H 3925 Session 110 (1993-1994)
H 3925 General Bill, By Fair
A Bill to amend Section 44-77-20, as amended, Code of Laws of South Carolina,
1976, relating to definitions in the Death with Dignity Act, so as to revise
the definition of "life-sustaining procedures" and to define "artificial
nutrition and hydration"; to amend Section 44-77-30, as amended, relating to
conditions for withholding life-sustaining procedures, so as to add the
inability to give directions regarding the use of life-sustaining procedures
as a condition; to amend Section 44-77-80, as amended, relating to revocation
of declaration, so as to provide that any doubt on revocation must be resolved
in favor of life-sustaining procedures; to amend Section 44-77-100, as
amended, relating to effectuation of declaration when a health care
professional does not wish to participate, so as to specify the basis for
refusal to participate and to prohibit any disciplinary or employment action
against the person; and to amend Section 44-77-130, as amended, relating to
construction of Chapter, so as to provide that the Chapter does not authorize
assisted suicide.
04/13/93 House Introduced and read first time HJ-14
04/13/93 House Referred to Committee on Judiciary HJ-14
A BILL
TO AMEND SECTION 44-77-20, AS AMENDED, CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN
THE DEATH WITH DIGNITY ACT, SO AS TO REVISE THE
DEFINITION OF "LIFE-SUSTAINING PROCEDURES"
AND TO DEFINE "ARTIFICIAL NUTRITION AND
HYDRATION"; TO AMEND SECTION 44-77-30, AS
AMENDED, RELATING TO CONDITIONS FOR WITHHOLDING
LIFE-SUSTAINING PROCEDURES, SO AS TO ADD THE
INABILITY TO GIVE DIRECTIONS REGARDING THE USE OF
LIFE-SUSTAINING PROCEDURES AS A CONDITION; TO AMEND
SECTION 44-77-80, AS AMENDED, RELATING TO REVOCATION
OF DECLARATION, SO AS TO PROVIDE THAT ANY DOUBT ON
REVOCATION MUST BE RESOLVED IN FAVOR OF
LIFE-SUSTAINING PROCEDURES; TO AMEND SECTION
44-77-100, AS AMENDED, RELATING TO EFFECTUATION OF
DECLARATION WHEN A HEALTH CARE PROFESSIONAL DOES
NOT WISH TO PARTICIPATE, SO AS TO SPECIFY THE BASIS
FOR REFUSAL TO PARTICIPATE AND TO PROHIBIT ANY
DISCIPLINARY OR EMPLOYMENT ACTION AGAINST THE
PERSON; AND TO AMEND SECTION 44-77-130, AS AMENDED,
RELATING TO CONSTRUCTION OF CHAPTER, SO AS TO
PROVIDE THAT THE CHAPTER DOES NOT AUTHORIZE
ASSISTED SUICIDE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-77-20 of the 1976 Code, as last amended by
Act 149 of 1991, 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 other treatment for
comfort care or alleviation of pain. The declarant shall indicate in
the declaration whether the provision of nutrition and hydration through
medically or surgically implanted tubes is to be treated as a
life-sustaining procedure. Pursuant to a lawfully executed declaration
if the declarant fails to give instructions by initialing the appropriate
statements concerning nutrition and hydration, nutrition and hydration
necessary for comfort care or alleviation of pain will be provided.
(3) `Physician' means a person licensed to practice medicine.
(4) `Terminal condition' means an incurable or irreversible condition
that, within reasonable medical judgment, could cause death within a
reasonably short period of time if whether or not
life-sustaining procedures are not used.
(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 other organization or group.
(7) `Permanent unconsciousness' means a medical diagnosis,
consistent with accepted reasonable 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) `Artificial nutrition and hydration' means nutrition and
hydration through medically or surgically implanted tubes. The
declarant shall indicate in the declaration whether artificial nutrition and
hydration is to be withheld. Pursuant to a lawfully executed declaration
if the declarant fails to give instructions by initialing the appropriate
statements concerning nutrition and hydration, nutrition and hydration
will be provided."
