HB 1345

1
A bill to be entitled
2An act relating to health care advance directives;
3amending s. 765.101, F.S.; providing and revising
4definitions; amending s. 765.302, F.S.; providing that any
5competent adult may make a living will or written
6declaration that provides life-prolonging procedures in
7the event such person has a medically futile condition;
8amending s. 765.303, F.S.; revising medical conditions
9included in a suggested form of a living will; amending s.
10765.304, F.S.; revising procedures for acting in
11accordance with a living will; amending s. 765.305, F.S.;
12revising procedures relating to an incompetent patient's
13right to forego treatment in the absence of a living will;
14creating s. 765.3051, F.S.; specifying persons who may
15execute a health care advance directive on behalf of a
16patient who is less than 18 years of age and has a
17specified medical condition; creating s. 765.3052, F.S.;
18providing that certain pregnant patients may not have
19life-sustaining treatment withdrawn or withheld; amending
20s. 765.306, F.S.; revising guidelines for determining a
21patient's condition; creating s. 765.3061, F.S.; requiring
22the Department of Highway Safety and Motor Vehicles to
23develop and implement a voluntary program for driver's
24license or identification card notation of a health care
25advance directive; providing for noting an individual's
26health care advance directive relative to life-prolonging
27procedures on the individual's driver's license or
28identification card upon request; providing that an
29individual is not required to provide a copy of a health
30care advance directive to have a notation on his or her
31driver's license or identification card; requiring the
32Division of Driver Licenses offices to make forms
33available to the public; requiring the Department of
34Highway Safety and Motor Vehicles and the Agency for
35Health Care Administration to make sample forms accessible
36electronically on the Internet; creating s. 765.3064,
37F.S.; providing certain health care employees with civil
38and criminal immunity from acts performed in conjunction
39with certain information indicated by the department;
40expressing the sovereign immunity of the department and
41its employees from criminal prosecution and civil
42liability for certain acts; providing an effective date.
43
44Be It Enacted by the Legislature of the State of Florida:
45
46     Section 1.  Section 765.101, Florida Statutes, is amended
47to read:
48     765.101  Definitions.--As used in this chapter:
49     (1)  "Advance directive" means a witnessed written document
50or oral statement in which instructions are given by a principal
51or in which the principal's desires are expressed concerning any
52aspect of the principal's health care, and includes, but is not
53limited to, the designation of a health care surrogate, a living
54will, or an anatomical gift made pursuant to part X of chapter
55732.
56     (2)  "Attending physician" means the primary physician who
57has responsibility for the treatment and care of the patient.
58     (3)  "Close personal friend" means any person 18 years of
59age or older who has exhibited special care and concern for the
60patient, and who presents an affidavit to the health care
61facility or to the attending or treating physician stating that
62he or she is a friend of the patient; is willing and able to
63become involved in the patient's health care; and has maintained
64such regular contact with the patient so as to be familiar with
65the patient's activities, health, and religious or moral
66beliefs.
67     (4)  "End-stage condition" means an irreversible condition
68that is caused by injury, disease, or illness which has resulted
69in progressively severe and permanent deterioration, and which,
70to a reasonable degree of medical probability, treatment of the
71condition would be ineffective.
72     (5)  "Health care decision" means:
73     (a)  Informed consent, refusal of consent, or withdrawal of
74consent to any and all health care, including life-prolonging
75procedures.
76     (b)  The decision to apply for private, public, government,
77or veterans' benefits to defray the cost of health care.
78     (c)  The right of access to all records of the principal
79reasonably necessary for a health care surrogate to make
80decisions involving health care and to apply for benefits.
81     (d)  The decision to make an anatomical gift pursuant to
82part X of chapter 732.
83     (e)  The consent, decision, or right of access to all
84records on behalf of a minor.
85     (6)  "Health care facility" means a hospital, nursing home,
86hospice, home health agency, or health maintenance organization
87licensed in this state, or any facility subject to part I of
88chapter 394.
89     (7)  "Health care provider" or "provider" means any person
90licensed, certified, or otherwise authorized by law to
91administer health care in the ordinary course of business or
92practice of a profession.
93     (8)  "Incapacity" or "incompetent" means the patient is
94physically or mentally unable to communicate a willful and
95knowing health care decision or lacks the mental ability, based
96on reasonable medical judgment, to understand or appreciate the
97nature and consequences of a treatment decision, including the
98significant benefits and harms of and reasonable alternatives to
99a proposed treatment decision. For the purposes of making an
100anatomical gift, the term also includes a patient who is
101deceased.
102     (9)  "Informed consent" means consent voluntarily given by
103a person after a sufficient explanation and disclosure of the
104subject matter involved to enable that person to have a general
105understanding of the treatment or procedure and the medically
106acceptable alternatives, including the substantial risks and
107hazards inherent in the proposed treatment or procedures, and to
108make a knowing health care decision without coercion or undue
109influence.
