Bill 2041

                    Current Status

Bill Number:               2041
Ratification Number:       360
Act Number:                341
Introducing Body:          House
Subject:                   Living Will

(A341, R360, H2041)

AN ACT TO AUTHORIZE AN ADULT TO MAKE A WRITTEN DIRECTIVE INSTRUCTING HIS PHYSICIAN TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING PROCEDURES IN THE EVENT OF A TERMINAL CONDITION.

Whereas, the General Assembly finds that adult persons have the fundamental right to control the decision relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition; and

Whereas, in order that the rights of patients may be respected even after they are no longer able to participate actively in decisions about themselves, the General Assembly by this act provides that an adult person may make a written declaration instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

Act may be cited

SECTION 1. This act may be cited as the Death With Dignity Act.

Definitions

SECTION 2. As used in this act:

a. "Declarant" means a person who has signed a declaration in accordance with Section 5.

b. "Life-sustaining procedures" means any medical procedures or intervention which would serve only to prolong the dying process and where, in the judgment of the attending physician, death will occur whether or not such procedures are utilized. Life-sustaining procedures do not include the administration of medication nor does it affect the responsibility of the attending physician to provide treatment, nutrition, and hydration for comfort care or alleviation of pain.

c. "Physician" means any person licensed to practice medicine in this State.

d. "Terminal condition" means an injury, disease, or illness from which to a reasonable degree of medical certainty (i) there can be no recovery, and (ii) death is imminent without the use of life-sustaining procedures.

e. "Active treatment" means the standard of reasonable professional care that would be rendered by a physician to a patient in the absence of any terminal condition including but not limited to hospitalization and medication.

Life sustaining procedure may be withheld

SECTION 3. If any adult declares that his dying not be prolonged and the person's present condition is confirmed by a physician other than the attending physician to be terminal, then the life-sustaining procedure may be withheld or discontinued upon the direction and under the supervision of the attending physician.

All patients with life threatening illnesses that are diagnosed as terminal shall be administered active treatment for at least six hours prior to the physician's acceptance of a declaration.

Declaration

SECTION 4. The attending physician may rely upon a signed, witnessed, and dated declaration:

1. which expresses a desire of the declarant that no life-sustaining procedures be used to prolong dying if his condition is terminal; and

2. which states that the declarant is aware that the declaration authorizes a physician to withhold or withdraw life-sustaining procedures; and

3. which has been signed by the declarant in the presence of three witnesses who state that they are not related to the declarant by blood or marriage, not directly financially responsible for the person's medical care, and who would not be entitled to any portion of the estate of the declarant upon his decease under any will or as an heir by intestate succession under the laws of South Carolina of the declarant then existing or is a beneficiary of a life insurance policy of the declarant and has knowledge of such status. No more than one witness may be an employee of a health facility in which the declarant is a patient. A witness to a declaration may not be the attending physician or an employee of the attending physician or any person who has a claim against any portion of the estate of the declarant upon his decease at the time of the execution of the declaration.

Form of declaration

SECTION 5. The declaration must be substantially in the following form:

STATE OF SOUTH CAROLINA

DECLARATION OF A DESIRE FOR A NATURAL DEATH

COUNTY OF

I,______________ , a resident of and domiciled in the City of__________________ , County of________________ , State of South Carolina, make this Declaration this_____________________ day of ____________ , 19________ .

I wilfully and voluntarily make known my desire that no life-sustaining procedures be used to prolong my dying if my condition is terminal, and I do hereby declare:

If at any time I have an incurable injury, disease, or illness certified to be a terminal condition by two physicians who have personally examined me, one of whom is my attending physician, and the physicians have determined that my death will occur without the use of life-sustaining procedures and where the application of life-sustaining procedures would serve only to prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure necessary to provide me with comfort care.

In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this Declaration be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and I accept the consequences from such refusal.

I am aware that this Declaration authorizes a physician to withhold or withdraw life-sustaining procedures. I am emotionally and mentally competent to make this Declaration.

