (c) Person lacking authority to consent.--A person who in
15 good faith believes he is authorized to consent or refuse to
16 consent to health care for another under this act or other laws
17 of this Commonwealth is not subject to criminal prosecution or
18 civil liability on the ground the person lacked authority to
19 consent.
20 Section 11. Availability of medical information.
21 A person authorized to consent to health care for another
22 under this act has the same right as does the individual for
23 whom the person is acting to receive information relevant to the
24 contemplated health care and to consent to the disclosure of
25 medical records to a contemplated health care provider.
26 Disclosure of information regarding contemplated health care to
27 a person authorized to consent for another is not a waiver of an
28 evidentiary privilege.
29 Section 12. Effect on existing State law.
30 (a) Continuation of care.--This act does not affect the laws
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1 of this Commonwealth concerning an individual's right to make a
2 health care decision for himself or another to withdraw or
3 withhold medical care necessary to preserve or sustain life.
4 (b) Mental illness.--This act does not affect the
5 requirements of any other law of this Commonwealth concerning
6 consent to observation, diagnosis, treatment or hospitalization
7 for a mental illness.
8 (c) Prohibited health care.--This act does not authorize a
9 person to consent to any health care prohibited by the law of
10 this Commonwealth.
11 (d) Notice to others of proposed health care.--This act does
12 not affect any requirement of notice to others of proposed
13 health care under any other law of this Commonwealth.
14 (e) Standard of care and consent.--This act does not affect
15 the law of this Commonwealth concerning:
16 (1) the standard of care of a health care provider
17 required in the administration of health care;
18 (2) when consent is required for health care;
19 (3) informed consent for health care; or
20 (4) consent to health care in an emergency.
21 (f) Religious tenets.--This act does not prevent an
22 individual who is capable of consenting to health care for
23 himself or another under this act from consenting to health care
24 administered in good faith pursuant to religious tenets of the
25 individual requiring health care.
26 Section 13. Uniformity of application and construction.
27 This act shall be applied and construed to effectuate its
28 general purpose to make uniform the law with respect to the
29 subject of this act among states enacting it.
30 Section 14. Effective date.
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1 This act shall take effect in 60 days.
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