HB 0701

1	A bill to be entitled
2	An act relating to the withholding or withdrawal of
3	nutrition or hydration from incompetent persons; creating
4	part VI of ch. 765, F.S.; providing a part title;
5	providing definitions; declaring that an incompetent
6	person is presumed to have directed health care providers
7	to provide the necessary nutrition and hydration to
8	sustain life; prohibiting a court, proxy, or surrogate
9	from withholding or withdrawing nutrition or hydration
10	except under specified circumstances; providing that the
11	presumption to provide nutrition and hydration is
12	inapplicable under certain circumstances; amending ss.
13	765.106, 765.107, 765.204, 765.305, 765.401, and 765.404,
14	F.S.; conforming provisions to changes made by the act;
15	prohibiting an inference of incapacity due to a person's
16	developmental disability; providing for the act to apply
17	to pending litigation; declaring that the act supersedes
18	existing court orders otherwise applicable on or after the
19	effective date of the act; providing an effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  Part VI of chapter 765, Florida Statutes,
24	consisting of sections 765.601, 765.602, 765.603, and 765.604,
25	is created to read:
26	765.601  Part title.--This part may be cited as the
27	"Starvation and Dehydration of Persons with Disabilities
28	Prevention Act."
29	765.602  Definitions.--As used in this part, the term:
30	(1)  "Express and informed consent" means consent
31	voluntarily given with sufficient knowledge of the subject
32	matter involved to enable the person giving consent to make a
33	knowing and understanding decision without any element of force,
34	fraud, deceit, duress, or other form of constraint or coercion.
35	Sufficient knowledge of the subject matter involved includes a
36	general understanding of:
37	(a)  The proposed treatment or procedure for which consent
38	is sought.
39	(b)  The medical condition of the person for whom consent
40	for the proposed treatment or procedure is sought.
41	(c)  Any medically acceptable alternative treatment or
42	procedure.
43	(d)  The substantial risks and hazards inherent if the
44	proposed treatment or procedure is carried out and if the
45	proposed treatment or procedure is not carried out.
46	(2)  "Nutrition" means sustenance administered by way of
47	the gastrointestinal tract.
48	(3)  "Reasonable medical judgment" means a medical judgment
49	that would be made by a reasonably prudent physician who is
50	knowledgeable about the case and the treatment possibilities
51	with respect to the medical conditions involved.
52	765.603  Presumption of nutrition and hydration sufficient
53	to sustain life.--
54	(1)  Each incompetent person shall be presumed to have
55	directed his or her health care providers to supply him or her
56	with the nutrition and hydration necessary to sustain life.
57	(2)  A proxy, surrogate, or court may not decide on behalf
58	of an incompetent person to withhold or withdraw hydration or
59	nutrition from that person except in the circumstances and under
60	the conditions specifically provided in s. 765.604.
61	765.604  Presumption of nutrition and hydration; when
62	inapplicable.--The presumption in s. 765.603 does not apply if:
63	(1)  In reasonable medical judgment:
64	(a)  The provision of nutrition or hydration is not
65	medically possible;
66	(b)  The provision of nutrition or hydration would hasten
67	death; or
68	(c)  The medical condition of the incompetent person is
69	such that provision of nutrition or hydration would not
70	contribute to sustaining the incompetent person's life or
71	provide comfort to the incompetent person;
72	(2)  The incompetent person has executed a written advance
73	directive executed in another state in accordance with s.
74	765.112, executed a designation of a health care surrogate
75	prepared in accordance with s. 765.202, or executed a written
76	living will prepared in accordance with s. 765.302, any of which
77	specifically authorizes the withholding or withdrawal of
78	nutrition or hydration, to the extent that the authorization
79	applies; or
80	(3)  There is clear and convincing evidence that the
81	incompetent person, when competent, gave express and informed
82	consent to withdrawing or withholding nutrition or hydration in
83	the applicable circumstances.
84	Section 2.  Section 765.106, Florida Statutes, is amended
85	to read:
86	765.106  Preservation of existing rights.--The provisions
87	of this chapter are cumulative to the existing law regarding an
88	individual's right to consent, or refuse to consent, to medical
89	treatment and do not impair any existing rights or
90	responsibilities which a health care provider, a patient,
91	including a minor, competent or incompetent person, or a
92	patient's family may have under the common law, Federal
93	Constitution, State Constitution, or statutes of this state;
94	however, this section may not be construed to authorize a
95	violation of part VI.
