PRINTER'S NO. 1865
No. 1586 Session of 1989
INTRODUCED BY GLADECK, MORRIS, J. TAYLOR, JACKSON, NAHILL, SAURMAN, HAGARTY, REBER, TIGUE, MOWERY, BUNT, FOX, GEIST, LANGTRY, MERRY, O'DONNELL, FARMER, ROBINSON, JOHNSON, HECKLER, LASHINGER, ITKIN AND J. H. CLARK, MAY 31, 1989
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, MAY 31, 1989
AN ACT 1 Facilitating medical treatment decisionmaking by establishing a 2 procedure whereby a person may execute in advance a written 3 declaration indicating to a physician the person's desire for 4 a physician to initiate, continue, withhold or withdraw 5 certain medical treatment in the event the person suffers a 6 terminal illness or injury and is incompetent; requiring in 7 certain cases the provision of nutrition and hydration; and 8 providing penalties. 9 TABLE OF CONTENTS 10 Section 1. Short title. 11 Section 2. Legislative purpose. 12 Section 3. Definitions. 13 Section 4. Declaration. 14 Section 5. Revocation. 15 Section 6. Time limitation. 16 Section 7. Liability. 17 Section 8. Duty of physician to confirm terminal condition. 18 Section 9. Failure to comply. 19 Section 10. Effect on suicide and life insurance; declaration 20 optional.
1 Section 11. Euthanasia and aided-suicide prohibited. 2 Section 12. Preservation of existing rights; required 3 treatment; power of attorney. 4 Section 13. Requirement to provide nutrition and hydration. 5 Section 14. Penalties. 6 Section 15. Effective date. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 Section 1. Short title. 10 This act shall be known and may be cited as the Medical 11 Treatment Decision Act. 12 Section 2. Legislative purpose. 13 The General Assembly finds that all competent adults have a 14 qualified right to control decisions relating to their own 15 medical care. This right is subject to certain interests of 16 society, such as the maintenance of ethical standards in the 17 medical profession and the preservation and protection of human 18 life, including the prevention of homicide, euthanasia and 19 suicide or aided-suicide. The General Assembly further finds 20 that, in some instances, the use of certain medical procedures 21 for an incompetent person in a terminal condition may provide 22 nothing necessary or beneficial to the person or may of itself 23 impose an unwarranted burden on the person. To insure that the 24 rights and intentions of a person in a terminal condition may be 25 respected, even after that person is no longer able to 26 participate actively in decisions concerning treatment, and to 27 encourage communication between such a person and his family and 28 physician, the General Assembly hereby declares its recognition 29 of the right of a competent adult to make a written declaration 30 respecting the initiation, continuation, withholding or 19890H1586B1865 - 2 -
1 withdrawing of certain medical treatments in the event that such 2 person becomes incompetent and is diagnosed as suffering from a 3 terminal condition. The General Assembly further finds that 4 while certain medical treatments can be withdrawn or withheld, 5 it is a person's right to seek the institution or continuation 6 of reasonable medical treatment which sustains life and that 7 undertreatment of the terminally ill is not acceptable whether 8 prompted by economic considerations or assumptions that some 9 lives are not worth sustaining. 10 Section 3. Definitions. 11 The following words and phrases when used in this act shall 12 have the meanings given to them in this section unless the 13 context clearly indicates otherwise: 14 "Adult." Any person 18 years of age or older. 15 "Attending physician." The physician who has primary 16 responsibility for the treatment and care of the patient. 17 "Declaration." A written document, voluntarily executed by 18 the declarant in accordance with this act. 19 "Euthanasia." The intentional causing of the death of a 20 person, whether by act or omission, in order to relieve such 21 person of suffering or other persons or entities of 22 psychological, financial, social or other burdens. The term 23 shall not include the withholding or withdrawal of medical 24 treatment as the term "medical treatment" is defined in this act 25 and, as to a "patient" as defined in this act, shall not include 26 the withholding or withdrawal of medical treatment done in 27 accordance with this act. 28 "Incompetent." The lack of sufficient capacity for a person 29 to make or communicate decisions concerning himself. 30 "Life-support system." Any mechanical or electronic device, 19890H1586B1865 - 3 -
