2001 -- S 0465
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LC02052
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S T A T E O F R H O D E I S L A N D
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2001
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A N A C T
RELATING TO HEALTH AND SAFETY
It is enacted by the General Assembly as follows:
SECTION 1. Title 23 of the General Laws entitled "Health and Safety" is hereby amended by adding thereto the following chapter:
CHAPTER 4-13
HEALTH CARE DECISIONS ACT
23-4.-13-1. Purpose. -- (a) The legislature finds that adult persons have a fundamental right to control the decisions relating to the rendering of their own medical care. The failure to execute a valid durable power of attorney for health care or a valid living will should not deprive a person of such fundamental right.
(b) In order that the rights of patients may be respected even after they are no longer able to communicate their decisions about end of life treatment and where a patient had failed to execute a valid durable power of attorney for health care or living will and in the absence of such documents this chapter hereby authorizes a surrogate decision maker to act on behalf of such patient who is unable to communicate his or her medical treatment decisions to his or her physician(s) and/or health care facility. The surrogate decision maker shall be a member of the highest class set forth in section 23-4.13-3, (a) and (b) and be familiar with the patient's activities, health and religious beliefs. The surrogate decision maker may execute documents on behalf of this patient authorizing the physician(s) and/or health care facility to provide medical treatment including withholding or withdrawing of life-sustaining procedures and to provide appropriate pain management treatment.
23-4.13-2. Definitions. -- (a) "Terminal condition" means an incurable or irreversible condition that, without the administration of life-sustaining procedures, will, in the opinion of the treating physician(s) or other competent medical personnel, result in death in a relatively short time.
(b) "Unable to communicate on his or her behalf" means a patient who is unable to express, either or orally or in writing, his or her wishes in a meaningful or knowing manner due to his or her terminal condition, side effects or such condition, or medication used to treat such condition or manage pain which causes such impairment of thinking, or consciousness, or is otherwise unable to communicate meaningful decisions concerning his or her wishes regarding end of life medical care, including consent to terminate or withhold care that would prolong life.
(c) "Patient" shall mean a person who is receiving medical treatment for a terminal condition and is unable to communicate his or her wishes for medical treatment and failed to execute a valid durable power of attorney for health care or living will.
(d) "Surrogate decision maker" shall mean the person who by this act is authorized to make decisions for the patient's end-of-life treatment, including paid management.
(e) "Significant other person" shall mean a person who maintains a durable relationship with the patient, resides with the patient and is familiar with the patient's activities, health, and religious beliefs and who presents an affidavit stating the facts and circumstances upon which such claim is based.
(f) "Friend" shall mean any person who maintains such regular contact with the patient as to be familiar with his or her activities, health and religious beliefs and who presents an affidavit stating the facts and circumstances upon which such claim is based.
23-4.13-3. Rules of priority for nominating health care decision surrogates. -- (a) Any member of the following classes of persons in the order of priority listed may authorize a physician(s) to provide end-of-life medical treatment and pain management to the patient in a terminal condition where the patient failed to execute a valid durable power of health care attorney or living will.
(1) the spouse of the patient; provided, no complaint for divorce, divorce from bed and board, legal separation or an annulment of the marriage has been filed by either spouse.
(2) the significant other person who maintains a durable relationship with the patient and resides with the patient;
(3) an adult son or daughter of the patient. In the event that there is more than one adult son or daughter, the eldest child shall be surrogate;
(4) either parent of the patient;
(5) an adult brother or sister of the patient. In the event that there is more than one adult brother or sister, the eldest sibling shall be the surrogate;
(6) a grandparent of the patient;
(7) the guardian of the patient at the time of treatment for the terminal condition;
(8) a friend of the patient
(b) Surrogate decision making may not be made by a person listed in section 23-4.13-3(a), if;
(1) any judge in a court of competent jurisdiction has issued a restraining order, denial of visitation, no contact order or other edict restricting the flow of commerce between the patient and the proposed surrogate decision maker;
(2) any law enforcement or other investigating agency has instituted and found credible evidence of physical, mental, sexual or domestic abuse between the patient and the proposed surrogate decision maker; and
(3) a person in a prior class is available and willing to act as surrogate decision maker.
23-4.13-4. Authority of surrogate health care decision maker. -- A surrogate decision maker authorized under this section to act on behalf of the patient must execute a document authorizing medical treatment and pain management for the patient and may include directions to withhold or withdraw life-saving measures in the same requirements that a patient would execute a durable power of attorney for health care as set forth in sections 23-4.10-1 through 23-4.10-12 inclusive.
23-4.13-5. Withdrawal. -- A surrogate decision maker may withdraw at any time in the same manner as the surrogacy was established, in writing and witnessed, pursuant to section 23-4.10-1 through 23-4.10-12 inclusive. A withdrawal is only effective as to the attending physician or health care provider or emergency medical services personnel upon communication to that individual by the surrogate decision maker or by another who witnessed the withdrawal. Another surrogate decision maker may be nominated according to the classes set forth in section 23-4.13-3 (a) and (b).
