S 536 Session 109 (1991-1992)
S 0536 General Bill, By I.E. Lourie, Bryan, J.C. Hayes, Leatherman, J.M. Long,
A.S. Macaulay, Passailaigue, Peeler, T.H. Pope, M.T. Rose and N.W. Smith
A Bill to amend Chapter 77, Title 44, Code of Laws of South Carolina, 1976,
relating to the Death with Dignity Act, by adding Section 44-77-85 so as to
authorize a declarant to designate an agent to act on his behalf to ensure
that the declaration is given effect; to amend Section 44-77-20, as amended,
relating to definitions, so as to revise the definitions of "life-sustaining
procedures" and "terminal condition" and add the definition of "permanent
unconsciousness" and "agent"; Section 44-77-30, as amended, relating to
withholding life-sustaining procedures, so as to clarify that active treatment
must be administered before giving effect to a declaration; Section 44-77-40,
as amended, relating to qualifications for witnesses to a death with dignity
declaration, so as to further limit who may be a witness to a declaration;
Section 44-77-50, as amended, relating to the form of a declaration, so as to
include the revised definition of terminal condition, provide specific
directions regarding tube feeding which a declarant may choose, provide for
the appointment of an agent, and revise the language pertaining to the
revocation of a declaration; and Section 44-77-80, as amended, relating to
revocation of a declaration, so as to remove the authority of an agent to
revoke a declaration and include that the declarant may revoke a declaration
by executing a subsequent declaration.
01/23/91 Senate Introduced and read first time SJ-8
01/23/91 Senate Referred to Committee on Judiciary SJ-8
02/27/91 Senate Committee report: Favorable Judiciary SJ-15
03/19/91 Senate Special order SJ-12
05/16/91 Senate Recommitted to Committee on Judiciary SJ-10
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
February 27, 1991
S. 536
Introduced by SENATORS Lourie, Passailaigue, Bryan, Hayes, Long,
Leatherman, Nell W. Smith, Macaulay, Peeler, Pope and Rose
S. Printed 2/27/91--S.
Read the first time January 23, 1991.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (S. 536), to amend Chapter 77, Title 44,
Code of Laws of South Carolina, 1976, relating to the Death With
Dignity Act, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass:
JOHN C. HAYES, III, for Committee.
A BILL
TO AMEND CHAPTER 77, TITLE 44, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE DEATH WITH DIGNITY
ACT, BY ADDING SECTION 44-77-85 SO AS TO AUTHORIZE A
DECLARANT TO DESIGNATE AN AGENT TO ACT ON HIS
BEHALF TO ENSURE THAT THE DECLARATION IS GIVEN
EFFECT; TO AMEND SECTION 44-77-20, AS AMENDED,
RELATING TO DEFINITIONS, SO AS TO REVISE THE
DEFINITIONS OF "LIFE-SUSTAINING PROCEDURES"
AND "TERMINAL CONDITION" AND ADD THE
DEFINITIONS OF "PERMANENT
UNCONSCIOUSNESS" AND "AGENT"; SECTION
44-77-30, AS AMENDED, RELATING TO WITHHOLDING
LIFE-SUSTAINING PROCEDURES, SO AS TO CLARIFY THAT
ACTIVE TREATMENT MUST BE ADMINISTERED BEFORE
GIVING EFFECT TO A DECLARATION; SECTION 44-77-40, AS
AMENDED, RELATING TO QUALIFICATIONS FOR WITNESSES
TO A DEATH WITH DIGNITY DECLARATION, SO AS TO
FURTHER LIMIT WHO MAY BE A WITNESS TO A
DECLARATION; SECTION 44-77-50, AS AMENDED, RELATING
TO THE FORM OF A DECLARATION, SO AS TO INCLUDE THE
REVISED DEFINITION OF TERMINAL CONDITION, PROVIDE
SPECIFIC DIRECTIONS REGARDING TUBE FEEDING WHICH A
DECLARANT MAY CHOOSE, PROVIDE FOR THE
APPOINTMENT OF AN AGENT, AND REVISE THE LANGUAGE
PERTAINING TO THE REVOCATION OF A DECLARATION; AND
SECTION 44-77-80, AS AMENDED, RELATING TO REVOCATION
OF A DECLARATION, SO AS TO REMOVE THE AUTHORITY OF
AN AGENT TO REVOKE A DECLARATION AND INCLUDE THAT
THE DECLARANT MAY REVOKE A DECLARATION BY
EXECUTING A SUBSEQUENT DECLARATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 77, Title 44 of the 1976 Code is amended by
adding:
"Section 44-77-85. The declarant may indicate in the
declaration whether he wants to appoint an agent to act on his behalf in
assuring that the declaration is given effect by petitioning the court of
common pleas for an order directing providers to withhold or withdraw
treatment as provided in the declaration. The authority of a person
designated pursuant to this section is not affected by the subsequent
appointment of a guardian or by the declarant's execution of a durable
power of attorney before or after execution of the declaration. If the
agent is not reasonably available, or is unable or unwilling to ensure that
the declaration be given effect, an interested person may petition the
court of common pleas for an order directing providers to withhold or
withdraw treatment as provided in the declaration. Nothing in this
section alters the self-executing nature of a declaration or requires that
a court order be obtained or other affirmative action be taken to make
the declaration valid or to bring about its implementation."
