HB 1345

CS

CHAMBER ACTION

1	The Health Care Regulation Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to health care advance directives;
7	amending s. 765.101, F.S.; revising the definition of
8	"incapacity" or "incompetent"; amending s. 765.102, F.S.;
9	clarifying requirements on palliative care; amending s.
10	765.203, F.S.; clarifying a principal's statement of
11	understanding in suggested form for designation of health
12	care surrogate; amending s. 765.204, F.S.; eliminating the
13	requirement for written notification to health care
14	surrogates by a health care facility; amending s. 765.205,
15	F.S.; clarifying that a surrogate cannot override a
16	principal's wishes as expressed in a living will;
17	providing a standard for a surrogate's decisionmaking
18	under certain circumstances; creating s. 765.3061, F.S.;
19	requiring the Division of Driver Licenses offices to make
20	forms available to the public; requiring the Department of
21	Highway Safety and Motor Vehicles and the Agency for
22	Health Care Administration to make sample forms accessible
23	electronically on the Internet; creating s. 765.3064,
24	F.S.; providing certain health care employees with civil
25	and criminal immunity from acts performed in conjunction
26	with certain information indicated by the department;
27	expressing the sovereign immunity of the department and
28	its employees from criminal prosecution and civil
29	liability for certain acts; amending s. 765.401, F.S.;
30	authorizing certain individuals or business entities to
31	act as a proxy; amending s. 765.404, F.S.; correcting a
32	typographical error; providing an effective date.
33
34	Be It Enacted by the Legislature of the State of Florida:
35
36	Section 1.  Subsection (8) of section 765.101, Florida
37	Statutes, is amended to read:
38	765.101  Definitions.--As used in this chapter:
39	(8)  "Incapacity" or "incompetent" means the patient is
40	physically or mentally unable to communicate a willful and
41	knowing health care decision or lacks the mental ability, based
42	on reasonable medical judgment, to understand or appreciate the
43	nature and consequences of a treatment decision, including the
44	significant benefits and harms of and reasonable alternatives to
45	a proposed treatment decision. For the purposes of making an
46	anatomical gift, the term also includes a patient who is
47	deceased.
48	Section 2.  Paragraph (b) of subsection (5) of section
49	765.102, Florida Statutes, is amended to read:
50	765.102  Legislative findings and intent.--
51	(5)  For purposes of this chapter:
52	(b)  Palliative care must include:
53	1.  An opportunity to discuss and plan for end-of-life
54	care.
55	2.  Assurance that physical and mental suffering will be
56	carefully attended to.
57	3.  Assurance that preferences for withholding and
58	withdrawing life-sustaining interventions will be honored.
59	4.  Assurance that the personal goals of the dying person
60	will be addressed.
61	5.  Assurance that the dignity of the dying person will be
62	a priority.
63	6.  Assurance that health care providers will not abandon
64	the dying person.
65	7.  Assurance that the burden to family and others will be
66	addressed.
67	8.  Assurance that advance directives for care will be
68	respected regardless of the location of care.
69	9.  Assurance that organizational mechanisms are in place
70	to evaluate the availability and quality of end-of-life,
71	palliative, and hospice care services, including the evaluation
72	of administrative and regulatory barriers. These mechanisms
73	include institutional ethics committees, which shall have
74	resources and training adequate to the tasks of education,
75	policy creation or review, and consultation.
76	10.  Assurance that necessary health care services will be
77	provided and that relevant reimbursement policies are available.
78	11.  Assurance that the goals expressed in subparagraphs
79	1.-10. will be accomplished in a culturally appropriate manner.
80	Section 3.  Section 765.203, Florida Statutes, is amended
81	to read:
82	765.203  Suggested form of designation.--A written
83	designation of a health care surrogate executed pursuant to this
84	chapter may, but need not be, in the following form:
85
86	DESIGNATION OF HEALTH CARE SURROGATE
87
88	Name:_____(Last)_____(First)_____(Middle Initial)_____
89	In the event that I have been determined to be
90	incapacitated to provide informed consent for medical treatment
91	and surgical and diagnostic procedures, I wish to designate as
92	my surrogate for health care decisions:
93
94	Name:
95	Address:
96
	____________________________________ Zip Code:__________
97
98	Phone:____________________
99	If my surrogate is unwilling or unable to perform his or
100	her duties, I wish to designate as my alternate surrogate:
101	Name:
102	Address:
103
	____________________________________ Zip Code:__________
104
105	Phone:____________________
106	I fully understand that this designation will permit my
107	designee to make health care decisions, except for anatomical
108	gifts, unless I have executed an anatomical gift declaration
109	pursuant to law, and to provide, withhold, or withdraw consent
110	on my behalf; to apply for public benefits to defray the cost of
111	health care; and to authorize my admission to or transfer from a
112	health care facility. I further understand that my designee has
113	no authority to override my expressed wishes that may exist in a
114	valid living will.
115
116	Additional instructions (optional):
117
118	I further affirm that this designation is not being made as
119	a condition of treatment or admission to a health care facility.
120	I will notify and send a copy of this document to the following
121	persons other than my surrogate, so they may know who my
122	surrogate is.
123	Name:
124	Name:
125	Signed:
126	Date:
127
	Witnesses: 1.________________
128
	2.________________
129
130	Section 4.  Subsection (2) of section 765.204, Florida
131	Statutes, is amended to read:
132	765.204  Capacity of principal; procedure.--
133	(2)  If a principal's capacity to make health care
134	decisions for herself or himself or provide informed consent is
135	in question, the attending physician shall evaluate the
136	principal's capacity and, if the physician concludes that the
137	principal lacks capacity, enter that evaluation in the
138	principal's medical record. If the attending physician has a
139	question as to whether the principal lacks capacity, another
140	physician shall also evaluate the principal's capacity, and if
141	the second physician agrees that the principal lacks the