SECTION 2. Section 44-77-30 of the 1976 Code, as last amended by
Act 149 of 1991, is further amended to read:
"Section 44-77-30. Life-sustaining procedures may be
withheld or withdrawn upon direction and under the supervision of the
attending physician If if:
(1) 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,;
(2) 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,;
(3) and the person's present condition is certified to
be terminal or to be in a state of permanent unconsciousness 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; and
(4) the person is not presently able nor is likely to be able in the
reasonable future to give directions regarding the use of life-sustaining
procedures.
A certification based upon a diagnosis of permanent unconsciousness
may not be made until the declarant has remained unconscious for at
least ninety consecutive days, or at any time if the declarant has
experienced massive destruction or atrophy of the cortex as evidenced
by neurodiagnostic studies or gross inspection of the brain, or some
other characteristic of the declarant's condition allows a diagnosis of
permanent unconsciousness to be made with a high degree of medical
certainty.
All patients with life-threatening conditions that are diagnosed as
terminal or in a state of permanent unconsciousness must be
administered active treatment for at least six hours following the
diagnosis before the physician may give effect to a declaration."
SECTION 3. Section 44-77-80 of the 1976 Code, as last amended by
Act 149 of 1991, is further amended to read:
"Section 44-77-80. (A) The Declaration may be
revoked:
(1) by being defaced, torn, obliterated, or otherwise destroyed in
expression of the declarant's intent to revoke by the declarant or by some
person in the presence of and by the 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
expressing his 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 oral expression by the declarant of his 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 to the attending physician by a person other than the
declarant 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 physical or mental condition of the declarant makes it
impossible for the physician to confirm through subsequent conversation
with the declarant that the revocation has occurred. 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. To be
effective as a revocation, the oral expression clearly must indicate the
declarant's desire that the declaration not be given effect or that
life-sustaining procedures be administered;
(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;
(5) by the declarant's execution of a subsequent declaration.
(B) Any doubt, whether a statement or conduct amounts to a
revocation of a living will, must be resolved in favor of the affirmative
provision of care."
SECTION 4. Section 44-77-100 of the 1976 Code, as last amended by
Act 149 of 1991, is further amended to read:
"Section 44-77-100. A physician or health care facility
electing for any reason not to participate in the withholding or
withdrawal of life-sustaining procedures in accordance with a
declaration executed under this chapter shall make a reasonable effort
to locate a physician or health care facility that will effectuate the
declaration and has a duty to transfer the patient to that physician or
facility. A failure by a physician to effectuate the declaration of a
terminal patient constitutes 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. If a nurse or
other employee of a health care facility informs the physician or health
care facility that the employee does not wish to participate in the
withholding or withdrawal of life-sustaining procedures from a
declarant, the physician or health care facility shall make a reasonable
effort to effectuate the declaration without the participation of the
employee.
(A) A health care provider, employee, or member of the staff of
a health care facility, or a home caregiver may not be required to
perform or participate in the performance of an act or omission intended
to hasten the death of a patient, if the health care provider, employee,
staff member, or caregiver objects to the act on personal, ethical, moral,
or religious grounds.
(B) A health care facility is not required to:
(1) make its facilities available for the performance of an act or
omission which may cause or hasten the death of a patient if the act is
prohibited by the entity on the basis of religious or moral convictions;
or
(2) provide personnel for the performance or assistance in the
performance of an act or omission which may cause or hasten the death
of a patient if the act or assistance would be contrary to the religious
beliefs or moral convictions of the personnel.
(C) A person making a claim of conscience, or who states an
intention to make a claim of conscience, must not be denied
employment, disciplined, or discriminated against in any manner
because of his refusal to perform or participate in any act or omission for
the purpose of causing or hastening the death of a patient.
(D) A person, as a condition of training, employment, pay,
promotion, or privileges, must not be required to agree to perform or
participate in the performance of an act or omission for the purpose of
causing or hastening the death of a patient."
SECTION 5. Section 44-77-130 of the 1976 Code, as last amended by
Act 586 of 1988, is further amended to read:
"Section 44-77-130. Nothing in this chapter may be construed
to authorize or approve mercy killing, or assisted suicide,
or to permit any affirmative or deliberate act or omission to end life
other than to permit the natural process of dying except as
specifically provided in this chapter."
SECTION 6. This act takes effect upon approval by the Governor.
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