CORRECTIVE REPRINT
PRINTING PLANT ERROR
PRIOR PRINTER'S NO. 1865 PRINTER'S NO. 1917
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
1 optional.
2 Section 11. Euthanasia and aided-suicide prohibited.
3 Section 12. Preservation of existing rights; required
4 treatment; power of attorney.
5 Section 13. Requirement to provide nutrition and hydration.
6 Section 14. Penalties.
7 Section 15. Effective date.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Short title.
11 This act shall be known and may be cited as the Medical
12 Treatment Decision Act.
13 Section 2. Legislative purpose.
14 The General Assembly finds that all competent adults have a
15 qualified right to control decisions relating to their own
16 medical care. This right is subject to certain interests of
17 society, such as the maintenance of ethical standards in the
18 medical profession and the preservation and protection of human
19 life, including the prevention of homicide, euthanasia and
20 suicide or aided-suicide. The General Assembly further finds
21 that, in some instances, the use of certain medical procedures
22 for an incompetent person in a terminal condition may provide
23 nothing necessary or beneficial to the person or may of itself
24 impose an unwarranted burden on the person. To insure that the
25 rights and intentions of a person in a terminal condition may be
26 respected, even after that person is no longer able to
27 participate actively in decisions concerning treatment, and to
28 encourage communication between such a person and his family and
29 physician, the General Assembly hereby declares its recognition
30 of the right of a competent adult to make a written declaration
19890H1586B1917 - 2 -
1 respecting the initiation, continuation, withholding or
2 withdrawing of certain medical treatments in the event that such
3 person becomes incompetent and is diagnosed as suffering from a
4 terminal condition. The General Assembly further finds that
5 while certain medical treatments can be withdrawn or withheld,
6 it is a person's right to seek the institution or continuation
7 of reasonable medical treatment which sustains life and that
8 undertreatment of the terminally ill is not acceptable whether
9 prompted by economic considerations or assumptions that some
10 lives are not worth sustaining.
11 Section 3. Definitions.
12 The following words and phrases when used in this act shall
13 have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 "Adult." Any person 18 years of age or older.
16 "Attending physician." The physician who has primary
17 responsibility for the treatment and care of the patient.
18 "Declaration." A written document, voluntarily executed by
19 the declarant in accordance with this act.
20 "Euthanasia." The intentional causing of the death of a
21 person, whether by act or omission, in order to relieve such
22 person of suffering or other persons or entities of
23 psychological, financial, social or other burdens. The term
24 shall not include the withholding or withdrawal of medical
25 treatment as the term "medical treatment" is defined in this act
26 and, as to a "patient" as defined in this act, shall not include
27 the withholding or withdrawal of medical treatment done in
28 accordance with this act.
29 "Incompetent." The lack of sufficient capacity for a person
30 to make or communicate decisions concerning himself.
19890H1586B1917 - 3 -
1 "Life-support system." Any mechanical or electronic device,
2 except one used for providing nutrition or hydration, utilized
3 in order to replace, assist or supplement the function of any
4 human vital organ or combination of organs.
5 "Medical treatment." The use of surgery, treatment,
6 medication and the utilization of mechanical or electronic
7 devices to sustain the life of a patient. The term shall not
8 include any procedure, treatment, intervention or service to
9 provide nutrition or hydration to a patient unless the nutrition
10 or hydration could not be physically assimilated by the patient
11 or would be physically harmful or unreasonably painful to the
12 patient. The term shall also not include such medication or
13 medical procedures as are necessary to provide comfort and care
14 and to alleviate pain.
15 "Patient." A person who has been diagnosed and certified in
16 writing to be afflicted with a terminal condition by two
17 physicians, one of whom shall be the attending physician and
18 both of whom shall have personally examined the patient.
19 "Terminal condition." An incurable and irreversible medical
20 condition caused by injury, disease or physical illness which
21 will, in the opinion of the attending physician, to a reasonable
22 degree of medical certainty, result in death regardless of the
23 continued application of medical treatment, including life-
24 support systems. The term shall not include senility, affliction
25 with Alzheimer's disease, any form of mental retardation or
26 mental illness, or chronic mental or physical impairment,
27 including comatose conditions, which alone will not result in
28 death.