110     (10)  "Life-prolonging procedure" means any medical
111procedure, treatment, or intervention, including artificially
112provided sustenance and hydration, which sustains, restores, or
113supplants a spontaneous vital function. The term does not
114include the administration of medication or performance of
115medical procedure, when such medication or procedure is deemed
116necessary to provide comfort care or to alleviate pain.
117     (11)  "Living will" or "declaration" means:
118     (a)  A witnessed document in writing, voluntarily executed
119by the principal in accordance with s. 765.302; or
120     (b)  A witnessed oral statement made by the principal
121expressing the principal's instructions concerning life-
122prolonging procedures.
123     (12)  "Medically futile condition" means a condition,
124injury, or illness which is determined by the treating physician
125or physicians that:
126     (a)  May be treated but is never cured or eliminated.
127     (b)  Leaves a person unable to care for, or make decisions
128for, the person's own self.
129     (c)  Would be fatal without life-sustaining treatment
130provided in accordance with the prevailing standard of medical
131care.
132     (13)(12)  "Persistent vegetative state" means a permanent
133and irreversible condition of unconsciousness in which there is:
134     (a)  The absence of voluntary action or cognitive behavior
135of any kind.
136     (b)  An inability to communicate or interact purposefully
137with the environment.
138     (14)(13)  "Physician" means a person licensed pursuant to
139chapter 458 or chapter 459.
140     (15)(14)  "Principal" means a competent adult executing an
141advance directive and on whose behalf health care decisions are
142to be made.
143     (16)(15)  "Proxy" means a competent adult who has not been
144expressly designated to make health care decisions for a
145particular incapacitated individual, but who, nevertheless, is
146authorized pursuant to s. 765.401 to make health care decisions
147for such individual.
148     (17)(16)  "Surrogate" means any competent adult expressly
149designated by a principal to make health care decisions on
150behalf of the principal upon the principal's incapacity.
151     (18)(17)  "Terminal condition" means an incurable a
152condition, as determined by the treating physician or
153physicians, caused by injury, disease, or illness that according
154to reasonable medical judgment will produce death within 6
155months, even with available life-sustaining treatment provided
156in accordance with the prevailing standard of medical care. A
157patient who has been admitted to a program under which the
158person receives hospice services provided by a home or community
159support services agency is presumed to have a terminal condition
160for purposes of this chapter from which there is no reasonable
161medical probability of recovery and which, without treatment,
162can be expected to cause death.
163     Section 2.  Subsection (1) of section 765.302, Florida
164Statutes, is amended to read:
165     765.302  Procedure for making a living will; notice to
166physician.--
167     (1)  Any competent adult may, at any time, make a living
168will or written declaration and direct the providing,
169withholding, or withdrawal of life-prolonging procedures in the
170event that such person has a terminal condition, a medically
171futile condition, or has an end-stage condition, or is in a
172persistent vegetative state. A living will must be signed by the
173principal in the presence of two subscribing witnesses, one of
174whom is neither a spouse nor a blood relative of the principal.
175If the principal is physically unable to sign the living will,
176one of the witnesses must subscribe the principal's signature in
177the principal's presence and at the principal's direction.
178     Section 3.  Section 765.303, Florida Statutes, is amended
179to read:
180     765.303  Suggested form of a living will.--
181     (1)  A living will may, BUT NEED NOT, be in the following
182form:
183
Living Will
184     Declaration made this _____ day of _____,   (year)  , I,
185__________, willfully and voluntarily make known my desire that
186my dying not be artificially prolonged under the circumstances
187set forth below, and I do hereby declare that, if at any time I
188am incapacitated and
189       (initial)   I have a terminal condition
190     or   (initial)   I have a medically futile condition
191     or   (initial)   I have an end-stage condition
192     or   (initial)   I am in a persistent vegetative state
193
194and if my attending or treating physician and another consulting
195physician have determined that there is no reasonable medical
196probability of my recovery from such condition, I direct that
197life-prolonging procedures be withheld or withdrawn when the
198application of such procedures would serve only to prolong
199artificially the process of dying, and that I be permitted to
200die naturally with only the administration of medication or the
201performance of any medical procedure deemed necessary to provide
202me with comfort care or to alleviate pain.
203     It is my intention that this declaration be honored by my
204family and physician as the final expression of my legal right
205to refuse medical or surgical treatment and to accept the
206consequences for such refusal.
207     In the event that I have been determined to be unable to
208provide express and informed consent regarding the withholding,
209withdrawal, or continuation of life-prolonging procedures, I
210wish to designate, as my surrogate to carry out the provisions
211of this declaration:
212
213Name:
214Address:
215
 
____________________________________Zip Code:__________
216
217Phone:____________________
218     I understand the full import of this declaration, and I am
219emotionally and mentally competent to make this declaration.
