H*4108 Session 107 (1987-1988)
H*4108(Rat #0673, Act #0586 of 1988) General Bill, By J.H. Hodges
A Bill to amend Chapter 77, Title 44, Code of Laws of South Carolina, 1976,
relating to the Death with Dignity Act, so as to revise the definitions
pertaining to the Act, provide when life sustaining procedures may be withheld
or withdrawn and clarify the physician's responsibilities, revise the form and
procedures necessary to execute a valid declaration of a desire for a natural
death, provide new requirements for revocation of a declaration, provide the
circumstances under which immunity applies in reliance upon a declaration,
detail the duties of a physician and health care facility if a declaration is
not effectuated, provide for the preservation of other legal rights and
responsibilities, and revise the penalties for noncompliance with this
Act.-amended title
04/06/88 House Introduced and read first time HJ-2502
04/06/88 House Referred to Committee on Judiciary HJ-2503
05/05/88 House Committee report: Favorable with amendment
Judiciary HJ-3582
05/12/88 House Debate adjourned until Tuesday, May 17, 1988 HJ-3742
05/12/88 House Reconsidered HJ-3753
05/12/88 House Amended HJ-3754
05/12/88 House Read second time HJ-3754
05/12/88 House Unanimous consent for third reading on next
legislative day HJ-3754
05/13/88 House Read third time and sent to Senate HJ-3794
05/17/88 Senate Introduced, read first time, placed on calendar
without reference SJ-3
05/19/88 Senate Read second time SJ-10
05/19/88 Senate Unanimous consent for third reading on next
legislative day SJ-10
05/20/88 Senate Read third time and enrolled SJ-1
05/24/88 Ratified R 673
05/29/88 Signed By Governor
05/29/88 Effective date 05/29/88
05/29/88 Act No. 586
06/16/88 Copies available
(A586, R673, H4108)
AN ACT TO AMEND CHAPTER 77, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE DEATH WITH DIGNITY ACT, SO AS TO REVISE THE DEFINITIONS
PERTAINING TO THE ACT, PROVIDE WHEN LIFE-SUSTAINING PROCEDURES MAY BE WITHHELD
OR WITHDRAWN AND CLARIFY THE PHYSICIAN'S RESPONSIBILITIES, REVISE THE FORM AND
PROCEDURES NECESSARY TO EXECUTE A VALID DECLARATION OF A DESIRE FOR A NATURAL
DEATH, PROVIDE NEW REQUIREMENTS FOR REVOCATION OF A DECLARATION, PROVIDE THE
CIRCUMSTANCES UNDER WHICH IMMUNITY APPLIES IN RELIANCE UPON A DECLARATION, DETAIL
THE DUTIES OF A PHYSICIAN AND HEALTH CARE FACILITY IF A DECLARATION IS NOT
EFFECTUATED, PROVIDE FOR THE PRESERVATION OF OTHER LEGAL RIGHTS AND
RESPONSIBILITIES, AND REVISE THE PENALTIES FOR NONCOMPLIANCE WITH THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Death with Dignity Act revised
SECTION 1. Chapter 77, Title 44 of the 1976 Code is amended to read:
"CHAPTER 77
Death With Dignity Act
Section 44-77-10. This chapter may be cited as the Death With Dignity Act.
Section 44-77-20. As used in this chapter:
(1) 'Declarant' means a person who has signed a declaration in accordance with
Sections 44-77-40 and 44-77-50, in accordance with earlier versions of this
chapter, or in accordance with the law of another state if the declaration
provided for by the law expresses an intent that is substantially the same as the
intent of the declaration provided in Section 44-77-40.
(2) 'Life-sustaining procedures' means any medical procedures or intervention
which would serve only to prolong the dying process and where, in the judgment
of the attending physician, death will occur whether or not the procedures are
utilized. Life-sustaining procedures do not include the administration of
medication or the provision of treatment, nutrition, and hydration for comfort
care or alleviation of pain.
(3) 'Physician' means any person licensed to practice medicine.
