PRINTER'S NO.  597

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

404

Session of

2009

  

  

INTRODUCED BY LEACH, BOSCOLA AND WASHINGTON, MARCH 5, 2009

  

  

REFERRED TO JUDICIARY, MARCH 5, 2009  

  

  

  

AN ACT

  

1

Amending Title 20 (Decedents, Estates and Fiduciaries) of the

2

Pennsylvania Consolidated Statutes, providing for procedures

3

regarding the request and dispensation of lethal medication

4

to patients seeking to die in a dignified and humane manner,

5

for duties of attending physicians, for duties of consulting

6

physicians, for insurance or annuity policies; imposing

7

duties on the Department of Health; providing for immunities

8

and for attorney fees; and imposing penalties.

9

The General Assembly of the Commonwealth of Pennsylvania

10

hereby enacts as follows:

11

Section 1.  Title 20 of the Pennsylvania Consolidated

12

Statutes is amended by adding a chapter to read:

13

CHAPTER 54B

14

DEATH WITH DIGNITY

15

Sec.

16

54B01.  Definitions.

17

54B02.  Written request for medication.

18

54B03.  Form of written request.

19

54B04.  Attending physician responsibilities.

20

54B05.  Consulting physician confirmation.

21

54B06.  Counseling referral.

 


1

54B07.  Informed decision.

2

54B08.  Family notification.

3

54B09.  Written and oral requests.

4

54B10.  Right to rescind request.

5

54B11.  Waiting periods.

6

54B12.  Medical record documentation requirements.

7

54B13.  Residency requirement.

8

54B14.  Reporting requirements.

9

54B15.  Effect on construction of wills and contracts.

10

54B16.  Insurance or annuity policies.

11

54B17.  Construction.

12

54B18.  Immunities.

13

54B19.  Health care provider participation; notification;

14

permissible sanctions.

15

54B20.  Liabilities.

16

54B21.  Claims by governmental entity for costs incurred.

17

54B22.  Instrument.

18

54B23.  Penalties for mishandling instrument.

19

§ 54B01.  Definitions.

20

The following words and phrases when used in this chapter

21

shall have the meanings given to them in this section unless the

22

context clearly indicates otherwise:

23

"Adult."  An individual who is 18 years of age or older.

24

"Attending physician."  The physician who has primary

25

responsibility for the care of the patient and treatment of the

26

patient's terminal disease.

27

"Capable."  An opinion of either a court or a patient's

28

attending physician or consulting physician, psychiatrist or

29

psychologist that a patient has the ability to make and

30

communicate health care decisions to health care providers,

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1

including communication through persons familiar with the

2

patient's manner of communicating if those persons are

3

available.

4

"Consulting physician."  A physician who is qualified by

5

specialty or experience to make a professional diagnosis and

6

prognosis regarding the patient's disease.

7

"Counseling."  One or more consultations as necessary,

8

between a licensed psychiatrist or psychologist and a patient,

9

for the purpose of determining that the patient is capable and

10

not suffering from a psychiatric or psychological disorder or

11

depression causing impaired judgment.

12

"Department."  The Department of Health of the Commonwealth.

13

"Health care provider."  A person licensed, certified or

14

otherwise authorized or permitted by the laws of this

15

Commonwealth to administer health care or dispense medication in

16

the ordinary course of business or practice of a profession. The

17

term includes a health care facility.

18

"Informed decision."  A decision by a qualified patient to

19

request and obtain a prescription to end his or her life in a

20

humane and dignified manner, which decision is based on an

21

appreciation of the relevant facts and after being fully

22

informed by the attending physician of:

23

(1)  His or her medical diagnosis.

24

(2)  His or her prognosis.

25

(3)  The potential risks associated with taking the

26

medication to be prescribed.

27

(4)  The probable result of taking the medication to be

28

prescribed.

29

(5)  The feasible alternatives, including, but not

30

limited to, comfort care, hospice care and pain control.

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1

"Medically confirmed."  The medical opinion of the attending

2

physician has been confirmed by a consulting physician who has

3

examined the patient and the patient's relevant medical records.

