2002 -- S 2467

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LC01795

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2002

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A N A C T

RELATING TO HEALTH AND SAFETY

     Introduced By: Senators Graziano, Igliozzi, Polisena, Perry, and Gallo

     Date Introduced: January 31, 2002

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "Health and Safety" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 4.13

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HEALTH CARE DECISIONS ACT

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     23-4.13-1. Purpose. -- (a) The legislature finds that adult persons have a fundamental

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right to control the decisions relating to the rendering of their own medical care. The failure to

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execute a valid durable power of attorney for health care or a valid living will, should not deprive

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a person of such fundamental right.

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     (b) In order that the rights of patients may be respected even after they are no longer able

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to communicate their decisions and where a patient had failed to execute a valid durable power

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of attorney for health care or living will, and in the absence of such documents this section hereby

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authorizes a surrogate decision maker to act on behalf of such patient who is unable to

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communicate his or her medical treatment decisions to his or her physician(s) and/or health care

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facility. The surrogate decision maker shall be a member of the highest class set forth in

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subsections 23-4.13-3 (a) and (b) and be familiar with the patient’s activities, health and religious

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beliefs. The surrogate decision maker may execute documents on behalf of this patient

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authorizing the physician(s) and/or health care facility to provide medical treatment including

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withholding or withdrawing of life-sustaining procedures and to provide appropriate pain

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management treatment.

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     23-4.13-2. Definitions. -- (a) “Patient” shall mean a person who is receiving medical

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treatment and is unable to give informed consent either orally, in writing, or by gestures

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concerning his or her wishes for medical treatment and failed to execute a valid durable power of

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attorney for health care or living will.

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     (b) “Surrogate decision maker” shall mean the person who by this act is authorized to

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make decisions for the patient’s medical treatment.

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     (c) “Significant other person” shall mean a person who maintains a durable relationship

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with the patient, resides with the patient and is familiar with the patient’s activities, health, and

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religious beliefs.

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     (d) “Friend” shall mean any person who maintains such regular contact with the patient

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as to be familiar with his or her activities, health and religious beliefs.

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     23-4.13-3. Rules of priority for nominating health care decision surrogates. -- (a)

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Any member of the following classes of persons in the order of priority listed may authorize a

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physician(s) to provide medical treatment when the patient failed to execute a valid durable

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power of health care attorney or living will.

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     (1) the guardian of the person, whose guardianship is in effect at the time the decision is

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necessary.

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     (2) the spouse of the patient; provided, no complaint for divorce, divorce from bed and

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board, legal separation or an annulment of the marriage has been filed by either spouse.

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     (3) the significant other person who maintains a durable relationship with the patient and

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resides with the patient;

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     (4) an adult son or daughter of the patient;

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     (5) either parent of the patient;

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     (6) an adult brother or sister of the patient;

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     (7) a grandparent of the patient;

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     (8) a niece or nephew of the patient;

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     (9) a friend of the patient.

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     (b) Surrogate decision making may not be made by a person listed in subsection 23-4.13-

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3(a), if;

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     (1) any judge in a court of competent jurisdiction has issued a restraining order, denial of

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visitation, no contact order or other edict restricting the flow of commerce between the patient

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and the proposed surrogate decision maker;

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     (2) any law enforcement or other investigating agency has instituted and found credible

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evidence of physical, mental, sexual or domestic abuse between the patient and the proposed

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surrogate decision maker; and

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     (3) no person in a prior class is available and willing to act as surrogate decision maker;

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and

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     (4) the health care provider shall undertake reasonable effort to ascertain the identity of

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the appropriate surrogate decision making and to contact the identified surrogate decision maker.

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In the event that no one in the highest class of surrogate decision maker is available, then the

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health care provider may seek a surrogate decision maker from the next class.

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     (c) Any person who seeks to be or is designated as a surrogate decision maker shall

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provide the health care provider with an affidavit setting forth the facts and circumstances upon

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which such claim is based and the willingness to follow the patient’s medical treatment wishes,

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such affidavit shall be part of the patient’s permanent medical record.

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     23-4.13-4. Authority of surrogate health care decision maker. -- A surrogate decision

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maker authorized under this section to act on behalf of the patient must execute a document

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authorizing medical treatment and pain management for the patient and may include directions to

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withhold or withdraw life-saving measures in the same requirements that a patient would execute

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a durable power of attorney for health care as set forth in sections 23-4.10-1 through 23-4.10-12

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inclusive.

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     23-4.13-5. Withdrawal. -- A surrogate decision maker may withdraw at any time. A

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withdrawal is only effective as to the attending physician or health care provider or emergency

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medical services personnel upon communication to that individual by the surrogate decision

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maker or by another who witnessed the withdrawal. Another surrogate decision maker may be

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nominated according to the classes set forth in subsection 23-4.13-3 (a) and (b).

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     23-4.13-6. Revocation. – (a) The patient may revoke the authority of his or her

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surrogate by notifying the surrogate, physician, or health care provider of the revocation orally,

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in writing or by gestures;

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     (b) A surrogate decision maker may revoke the authorization for treatment of the patient

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at any time and in any manner.

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     (1) A revocation is only effective as to the attending physician or any health care

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provider or emergency medical services personnel upon communication to that physician or

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health care provider or emergency medical services personnel by the declarant or by another who

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witnessed the revocation.

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     (2) The physician or health care provider shall document the revocation in the patient’s

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medical record.