(4) 'Terminal condition' means an incurable or irreversible condition that,
without the use of life-sustaining procedures, will result in death within a
relatively short period of time.
(5) 'Active treatment' means the standard of reasonable professional care that
would be rendered by a physician to a patient in the absence of a declaration
including, but not limited to, hospitalization and medication.
(6) 'Person' means an individual, partnership, committee, association,
corporation, hospital, or any other organization or group.
Section 44-77-30. If any person eighteen years of age or older adopts a
declaration that is substantially in the form provided in Section 44-77-50 and
that on its face is duly executed, witnessed, and authenticated as provided in
Section 44-77-40 or on its face is in compliance with the law of the state of the
declarant's domicile at the time that the declaration is adopted, if the
declaration provided for by the law expresses an intent that is substantially the
same as the intent of the declaration provided in Section 44-77-40, and the
person's present condition is certified to be terminal by two physicians who
personally have examined the declarant, one of whom is the declarant's attending
physician, and the other of whom is a physician other than the attending
physician, then life-sustaining procedures may be withheld or withdrawn upon the
direction and under the supervision of the attending physician.
All patients with life-threatening conditions that are diagnosed as terminal
must be administered active treatment for at least six hours before the physician
may give effect to a declaration.
Section 44-77-40. A declaration is valid:
(1) which expresses substantially in the form set forth in Section 44-77-50
a desire of the declarant that no life-sustaining procedures be used to prolong
dying if his condition is terminal and states that the declarant is aware that
the declaration authorizes a physician to withhold or withdraw life-sustaining
procedures; and
(2) which has been dated and signed by the declarant in the presence of an
officer authorized to administer oaths under the laws of the state where the
signing occurs and in the presence of two witnesses who state in an affidavit as
set forth in Section 44-77-50 that, to the extent they have knowledge of their
status, they are not related to the declarant by blood or marriage, either as a
spouse, lineal ancestor, descendant of the parents of the declarant, or spouse
of any of them, not directly financially responsible for the person's medical
care, not entitled to any portion of the estate of the declarant upon his decease
under any will of the declarant then existing or as an heir by intestate
succession, and not a beneficiary of a life insurance policy of the declarant,
and who state that no more than one witness is an employee of a health facility
in which the declarant is a patient and that no witness to the declaration is the
attending physician or an employee of the attending physician or any person who
has a claim against any portion of the estate of the declarant upon his decease
at the time of the execution of the declaration;
(3) which, if the declarant is a patient in a hospital or skilled or
intermediate care nursing facility at the time the declaration is executed, has
been witnessed by an ombudsman as
designated by the State Ombudsman, Office of the Governor, with the ombudsman
acting as one of the two witnesses and having the same qualifications as a
witness as provided in this section. The intent of this section is to recognize
that some patients in skilled or intermediate care nursing facilities may be so
insulated from a voluntary decision-making role, by virtue of the custodial
nature of their care, as to require special assurance that they are capable of
wilfully and voluntarily executing a declaration;
(4) which accompanying affidavit has been subscribed and sworn to by the two
witnesses in the presence of the declarant, and of each other, and of an officer
authorized to administer oaths under the laws of the state where the signing
occurs.
Section 44-77-50. The declaration must be substantially in the following form
with the procedure and requirements for revocation of the declaration appearing
either in boldface print or in all upper case letters, the characters in either
case being of at least the same size as used in the rest of the declaration:
STATE OF SOUTH CAROLINA DECLARATION OF A DESIRE
COUNTY OF _____________________ FOR A NATURAL DEATH
I, ________ , being at least eighteen years of age and a resident of and
domiciled in the City of ____________ , County of __________ , State of South
Carolina, make this Declaration this __________ day of ________ , 19_________
.
I wilfully and voluntarily make known my desire that no life-sustaining
procedures be used to prolong my dying if my condition is terminal, and I
declare:
If at any time I have a condition certified to be a terminal condition by two
physicians who have personally examined me, one of whom is my attending
physician, and the physicians have determined that my death will occur within a
relatively short period of time without the use of life-sustaining procedures and
where the
application of life-sustaining procedures would serve only to prolong the dying
process, I direct that the procedures be withheld or withdrawn, and that I be
permitted to die naturally with only the administration of medication or the
performance of any medical procedure necessary to provide me with comfort care.