96	Section 3.  Subsection (1) of section 765.107, Florida
97	Statutes, is amended to read:
98	765.107  Construction.--
99	(1)  This chapter shall not be construed to repeal by
100	implication any provision of s. 766.103, the Florida Medical
101	Consent Law. For all purposes, the Florida Medical Consent Law
102	shall be considered an alternative to provisions of this
103	section; however, this section may not be construed to authorize
104	a violation of part VI.
105	Section 4.  Section 765.204, Florida Statutes, is amended
106	to read:
107	765.204  Capacity of principal; procedure.--
108	(1)  A principal is presumed to be capable of making health
109	care decisions for herself or himself unless she or he is
110	determined to be incapacitated. Incapacity may not be inferred
111	from the person's voluntary or involuntary hospitalization for
112	mental illness or from her or his mental retardation or
113	developmental disability.
114	(2)  If a principal's capacity to make health care
115	decisions for herself or himself or provide informed consent is
116	in question, the attending physician shall evaluate the
117	principal's capacity and, if the physician concludes that the
118	principal lacks capacity, enter that evaluation in the
119	principal's medical record. If the attending physician has a
120	question as to whether the principal lacks capacity, another
121	physician shall also evaluate the principal's capacity, and if
122	the second physician agrees that the principal lacks the
123	capacity to make health care decisions or provide informed
124	consent, the health care facility shall enter both physician's
125	evaluations in the principal's medical record. If the principal
126	has designated a health care surrogate or has delegated
127	authority to make health care decisions to an attorney in fact
128	under a durable power of attorney, the facility shall notify
129	such surrogate or attorney in fact in writing that her or his
130	authority under the instrument has commenced, as provided in
131	chapter 709 or s. 765.203.
132	(3)  The surrogate's authority shall commence upon a
133	determination under subsection (2) that the principal lacks
134	capacity, and the such authority shall remain in effect until a
135	determination that the principal has regained such capacity.
136	Upon commencement of the surrogate's authority, a surrogate who
137	is not the principal's spouse shall notify the principal's
138	spouse or adult children of the principal's designation of the
139	surrogate. If In the event the attending physician determines
140	that the principal has regained capacity, the authority of the
141	surrogate shall cease, but shall recommence if the principal
142	subsequently loses capacity as determined under pursuant to this
143	section.
144	(4)  A determination made under pursuant to this section
145	that a principal lacks capacity to make health care decisions
146	shall not be construed as a finding that a principal lacks
147	capacity for any other purpose.
148	(5)  In the event the surrogate is required to consent to
149	withholding or withdrawing life-prolonging procedures, the
150	provisions of parts part III and VI shall apply.
151	Section 5.  Subsection (1) of section 765.305, Florida
152	Statutes, is amended to read:
153	765.305  Procedure in absence of a living will.--
154	(1)  In the absence of a living will, the decision to
155	withhold or withdraw life-prolonging procedures from a patient
156	may be made by a health care surrogate designated by the patient
157	under pursuant to part II unless the designation limits the
158	surrogate's authority to consent to the withholding or
159	withdrawal of life-prolonging procedures or unless the
160	surrogate's authority is limited by part VI.
161	Section 6.  Section 765.401, Florida Statutes, is amended
162	to read:
163	765.401  The proxy.--
164	(1)  If an incapacitated or developmentally disabled
165	patient has not executed an advance directive, or designated a
166	surrogate to execute an advance directive, or the designated or
167	alternate surrogate is no longer available to make health care
168	decisions, health care decisions may be made for the patient by
169	any of the following individuals, in the following order of
170	priority, if no individual in a prior class is reasonably
171	available, willing, or competent to act:
172	(a)  The judicially appointed guardian of the patient or
173	the guardian advocate of the person having a developmental
174	disability as defined in s. 393.063, who has been authorized to
175	consent to medical treatment, if such guardian has previously
176	been appointed; however, this paragraph shall not be construed
177	to require such appointment before a treatment decision can be
178	made under this subsection;
179	(b)  The patient's spouse;
180	(c)  An adult child of the patient, or if the patient has
181	more than one adult child, a majority of the adult children who
182	are reasonably available for consultation;
183	(d)  A parent of the patient;
184	(e)  The adult sibling of the patient or, if the patient
185	has more than one sibling, a majority of the adult siblings who
186	are reasonably available for consultation;
187	(f)  An adult relative of the patient who has exhibited
188	special care and concern for the patient and who has maintained
189	regular contact with the patient and who is familiar with the
190	patient's activities, health, and religious or moral beliefs; or
191	(g)  A close friend of the patient; or.