SECTION 2. Section 44-70-20 of the 1976 Code, as last amended by
Act 586 of 1988, is further amended to read:
"Section 44-77-20. As used in this chapter:
(1) `Declarant' means a person who has signed a declaration in
accordance with Sections 44-77-40 and 44-77-50, in accordance with
earlier, current, or future versions of this chapter, or in
accordance with the law of another state if the declaration provided for
by the law expresses an intent that is substantially the same as the intent
of the declaration provided in Section 44-77-40.
(2) `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 the procedures are utilized. Life-sustaining procedures
do not include the administration of medication or the provision
of other treatment, nutrition, and hydration for
comfort care or alleviation of pain. The declarant shall indicate in
the declaration whether the provision of nutrition and hydration through
medically implanted tubes is to be treated as a life-sustaining procedure.
If the declarant fails to initial either statement concerning nutrition and
hydration, life-sustaining procedures will not include the provision of
nutrition and hydration necessary for comfort care or alleviation of pain.
(3) `Physician' means any a person licensed to
practice medicine.
(4) `Terminal condition' means (1) an incurable or
irreversible condition that, without the use of life-sustaining procedures,
will result in death within a relatively short period of time or (2) a
state of permanent unconsciousness.
(5) `Active treatment' means the standard of reasonable professional
care that would be rendered by a physician to a patient in the absence of
a declaration including, but not limited to, hospitalization and
medication.
(6) `Person' means an individual, partnership, committee, association,
corporation, hospital, or any other organization or group.
(7) `Permanent unconsciousness' means a medical diagnosis,
consistent with accepted standards of medical practice, that a person is
in a persistent vegetative state or some other irreversible condition in
which the person has no neocortical functioning, but only involuntary
vegetative or primitive reflex functions controlled by the brain stem.
(8) `Agent' means a person designated by the declarant in the
declaration who is authorized to ensure that the declaration is given
effect."
SECTION 3. Section 44-77-30 of the 1976 Code, as last amended by
Act 586 of 1988, is further amended to read:
"Section 44-77-30. If any a person eighteen
years of age or older adopts a declaration that is substantially in the form
provided in Section 44-77-50, whether executed before or after an
amendment is made to the form, and that on its face is duly
executed, witnessed, and authenticated as provided in Section 44-77-40
or on its face is in compliance with the law of the state of the declarant's
domicile at the time that the declaration is adopted, if the declaration
provided for by the law expresses an intent that is substantially the same
as the intent of the declaration provided in Section 44-77-40, and the
person's present condition is certified to be terminal by two physicians
who personally have examined the declarant, one of whom is the
declarant's attending physician, and the other of whom is a physician
other than the attending physician, then life-sustaining procedures may
be withheld or withdrawn upon the direction and under the supervision
of the attending physician.
All patients with life-threatening conditions that are diagnosed as
terminal must be administered active treatment for at least six hours
following the diagnosis before the physician may give effect to
a declaration."
SECTION 4. Section 44-77-40 of the 1976 Code, as last amended by
Act 586 of 1988, is further amended to read:
"Section 44-77-40. A declaration is valid:
(1) which expresses substantially in the form set forth in Section
44-77-50 a desire of the declarant that no life-sustaining procedures be
used to prolong dying if his condition is terminal and states that the
declarant is aware that the declaration authorizes a physician to withhold
or withdraw life-sustaining procedures; and
(2) which has been dated and signed by the declarant in the
presence of an officer authorized to administer oaths under the laws of
the state where the signing occurs and in the presence of two witnesses
who state in an affidavit as set forth in Section 44-77-50 that, to the
extent they have knowledge of their status, they are not related to the
declarant by blood, or marriage, or adoption,
either as a spouse, lineal ancestor, descendant of the parents of the
declarant, or spouse of any of them, not directly financially responsible
for the person's medical care, not entitled to any a
portion of the estate of the declarant upon his decease under any
a will of the declarant then existing or as an heir by intestate
succession, and not a beneficiary of a life insurance policy of the
declarant, and who state that no more than one witness is an employee
of a health facility in which the declarant is a patient and that no witness
to the declaration is the attending physician or an employee of the
attending physician or any a person who has a claim
against any a portion of the estate of the declarant upon
his decease at the time of the execution of the declaration;
(3) which, if the declarant is a patient in a hospital or skilled or
intermediate care a resident in a nursing care
facility at the time the declaration is executed, has been witnessed by an
ombudsman as designated by the State Ombudsman, Office of the
Governor, with the ombudsman acting as one of the two witnesses and
having the same qualifications as a witness as provided in this section.