In the absence of my ability to give directions regarding the use of
life-sustaining procedures, it is my intention that this Declaration be honored
by my family and physicians and any health facility in which I may be a patient
as the final expression of my legal right to refuse medical or surgical
treatment, and I accept the consequences from the refusal.
I am aware that this Declaration authorizes a physician to withhold or withdraw
life-sustaining procedures. I am emotionally and mentally competent to make this
Declaration.
THIS DECLARATION MAY BE REVOKED:
(1) BY BEING DEFACED, TORN, OBLITERATED, OR OTHERWISE DESTROYED, IN EXPRESSION
OF THE DECLARANT'S INTENT TO REVOKE, BY THE DECLARANT OR BY SOME PERSON IN THE
PRESENCE OF AND BY THE DIRECTION OF THE DECLARANT. REVOCATION BY DESTRUCTION OF
ONE OR MORE OF MULTIPLE ORIGINAL DECLARATIONS REVOKES ALL OF THE ORIGINAL
DECLARATIONS. THE REVOCATION OF THE ORIGINAL DECLARATIONS ACTUALLY NOT DESTROYED
BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO THE ATTENDING PHYSICIAN. THE
ATTENDING PHYSICIAN SHALL RECORD IN THE DECLARANT'S MEDICAL RECORD THE TIME AND
DATE WHEN THE PHYSICIAN RECEIVED NOTIFICATION OF THE REVOCATION;
(2) BY A WRITTEN REVOCATION SIGNED AND DATED BY THE DECLARANT EXPRESSING HIS
INTENT TO REVOKE. THE REVOCATION BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO
THE ATTENDING PHYSICIAN. THE ATTENDING PHYSICIAN SHALL RECORD IN THE DECLARANT'S
MEDICAL RECORD THE TIME AND DATE WHEN THE PHYSICIAN RECEIVED NOTIFICATION OF THE
WRITTEN REVOCATION;
(3) BY AN ORAL EXPRESSION BY THE DECLARANT OF HIS INTENT TO REVOKE THE
DECLARATION. THE REVOCATION BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO THE
ATTENDING PHYSICIAN BY THE DECLARANT. HOWEVER, AN ORAL REVOCATION MADE BY THE
DECLARANT BECOMES EFFECTIVE UPON COMMUNICATION TO THE ATTENDING PHYSICIAN BY A
PERSON OTHER THAN THE DECLARANT IF:
(a) THE PERSON WAS PRESENT WHEN THE ORAL REVOCATION WAS MADE;
(b) THE REVOCATION WAS COMMUNICATED TO THE PHYSICIAN WITHIN A REASONABLE
TIME;
(c) THE PHYSICAL OR MENTAL CONDITION OF THE DECLARANT MAKES IT IMPOSSIBLE
FOR THE PHYSICIAN TO CONFIRM THROUGH SUBSEQUENT CONVERSATION WITH THE DECLARANT
THAT THE REVOCATION HAS OCCURRED.