192	(h)  A clinical social worker licensed pursuant to chapter
193	491, or who is a graduate of a court-approved guardianship
194	program. Such a proxy must be selected by the provider's
195	bioethics committee and must not be employed by the provider. If
196	the provider does not have a bioethics committee, then the such
197	a proxy may be chosen through an arrangement with the bioethics
198	committee of another provider. The proxy will be notified that,
199	upon request, the provider shall make available a second
200	physician, not involved in the patient's care to assist the
201	proxy in evaluating treatment. Decisions to withhold or withdraw
202	life-prolonging procedures shall will be reviewed by the
203	facility's bioethics committee involved in the proxy's
204	selection. Documentation of efforts to locate proxies from prior
205	classes shall must be recorded in the patient record.
206	(2)  Any health care decision made under this part must be
207	based on the proxy's informed consent and on the decision the
208	proxy reasonably believes the patient would have made under the
209	circumstances. If there is no indication of what the patient
210	would have chosen, the proxy may consider the patient's best
211	interest in deciding that proposed treatments are to be withheld
212	or that treatments currently in effect are to be withdrawn. Any
213	decision concerning the withholding or withdrawal of nutrition
214	or hydration must comply with part VI.
215	(3)  Before exercising the incapacitated patient's rights
216	to select or decline health care, the proxy must comply with the
217	provisions of ss. 765.205 and 765.305, except that a proxy's
218	decision to withhold or withdraw life-prolonging procedures must
219	be supported by clear and convincing evidence that the decision
220	would have been the one the patient would have chosen had the
221	patient been competent or, if there is no indication of what the
222	patient would have chosen, that the decision is in the patient's
223	best interest. Any decision concerning the withholding or
224	withdrawal of nutrition or hydration must comply with part VI.
225	(4)  Nothing in this section shall be construed to preempt
226	the designation of persons who may consent to the medical care
227	or treatment of minors established under pursuant to s.
228	743.0645.
229	Section 7.  Section 765.404, Florida Statutes, is amended
230	to read:
231	765.404  Persistent vegetative state.--For persons in a
232	persistent vegetative state, as determined by the attending
233	physician in accordance with currently accepted medical
234	standards, who have no advance directive and for whom there is
235	no evidence indicating what the person would have wanted under
236	such conditions, and for whom, after a reasonably diligent
237	inquiry, no family or friends are available or willing to serve
238	as a proxy to make health care decisions for them, life-
239	prolonging procedures may be withheld or withdrawn under the
240	following conditions:
241	(1)  The person has a judicially appointed guardian
242	representing his or her best interest with authority to consent
243	to medical treatment.; and
244	(2)  The guardian and the person's attending physician, in
245	consultation with the medical ethics committee of the facility
246	where the patient is located, conclude that the condition is
247	permanent and that there is no reasonable medical probability
248	for recovery and that withholding or withdrawing life-prolonging
249	procedures is in the best interest of the patient. If there is
250	no medical ethics committee at the facility, the facility must
251	have an arrangement with the medical ethics committee of another
252	facility or with a community-based ethics committee approved by
253	the Florida Bioethics Bio-ethics Network. The ethics committee
254	shall review the case with the guardian, in consultation with
255	the person's attending physician, to determine whether the
256	condition is permanent and there is no reasonable medical
257	probability for recovery. The individual committee members and
258	the facility associated with an ethics committee shall not be
259	held liable in any civil action related to the performance of
260	any duties required in this subsection.
261
262	Any decision concerning the withholding or withdrawal of
263	nutrition or hydration must comply with part VI.
264	Section 8.  This act shall apply prospectively in
265	litigation pending on the effective date of this act and shall
266	supersede any court order issued under the law in effect before
267	the effective date of this act to the extent that the court
268	order conflicts with this act and would otherwise be applied on
269	or after the effective date of this act. This act shall apply
270	with respect to every person living on or after the effective
271	date of this act.
272	Section 9.  This act shall take effect upon becoming law.

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