1 except one used for providing nutrition or hydration, utilized 2 in order to replace, assist or supplement the function of any 3 human vital organ or combination of organs. 4 "Medical treatment." The use of surgery, treatment, 5 medication and the utilization of mechanical or electronic 6 devices to sustain the life of a patient. The term shall not 7 include any procedure, treatment, intervention or service to 8 provide nutrition or hydration to a patient unless the nutrition 9 or hydration could not be physically assimilated by the patient 10 or would be physically harmful or unreasonably painful to the 11 patient. The term shall also not include such medication or 12 medical procedures as are necessary to provide comfort and care 13 and to alleviate pain. 14 "Patient." A person who has been diagnosed and certified in 15 writing to be afflicted with a terminal condition by two 16 physicians, one of whom shall be the attending physician and 17 both of whom shall have personally examined the patient. 18 "Terminal condition." An incurable and irreversible medical 19 condition caused by injury, disease or physical illness which 20 will, in the opinion of the attending physician, to a reasonable 21 degree of medical certainty, result in death regardless of the 22 continued application of medical treatment, including life- 23 support systems. The term shall not include senility, affliction 24 with Alzheimer's disease, any form of mental retardation or 25 mental illness, or chronic mental or physical impairment, 26 including comatose conditions, which alone will not result in 27 death. 28 Section 4. Declaration. 29 (a) Execution.--Any competent adult may, at any time, 30 execute a declaration directing the initiating, continuing, 19890H1586B1865 - 4 -
1 withholding or withdrawal of medical treatment in the event the 2 person should have a terminal condition and be incompetent. The 3 declaration shall be signed and dated by the declarant, or by 4 another person in the declarant's presence at the declarant's 5 express direction, in the presence of two witnesses. All 6 signatures must be notarized for the declaration to be 7 effective. A witness must be at least 18 years of age. A witness 8 shall not be: 9 (1) Related to the declarant by blood or marriage. 10 (2) Entitled to any portion of the estate of the 11 declarant under the intestate succession laws of this 12 Commonwealth, then existing, or under any will of the 13 declarant, then existing. 14 (3) A person who has a claim against any portion of the 15 estate of the declarant. 16 (4) The attending physician, an employee of the 17 attending physician or an employee of a health facility in 18 which the declarant is a patient. 19 (5) Directly or indirectly financially responsible for 20 the medical care of the declarant or be an officer, agent or 21 employee of any government agency, any insurance company or 22 other organization financially responsible, in whole or in 23 part, for medical care of the declarant. 24 (6) The person who signed the declaration on behalf and 25 at the direction of the declarant. 26 (b) Notification.--It is the responsibility of the declarant 27 to notify the attending physician of the existence of the 28 declaration. The attending physician, when presented with the 29 declaration, shall make the declaration, or a copy thereof, a 30 part of the medical records of the declarant. 19890H1586B1865 - 5 -
1 (c) Form.--The declaration may be in the following form and 2 may include other specific directions, including, but not 3 limited to, a designation of another person to make the 4 treatment decision for the declarant should the declarant be 5 diagnosed as suffering from a terminal condition and be 6 incompetent or otherwise mentally or physically incapable of 7 communication. Should any specific direction be held to be 8 invalid, the invalidity shall not affect other directions of the 9 declaration which can be given effect without the invalid 10 direction. 11 DECLARATION 12 Declaration made this ____ day of ______________ 13 (month, year). I, ________________________, being of 14 sound mind, willfully and voluntarily make known my 15 desire that my dying shall not be artificially prolonged 16 under the circumstances set forth below, and do hereby 17 declare: 18 (1) If at any time I should have an incurable 19 condition caused by injury, disease or illness certified 20 to be a terminal condition by two physicians who have 21 personally examined me, one of whom shall be my attending 22 physician, and the physicians have determined that my 23 death will occur whether or not medical treatment, 24 including life-support systems, are utilized and where 25 the application of medical treatment, including life- 26 support systems, would serve only to artificially prolong 27 the dying process, I direct that such treatment be 28 withheld or withdrawn, and that I be permitted to die 29 naturally with only the administration of medication or 30 the performance of any medical procedure deemed necessary 19890H1586B1865 - 6 -
1 to alleviate pain. 2 (2) In the absence of my ability to give directions 3 regarding the use of such medical treatment, it is my 4 intention that this declaration shall be honored by my 5 family and physician as the final expression of my wish 6 to refuse medical treatment and accept the consequences 7 from such refusal. 8 (3) I understand the full import of this declaration 9 and I am emotionally and mentally competent to make this 10 declaration. 11 Signed________________________ 12 City, County and State of Residence _____________________ 13 Jurat 14 (d) Limitations on declaration.-- 15 (1) The declaration may include directions, including, 16 but not limited to, a designation of another person to 17 participate in the making of the treatment decision for the 18 declarant should the declarant be diagnosed as suffering from 19 a terminal condition and be incompetent or otherwise mentally 20 incapable of communication. However, a designee may not 21 participate in the treatment decision unless the patient does 22 not then have and will not regain, to a reasonable degree of 23 medical certainty, the capacity to make decisions for 24 himself. 25 (2) Notwithstanding the form or the specific directions 26 of a declaration, medical treatment must be provided to a 27 pregnant patient with a terminal condition unless, to a 28 reasonable degree of medical certainty, as certified on the 29 patient's medical chart by the attending physician and an 30 obstetrician who has examined the patient, such medical 19890H1586B1865 - 7 -