THE ATTENDING PHYSICIAN SHALL RECORD IN THE PATIENT'S MEDICAL RECORD THE TIME,
DATE, AND PLACE OF THE REVOCATION AND THE TIME, DATE, AND PLACE, IF DIFFERENT,
OF WHEN HE RECEIVED NOTIFICATION OF THE REVOCATION. TO BE EFFECTIVE AS A
REVOCATION, THE ORAL EXPRESSION CLEARLY MUST INDICATE A DESIRE THAT THE
DECLARATION NOT BE GIVEN EFFECT OR THAT LIFE-SUSTAINING PROCEDURES BE
ADMINISTERED;
(4) BY A WRITTEN, SIGNED, AND DATED REVOCATION OR AN ORAL REVOCATION BY A
PERSON DESIGNATED BY THE DECLARANT IN THE DECLARATION, EXPRESSING THE DESIGNEE'S
INTENT PERMANENTLY OR TEMPORARILY TO REVOKE THE DECLARATION. THE REVOCATION
BECOMES EFFECTIVE ONLY UPON COMMUNICATION TO THE ATTENDING PHYSICIAN BY THE
DESIGNEE. THE ATTENDING PHYSICIAN SHALL RECORD IN THE DECLARANT'S MEDICAL RECORD
THE TIME, DATE, AND PLACE OF THE REVOCATION AND THE TIME, DATE, AND PLACE, IF
DIFFERENT, OF WHEN THE PHYSICIAN RECEIVED NOTIFICATION OF THE REVOCATION. A
DESIGNEE MAY REVOKE ONLY IF THE DECLARANT IS INCOMPETENT TO DO SO. IF THE
DECLARANT WISHES TO DESIGNATE A PERSON WITH AUTHORITY TO REVOKE
THIS DECLARATION ON HIS BEHALF, THE NAME AND ADDRESS OF THAT PERSON MUST BE
ENTERED BELOW:
_______________________________________
NAME OF DESIGNEE
_______________________________________
ADDRESS
______________________________________
Declarant
STATE OF _________________________ AFFIDAVIT
COUNTY OF _______________________
We, _____________ and ____________ , the undersigned witnesses to the
foregoing Declaration, dated the _________ day of_________ , 19_______ , being
first duly sworn, declare to the undersigned authority, on the basis of our best
information and belief, that the Declaration was on that date signed by the
declarant as and for his DECLARATION OF A DESIRE FOR A NATURAL DEATH in our
presence and we, at his request and in his presence, and in the presence of each
other, subscribe our names as witnesses on that date. The declarant is personally
known to us, and we believe him to be of sound mind. Each of us affirms that he
is qualified as a witness to this Declaration under the provisions of the South
Carolina Death With Dignity Act in that he is not related to the declarant by
blood or marriage, either as a spouse, lineal ancestor, descendant of the parents
of the declarant, or spouse of any of them; nor directly financially responsible
for the declarant's medical care; nor entitled to any portion of the declarant's
estate upon his decease, whether under any will or as an heir by intestate
succession; nor the beneficiary of a life insurance policy of the declarant; nor
the declarant's attending physician; nor an employee of the attending physician;
nor a person who has a claim against the declarant's decedent's estate as of this
time. No more than one of us is an employee of a health facility in which the
declarant is a patient. If the declarant is a patient in a hospital or skilled
or intermediate care nursing facility at the date of execution of this
Declaration at least one of us is an ombudsman designated by the State Ombudsman,
Office of the Governor.
_________________________________
Witness
_________________________________
Witness
Subscribed before me by____________ , the declarant, and subscribed and sworn
to before me by __________ and __________ , the witnesses, this _________ day
of ___________ , 19_____ .
Notary Public for ____________________
My commission expires:_______________
SEAL
Section 44-77-70. If a declarant has been diagnosed as pregnant, the
Declaration is not effective during the course of the declarant's pregnancy.
