Second Substitute S.B. 161

Representative Steven R. Mascaro proposes the following substitute bill:

1 ADVANCE HEALTH CARE DIRECTIVE
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Allen M. Christensen
6 House Sponsor: Steven R. Mascaro
7
8 LONG TITLE
9 General Description:
10 This bill amends the Advance Health Care Directive Act.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . describes the standard to be used by a surrogate in making a health care decision on
15 behalf of a person who no longer has capacity to make the person's own health care
16 decisions;
17 . replaces the physician order for life sustaining treatment form with a life with
18 dignity order and establishes procedures and requirements relating to the order;
19 . describes who may witness the making or revocation of an advance health care
20 directive;
21 . modifies provisions related to default surrogates, including:
22 . the order of priority among potential surrogates; and
23 . witnessing the disqualification of a default surrogate;
24 . modifies the optional form for an advance health care directive;
25 . describes the reciprocal applicability of an advance health care directive made

26 before the effective date of this bill; and
27 . makes technical changes.
28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 75-2a-102, as enacted by Laws of Utah 2007, Chapter 31
35 75-2a-103, as enacted by Laws of Utah 2007, Chapter 31
36 75-2a-104, as enacted by Laws of Utah 2007, Chapter 31
37 75-2a-105, as enacted by Laws of Utah 2007, Chapter 31
38 75-2a-107, as enacted by Laws of Utah 2007, Chapter 31
39 75-2a-108, as enacted by Laws of Utah 2007, Chapter 31
40 75-2a-109, as enacted by Laws of Utah 2007, Chapter 31
41 75-2a-110, as enacted by Laws of Utah 2007, Chapter 31
42 75-2a-111, as enacted by Laws of Utah 2007, Chapter 31
43 75-2a-112, as enacted by Laws of Utah 2007, Chapter 31
44 75-2a-113, as enacted by Laws of Utah 2007, Chapter 31
45 75-2a-114, as enacted by Laws of Utah 2007, Chapter 31
46 75-2a-115, as enacted by Laws of Utah 2007, Chapter 31
47 75-2a-117, as enacted by Laws of Utah 2007, Chapter 31
48 75-2a-118, as enacted by Laws of Utah 2007, Chapter 31
49 75-2a-119, as enacted by Laws of Utah 2007, Chapter 31
50 75-2a-120, as enacted by Laws of Utah 2007, Chapter 31
51 75-2a-121, as enacted by Laws of Utah 2007, Chapter 31
52 75-2a-122, as enacted by Laws of Utah 2007, Chapter 31
53 75-2a-123, as enacted by Laws of Utah 2007, Chapter 31
54 75-2a-124, as enacted by Laws of Utah 2007, Chapter 31
55 ENACTS:
56 75-2a-125, Utah Code Annotated 1953

57 REPEALS AND REENACTS:
58 75-2a-106, as enacted by Laws of Utah 2007, Chapter 31
59
60 Be it enacted by the Legislature of the state of Utah:
61 Section 1. Section 75-2a-102 is amended to read:
62 75-2a-102. Intent statement.
63 (1) The Legislature finds:
64 (a) developments in health care technology make possible many alternatives for
65 treating medical conditions and make possible the unnatural prolongation of life;
66 (b) [individuals] an adult should have the clear legal choice to:
67 (i) accept or reject health care, even if rejecting health care will result in death sooner
68 than death would be expected to occur if rejected health care were started or continued;
69 (ii) be spared unwanted procedures; and
70 (iii) be permitted to die with a maximum of dignity and function and a minimum of
71 pain;
72 (c) Utah law should:
73 (i) provide [individuals] an adult with a legal tool to designate a health care agent and
74 express preferences about health care options to go into effect only after the [individual] adult
75 loses the ability to make or communicate health care decisions, including decisions about
76 end-of-life care; and
77 (ii) promote [a] an advance health care directive system that can be administered
78 effectively within the health care system;
79 (d) surrogate decisions made on behalf of [a person] an adult who previously had
80 capacity to make health care decisions, but who has lost health care decision making capacity
81 should be based on:
82 (i) input from the incapacitated [person] adult, to the extent possible under the
83 circumstances;
84 (ii) specific preferences expressed by the [individual] adult prior to the loss of health
85 care decision making capacity;
86 (iii) the surrogate's understanding of the [individual's] adult's health care preferences;
87 and

88 (iv) the surrogate's understanding of what the [individual] adult would have wanted
89 under the circumstances; and
90 (e) surrogate decisions made on behalf of an [individual] adult who has never had
91 health care decision making capacity should be made on the basis of the [individual's] adult's
92 best interest.
93 (2) In recognition of the dignity and privacy that [all individuals are] each adult is
94 entitled to expect, and to protect the right of an [individual] adult to refuse to be treated without
95 the [individual's] adult's consent, the Legislature declares that this state recognizes the right to
96 make binding advance health care directives directing health care providers to:
97 (a) provide life sustaining [or life supporting] medically indicated health care;
98 (b) withhold or withdraw health care; or
99 (c) provide health care only to the extent set forth in [a] an advance health care
100 directive.
101 Section 2. Section 75-2a-103 is amended to read:
102 75-2a-103. Definitions.
103 As used in this chapter:
104 (1) "Adult" means a person who is:
105 (a) at least 18 years of age; or
106 (b) an emancipated minor.
107 (2) "Advance health care directive":
108 (a) includes:
109 (i) a designation of an agent to make health care decisions for an adult when the adult
110 cannot make or communicate health care decisions; or
111 (ii) an expression of preferences about health care decisions;
112 (b) may take one of the following forms:
113 (i) a written document, voluntarily executed by an adult in accordance with the
114 requirements of this chapter; or
115 (ii) a witnessed oral statement, made in accordance with the requirements of this
116 chapter; and
117 (c) does not include a life with dignity order.
118 [(1)] (3) "Agent" means a person designated in an advance health care directive to