4

"Participate under this chapter."  To perform the duties of

5

an attending physician under section 54B04 (relating to

6

attending physician responsibilities), the consulting physician

7

function under section 54B05 (relating to consulting physician

8

confirmation) or the consulting function under section 54B06

9

(relating to counseling referral). The term does not include:

10

(1)  making an initial determination that a patient has a

11

terminal disease and informing the patient of the medical

12

prognosis;

13

(2)  providing information about this chapter to a

14

patient upon his request;

15

(3)  providing a patient, upon the request of the

16

patient, with a referral to another physician; or

17

(4)  contracting by a patient with his or her attending

18

physician and consulting physician to act outside of the

19

course and scope of the provider's capacity as an employee or

20

independent contractor of the sanctioning health care

21

provider.

22

"Patient."  A person who is under the care of a physician.

23

"Physician."  A doctor of medicine or osteopathy licensed to

24

practice by the State Board of Medicine or State Board of

25

Osteopathy.

26

"Qualified patient."  A capable adult who is a resident of

27

this Commonwealth and has satisfied the requirements of this

28

chapter in order to obtain a prescription for medication to end

29

his or her life in a humane and dignified manner.

30

"Terminal disease."  An incurable and irreversible disease

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1

that has been medically confirmed and will, within reasonable

2

medical judgment, produce death within six months.

3

§ 54B02.  Written request for medication.

4

Any adult resident of this Commonwealth who is capable and

5

has been determined by the attending physician and consulting

6

physician to be suffering from a terminal disease, and who has

7

voluntarily expressed his or her wish to die, may make a written

8

request for medication for the purpose of ending his or her life

9

in a humane and dignified manner in accordance with this

10

chapter. No person shall qualify to write a request for

11

medication under this section solely because of age or

12

disability.

13

§ 54B03.  Form of written request.

14

(a)  Signature, date and attestation.--A valid request for

15

medication under this chapter shall be in substantially the form

16

described in section 54B22 (relating to instrument), signed and

17

dated by the patient and witnessed by at least two individuals

18

who, in the presence of the patient, attest that to the best of

19

their knowledge and belief the patient is capable, acting

20

voluntarily and not being coerced to sign the request.

21

(b)  Witness.--One of the witnesses shall be a person who is

22

not:

23

(1)  a relative of the patient by blood, marriage or

24

adoption;

25

(2)  a person who, at the time the request is signed,

26

would be entitled to any portion of the estate of the

27

qualified patient upon death under any will or by operation

28

of law; or

29

(3)  an owner, operator or employee of a health care

30

facility where the qualified patient is receiving medical

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1

treatment or is a resident.

2

(c)  Prohibition.--The patient's attending physician at the

3

time the request is signed shall not be a witness.

4

(d)  Long-term care patient.--If the patient is in a long-

5

term care facility at the time the written request is made, one

6

of the witnesses shall be an individual designated by the

7

facility and having the qualifications specified by the

8

department by rule.

9

§ 54B04.  Attending physician responsibilities.

10

(a)  Responsibilities.--The attending physician shall:

11

(1)  Make the initial determination of whether a patient

12

has a terminal disease, is capable and has made the request

13

voluntarily.

14

(2)  Request that the patient demonstrate Commonwealth

15

residency under section 54B13 (relating to residency

16

requirement).

17

(3)  Ensure that the patient is making an informed

18

decision and inform the patient of:

19

(i)  His or her medical diagnosis.

20

(ii)  His or her prognosis.

21

(iii)  The potential risks associated with taking the

22

medication to be prescribed.

23

(iv)  The probable result of taking the medication to

24

be prescribed.

25

(v)  The feasible alternatives, including, but not

26

limited to, comfort care, hospice care and pain control.

27

(4)  Refer the patient to a consulting physician for

28

medical confirmation of the diagnosis and for a determination

29

that the patient is capable and acting voluntarily.

30

(5)  Refer the patient for counseling if appropriate

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1

under section 54B06 (relating to counseling referral).