THIS DECLARATION MAY BE REVOKED BY THE DECLARANT, WITHOUT REGARD TO HIS PHYSICAL OR MENTAL CONDITION.

(1) BY BEING DEFACED, TORN, OBLITERATED, OR OTHERWISE DESTROYED BY THE DECLARANT OR BY SOME PERSON IN THE PRESENCE OF AND BY THE DIRECTION OF THE DECLARANT.

(2) BY A WRITTEN REVOCATION SIGNED AND DATED BY THE DECLARANT EXPRESSING HIS OR HER INTENT TO REVOKE. THE REVOCATION SHALL BECOME EFFECTIVE ONLY UPON COMMUNICATION TO THE ATTENDING PHYSICIAN BY THE DECLARANT OR BY A PERSON ACTING ON BEHALF OF THE DECLARANT. THE ATTENDING PHYSICIAN SHALL RECORD IN THE PATIENT'S MEDICAL RECORD THE TIME AND DATE WHEN HE RECEIVED NOTIFICATION OF THE WRITTEN REVOCATION.

(3) BY A VERBAL EXPRESSION BY THE DECLARANT OF HIS INTENT TO REVOKE THE DECLARATION. THE REVOCATION SHALL BECOME EFFECTIVE ONLY UPON COMMUNICATION TO THE ATTENDING PHYSICIAN BY THE DECLARANT. THE ATTENDING PHYSICIAN SHALL RECORD IN THE PATIENT'S MEDICAL RECORD THE TIME, DATE, AND PLACE OF THE REVOCATION AND THE TIME, DATE, AND PLACE, IF DIFFERENT, OF WHEN HE RECEIVED NOTIFICATION OF THE REVOCATION.

__________________________________________

Declarant

STATE OF___________________________________ AFFIDAVIT

COUNTY OF_________________________________

We,______________ ,_________________ ,______________ and , the witnesses whose names are signed to the foregoing Declaration, dated the_______ day of_________ , 19______ , being first duly sworn, do hereby declare to the undersigned authority that the Declaration was on that date signed by the said declarant as and for his DECLARATION OF A DESIRE FOR A NATURAL DEATH in our presence and we, at his request and in his presence, and in the presence of each other, did thereunto subscribe our names as witnesses on that date. The declarant is personally known to us and we believe him to be of sound mind. None of us is disqualified as a witness to this Declaration by any provision of the South Carolina Death With Dignity Act. None of us is related to the declarant by blood or marriage; nor directly financially responsible for the declarant's medical care; nor entitled to any portion of the declarant's estate upon his decease, whether under any will or as an heir by intestate succession; nor the beneficiary of a life insurance policy of the declarant; nor the declarant's attending physician; nor an employee of such attending physician; nor a person who has a claim against the declarant's decedent's estate as of this time. No more than one of us is an employee of a health facility in which the declarant is a patient. If the declarant is a patient in a hospital or skilled or intermediate care nursing facility at the date of execution of this Declaration at least one of us is an ombudsman designated by the State Ombudsman, Office of the Governor.

________________________________

Witness

________________________________

Witness

________________________________

Witness

Subscribed, sworn to, and acknowledged before me by______________ ___________________ , the declarant, and subscribed and sworn to before me by ___________________________ ,

____________________ , and__________________________ , the witnesses, this______________ day of______________ , 19______ .

______________________________

Notary Public for

My commission expires:________________________

SEAL

The declaration must be signed by the declarant in the presence of three witnesses and shall be attested and subscribed in the presence of the declarant and of each other by the three witnesses and an officer authorized to administer oaths under the laws of the State where acknowledgement occurs or else the declaration shall be utterly void and of no effect. Each will prepared in accordance with the provisions of this section shall set forth the procedure and requirements for revocation of the declaration. Requirements for revocation shall be set forth in bold-face print.

Force and effect of declaration

SECTION 5A. A declaration shall have no force or effect if the declarant is a patient in a hospital or skilled or intermediate care nursing facility at the time the directive is executed unless one of the three witnesses to the directive is an ombudsman as may be designated by the State Ombudsman, Office of the Governor. The ombudsman shall have the same qualifications as a witness under Section 4.