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     (3) For emergency medical services personnel: the absence of reliable documentation

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shall constitute a revocation of a durable power of attorney for health care.

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     23-4.13-7. Recording contents of surrogate health care decision. -- The physician or

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health care provider who had knowledge of the existence of a surrogate decision maker shall note

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in the medical record the existence of the surrogate decision maker. In the instance where the

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surrogate decision maker authorizes a DNR (do not resuscitate) order, that should also be entered

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into the patient’s medical record.

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     23-4.13-8. Treatment. -- (a) A patient has the right to make decisions including use of

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life sustaining procedures as long as the patient is able to do so. If a patient is unable to give

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informed consent, either orally, in writing, or by gestures concerning a medical treatment decision

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and failed to execute a valid durable power of attorney for health care or living will, a surrogate

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decision maker may make medical treatment decisions for the patient as if the patient were acting

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for himself/herself.

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     (b) This chapter does not prohibit any action considered necessary by the physician,

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health care provider, or emergency medical services personnel for comfort, care, or alleviation of

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pain.

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     (c) The decision of the surrogate decision maker for a patient known to the physician or

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health care provider to be pregnant shall be given no force or effect as long as it is probable that

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the fetus could develop to the point of live birth with continued application of a life sustaining

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procedure.

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     23-4.13-9. Immunity. -- In the absence of actual notice of the authorization of the

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surrogate decision maker or such revocation, the following, while acting in accordance with

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Rhode Island law, are not subject to civil or criminal liability or charges of unprofessional

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conduct:

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     (1) a physician who acts pursuant to the instructions of the surrogate decision maker;

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     (2) a person who acts under the direction or with the authorization of a physician or

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health care provider;

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     (3) the health care provider owning or operating the facility in which the instructions of

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the surrogate decision maker are implemented;

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     (4) emergency medical services personnel who act pursuant to an advanced directive

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protocol;

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     (5) emergency medical services personnel who proceed to provide life-sustaining

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treatment to a patient pursuant to a revocation communicated to them;

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     (6) a surrogate decision maker acting in accordance with this chapter;

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     (7) a physician or health care provider is not subject to civil or criminal liability for

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actions under this chapter, which are in accordance with reasonable medical standards.

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     23-4.13-10. General provisions. -- (a) Death resulting from the withholding or

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withdrawal of life-sustaining procedures pursuant to the surrogate decision maker and in

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accordance with this chapter does not constitute, for any purpose, a suicide or homicide provided

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there is no finding of unlawful intent.

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     (b) The designation of a surrogate decision maker pursuant to this chapter does not affect

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in any manner the sale, procurement, or issuance of any policy of life insurance, nor does it

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modify the terms of an existing policy of life insurance. A policy of life insurance is not legally

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impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining

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procedures from an insured qualified patient, not withstanding any term of the policy to the

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contrary.

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     (c) This chapter does not increase or decrease the right of a patient to make decisions

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regarding use of life-sustaining procedures so long as the patient is able to do so, or impair or

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supersede any right or responsibility that any person has to effect the withholding or withdrawal

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of medical care.

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     (d) This chapter does not condone, authorize, or approve mercy killing or euthanasia.

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     23-4.13-11. Judicial review. -- (a) Any action that is taken by a surrogate decision

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maker may be contested in superior court by the treating physician(s), health care facility, or by a

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party in the same or higher class as set forth in subsections 23-4.13-3(a) and (b). The court may

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revoke the power of the surrogate decision maker to make health care decisions for a patient in

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the event that:

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     (1) the surrogate decision maker authorizes treatment or the lack thereof, or withholding

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or withdrawing treatment that is illegal;

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     (2) the surrogate decision maker acts contrary to the patient’s known desires; or

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     (3) where the patient’s desires are not known, the surrogate decision maker does anything

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that is clearly contrary to the patient’s best interest.

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     (b) The proceeding shall have preference over all other cases in the court and shall be

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determined summarily upon the petition and such oral or written proof as may be offered by the

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parties.

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     23-4.13-12. Severability. -- Any provision of this chapter or its application to any

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person or circumstance is held invalid, the invalidity does not affect other provisions or

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applications of this chapter which can be given effect without the invalid provision or application

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and to this end the provisions of this chapter are severable.

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     SECTION 2. Chapter 23-17 of the General Laws entitled "Licensing of Health Care

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Facilities" is hereby amended by adding thereto the following section:

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     23-17-54. Pain assessment. -- (a) Licensed nursing facilities, hospice care, home

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nursing care providers, home care providers, rehabilitation centers as defined in section 23-17-2

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shall provide to every patient regular assessment of pain. The pain assessment shall be noted in

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the patient’s chart in a manner consistent with other vital signs.

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     (b) The director of the department of health is authorized to promulgate standards for

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assessment of pain.

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     (c) Every person or corporation who shall willfully and continually violate the provisions

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of section 23-17-54 will be subject to a fine up to one hundred dollars ($100) for the first

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violation and up to five hundred dollars ($500) for each subsequent violation thereof and any

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other remedy provided for in Rhode Island law.

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     SECTION 3. This act shall take effect upon passage.

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LC01795

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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 would establish a procedure for appointing a surrogate decision maker to make

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health care decisions on behalf of persons who are terminally ill and have failed to execute a

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health care power of attorney or living will.

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     This act would take effect upon passage.

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LC01795

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