142	capacity to make health care decisions or provide informed
143	consent, the health care facility shall enter both physician's
144	evaluations in the principal's medical record. If the principal
145	has designated a health care surrogate or has delegated
146	authority to make health care decisions to an attorney in fact
147	under a durable power of attorney, the facility shall notify
148	such surrogate or attorney in fact in writing that her or his
149	authority under the instrument has commenced, as provided in
150	chapter 709 or s. 765.203.
151	Section 5.  Paragraph (b) of subsection (1) of section
152	765.205, Florida Statutes, is amended to read:
153	765.205  Responsibility of the surrogate.--
154	(1)  The surrogate, in accordance with the principal's
155	instructions, unless such authority has been expressly limited
156	by the principal, shall:
157	(b)  Consult expeditiously with appropriate health care
158	providers to provide informed consent, and make only health care
159	decisions for the principal which he or she believes the
160	principal would have made under the circumstances if the
161	principal were capable of making such decisions. The surrogate
162	has no authority to override the principal's wishes if these are
163	expressed in a valid living will. If there is no indication of
164	what the principal would have chosen, the surrogate may consider
165	the patient's best interest in deciding that proposed treatments
166	are to be withheld or that treatments currently in effect are to
167	be withdrawn. If the patient's best interests are vague or
168	cannot be determined, the surrogate may consider what a
169	reasonable person would decide in similar circumstances.
170	Section 6.  Section 765.3061, Florida Statutes, is created
171	to read:
172	765.3061  Health care advance directive notation as part of
173	driver's license or identification card process.--Sample forms
174	consistent with this chapter that relate to the execution of a
175	health care advance directive shall be made available to the
176	public at all offices of the Division of Driver Licenses, as
177	well as electronically on the Internet through the Department of
178	Highway Safety and Motor Vehicles and the Agency for Health Care
179	Administration.
180	Section 7.  Section 765.3064, Florida Statutes, is created
181	to read:
182	765.3064  Immunity from liability.--
183	(1)  Unless provided with information or documentation to
184	the contrary, a health care facility, health care provider, or
185	any other person acting under the direction of a health care
186	facility or health care provider carrying out a health care
187	decision made in accordance with a health care advance directive
188	executed in accordance with the provisions of this chapter is
189	not subject to criminal prosecution or civil liability and will
190	not be deemed to have engaged in unprofessional conduct.
191	(2)  The Department of Highway Safety and Motor Vehicles
192	and any employees acting within the scope of their employment
193	are immune from criminal prosecution and civil liability for any
194	acts or notations recorded in compliance with the provisions of
195	this chapter.
196	Section 8.  Paragraph (h) of subsection (1) of section
197	765.401, Florida Statutes, is amended to read:
198	765.401  The proxy.--
199	(1)  If an incapacitated or developmentally disabled
200	patient has not executed an advance directive, or designated a
201	surrogate to execute an advance directive, or the designated or
202	alternate surrogate is no longer available to make health care
203	decisions, health care decisions may be made for the patient by
204	any of the following individuals, in the following order of
205	priority, if no individual in a prior class is reasonably
206	available, willing, or competent to act:
207	(h)  A clinical social worker licensed pursuant to chapter
208	491, or an individual or business entity qualified to be a
209	professional guardian pursuant to chapter 744 who is a graduate
210	of a court-approved guardianship program. Such a proxy must be
211	selected by the provider's bioethics committee and must not be
212	employed by the provider. If the provider does not have a
213	bioethics committee, then such a proxy may be chosen through an
214	arrangement with the bioethics committee of another provider.
215	The proxy will be notified that, upon request, the provider
216	shall make available a second physician, not involved in the
217	patient's care to assist the proxy in evaluating treatment.
218	Decisions to withhold or withdraw life-prolonging procedures
219	will be reviewed by the facility's bioethics committee.
220	Documentation of efforts to locate proxies from prior classes
221	must be recorded in the patient record.
222	Section 9.  Subsection (2) of section 765.404, Florida
223	Statutes, is amended to read:
224	765.404  Persistent vegetative state.--For persons in a
225	persistent vegetative state, as determined by the attending
226	physician in accordance with currently accepted medical
227	standards, who have no advance directive and for whom there is
228	no evidence indicating what the person would have wanted under
229	such conditions, and for whom, after a reasonably diligent
230	inquiry, no family or friends are available or willing to serve
231	as a proxy to make health care decisions for them, life-
232	prolonging procedures may be withheld or withdrawn under the
233	following conditions:
234	(2)  The guardian and the person's attending physician, in
235	consultation with the medical ethics committee of the facility
236	where the patient is located, conclude that the condition is
237	permanent and that there is no reasonable medical probability
238	for recovery and that withholding or withdrawing life-prolonging
239	procedures is in the best interest of the patient. If there is
240	no medical ethics committee at the facility, the facility must
241	have an arrangement with the medical ethics committee of another
242	facility or with a community-based ethics committee approved by
243	the Florida Bioethics Bio-ethics Network. The ethics committee
244	shall review the case with the guardian, in consultation with
245	the person's attending physician, to determine whether the
246	condition is permanent and there is no reasonable medical
247	probability for recovery. The individual committee members and
248	the facility associated with an ethics committee shall not be
249	held liable in any civil action related to the performance of
250	any duties required in this subsection.
251	Section 10.  This act shall take effect September 1, 2005.

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