2

(6)  Recommend the patient notify next of kin.

3

(7)  Counsel the patient about the importance of having

4

another person present when the patient takes the medication

5

prescribed under this chapter and of not taking the

6

medication in a public place.

7

(8)  Inform the patient that he or she has an opportunity

8

to rescind the request at any time and in any manner under

9

section 54B10 (relating to right to rescind request) and

10

offer the patient an opportunity to rescind at the end of the

11

15-day waiting period under section 54B11 (relating to

12

waiting periods).

13

(9)  Immediately prior to writing a prescription for

14

medication under this chapter, verify the patient is making

15

an informed decision.

16

(10)  Fulfill the medical record documentation

17

requirements of section 54B12 (relating to medical record

18

documentation requirements).

19

(11)  Ensure the steps in this chapter are carried out

20

prior to writing a prescription for medication to enable a

21

qualified patient to end his or her life in a humane and

22

dignified manner.

23

(12)  (i)  Dispense medications directly, including

24

ancillary medications intended to facilitate the desired

25

effect to minimize the patient's discomfort, provided the

26

attending physician is authorized to do so in this

27

Commonwealth, has a current Drug Enforcement

28

Administration certificate and complies with any

29

applicable administrative rule; or

30

(ii)  with the patient's written consent:

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1

(A)  contact a pharmacist and inform the

2

pharmacist of the prescription; and

3

(B)  deliver the written prescription personally

4

or by mail to the pharmacist, who will dispense the

5

medications to either the patient, the attending

6

physician or an expressly identified agent of the

7

patient.

8

(b)  Death certificate.--Notwithstanding any other provision

9

of law, the attending physician may sign the patient's death

10

certificate.

11

§ 54B05.  Consulting physician confirmation.

12

Before a patient is qualified under this chapter, a

13

consulting physician shall examine the patient and the patient's

14

relevant medical records to confirm the attending physician's

15

diagnosis that the patient is suffering from a terminal disease.

16

This confirmation shall be in writing. The consulting physician

17

must also verify the patient:

18

(1)  Is capable.

19

(2)  Is acting voluntarily.

20

(3)  Has made an informed decision.

21

§ 54B06.  Counseling referral.

22

If the opinion of the attending physician or the consulting

23

physician is that the patient may be suffering from a

24

psychiatric or psychological disorder or depression causing

25

impaired judgment, either physician shall refer the patient for

26

counseling. No medication to end a patient's life in a humane

27

and dignified manner shall be prescribed until the person

28

performing the counseling determines that the patient is not

29

suffering from a psychiatric or psychological disorder or

30

depression causing impaired judgment.

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1

§ 54B07.  Informed decision.

2

No person shall receive a prescription for medication to end

3

his or her life in a humane and dignified manner unless he or

4

she has made an informed decision. Immediately prior to writing

5

a prescription for medication under this chapter, the attending

6

physician shall verify the patient is making an informed

7

decision.

8

§ 54B08.  Family notification.

9

The attending physician shall recommend that the patient

10

notify the next of kin of his or her request for medication

11

under this chapter. A patient who declines or is unable to

12

notify the next of kin shall not have his or her request denied

13

for that reason.

14

§ 54B09.  Written and oral requests.

15

In order to receive a prescription for medication to end his

16

or her life in a humane and dignified manner, a qualified

17

patient shall have made an oral request and a written request

18

and shall reiterate the oral request to his or her attending

19

physician no less than 15 days after making the initial oral

20

request. At the time the qualified patient makes his or her

21

second oral request, the attending physician shall offer the

22

patient an opportunity to rescind the request.

23

§ 54B10.  Right to rescind request.

24

A patient may rescind his or her request at any time and in

25

any manner without regard to his or her mental state. No

26

prescription for medication under this chapter may be written

27

without the attending physician's offering the qualified patient

28

an opportunity to rescind the request.

29

§ 54B11.  Waiting periods.

30

No less than 15 days shall elapse between the patient's

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1

initial oral request and the writing of a prescription under

2

this chapter. No less than 48 hours shall elapse between the

3

patient's written request and the writing of a prescription

4

under this chapter.