29 Section 4. Declaration.
30 (a) Execution.--Any competent adult may, at any time,
19890H1586B1917 - 4 -
1 execute a declaration directing the initiating, continuing,
2 withholding or withdrawal of medical treatment in the event the
3 person should have a terminal condition and be incompetent. The
4 declaration shall be signed and dated by the declarant, or by
5 another person in the declarant's presence at the declarant's
6 express direction, in the presence of two witnesses. All
7 signatures must be notarized for the declaration to be
8 effective. A witness must be at least 18 years of age. A witness
9 shall not be:
10 (1) Related to the declarant by blood or marriage.
11 (2) Entitled to any portion of the estate of the
12 declarant under the intestate succession laws of this
13 Commonwealth, then existing, or under any will of the
14 declarant, then existing.
15 (3) A person who has a claim against any portion of the
16 estate of the declarant.
17 (4) The attending physician, an employee of the
18 attending physician or an employee of a health facility in
19 which the declarant is a patient.
20 (5) Directly or indirectly financially responsible for
21 the medical care of the declarant or be an officer, agent or
22 employee of any government agency, any insurance company or
23 other organization financially responsible, in whole or in
24 part, for medical care of the declarant.
25 (6) The person who signed the declaration on behalf and
26 at the direction of the declarant.
27 (b) Notification.--It is the responsibility of the declarant
28 to notify the attending physician of the existence of the
29 declaration. The attending physician, when presented with the
30 declaration, shall make the declaration, or a copy thereof, a
19890H1586B1917 - 5 -
1 part of the medical records of the declarant.
2 (c) Form.--The declaration may be in the following form and
3 may include other specific directions, including, but not
4 limited to, a designation of another person to make the
5 treatment decision for the declarant should the declarant be
6 diagnosed as suffering from a terminal condition and be
7 incompetent or otherwise mentally or physically incapable of
8 communication. Should any specific direction be held to be
9 invalid, the invalidity shall not affect other directions of the
10 declaration which can be given effect without the invalid
11 direction.
12 DECLARATION
13 Declaration made this ____ day of ______________
14 (month, year). I, ________________________, being of
15 sound mind, willfully and voluntarily make known my
16 desire that my dying shall not be artificially prolonged
17 under the circumstances set forth below, and do hereby
18 declare:
19 (1) If at any time I should have an incurable
20 condition caused by injury, disease or illness certified
21 to be a terminal condition by two physicians who have
22 personally examined me, one of whom shall be my attending
23 physician, and the physicians have determined that my
24 death will occur whether or not medical treatment,
25 including life-support systems, are utilized and where
26 the application of medical treatment, including life-
27 support systems, would serve only to artificially prolong
28 the dying process, I direct that such treatment be
29 withheld or withdrawn, and that I be permitted to die
30 naturally with only the administration of medication or
19890H1586B1917 - 6 -
1 the performance of any medical procedure deemed necessary
2 to alleviate pain.
3 (2) In the absence of my ability to give directions
4 regarding the use of such medical treatment, it is my
5 intention that this declaration shall be honored by my
6 family and physician as the final expression of my wish
7 to refuse medical treatment and accept the consequences
8 from such refusal.
9 (3) I understand the full import of this declaration
10 and I am emotionally and mentally competent to make this
11 declaration.
12 Signed________________________
13 City, County and State of Residence _____________________
14 Jurat
15 (d) Limitations on declaration.--
16 (1) The declaration may include directions, including,
17 but not limited to, a designation of another person to
18 participate in the making of the treatment decision for the
19 declarant should the declarant be diagnosed as suffering from
20 a terminal condition and be incompetent or otherwise mentally
21 incapable of communication. However, a designee may not
22 participate in the treatment decision unless the patient does
23 not then have and will not regain, to a reasonable degree of
24 medical certainty, the capacity to make decisions for
25 himself.
26 (2) Notwithstanding the form or the specific directions
27 of a declaration, medical treatment must be provided to a
28 pregnant patient with a terminal condition unless, to a
29 reasonable degree of medical certainty, as certified on the
30 patient's medical chart by the attending physician and an
19890H1586B1917 - 7 -
1 obstetrician who has examined the patient, such medical
2 treatment will not maintain the patient in such a way as to
3 permit the continuing development and live birth of the
4 unborn child or will be physically harmful or unreasonably
5 painful to the patient or prolong severe pain which cannot be
6 alleviated by medication.
