S*1137 Session 108 (1989-1990)
S*1137(Rat #0565, Act #0472 of 1990) General Bill, By P.B. McLeod, Leatherman,
J.M. Long, I.E. Lourie and N.W. Smith
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 66
to Title 44 so as to provide for the Adult Health Care Consent Act.
01/24/90 Senate Introduced and read first time SJ-5
01/24/90 Senate Referred to Committee on Medical Affairs SJ-5
03/22/90 Senate Committee report: Favorable with amendment
Medical Affairs SJ-13
03/27/90 Senate Amended SJ-31
03/27/90 Senate Read second time SJ-37
03/27/90 Senate Ordered to third reading with notice of
amendments SJ-37
03/28/90 Senate Read third time and sent to House SJ-212
03/29/90 House Introduced and read first time HJ-6
03/29/90 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-6
04/05/90 House Recalled from Committee on Medical, Military,
Public and Municipal Affairs HJ-29
04/19/90 House Amended HJ-8
04/19/90 House Read second time HJ-9
04/19/90 House Unanimous consent for third reading on next
legislative day HJ-9
04/20/90 House Read third time and returned to Senate with
amendments HJ-1
04/24/90 Senate Concurred in House amendment and enrolled SJ-4
04/26/90 Senate Recalled from Legislative Council SJ-9
04/26/90 Senate Reconsidered SJ-9
04/26/90 Senate House amendment amended SJ-9
04/26/90 Senate Returned to House with amendments SJ-10
05/02/90 House Concurred in Senate amendment and enrolled HJ-44
05/08/90 Ratified R 565
05/14/90 Signed By Governor
05/14/90 Effective date 05/14/90
05/14/90 Act No. 472
06/13/90 Copies available
(A472, R565, S1137)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
CHAPTER 66 TO TITLE 44 SO AS TO PROVIDE FOR THE ADULT HEALTH CARE CONSENT
ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Adult health care consent act
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 66
Adult Health Care Consent Act
Section 44-66-10. This chapter may be cited as the 'Adult Health
Care Consent Act'.
Section 44-66-20. As used in this chapter:
(1) 'Health care' means a procedure to diagnose or treat a
human disease, ailment, defect, abnormality, or complaint, whether of
physical or mental origin.
(2) 'Health care provider' or 'provider' means a person,
health care facility, organization, or corporation licensed, certified,
or otherwise authorized or permitted by the laws of this State to
administer health care.
(3) 'Health care professional' means an individual who is
licensed, certified, or otherwise authorized by the laws of this State
to provide health care to members of the public.
(4) 'Person' includes, but is not limited to, an individual,
a state agency, or a representative of a state agency.
(5) 'Physician' means an individual who is licensed to
practice medicine or osteopathy under Chapter 47 of Title 40.
(6) 'Unable to consent' means unable to appreciate the nature
and implications of the patient's condition and proposed health care, to
make a reasoned decision concerning the proposed health care, or to
communicate that decision in an unambiguous manner. This definition does
not include minors, and this chapter does not affect the delivery of
health care to minors unless they are married or have been determined
judicially to be emancipated. A patient's inability to consent must be
certified by two licensed physicians, each of whom has examined the
patient. However, in an emergency the patient's inability to consent may
be certified by a health care professional responsible for the care of
the patient if the health care professional states in writing in the
patient's record that the delay occasioned by obtaining certification
from two licensed physicians would be detrimental to the patient's
health. A certifying physician or other health care professional shall
give an opinion regarding the cause and nature of the inability to
consent, its extent, and its probable duration.
Section 44-66-30. (A) Where a patient is unable to consent,
decisions concerning his health care may be made by the following persons
in the following order of priority:
(1) a guardian appointed by the court pursuant to Article 5,
Part 3 of the South Carolina Probate Code, if the decision is within the
scope of the guardianship;
(2) an attorney-in-fact appointed by the patient in a durable
power of attorney executed pursuant to Section 62-5-501, if the decision
is within the scope of his authority;
(3) a person given priority to make health care decisions for
the patient by another statutory provision;
(4) a spouse of the patient unless the spouse and the patient
are separated pursuant to one of the following:
(a) entry of a pendente lite order in a divorce or
separate maintenance action;
(b) formal signing of a written property or marital
settlement agreement;
(c) entry of a permanent order of separate maintenance
and support or of a permanent order approving a property or marital
settlement agreement between the parties;
(5) a parent or adult child of the patient;
(6) an adult sibling, grandparent, or adult grandchild of the
patient;
(7) any other relative by blood or marriage who reasonably
is believed by the health care professional to have a close personal
relationship with the patient;
(8) a person given authority to make health care decisions
for the patient by another statutory provision.