1 treatment will not maintain the patient in such a way as to 2 permit the continuing development and live birth of the 3 unborn child or will be physically harmful or unreasonably 4 painful to the patient or prolong severe pain which cannot be 5 alleviated by medication. 6 (3) Should any specific direction in the declaration be 7 held to be invalid, the invalidity shall not offset other 8 directions of the declaration which can be effected without 9 the invalid direction. 10 (e) Witnessing of a declaration.--The witnesses to a 11 declaration must sign a statement at the time the declaration is 12 executed which statement must be attached to the declaration and 13 be in substantially the following form: 14 I believe the declarant to be of sound mind. I did 15 not sign the declarant's signature above for or at the 16 direction of the declarant. I am at least 18 years of age 17 and am not related to the declarant by blood or marriage, 18 have no claim against any portion of the estate of the 19 declarant, am not entitled to any portion of the estate 20 of the declarant according to the laws of intestate 21 succession of Pennsylvania or under any will of the 22 declarant or codicil thereto, nor am I directly or 23 indirectly financially responsible for declarant's 24 medical care. I am not the declarant's attending 25 physician, an employee of the attending physician or an 26 employee of the health facility in which the declarant is 27 a patient. 28 Witness__________________ 29 Witness__________________ 30 Jurat 19890H1586B1865 - 8 -
1 (f) Right to have medical treatment initiated or 2 continued.--Nothing in this section shall be construed to 3 prohibit a person from executing a declaration pursuant to this 4 section which directs the initiation or continuation of medical 5 treatment in the event the person should have a terminal 6 condition. 7 Section 5. Revocation. 8 (a) Methods.--A declaration may be revoked at any time by 9 the declarant, without regard to his mental state or competency, 10 by any of the following methods: 11 (1) By being canceled, defaced, obliterated, burnt, torn 12 or otherwise destroyed by the declarant or by some person in 13 his presence and by his direction. Revocation of a 14 declaration shall become effective only upon: 15 (i) taking such an action; and 16 (ii) upon communication of revocation to the 17 attending physician by the declarant or by a person 18 acting on behalf of the declarant. 19 (2) By a written revocation of the declarant expressing 20 his intent to revoke, signed and dated by the declarant. The 21 revocation shall become effective only upon communication of 22 the revocation to the attending physician by the declarant or 23 by a person acting on behalf of the declarant. The attending 24 physician shall record in the medical record of the patient 25 the time and date when he received notification of the 26 written revocation. 27 (3) By an oral expression by the declarant of his intent 28 to revoke the declaration. The revocation shall become 29 effective only upon communication of the revocation to the 30 attending physician by the declarant or by a person acting on 19890H1586B1865 - 9 -
1 behalf of the declarant. The attending physician shall record 2 in the medical record of the patient the time, date and place 3 of the revocation and the time, date and place, if different, 4 of when he received notification of the revocation. 5 (b) Effect upon criminal or civil liability.--There shall be 6 no criminal or civil liability on the part of any person for 7 failure to act upon a revocation made pursuant to this section 8 unless that person has actual knowledge of the revocation. 9 Section 6. Time limitation. 10 A declaration executed in accordance with this act shall be 11 effective for five years from the date of execution, provided 12 that, if the declarant becomes incompetent within five years 13 after the execution of the declaration and remains incompetent 14 at the time of the determination of a terminal condition as 15 provided by section 8, the declaration shall continue in effect. 16 Upon the expiration of the declaration, a new declaration must 17 be executed should the declarant wish to make a written 18 declaration pursuant to this act. However, if the declaration 19 has expired and the physician proceeds under section 7(a)(2), 20 there shall be a presumption in favor of the expired declaration 21 as the express wish of the patient concerning medical treatment. 22 Section 7. Liability. 23 (a) General rule.--No physician, licensed health care 24 professional, health care provider, health care facility or 25 employee thereof who, in good faith and pursuant to reasonable 26 medical standards and otherwise consistent with this act, causes 27 or participates in the initiating, continuing, withholding or 28 withdrawal of medical treatment, including life-support systems, 29 from a patient who is incompetent shall, as a result thereof, be 30 subject to criminal or civil liability, or be found to have 19890H1586B1865 - 10 -