7 (3) Should any specific direction in the declaration be
8 held to be invalid, the invalidity shall not offset other
9 directions of the declaration which can be effected without
10 the invalid direction.
11 (e) Witnessing of a declaration.--The witnesses to a
12 declaration must sign a statement at the time the declaration is
13 executed which statement must be attached to the declaration and
14 be in substantially the following form:
15 I believe the declarant to be of sound mind. I did
16 not sign the declarant's signature above for or at the
17 direction of the declarant. I am at least 18 years of age
18 and am not related to the declarant by blood or marriage,
19 have no claim against any portion of the estate of the
20 declarant, am not entitled to any portion of the estate
21 of the declarant according to the laws of intestate
22 succession of Pennsylvania or under any will of the
23 declarant or codicil thereto, nor am I directly or
24 indirectly financially responsible for declarant's
25 medical care. I am not the declarant's attending
26 physician, an employee of the attending physician or an
27 employee of the health facility in which the declarant is
28 a patient.
29 Witness__________________
30 Witness__________________
19890H1586B1917 - 8 -
1 Jurat
2 (f) Right to have medical treatment initiated or
3 continued.--Nothing in this section shall be construed to
4 prohibit a person from executing a declaration pursuant to this
5 section which directs the initiation or continuation of medical
6 treatment in the event the person should have a terminal
7 condition.
8 Section 5. Revocation.
9 (a) Methods.--A declaration may be revoked at any time by
10 the declarant, without regard to his mental state or competency,
11 by any of the following methods:
12 (1) By being canceled, defaced, obliterated, burnt, torn
13 or otherwise destroyed by the declarant or by some person in
14 his presence and by his direction. Revocation of a
15 declaration shall become effective only upon:
16 (i) taking such an action; and
17 (ii) upon communication of revocation to the
18 attending physician by the declarant or by a person
19 acting on behalf of the declarant.
20 (2) By a written revocation of the declarant expressing
21 his intent to revoke, signed and dated by the declarant. The
22 revocation shall become effective only upon communication of
23 the revocation to the attending physician by the declarant or
24 by a person acting on behalf of the declarant. The attending
25 physician shall record in the medical record of the patient
26 the time and date when he received notification of the
27 written revocation.
28 (3) By an oral expression by the declarant of his intent
29 to revoke the declaration. The revocation shall become
30 effective only upon communication of the revocation to the
19890H1586B1917 - 9 -
1 attending physician by the declarant or by a person acting on
2 behalf of the declarant. The attending physician shall record
3 in the medical record of the patient the time, date and place
4 of the revocation and the time, date and place, if different,
5 of when he received notification of the revocation.
6 (b) Effect upon criminal or civil liability.--There shall be
7 no criminal or civil liability on the part of any person for
8 failure to act upon a revocation made pursuant to this section
9 unless that person has actual knowledge of the revocation.
10 Section 6. Time limitation.
11 A declaration executed in accordance with this act shall be
12 effective for five years from the date of execution, provided
13 that, if the declarant becomes incompetent within five years
14 after the execution of the declaration and remains incompetent
15 at the time of the determination of a terminal condition as
16 provided by section 8, the declaration shall continue in effect.
17 Upon the expiration of the declaration, a new declaration must
18 be executed should the declarant wish to make a written
19 declaration pursuant to this act. However, if the declaration
20 has expired and the physician proceeds under section 7(a)(2),
21 there shall be a presumption in favor of the expired declaration
22 as the express wish of the patient concerning medical treatment.
