Current Status Introducing Body:Senate Bill Number:536 Primary Sponsor:Lourie Committee Number:11 Type of Legislation:GB Subject:Death with dignity Current Committee:Judiciary Computer Document Number:BR1/1087.AC Introduced Date:Jan 23, 1991 Last History Body:Senate Last History Date:May 16, 1991 Last History Type:Recommitted to Committee Scope of Legislation:Statewide All Sponsors:Lourie Passailaigue Bryan Hayes Long Leatherman Nell W. Smith Macaulay Peeler Pope Rose Type of Legislation:General Bill
Bill Body Date Action Description CMN
---- ------ ------------ ------------------------------ ---
536 Senate May 16, 1991 Recommitted to Committee 11
536 Senate Mar 19, 1991 Made Special Order
536 Senate Feb 27, 1991 Committee Report: Favorable 11
536 Senate Jan 23, 1991 Introduced, read first time, 11
referred to Committee
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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.
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
That they have duly and carefully considered the same, and recommend that the same do pass:
JOHN C. HAYES, III, for Committee.
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.
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.