(B) If persons of equal priority disagree on whether certain
health care should be provided to a patient who is unable to consent, an
authorized person, a health care provider involved in the care of the
patient, or any other person interested in the welfare of the patient may
petition the probate court for an order determining what care is to be
provided or for appointment of a temporary or permanent guardian.
(C) Priority under this section must not be given to a person if
a health care provider responsible for the care of a patient who is
unable to consent determines that the person is not reasonably available,
is not willing to make health care decisions for the patient, or is
unable to consent as defined in Section 44-66-20(6).
(D) An attending physician or other health care professional
responsible for the care of a patient who is unable to consent may not
give priority or authority under subsections (A)(5) through (8) to a
person if the attending physician or health care professional has actual
knowledge that, before becoming unable to consent, the patient did not
want that person involved in decisions concerning his care.
(E) This section does not authorize a person to make health care
decisions on behalf of a patient who is unable to consent if, in the
opinion of the certifying physicians, the patient's inability to consent
is temporary, and the attending physician or other health care
professional responsible for the care of the patient determines that the
delay occasioned by postponing treatment until the patient regains the
ability to consent will not result in significant detriment to the
patient's health.
Section 44-66-40. (A) Health care may be provided without consent
to a patient who is unable to consent if no person authorized by Section
44-66-30 to make health care decisions for the patient is available
immediately, and in the reasonable medical judgment of the attending
physician or other health care professional responsible for the care of
the patient, the delay occasioned by attempting to locate an authorized
person, or by continuing to attempt to locate an authorized person,
presents a substantial risk of death, serious permanent disfigurement,
or loss or impairment of the functioning of a bodily member or organ, or
other serious threat to the health of the patient. Health care for the
relief of suffering may be provided without consent at any time that an
authorized person is unavailable.
(B) Health care decisions on behalf of a patient who is unable to
consent may be made by a person named in Section 44-66-30 if no person
having higher priority under that section is available immediately, and
in the reasonable medical judgment of the attending physician or other
health care professional responsible for the care of the patient, the
delay occasioned by attempting to locate a person having higher priority
presents a substantial risk of death, serious permanent disfigurement,
loss or impairment of the functioning of a bodily member or organ, or
other serious threat to the health of the patient.
Section 44-66-50. Health care may be provided without consent
to a patient who is unable to consent if no person authorized by Section
44-66-30 to make health care decisions for the patient is reasonably
available and willing to make the decisions, and, in the reasonable
medical judgment of the attending physician or other health care
professional responsible for the care of the patient, the health care is
necessary for the relief of suffering or restoration of bodily function
or to preserve the life, health, or bodily integrity of the patient.
Section 44-66-60. (A) Unless the patient, while able to
consent, has stated a contrary intent to the attending physician or other
health care professional responsible for the care of the patient, this
chapter does not authorize the provision of health care to a patient who
is unable to consent if the attending physician or other health care
professional responsible for the care of the patient has actual knowledge
that the health care is contrary to the religious beliefs of the patient.
(B) This chapter does not authorize the provision of health care
to a patient who is unable to consent if the attending physician or other
health care professional responsible for the care of the patient has
actual knowledge that the health care is contrary to the patient's
unambiguous and uncontradicted instructions expressed at a time when the
patient was able to consent.
(C) This section does not limit the evidence on which a court may
base a determination of a patient's intent in a judicial proceeding.
Section 44-66-70. (A) A person who in good faith makes a
health care decision as provided in Section 44-66-30 is not subject to
civil or criminal liability on account of the substance of the decision.
(B) A person who consents to health care as provided in Section
44-66-30 does not by virtue of that consent become liable for the costs
of care provided to the patient.
(C) A health care provider who in good faith relies on a health
care decision made by a person authorized under Section 44-66-30 is not
subject to civil or criminal liability or disciplinary penalty on account
of his reliance on the decision.
(D) A health care provider who in good faith provides health care
pursuant to Sections 44-66-40 or 44-66-50 is not subject to civil or
criminal liability or disciplinary penalty on account of the provision
of care. However, this section does not affect a health care provider's
liability arising from provision of care in a negligent manner.
Section 44-66-80. No provision in this chapter affects the
ability of a state agency or health care provider working in conjunction
with a state agency to conduct testing or provide treatment which is
mandated or allowed by other provisions of law."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 14th day of May, 1990.
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