The intent of this section is to recognize that some patients in skilled or intermediate care nursing facilities may be so insulated from a voluntary decision-making role, by virtue of the custodial nature of their care, as to require special assurance that they are capable of wilfully and voluntarily executing a directive.

Declaration to have no force of effect if

declarant is pregnant

SECTION 5B. If a declarant has been diagnosed as pregnant, the declaration shall have no force of effect during the course of the declarant's pregnancy.

The declaration shall also contain an affidavit in the form of a verification by each witness that he is not disqualified by any provision of this act and such disqualification shall be set forth in the text of the affidavit.

Declaration may be revoked

SECTION 6. The declaration may be revoked by the declarant, without regard to his physical or mental condition:

1. By being defaced, torn, obliterated, or otherwise destroyed by the declarant or by some person in the presence of and by the direction of the declarant.

2. By a written revocation signed and dated by the declarant expressing his or her intent to revoke. The revocation shall become effective only upon communication to the attending physician by the declarant or by a person acting on behalf of the declarant. The attending physician shall record in the patient's medical record the time and date when he received notification of the written revocation.

3. By a verbal expression by the declarant of his intent to revoke the declaration. The revocation shall become effective only upon communication to the attending physician by the declarant. The attending physician shall record in the patient's medical record the time, date, and place of the revocation and the time, date, and place, if different, of when he received notification of the revocation.

Relies upon declaration

SECTION 7. After certification of a terminal condition, a physician who relies on a declaration executed under this act, of which he has no actual notice of revocation and who withholds life-sustaining procedures from the terminally ill patient who executed the declaration, is presumed to be acting in good faith. Unless it is alleged and proved that the physician's action violated the standard of reasonable professional care and judgment under the circumstances, he is immune from civil or criminal liability.

Failure to effectuate declaration

SECTION 8. A failure by a physician to effectuate the declaration of a terminal patient shall constitute unprofessional conduct if the physician fails or refuses to make reasonable efforts to effect the transfer of the patient to another physician who will effectuate the declaration.

Execution and consummation of declaration not

to constitute suicide

SECTION 9. The execution and consummation of declarations made in accordance with Section 4 or 5 does not constitute suicide for any purpose.

Persons not required to sign declaration

SECTION 10. No person is required to sign a declaration in accordance with Section 4 or 5 as a condition for becoming insured under any insurance contract or for receiving any medical treatment or as a condition of being admitted to a hospital or nursing home facility.

Nothing in act may be construed as mercy

killing

SECTION 11. Nothing in this act may be construed to authorize or approve mercy killing, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

Absence of declaration may not give rise to

presumption

SECTION 12. The absence of a declaration by an adult patient shall not give rise to any presumption as to his intent to consent to or refuse death prolonging procedures.

Penalty

SECTION 13. (A) If any person knowingly provides or aids another in providing any false information of any nature in any manner relative to a declaration of a desire for a natural death under this act, including, but not limited to, the contents of the declaration or the execution or the revocation of the declaration, and lifesustaining procedures are withheld or withdrawn from the declarant and the declarant then dies as a result of that withdrawal or nontreatment, the person is guilty of murder and must be punished in accordance with the laws of this State.

(B) If any person knowingly provides or aids another in providing any false information of any nature in any manner relative to a declaration of a desire for a natural death under this act, including, but not limited to, the contents of the declaration or the execution or the revocation of the declaration, and life- sustaining procedures are withheld or withdrawn from the declarant and the declarant does not die but further expenses are incurred as a result of the withdrawal or nontreatment, in caring for the declarant, the person is responsible for the payment of those further expenses.

Coerces or fraudulently induces person to

execute declaration

SECTION 14. Any person who coerces or fraudulently induces another person to execute a declaration under this act and the declarant dies as a result of the withdrawal of treatment or nontreatment in reliance on the declaration, that person is guilty of murder and must be punished in accordance with the laws of this State.

Time effective

SECTION 15. This act shall take effect upon approval by the Governor.