1 committed an act of unprofessional conduct if: 2 (1) the attending physician has followed the patient's 3 wishes as expressed earlier by the patient in the form of a 4 declaration executed pursuant to this act; or 5 (2) in a situation where there appears to exist no 6 declaration executed pursuant to this act, the physician has 7 obtained the written informed consent of any of the following 8 individuals who shall be guided by the express or implied 9 wishes of the patient concerning medical treatment, these 10 persons to be consulted in the following order of priority: 11 (i) the guardian of the person of the patient if one 12 has been appointed; 13 (ii) the spouse of the patient; 14 (iii) the adult child of the patient or, if the 15 patient has more than one adult child, by a majority of 16 the adult children who are reasonably available for 17 consultation; 18 (iv) a parent of the patient; or 19 (v) the nearest living relative of the patient. 20 (b) Express consent.--The written informed consent of the 21 first of the individuals listed in subsection (a)(2) willing to 22 consult and competent to render the consent shall constitute the 23 written informed consent required by subsection (a)(1). 24 (c) Absence of declaration.--The absence of a declaration by 25 a patient shall not give rise to any presumption as to the 26 intent of the patient to consent to or to refuse the initiation, 27 continuation or termination of medical treatment. 28 Section 8. Duty of physician to confirm terminal condition. 29 (a) Procedure after diagnosis of terminal condition.--An 30 attending physician shall, without delay after the diagnosis of 19890H1586B1865 - 11 -
1 a terminal condition of a person, certify, in writing, the 2 terminal condition of the patient and arrange for the physical 3 examination and diagnosis of the patient's condition by a second 4 physician. 5 (b) Informing patient of terminal condition.--Once written 6 certification and confirmation of the terminal condition of a 7 declarant is made, a person who made a declaration must be 8 advised by the attending physician of his terminal condition. 9 The current wishes of the person shall, at all times, supersede 10 the effect of the declaration. If the person is diagnosed as 11 incompetent, the declarant shall become a patient as defined in 12 this act only upon written certification and confirmation of a 13 terminal condition by the attending physician and the second 14 physician. 15 Section 9. Failure to comply. 16 (a) Unprofessional conduct.--An attending physician shall be 17 deemed to have refused to comply with this act and be considered 18 to have committed an act of unprofessional conduct if: 19 (1) the physician fails to consider and act upon the 20 declaration of a patient or the treatment consent of a person 21 designated to participate in the treatment decision by the 22 declarant in the declaration to the extent that the 23 declaration or decision is consistent with this act and is 24 pursuant to reasonable medical standards; or 25 (2) as to a patient without a declaration executed 26 pursuant to this act, the physician fails to act consistent 27 with the terms of this act and reasonable medical standards. 28 (b) Transfer to another physician.--Notwithstanding the 29 provisions of subsection (a), an attending physician shall not 30 be considered to have committed an act of unprofessional conduct 19890H1586B1865 - 12 -
1 if: 2 (1) the physician advises or attempts to advise the 3 designee of the patient named in his validly executed 4 declaration (but if there is no such declaration and 5 designee, then the first available person in the order of 6 priority set forth in section 7(a)(2)) of the physician's 7 unwillingness to act; and 8 (2) the physician further advises or attempts to advise 9 him that the patient may be transferred to the care of 10 another physician chosen by the patient's representative with 11 arrangements for such transfer being the responsibility of 12 the patient's representative. 13 (c) Declaration or direction must be consistent with medical 14 standards.--Nothing in this act shall obligate a physician, 15 health care provider or health care facility to follow a 16 patient's declaration or the directions of the patient's 17 designee, if such declaration or direction would be contrary to 18 reasonable medical standards. 19 Section 10. Effect on suicide and life insurance; declaration 20 optional. 21 (a) Suicide.--The withholding or withdrawal of medical 22 treatment from a patient in accordance with the provisions of 23 this act shall not, for any purpose, constitute a suicide or 24 causing or aiding a suicide. 25 (b) Life insurance.--The making of, or failure to make, a 26 declaration in accordance with this act shall not affect in any 27 manner the sale, procurement or issuance of any policy of life 28 insurance, nor shall it be deemed to modify the terms of an 29 existing policy of life insurance. No policy of life insurance 30 shall be legally impaired or invalidated in any manner by the 19890H1586B1865 - 13 -