Section 44-77-80. The Declaration may be revoked:
(1) by being defaced, torn, obliterated, or otherwise destroyed in expression
of the declarant's intent to revoke by the declarant or by some person in the
presence of and by the direction of the declarant. Revocation by destruction of
one or more of multiple original declarations revokes all of the original
declarations. The revocation of the original declarations actually not destroyed
becomes effective only upon communication to the attending physician. The
attending physician shall record in the declarant's medical record the time and
date when the physician received notification of the revocation;
(2) by a written revocation signed and dated by the declarant expressing his
intent to revoke. The revocation becomes effective only upon communication to
the attending physician. The attending physician shall record in the declarant's
medical record the time and date when the physician received notification of the
written revocation;
(3) by an oral expression by the declarant of his intent to revoke the
Declaration. The revocation becomes effective only upon communication to the
attending physician by the declarant. However, an oral revocation made by the
declarant becomes effective upon communication to the attending physician by a
person other than the declarant if:
(a) the person was present when the oral revocation was made;
(b) the revocation was communicated to the physician within a reasonable
time;
(c) the physical or mental condition of the declarant makes it impossible
for the physician to confirm through subsequent conversation with the declarant
that the revocation has occurred. The attending physician shall record in the
declarant's medical record the time, date, and place of the revocation and the
time, date, and place, if different, of when the physician received notification
of the revocation. To be effective as a revocation, the oral expression clearly
must indicate the declarant's desire that the declaration not be given effect or
that life-sustaining procedures be administered;
(4) by a written, signed, and dated revocation or by an oral revocation by the
declarant's designee, the designee's name and address being supplied in the
declaration, expressing the designee's intent to permanently or temporarily
revoke the declaration. The revocation becomes effective only upon communication
to the attending physician by the designee. The attending physician shall record
in the declarant's medical record the time, date, and place of the revocation and
the time, date, and place, if different, of when the physician received
notification of the revocation. A designee may revoke only if the declarant is
incompetent to do so.
Section 44-77-90. After certification of a terminal condition, any person who
relies on a declaration which on its face appears to have been executed in
accordance with the provisions of this chapter, of which he has no actual notice
of revocation, and who withholds or withdraws or participates in the withholding
or withdrawal of life-sustaining procedures from the terminally ill patient who
executed the declaration, is presumed to be acting in good faith. Any person who
in good faith and in accordance with the provisions of this chapter participates
in the withholding or withdrawal of life-sustaining procedures from the patient
is not subject to criminal or civil liability on account of the withholding or
withdrawal. The immunity from civil liability does not extend to cases of
provable malpractice committed in connection with the withholding or withdrawal.
Section 44-77-100. A physician or health care facility electing for any reason
not to participate in the withholding or withdrawal of life-sustaining procedures
in accordance with a declaration executed under this chapter shall make a
reasonable effort to locate a physician or health care facility that will
effectuate the declaration and has a duty to transfer the patient to that
physician or facility. A failure by a physician to effectuate the declaration
of a terminal patient constitutes unprofessional conduct if the physician fails
or refuses to make reasonable efforts to effect the transfer of the patient to
another physician who will effectuate the declaration.
Section 44-77-110. The execution and consummation of declarations made in
accordance with Sections 44-77-40 and 44-77-50 do not constitute suicide for any
purpose.
Section 44-77-120. No person may be required to sign a declaration in
accordance with Sections 44-77-40 and 44-77-50 as a condition for becoming
insured under any insurance contract or for receiving any medical treatment or
as a condition of being admitted to a hospital or nursing home facility.
Section 44-77-130. Nothing in this chapter may be construed to authorize or
approve mercy killing, or to permit any affirmative or deliberate act or omission
to end life other than to permit the natural process of dying.
Section 44-77-140. The absence of a declaration by an adult patient does not
give rise to any presumption as to his intent to consent to or refuse
death-prolonging procedures. Nothing in this chapter impairs any other legal
right or legal responsibility which any person may have to effect the withholding
or withdrawal of life-sustaining procedures in any lawful manner.
Section 44-77-160. (A) If any person coerces or fraudulently induces another
person to execute a declaration under this chapter, falsifies or forges a
declaration, or wilfully conceals, cancels, obliterates, or destroys a revocation
of a declaration, and the declarant dies as a result of the withdrawal of
treatment or nontreatment in reliance on the declaration, that person is subject
to prosecution in accordance with the criminal laws of this State.
(B) Nothing in this chapter prohibits any person from informing another person
of the existence of this chapter, delivering to another person a copy of this
chapter or a form of declaration, or counseling another person in good faith
concerning the execution of a declaration.
(C) If any person wilfully conceals, cancels, defaces, obliterates, or damages
the declaration of another without the declarant's consent or falsifies or forges
a revocation of the declaration of another, that person breaches a duty owed to
the declarant and is responsible for payment of any expenses or other damages
incurred as a result of the wrongful act."
Time effective
SECTION 2. This act takes effect upon approval by the Governor. |