1987-1988 Bill 4108: Death with Dignity Act revised - South Carolina Legislature Online

South Carolina General Assembly
107th Session, 1987-1988

Bill 4108

                    Current Status

Bill Number:               4108
Ratification Number:       673
Act Number                 586
Introducing Body:          House
Subject:                   Death with Dignity Act revised

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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A586, R673, H4108)

AN ACT TO AMEND CHAPTER 77, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEATH WITH DIGNITY ACT, SO AS TO REVISE THE DEFINITIONS PERTAINING TO THE ACT, PROVIDE WHEN LIFE-SUSTAINING PROCEDURES MAY BE WITHHELD OR WITHDRAWN AND CLARIFY THE PHYSICIAN'S RESPONSIBILITIES, REVISE THE FORM AND PROCEDURES NECESSARY TO EXECUTE A VALID DECLARATION OF A DESIRE FOR A NATURAL DEATH, PROVIDE NEW REQUIREMENTS FOR REVOCATION OF A DECLARATION, PROVIDE THE CIRCUMSTANCES UNDER WHICH IMMUNITY APPLIES IN RELIANCE UPON A DECLARATION, DETAIL THE DUTIES OF A PHYSICIAN AND HEALTH CARE FACILITY IF A DECLARATION IS NOT EFFECTUATED, PROVIDE FOR THE PRESERVATION OF OTHER LEGAL RIGHTS AND RESPONSIBILITIES, AND REVISE THE PENALTIES FOR NONCOMPLIANCE WITH THIS ACT.

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

Death with Dignity Act revised

SECTION 1. Chapter 77, Title 44 of the 1976 Code is amended to read:

"CHAPTER 77

Death With Dignity Act

Section 44-77-10. This chapter may be cited as the Death With Dignity Act.

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 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 treatment, nutrition, and hydration for comfort care or alleviation of pain.

(3) 'Physician' means any person licensed to practice medicine.

(4) 'Terminal condition' means an incurable or irreversible condition that, without the use of life-sustaining procedures, will result in death within a relatively short period of time.

(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.

Section 44-77-30. If any person eighteen years of age or older adopts a declaration that is substantially in the form provided in Section 44-77-50 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 before the physician may give effect to a declaration.

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, 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 portion of the estate of the declarant upon his decease under any 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 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;

(3) which, if the declarant is a patient in a hospital or skilled or intermediate care nursing 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 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 declaration;

(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 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 DESIRE

COUNTY OF _____________________ FOR A NATURAL DEATH

I, ________ , 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 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.

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.

THIS 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 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 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:

_______________________________________

NAME OF DESIGNEE

_______________________________________

ADDRESS

______________________________________

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, 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 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

Subscribed 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

Section 44-77-70. If a declarant has been diagnosed as pregnant, the Declaration is not effective during the course of the declarant's pregnancy.

Section 44-77-80. 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.

Section 44-77-90. After certification of a terminal condition, any person who relies on a declaration which on its face appears to have been executed in accordance with the provisions of this chapter, of which he has no actual notice of revocation, and who withholds or withdraws or participates in the withholding or withdrawal of life-sustaining procedures from the terminally ill patient who executed the declaration, is presumed to be acting in good faith. Any person who in good faith and in accordance with the provisions of this chapter participates in the withholding or withdrawal of life-sustaining procedures from the patient is not subject to criminal or civil liability on account of the withholding or withdrawal. The immunity from civil liability does not extend to cases of provable malpractice committed in connection with the withholding or withdrawal.

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.

Section 44-77-110. The execution and consummation of declarations made in accordance with Sections 44-77-40 and 44-77-50 do not constitute suicide for any purpose.

Section 44-77-120. No person may be required to sign a declaration in accordance with Sections 44-77-40 and 44-77-50 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.

Section 44-77-130. Nothing in this chapter 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.

Section 44-77-140. The absence of a declaration by an adult patient does not give rise to any presumption as to his intent to consent to or refuse death-prolonging procedures. Nothing in this chapter impairs any other legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful manner.

Section 44-77-160. (A) If any person coerces or fraudulently induces another person to execute a declaration under this chapter, falsifies or forges a declaration, or wilfully conceals, cancels, obliterates, or destroys a revocation of a declaration, and the declarant dies as a result of the withdrawal of treatment or nontreatment in reliance on the declaration, that person is subject to prosecution in accordance with the criminal laws of this State.

(B) Nothing in this chapter prohibits any person from informing another person of the existence of this chapter, delivering to another person a copy of this chapter or a form of declaration, or counseling another person in good faith concerning the execution of a declaration.

(C) If any person wilfully conceals, cancels, defaces, obliterates, or damages the declaration of another without the declarant's consent or falsifies or forges a revocation of the declaration of another, that person breaches a duty owed to the declarant and is responsible for payment of any expenses or other damages incurred as a result of the wrongful act."

Time effective

SECTION 2. This act takes effect upon approval by the Governor.