The intent of this section item is to recognize that some
patients residents in skilled or intermediate care
nursing care 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 declaration; and
(4) which accompanying affidavit has been subscribed and sworn to
by the two witnesses in the presence of the declarant, and of each other,
and of an officer authorized to administer oaths under the laws of the
state where the signing occurs."
SECTION 5. Section 44-77-50 of the 1976 Code, as last amended by
Act 586 of 1988, is further amended to read:
"Section 44-77-50. The declaration must be substantially in
the following form with the procedure and requirements for revocation
of the declaration appearing either in boldface print or in all upper case
letters, the characters in either case being of at least the same size as
used in the rest of the declaration:
STATE OF SOUTH CAROLINA DECLARATION OF A
COUNTY OF ________________ DESIRE FOR A
NATURAL DEATH
I, _____________, Declarant, being at least eighteen years
of age and 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 declare:
If at any time I have a condition 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 within a relatively short period of time without the use
of life-sustaining procedures or that I am in a state of permanent
unconsciousness, and where the application of life-sustaining
procedures would serve only to prolong the dying process, I direct that
the 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.
INSTRUCTIONS CONCERNING TUBE FEEDING (INITIAL
ONE OR THE OTHER OF THE FOLLOWING STATEMENTS)
_____ I further direct that nutrition and hydration be provided
through any medically indicated means, including medically implanted
tubes, whether or not my condition is terminal.
OR
_____ I further direct that nutrition and hydration not be provided
through medically implanted tubes if my condition is terminal, and that
tubes for this purpose be withheld or withdrawn.
In the absence of my ability to give directions regarding the use of
life-sustaining procedures, it is my intention that this Declaration be
honored by my family and physicians and any health facility in which
I may be a patient as the final expression of my legal right to refuse
medical or surgical treatment, and I accept the consequences from the
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.
APPOINTMENT OF AN AGENT (CHOOSE ONE OR THE
OTHER OF THE FOLLOWING STATEMENTS)
______ I hereby appoint _________________________ as my agent
with the authority to ensure that this declaration is carried out by
petitioning the court of common pleas for an order directing providers
to withhold or withdraw treatment as provided herein.
Agent's Address___________________________________
Agent's Telephone Number__________________________
OR
_____ I do not want to appoint an agent.
REVOCATION PROCEDURES
THIS DECLARATION MAY BE REVOKED BY ANY ONE
OF THE FOLLOWING METHODS. HOWEVER, A REVOCATION
IS NOT EFFECTIVE UNTIL IT IS COMMUNICATED TO THE
ATTENDING PHYSICIAN.:
(1) BY BEING DEFACED, TORN, OBLITERATED, OR
OTHERWISE DESTROYED, IN EXPRESSION OF THE
DECLARANT'S YOUR INTENT TO REVOKE, BY
THE DECLARANT YOU OR BY SOME PERSON IN
THE YOUR PRESENCE OF AND BY
THE YOUR DIRECTION OF THE
DECLARANT. REVOCATION BY DESTRUCTION OF ONE OR
MORE OF MULTIPLE ORIGINAL DECLARATIONS REVOKES
ALL OF THE ORIGINAL DECLARATIONS. THE
REVOCATION OF THE ORIGINAL DECLARATIONS ACTUALLY
NOT DESTROYED BECOMES EFFECTIVE ONLY UPON
COMMUNICATION TO THE ATTENDING PHYSICIAN. THE
ATTENDING PHYSICIAN SHALL RECORD IN THE
DECLARANT'S MEDICAL RECORD THE TIME AND DATE WHEN
THE PHYSICIAN RECEIVED NOTIFICATION OF THE
REVOCATION;
(2) BY A WRITTEN REVOCATION SIGNED AND DATED BY
THE DECLARANT YOU EXPRESSING HIS
YOUR INTENT TO REVOKE. THE REVOCATION
BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO THE
ATTENDING PHYSICIAN. THE ATTENDING PHYSICIAN SHALL
RECORD IN THE DECLARANT'S MEDICAL RECORD THE TIME
AND DATE WHEN THE PHYSICIAN RECEIVED NOTIFICATION
OF THE WRITTEN REVOCATION;
(3) BY AN YOUR ORAL EXPRESSION BY
THE DECLARANT OF HIS YOUR INTENT TO
REVOKE THE DECLARATION. THE REVOCATION
BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO THE
ATTENDING PHYSICIAN BY THE DECLARANT. HOWEVER,
AN ORAL REVOCATION MADE BY THE DECLARANT
BECOMES EFFECTIVE UPON COMMUNICATION
COMMUNICATED TO THE ATTENDING PHYSICIAN BY
A PERSON OTHER THAN THE DECLARANT YOU IS
EFFECTIVE ONLY IF:
(a) THE PERSON WAS PRESENT WHEN THE ORAL
REVOCATION WAS MADE;
(b) THE REVOCATION WAS COMMUNICATED TO THE
PHYSICIAN WITHIN A REASONABLE TIME;
(c) THE YOUR PHYSICAL OR MENTAL
CONDITION OF THE DECLARANT MAKES IT
IMPOSSIBLE FOR THE PHYSICIAN TO CONFIRM THROUGH
SUBSEQUENT CONVERSATION WITH THE DECLARANT
YOU THAT THE REVOCATION HAS OCCURRED.