1 withholding or withdrawal of medical treatment from an insured 2 patient, notwithstanding any term of the policy to the contrary. 3 (c) Declaration optional.--No physician, health care 4 facility or other health care provider, and no health care 5 service plan, health maintenance organization, insurer issuing 6 disability insurance, self-insured employee welfare benefit 7 plan, nonprofit hospital plan or State, local, county or Federal 8 Government-sponsored or operated program: 9 (1) shall require any person to execute a declaration as 10 a condition for being insured for, or receiving, health care 11 services; or 12 (2) shall charge any person a different rate or fee 13 whether or not the person executes or has executed a 14 declaration. 15 Section 11. Euthanasia and aided-suicide prohibited. 16 Nothing in this act shall be construed to condone, authorize 17 or approve euthanasia or aided-suicide, or to permit any 18 affirmative or deliberate act or omission to end life other than 19 to permit the natural process of dying as provided in this act. 20 Section 12. Preservation of existing rights; required 21 treatment; power of attorney. 22 (a) Legal rights not impaired.--The provisions of this act 23 are cumulative with existing law regarding the right of an 24 individual to consent or refuse to consent to medical treatment 25 and shall not impair or supersede any existing rights or 26 responsibilities which a health care provider, a patient, 27 including a minor or incompetent patient, or the family of a 28 patient may have in regard to the withholding or withdrawal of 29 medical treatment under the laws of this Commonwealth. 30 (b) Necessary medical care.--Any section of this act which 19890H1586B1865 - 14 -
1 requires that certain treatment, or nutrition or hydration, or 2 both, be provided establishes a course of necessary medical 3 care. 4 (c) Pregnant patients.--Whether or not a patient had made a 5 declaration pursuant to this act, medical treatment must be 6 provided to a pregnant patient with a terminal condition unless, 7 to a reasonable degree of medical certainty, as certified on the 8 patient's medical chart by the attending physician and an 9 obstetrician who has examined the patient, such medical 10 treatment will not maintain the patient in such a way as to 11 permit the continuing development and live birth of the unborn 12 child or will be physically harmful or unreasonably painful to 13 the patient or prolong severe pain which cannot be alleviated by 14 medication. 15 (d) Power of attorney.--A power of attorney executed 16 pursuant to 20 Pa.C.S. Ch. 56 (relating to powers of attorney) 17 shall, as to the treatment for a patient with a terminal 18 condition, have no greater effect than a declaration executed 19 pursuant to this act notwithstanding any specific grant of power 20 by a patient regarding medical care, nursing care or medical and 21 surgical procedures. 22 Section 13. Requirement to provide nutrition and hydration. 23 Nothing in this act shall relieve a person, whether or not he 24 has a terminal condition, of the right and obligation to 25 receive, or the physician, health care provider or health care 26 facility of the obligation to provide, nutrition and hydration 27 except that as to a patient with a terminal condition such 28 nutrition and hydration may be withheld if it could not be 29 physically assimilated by the patient or would be physically 30 harmful or unreasonably painful to the patient. Further, nothing 19890H1586B1865 - 15 -
1 in this act shall relieve the physician, health care provider or 2 health care facility of the obligation to provide other measures 3 deemed necessary to provide comfort to a person or to alleviate 4 his pain regardless of whether a person has a terminal 5 condition. 6 Section 14. Penalties. 7 Any person who willfully conceals, cancels, defaces, 8 obliterates or damages the declaration of another without the 9 consent of the declarant commits a felony of the third degree. 10 Any person who falsifies or forges the declaration of another, 11 or willfully conceals or withholds personal knowledge of a 12 revocation as provided in section 5, with the intent to cause a 13 withholding or withdrawal of medical treatment contrary to the 14 wishes of the declarant and, because of such an act, directly 15 causes medical treatment to be withheld or withdrawn and death 16 to be hastened, shall be subject to prosecution for criminal 17 homicide as provided in 18 Pa.C.S. Ch. 25 (relating to criminal 18 homicide). Any person who willfully, by undue influence, fraud 19 or duress, causes a person to execute a declaration pursuant to 20 this act commits a felony of the third degree. 21 Section 15. Effective date. 22 This act shall take effect immediately. D10L35WMB/19890H1586B1865 - 16 -