23-4.13-6. Revocation. -- A surrogate decision maker may revoke the authorization for treatment of the patient at any time and in any manner.
(1) A revocation is only effective as to the attending physician or any health care provider or emergency medical services personnel upon communication to that physician or health care provider or emergency medical services personnel by the declarant or by another who witnessed the revocation.
(2) The attending physician or health care provider shall make the revocation a part of the declarant's medical record.
(3) For emergency medical services personnel: the absence of reliable documentation shall constitute a revocation of a durable power of attorney.
23-4.13-7. Recording contents of surrogate health care decision. -- The attending physician who had knowledge of the existence of a surrogate decision maker shall note in the medical record the existence of the surrogate decision maker. In the instance where the surrogate decision maker authorizes a DNR (do not resuscitate) or order, that should also be entered into the patient's medical record.
23-4.13-8. Treatment. -- (a) A patient has the right to make decisions regarding use of life sustaining procedures as long as the patient is able to do so. If a patient is unable to communicate a medical treatment decision and failed to execute a valid durable power of attorney for health care or living will, a surrogate decision maker may make medical treatment decisions for the patient as if the patient were acting for himself regarding use of life-sustaining procedures.
(b) This chapter does not prohibit any action considered necessary by the attending physician, health care provider, or emergency medical services personnel for comfort, care, or alleviation of pain.
(c) The decision of the surrogate decision maker for a patient known to the attending physician to be pregnant shall be given no force or effect as long as it is probable that the fetus could develop to the point of live birth with continued application of a life sustaining procedures.
23-4.13-9. Immunity. -- (a) In the absence of actual notice of the authorization of the surrogate decision maker or such revocation, the following, while acting in accordance with Rhode Island law, are not subject to civil or criminal liability or charges of unprofessional conduct:
(1) a physician who acts pursuant to the instructions of the surrogate decision maker;
(2) a person who acts under the direction or with the authorization of a physician;
(3) the health care provider owning or operating the facility in which the instructions of the surrogate decision maker are implemented;
(4) emergency medical services personnel who act pursuant to an advanced directive protocol;
(5) emergency medical services personnel who proceed to provide life-sustaining treatment to a patient pursuant to a revocation communicated to them;
(6) a surrogate decision maker acting in accordance with this chapter;
(7) a physician is not subject to civil or criminal liability for actions under this chapter, which are in accordance with reasonable medical standards;
23-4.13-10. General Provisions. -- (a) Death resulting from the withholding or withdrawal of life-sustaining procedures pursuant to the surrogate decision maker and in accordance with this chapter does not constitute, for any purpose, a suicide or homicide provided there is no finding of unlawful intent.
(b) The designation of a surrogate decision maker pursuant to this chapter does not affect in any manner the sale, procurement, or issuance of any policy of life insurance, nor does it modify the terms of an existing policy of life insurance. A policy of life insurance is not legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining procedures from an insured qualified patient, not withstanding any term of the policy to the contrary.
(c) This chapter does not increase or decrease the right of a patient to make decisions regarding use of life-sustaining procedures so long as the patient is able to do so, or impair or supersede any right or responsibility that any person has to effect the withholding or withdrawal of medical care.
(d) This chapter does not condone, authorize, or approve mercy killing or euthanasia.
23-4.13-11. Judicial Review. -- (a) Any action that is taken by a surrogate decision maker may be contested in superior court by the treating physician(s), health care facility, or by a party in the same or higher class as set forth in section 23-4.13-3(a). The court may revoke the power of the surrogate decision maker to make health care decisions for a patient in the event that:
(1) the surrogate decision maker authorizes treatment or the lack thereof, or withholding or withdrawing treatment that is illegal;
(2) the surrogate decision maker acts contrary to the patient's known desires; or
(3) where the patient's desires are not known, the surrogate decision maker does anything that is clearly contrary to the patient's best interest.
(b) The proceeding shall have preference over all other cases in the court and shall be determined summarily upon the petition and such oral or written proof as may be offered by the parties.
23-4.13-12. Severability. -- Any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application and to this end the provisions of this chapter are severable.
SECTION 2. Chapter 23-17 of the General Laws entitled "Licensing of Health Care Facilities" is hereby amended by adding thereto the following section:
23-17-26.1. Pain assessment. -- (a) Any health facility licensed pursuant to this chapter shall provide to every patient regular assessment of pain and treatment for such pain. The pain assessment shall be noted in the patient's chart in a manner consistent with other vital signs.
(b) The director of the department of health is authorized to promulgate standards for assessment of pain.
(c) Every person or corporation who shall willfully and continually violate the provisions of section 23-17-26.1 will be subject to a fine up to five hundred dollars ($500) for each violation thereof and any other remedy set forth in section 23-17-8.
SECTION 3. This act shall take effect upon passage.
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LC02052
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EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO HEALTH AND SAFETY
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This act establishes a procedure for appointing a surrogate decision maker to make health care decisions on behalf of persons who are terminally ill and have failed to execute a health care power of attorney or living will.
This act would take effect upon passage.