5

§ 54B12.  Medical record documentation requirements.

6

The following shall be documented or filed in the patient's

7

medical record:

8

(1)  All oral requests by a patient for medication to end

9

his or her life in a humane and dignified manner.

10

(2)  All written requests by a patient for medication to

11

end his or her life in a humane and dignified manner.

12

(3)  The attending physician's diagnosis and prognosis

13

and determination that the patient is capable and acting

14

voluntarily and has made an informed decision.

15

(4)  The consulting physician's diagnosis and prognosis

16

and verification that the patient is capable and acting

17

voluntarily and has made an informed decision.

18

(5)  A report of the outcome and determinations made

19

during counseling, if performed.

20

(6)  The attending physician's offer to the patient to

21

rescind his or her request at the time of the patient's

22

second oral request under section 54B09 (relating to written

23

and oral requests).

24

(7)  A note by the attending physician indicating the

25

requirements under this chapter have been met and the steps

26

taken to carry out the request, including a notation of the

27

medication prescribed.

28

§ 54B13.  Residency requirement.

29

Only requests made by Commonwealth residents under this

30

chapter shall be granted. Factors demonstrating residency

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1

include, but are not limited to:

2

(1)  Possession of a driver's license.

3

(2)  Voter registration.

4

(3)  Evidence the person owns or leases property in this

5

Commonwealth.

6

(4)  A tax return filed in the most recent year.

7

§ 54B14.  Reporting requirements.

8

(a)  Review.--

9

(1)  The department shall annually review a sample of

10

records maintained under this chapter.

11

(2)  The department shall require any health care

12

provider to file a copy of the dispensing record with the

13

department upon dispensing medication under this chapter.

14

(b)  Rulemaking.--The department shall promulgate rules to

15

facilitate the collection of information regarding compliance

16

with this chapter. Except as otherwise provided by law, the

17

information collected shall not be a public record and may not

18

be made available for inspection by the public.

19

(c)  Report.--The department shall generate and make

20

available to the public an annual statistical report of

21

information collected under subsection (b).

22

§ 54B15.  Effect on construction of wills and contracts.

23

(a)  Effect on existing agreements.--No provision in a

24

contract, will or other agreement, whether written or oral,

25

shall be valid which affects whether a person may make or

26

rescind a request for medication to end his or her life in a

27

humane and dignified manner.

28

(b)  Obligations under an existing contract.--No obligation

29

under an existing contract shall be conditioned or affected by a

30

person's making or rescinding of a request for medication to end

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1

his or her life in a humane and dignified manner.

2

§ 54B16.  Insurance or annuity policies.

3

The sale, procurement or issuance of life, health or accident

4

insurance or an annuity policy or the rate charged for any

5

policy shall not be conditioned upon or affected by the making

6

or rescinding of a request, by a person, for medication to end

7

his or her life in a humane and dignified manner. Neither shall

8

a qualified patient's act of ingesting medication to end his or

9

her life in a humane and dignified manner have an effect upon a

10

life, health or accident insurance or an annuity policy.

11

§ 54B17.  Construction.

12

Nothing under this chapter shall be construed to authorize a

13

physician or any other person to end a patient's life by lethal

14

injection, mercy killing or active euthanasia. Actions taken in

15

accordance with this chapter shall not constitute suicide,

16

assisted suicide, mercy killing or homicide under the law.

17

§ 54B18.  Immunities.

18

Except as provided in section 54B20 (relating to

19

liabilities):

20

(1)  No person shall be subject to civil or criminal

21

liability or professional disciplinary action for

22

participating in good faith compliance with this chapter.

23

This includes being present when a qualified patient takes

24

the prescribed medication to end his or her life in a humane

25

and dignified manner.

26

(2)  No professional organization or association or

27

health care provider may subject a person to censure,

28

discipline, suspension, loss of license, loss of privileges,

29

loss of membership or other penalty for participating in good

30

faith or refusing to participate under this chapter.