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. TO BE EFFECTIVE AS A REVOCATION, THE
ORAL EXPRESSION CLEARLY MUST INDICATE A
YOUR DESIRE THAT THE DECLARATION NOT BE
GIVEN EFFECT OR THAT LIFE-SUSTAINING PROCEDURES BE
ADMINISTERED;
(4) BY A WRITTEN, SIGNED, AND DATED REVOCATION
OR AN ORAL REVOCATION BY A PERSON DESIGNATED BY
THE DECLARANT IN THE DECLARATION, EXPRESSING THE
DESIGNEE'S INTENT PERMANENTLY OR TEMPORARILY TO
REVOKE THE DECLARATION. THE REVOCATION BECOMES
EFFECTIVE ONLY UPON COMMUNICATION TO THE
ATTENDING PHYSICIAN BY THE DESIGNEE. THE ATTENDING
PHYSICIAN SHALL RECORD IN THE DECLARANT'S MEDICAL
RECORD THE TIME, DATE, AND PLACE OF THE REVOCATION
AND THE TIME, DATE, AND PLACE, IF DIFFERENT, OF WHEN
THE PHYSICIAN RECEIVED NOTIFICATION OF THE
REVOCATION. A DESIGNEE MAY REVOKE ONLY IF THE
DECLARANT IS INCOMPETENT TO DO SO. IF THE
DECLARANT WISHES TO DESIGNATE A PERSON WITH
AUTHORITY TO REVOKE THIS DECLARATION ON HIS
BEHALF, THE NAME AND ADDRESS OF THAT PERSON MUST
BE ENTERED BELOW: THIS DECLARATION ON HIS BEHALF,
THE NAME AND ADDRESS OF THAT PERSON MUST BE
ENTERED BELOW:
________________ _____________________
NAME OF DESIGNEE _____________________
ADDRESS
BY YOUR EXECUTING ANOTHER DECLARATION AT A
LATER TIME.
________________________________
Signature of Declarant
STATE OF ______________ AFFIDAVIT
COUNTY OF ______________
We, ____________________ and __________________, the
undersigned witnesses to the foregoing Declaration, dated the ______
day of _____________, 19___, being first duly sworn, declare to the
undersigned authority, on the basis of our best information and belief,
that the Declaration was on that date signed by the 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, subscribe our names as witnesses on that date. The
declarant is personally known to us, and we believe him to be of sound
mind. Each of us affirms that he is qualified as a witness to this
Declaration under the provisions of the South Carolina Death With
Dignity Act in that he is not related to the declarant by blood,
or marriage, or adoption,either as a spouse, lineal
ancestor, descendant of the parents of the declarant, or spouse of any of
them; 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 the 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 resident in a hospital or skilled or
intermediate care nursing care 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
Subscribed before me by _______________, the declarant, and
subscribed and sworn to before me by _______________ and
________________, the witnesses, this ______ day of
__________________, 19___.
_______________________
Signature
Notary Public for ___________________
My commission expires:_______________
SEAL"
SECTION 6. Section 44-77-80(4) of the 1976 Code, as last amended
by Act 586 of 1988, is further amended to read:
"(4) by a written, signed, and dated revocation or by an oral
revocation by the declarant's designee, the designee's name and address
being supplied in the declaration, expressing the designee's intent to
permanently or temporarily revoke the declaration. The revocation
becomes effective only upon communication to the attending physician
by the designee. The attending physician shall record in the declarant's
medical record the time, date, and place of the revocation and the time,
date, and place, if different, of when the physician received notification
of the revocation. A designee may revoke only if the declarant is
incompetent to do so by the declarant's execution of a
subsequent declaration."
SECTION 7. The validity of a declaration made pursuant to Chapter
77, Title 44 of the 1976 Code properly executed before the effective date
of this act is not affected by the amendments to Chapter 77, Title 44 of
the 1976 Code contained in this act.
SECTION 8. This act takes effect upon approval by the Governor.
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