23 Section 7. Liability.
24 (a) General rule.--No physician, licensed health care
25 professional, health care provider, health care facility or
26 employee thereof who, in good faith and pursuant to reasonable
27 medical standards and otherwise consistent with this act, causes
28 or participates in the initiating, continuing, withholding or
29 withdrawal of medical treatment, including life-support systems,
30 from a patient who is incompetent shall, as a result thereof, be
19890H1586B1917 - 10 -
1 subject to criminal or civil liability, or be found to have
2 committed an act of unprofessional conduct if:
3 (1) the attending physician has followed the patient's
4 wishes as expressed earlier by the patient in the form of a
5 declaration executed pursuant to this act; or
6 (2) in a situation where there appears to exist no
7 declaration executed pursuant to this act, the physician has
8 obtained the written informed consent of any of the following
9 individuals who shall be guided by the express or implied
10 wishes of the patient concerning medical treatment, these
11 persons to be consulted in the following order of priority:
12 (i) the guardian of the person of the patient if one
13 has been appointed;
14 (ii) the spouse of the patient;
15 (iii) the adult child of the patient or, if the
16 patient has more than one adult child, by a majority of
17 the adult children who are reasonably available for
18 consultation;
19 (iv) a parent of the patient; or
20 (v) the nearest living relative of the patient.
21 (b) Express consent.--The written informed consent of the
22 first of the individuals listed in subsection (a)(2) willing to
23 consult and competent to render the consent shall constitute the
24 written informed consent required by subsection (a)(1).
25 (c) Absence of declaration.--The absence of a declaration by
26 a patient shall not give rise to any presumption as to the
27 intent of the patient to consent to or to refuse the initiation,
28 continuation or termination of medical treatment.
29 Section 8. Duty of physician to confirm terminal condition.
30 (a) Procedure after diagnosis of terminal condition.--An
19890H1586B1917 - 11 -
1 attending physician shall, without delay after the diagnosis of
2 a terminal condition of a person, certify, in writing, the
3 terminal condition of the patient and arrange for the physical
4 examination and diagnosis of the patient's condition by a second
5 physician.
6 (b) Informing patient of terminal condition.--Once written
7 certification and confirmation of the terminal condition of a
8 declarant is made, a person who made a declaration must be
9 advised by the attending physician of his terminal condition.
10 The current wishes of the person shall, at all times, supersede
11 the effect of the declaration. If the person is diagnosed as
12 incompetent, the declarant shall become a patient as defined in
13 this act only upon written certification and confirmation of a
14 terminal condition by the attending physician and the second
15 physician.
16 Section 9. Failure to comply.
17 (a) Unprofessional conduct.--An attending physician shall be
18 deemed to have refused to comply with this act and be considered
19 to have committed an act of unprofessional conduct if:
20 (1) the physician fails to consider and act upon the
21 declaration of a patient or the treatment consent of a person
22 designated to participate in the treatment decision by the
23 declarant in the declaration to the extent that the
24 declaration or decision is consistent with this act and is
25 pursuant to reasonable medical standards; or
26 (2) as to a patient without a declaration executed
27 pursuant to this act, the physician fails to act consistent
28 with the terms of this act and reasonable medical standards.
29 (b) Transfer to another physician.--Notwithstanding the
30 provisions of subsection (a), an attending physician shall not
19890H1586B1917 - 12 -
1 be considered to have committed an act of unprofessional conduct
2 if:
3 (1) the physician advises or attempts to advise the
4 designee of the patient named in his validly executed
5 declaration (but if there is no such declaration and
6 designee, then the first available person in the order of
7 priority set forth in section 7(a)(2)) of the physician's
8 unwillingness to act; and
9 (2) the physician further advises or attempts to advise
10 him that the patient may be transferred to the care of
11 another physician chosen by the patient's representative with
12 arrangements for such transfer being the responsibility of
13 the patient's representative.
14 (c) Declaration or direction must be consistent with medical
15 standards.--Nothing in this act shall obligate a physician,
16 health care provider or health care facility to follow a
17 patient's declaration or the directions of the patient's
18 designee, if such declaration or direction would be contrary to
19 reasonable medical standards.
20 Section 10. Effect on suicide and life insurance; declaration
21 optional.
22 (a) Suicide.--The withholding or withdrawal of medical
23 treatment from a patient in accordance with the provisions of
24 this act shall not, for any purpose, constitute a suicide or
25 causing or aiding a suicide.
26 (b) Life insurance.--The making of, or failure to make, a
27 declaration in accordance with this act shall not affect in any
28 manner the sale, procurement or issuance of any policy of life
29 insurance, nor shall it be deemed to modify the terms of an
30 existing policy of life insurance. No policy of life insurance
19890H1586B1917 - 13 -
1 shall be legally impaired or invalidated in any manner by the
2 withholding or withdrawal of medical treatment from an insured
3 patient, notwithstanding any term of the policy to the contrary.