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1

(3)  No request by a patient for or provision by an

2

attending physician or medication in good faith compliance

3

with this chapter shall constitute negligence for any purpose

4

of law or provide the sole basis for the appointment of a

5

guardian or conservator.

6

§ 54B19.  Health care provider participation; notification;

7

permissible sanctions.

8

(a)  Participation not required.--No health care provider

9

shall be under any duty, whether by contract, by statute or by

10

any other legal requirement, to participate in the provision to

11

a qualified patient of medication to end his or her life in a

12

humane and dignified manner. If a health care provider is unable

13

or unwilling to carry out a patient's request under this chapter

14

and the patient transfers his or her care to a new health care

15

provider, the prior health care provider shall transfer, upon

16

request, a copy of the patient's relevant medical records to the

17

new health care provider.

18

(b)  Prohibiting participation.--Notwithstanding any other

19

provision of law, a health care provider may prohibit another

20

health care provider from participating under this chapter on

21

the premises of the prohibiting provider if the prohibiting

22

provider has notified the health care provider of the

23

prohibiting provider's policy regarding participating under this

24

chapter. Nothing in this subsection prevents a health care

25

provider from providing health care services to a patient that

26

does not constitute participation under this chapter.

27

(c)  Sanctions by health care provider.--Notwithstanding

28

subsection (a) or section 54B18 (relating to immunities), a

29

health care provider may subject another health care provider to

30

the sanctions stated in this subsection if the sanctioning

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1

health care provider has notified the sanctioned provider prior

2

to its participation under this chapter that it prohibits

3

participation under this chapter. The available sanctions shall

4

include:

5

(1)  loss of privileges, loss of membership or other

6

sanction provided under the medical staff bylaws, policies

7

and procedures of the sanctioning health care provider if the

8

sanctioned provider is a member of the sanctioning provider's

9

medical staff and participates under this chapter while on

10

the premises of a health care facility of the sanctioning

11

health care provider, but not including the private medical

12

office of a physician or other provider;

13

(2)  termination of lease or other property contract or

14

other nonmonetary remedies provided by lease contract, not

15

including loss or restriction of medical staff privileges or

16

exclusion from a provider panel, if the sanctioned provider

17

participates under this chapter while on the premises of the

18

sanctioning health care provider or on property that is owned

19

by or under the direct control of the sanctioning health care

20

provider; or

21

(3)  termination of contract or other nonmonetary

22

remedies provided by contract if the sanctioned provider

23

participates under this chapter while acting in the course

24

and scope of the sanctioned provider's capacity as an

25

employee or independent contractor of the sanctioning health

26

care provider. Nothing in this paragraph shall be construed

27

to prevent:

28

(i)  a health care provider from participating under

29

this chapter while acting outside the course and scope of

30

the provider's capacity as an employee or independent

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1

contractor; or

2

(ii)  a patient from contracting with his or her

3

attending physician and consulting physician to act

4

outside the course and scope of the provider's capacity

5

as an employee or independent contractor of the

6

sanctioning health care provider.

7

(d)  Due process.--A health care provider that imposes

8

sanctions under subsection (c) must follow all due process and

9

other procedures the sanctioning health care provider may have

10

that are related to the imposition of sanctions on another

11

health care provider.

12

(e)  Unprofessional or dishonorable conduct reports.--Action

13

taken under section 54B03 (relating to form of written request),

14

54B04 (relating to attending physician responsibilities), 54B05

15

(relating to consulting physician confirmation) or 54B06

16

(relating to counseling referral) shall not be the sole basis

17

for a report of unprofessional or dishonorable conduct to the

18

State Board of Medicine or the State Board of Osteopathic

19

Medicine.

20

(f)  Standard of care.--No provision of this chapter shall be

21

construed to allow a lower standard of care for patients in the

22

community where the patient is treated or a similar community.

23

(g)  Definition.--As used in this section, the term "notify"

24

means a separate written statement to the health care provider

25

which sanctions its participation in activities covered by this

26

chapter before the participation occurs.

27

§ 54B20.  Liabilities.