220Additional Instructions (optional):  
221_____(Signed)_____
222_____Witness_____
223_____Address_____
224_____Phone_____
225_____Witness_____
226_____Address_____
227_____Phone_____
228     (2)  The principal's failure to designate a surrogate shall
229not invalidate the living will.
230     Section 4.  Subsection (2) of section 765.304, Florida
231Statutes, is amended to read:
232     765.304  Procedure for living will.--
233     (2)  Before proceeding in accordance with the principal's
234living will, it must be determined that:
235     (a)  The principal does not have a reasonable medical
236probability of recovering capacity so that the right could be
237exercised directly by the principal.
238     (b)  The principal has a terminal condition, a medically
239futile condition, or has an end-stage condition, or is in a
240persistent vegetative state.
241     (c)  Any limitations or conditions expressed orally or in a
242written declaration have been carefully considered and
243satisfied.
244     Section 5.  Subsection (2) of section 765.305, Florida
245Statutes, is amended to read:
246     765.305  Procedure in absence of a living will.--
247     (2)  Before exercising the incompetent patient's right to
248forego treatment, the surrogate must be satisfied that:
249     (a)  The patient does not have a reasonable medical
250probability of recovering capacity so that the right could be
251exercised by the patient.
252     (b)  The patient has an end-stage condition, the patient is
253in a persistent vegetative state, the patient has a medically
254futile condition, or the patient's physical condition is
255terminal.
256     Section 6.  Section 765.3051, Florida Statutes, is created
257to read:
258     765.3051  Execution of directive on behalf of patient less
259than 18 years of age.--The following persons may execute a
260health care advance directive on behalf of a patient who is less
261than 18 years of age and has a terminal condition, a medically
262futile condition, or an end-stage condition:
263     (1)  The patient's spouse, if the spouse is an adult;
264     (2)  The patient's parents; or
265     (3)  The patient's legal guardian.
266     Section 7.  Section 765.3052, Florida Statutes, is created
267to read:
268     765.3052  Pregnant patients.--Regardless of whether a
269patient has a health care advance directive, a person may not
270withdraw or withhold life-sustaining treatment under this
271chapter from a pregnant patient unless it is determined with
272reasonable medical certainty that the fetus is no longer viable.
273     Section 8.  Section 765.306, Florida Statutes, is amended
274to read:
275     765.306  Determination of patient condition.--In
276determining whether the patient has a terminal condition, a
277medically futile condition, or has an end-stage condition, or is
278in a persistent vegetative state or may recover capacity, or
279whether a medical condition or limitation referred to in an
280advance directive exists, the patient's attending or treating
281physician and at least one other consulting physician must
282separately examine the patient. The findings of each such
283examination must be documented in the patient's medical record
284and signed by each examining physician before life-prolonging
285procedures may be withheld or withdrawn.
286     Section 9.  Section 765.3061, Florida Statutes, is created
287to read:
288     765.3061  Health care advance directive notation as part of
289driver's license or identification card process.--
290     (1)  The Department of Highway Safety and Motor Vehicles
291shall develop and implement a voluntary program allowing an
292individual who has previously executed a health care advance
293directive form to have, at the individual's choice, included on
294his or her driver's license or identification card upon issuance
295or renewal of the license or card a notation on the front of the
296license or card clearly indicating that the individual has
297executed a health care advance directive which is in the
298individual's possession or is in the possession of another
299person being held on the individual's behalf. An individual is
300not required to produce a copy of his or her health care advance
301directive as a condition of having a notation on the
302individual's driver's license or identification card. An
303individual must only indicate to the employee of the department
304who is preparing the issuance or renewal of the card the
305individual's desire to have the notation on his or her driver's
306license or identification card.
307     (2)  Sample forms consistent with this chapter that relate
308to the execution of a health care advance directive shall be
309made available to the public at all offices of the Division of
310Driver Licenses, as well as electronically on the Internet
311through the Department of Highway Safety and Motor Vehicles and
312the Agency for Health Care Administration.
313     Section 10.  Section 765.3064, Florida Statutes, is created
314to read:
315     765.3064  Immunity from liability.--
316     (1)  Unless provided with information or documentation to
317the contrary, a health care facility, health care provider, or
318any other person acting under the direction of a health care
319facility or health care provider carrying out a health care
320decision made in accordance with a health care advance directive
321executed in accordance with the provisions of this chapter is
322not subject to criminal prosecution or civil liability and will
323not be deemed to have engaged in unprofessional conduct.
324     (2)  The Department of Highway Safety and Motor Vehicles
325and any employees acting within the scope of their employment
326are immune from criminal prosecution and civil liability for any
327acts or notations recorded in compliance with the provisions of
328this chapter.
329     Section 11.  This act shall take effect September 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.