4 (c) Declaration optional.--No physician, health care
5 facility or other health care provider, and no health care
6 service plan, health maintenance organization, insurer issuing
7 disability insurance, self-insured employee welfare benefit
8 plan, nonprofit hospital plan or State, local, county or Federal
9 Government-sponsored or operated program:
10 (1) shall require any person to execute a declaration as
11 a condition for being insured for, or receiving, health care
12 services; or
13 (2) shall charge any person a different rate or fee
14 whether or not the person executes or has executed a
15 declaration.
16 Section 11. Euthanasia and aided-suicide prohibited.
17 Nothing in this act shall be construed to condone, authorize
18 or approve euthanasia or aided-suicide, or to permit any
19 affirmative or deliberate act or omission to end life other than
20 to permit the natural process of dying as provided in this act.
21 Section 12. Preservation of existing rights; required
22 treatment; power of attorney.
23 (a) Legal rights not impaired.--The provisions of this act
24 are cumulative with existing law regarding the right of an
25 individual to consent or refuse to consent to medical treatment
26 and shall not impair or supersede any existing rights or
27 responsibilities which a health care provider, a patient,
28 including a minor or incompetent patient, or the family of a
29 patient may have in regard to the withholding or withdrawal of
30 medical treatment under the laws of this Commonwealth.
19890H1586B1917 - 14 -
1 (b) Necessary medical care.--Any section of this act which
2 requires that certain treatment, or nutrition or hydration, or
3 both, be provided establishes a course of necessary medical
4 care.
5 (c) Pregnant patients.--Whether or not a patient had made a
6 declaration pursuant to this act, medical treatment must be
7 provided to a pregnant patient with a terminal condition unless,
8 to a reasonable degree of medical certainty, as certified on the
9 patient's medical chart by the attending physician and an
10 obstetrician who has examined the patient, such medical
11 treatment will not maintain the patient in such a way as to
12 permit the continuing development and live birth of the unborn
13 child or will be physically harmful or unreasonably painful to
14 the patient or prolong severe pain which cannot be alleviated by
15 medication.
16 (d) Power of attorney.--A power of attorney executed
17 pursuant to 20 Pa.C.S. Ch. 56 (relating to powers of attorney)
18 shall, as to the treatment for a patient with a terminal
19 condition, have no greater effect than a declaration executed
20 pursuant to this act notwithstanding any specific grant of power
21 by a patient regarding medical care, nursing care or medical and
22 surgical procedures.
23 Section 13. Requirement to provide nutrition and hydration.
24 Nothing in this act shall relieve a person, whether or not he
25 has a terminal condition, of the right and obligation to
26 receive, or the physician, health care provider or health care
27 facility of the obligation to provide, nutrition and hydration
28 except that as to a patient with a terminal condition such
29 nutrition and hydration may be withheld if it could not be
30 physically assimilated by the patient or would be physically
19890H1586B1917 - 15 -
1 harmful or unreasonably painful to the patient. Further, nothing
2 in this act shall relieve the physician, health care provider or
3 health care facility of the obligation to provide other measures
4 deemed necessary to provide comfort to a person or to alleviate
5 his pain regardless of whether a person has a terminal
6 condition.
7 Section 14. Penalties.
8 Any person who willfully conceals, cancels, defaces,
9 obliterates or damages the declaration of another without the
10 consent of the declarant commits a felony of the third degree.
11 Any person who falsifies or forges the declaration of another,
12 or willfully conceals or withholds personal knowledge of a
13 revocation as provided in section 5, with the intent to cause a
14 withholding or withdrawal of medical treatment contrary to the
15 wishes of the declarant and, because of such an act, directly
16 causes medical treatment to be withheld or withdrawn and death
17 to be hastened, shall be subject to prosecution for criminal
18 homicide as provided in 18 Pa.C.S. Ch. 25 (relating to criminal
19 homicide). Any person who willfully, by undue influence, fraud
20 or duress, causes a person to execute a declaration pursuant to
21 this act commits a felony of the third degree.
22 Section 15. Effective date.
23 This act shall take effect immediately.
D10L35WMB/19890H1586B1917 - 16 -