28

(a)  Mishandling instrument.--A person who without

29

authorization of the patient willfully alters or forges a

30

request for medication or conceals or destroys a rescission of

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1

that request with the intent or effect of causing the patient's

2

death shall not be immune from criminal liability under section

3

54B18 (relating to immunities).

4

(b)  Undue influence.--A person who coerces or exerts undue

5

influence on a patient to request medication for the purpose of

6

ending the patient's life or to destroy a rescission of such a

7

request shall not be immune from criminal liability under

8

section 54B18.

9

(c)  Civil damages.--Nothing under this chapter limits

10

liability for civil damages resulting from negligent or

11

intentional misconduct by any person.

12

§ 54B21.  Claims by governmental entity for costs incurred.

13

Any governmental entity that incurs costs resulting from a

14

person terminating his or her life under the provisions of this

15

chapter in a public place shall have a claim against the estate

16

of the person to recover such costs and reasonable attorney fees

17

related to enforcing the claim.

18

§ 54B22.  Instrument.

19

A request for a medication as authorized under this chapter

20

shall be in substantially the following form:

21

REQUEST FOR MEDICATION

22

TO END MY LIFE IN A HUMANE

23

AND DIGNIFIED MANNER

24

I,            , am an adult of sound mind.

25

I am suffering from        , which my attending physician has

26

determined is a terminal disease and which has been medically

27

confirmed by a consulting physician.

28

I have been fully informed of my diagnosis and prognosis, the

29

nature of medication to be prescribed and potential associated

30

risks, the expected result and the feasible alternatives,

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1

including comfort care, hospice care and pain control.

2

I request that my attending physician prescribe medication

3

that will end my life in a humane and dignified manner.

4

INITIAL ONE:

5

( )  I have informed my family of my decision and taken their

6

opinions into consideration.

7

( )  I have decided not to inform my family of my decision.

8

( )  I have no family to inform of my decision.

9

I understand that I have the right to rescind this request at

10

any time.

11

I understand the full import of this request and I expect to

12

die when I take the medication to be prescribed. I further

13

understand that although most deaths occur within three hours,

14

my death may take longer and my physician has counseled me about

15

this possibility.

16

I make this request voluntarily and without reservation, and

17

I accept full moral responsibility for my actions.

18

Signed:

19

Date:

20

DECLARATION OF WITNESSES

21

We declare that the person signing this request:

22

(a)  Is personally known to us or has provided proof of

23

identity.

24

(b)  Signed this request in our presence.

25

(c)  Appears to be of sound mind and not under duress, fraud

26

or undue influence.

27

(d)  Is not a patient for whom either of us is an attending

28

physician.

29

Date:

30

Witness' signature:

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1

Number and Street:

2

City, State and Zip Code:

3

Witness' signature:

4

Number and Street:

5

City, State and Zip Code:

6

NOTE:  One witness shall not be a relative by blood, marriage

7

or adoption of the person signing this request, shall not be

8

entitled to any portion of the person's estate upon death and

9

shall not own, operate or be employed at a health care facility

10

where the person is a patient or resident. If the patient is an

11

inpatient at a health care facility, one of the witnesses shall

12

be an individual designated by the facility.

13

§ 54B23.  Penalties for mishandling instrument.

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(a)  Intent to hasten death.--A person who without

15

authorization of the principal willfully alters, forges,

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conceals or destroys an instrument, the reinstatement or

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revocation of an instrument or any other evidence or document

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reflecting the principal's desires and interests with the intent

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and effect of causing a withholding or withdrawal of life-

20

sustaining procedures or of artificially administered nutrition

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and hydration which hastens the death of the principal commits a

22

felony of the first degree.

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(b)  Intent to affect health care decision.--Except as

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provided in subsection (a), a person without authorization of

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the principal who willfully alters, forges, conceals or destroys

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an instrument, the reinstatement or revocation of an instrument,

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or any other evidence or document reflecting the principal's

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desires and interests with the intent or effect of affecting a

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health care decision commits a misdemeanor of the first degree.

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Section 2.  This act shall take effect in 60 days.

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