119 make health care decisions for the declarant.
120 (4) "APRN" means a person who is:
121 (a) certified or licensed as an advance practice registered nurse under Subsection
122 58-31b-301 (2)(d);
123 (b) an independent practitioner;
124 (c) acting under a consultation and referral plan with a physician; and
125 (d) acting within the scope of practice for that person, as provided by law, rule, and
126 specialized certification and training in that person's area of practice.
127 [(2)] (5) "Best interest" means that the benefits to the [individual] person resulting
128 from a treatment outweigh the burdens to the [individual] person resulting from the treatment,
129 taking into account:
130 (a) the effect of the treatment on the physical, emotional, and cognitive functions of the
131 [individual] person;
132 (b) the degree of physical pain or discomfort caused to the [individual] person by the
133 treatment or the withholding or withdrawal of treatment;
134 (c) the degree to which the [individual's] person's medical condition, the treatment, or
135 the withholding or withdrawal of treatment, result in a severe and continuing impairment of the
136 dignity of the [individual] person by subjecting the [individual] person to humiliation and
137 dependency;
138 (d) the effect of the treatment on the life expectancy of the [individual] person;
139 (e) the prognosis of the [individual] person for recovery with and without the
140 treatment;
141 (f) the risks, side effects, and benefits of the treatment, or the withholding or
142 withdrawal of treatment; and
143 (g) the religious beliefs and basic values of the [individual] person receiving treatment,
144 to the extent these may assist the decision maker in determining the best interest.
145 [(3)] (6) "Capacity to appoint an agent" means that the [individual] adult understands
146 the consequences of appointing a particular person as agent.
147 [(4)] (7) "Declarant" means an [individual] adult who has completed and signed or
148 directed the signing of [a] an advance health care directive.
149 [(5)] (8) "Default surrogate [decision maker]" means the [person] adult who may make

150 decisions for an individual when either:
151 (a) an agent or guardian has not been appointed; or
152 (b) an agent is not able [or], available, or willing to make decisions for [a declarant] an
153 adult.
154 (9) "Emergency medical services provider" means a person who is licensed,
155 designated, or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System
156 Act.
157 [(6)] (10) "Generally accepted health care standards":
158 (a) is defined only for the purpose of:
159 (i) this chapter and does not define the standard of care for any other purpose under
160 Utah law; and
161 (ii) enabling health care providers to interpret the statutory form set forth in Section
162 75-2a-117 ; and
163 (b) means the standard of care that justifies a provider in declining to provide life
164 sustaining [or life supporting] care because the proposed life sustaining care:
165 (i) will not prevent or reduce the deterioration in the health or functional status of [an
166 individual] a person;
167 (ii) will not prevent the impending death of [an individual] a person; or
168 (iii) will impose more burden on the [individual] person than any expected benefit to
169 the [individual] person.
170 [(7) "Guardian" means a court-appointed guardian.]
171 [(8)] (11) "Health care" means any care, treatment, service, or procedure to improve,
172 maintain, diagnose, or otherwise affect [an individual's] a person's physical or mental
173 condition.
174 [(9)] (12) "Health care decision":
175 (a) means a decision about an [individual's] adult's health care made by [the individual
176 or the individual's surrogate], or on behalf of, an adult, that is communicated to a health care
177 provider;
178 (b) includes:
179 (i) selection and discharge of a health care provider and a health care facility;
180 (ii) approval or disapproval of diagnostic tests, procedures, programs of medication,

181 and orders not to resuscitate; and
182 (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
183 all other forms of health care; and
184 (c) does not include decisions about [the individual's] an adult's financial affairs or
185 social interactions other than as indirectly affected by the health care decision.
186 [(10)] (13) "Health care decision making capacity" means an [individual's] adult's
187 ability to make an informed decision about receiving or refusing health care, including:
188 (a) the ability to understand the nature, extent, or probable consequences of [the] health
189 status and health care alternatives;
190 (b) the ability to make a rational evaluation of the burdens, risks, benefits, and
191 alternatives [to the proposed] of accepting or rejecting health care; and
192 (c) the ability to communicate a decision.
193 [(11) "Health care directive":]
194 [(a) includes:]
195 [(i) a designation of an agent to make health care decisions for an individual when the
196 individual cannot make or communicate health care decisions; or]
197 [(ii) an expression of preferences about health care decisions; and]
198 [(b) may take one of the following forms:]
199 [(i) a written document, voluntarily executed by an individual in accordance with the
200 requirements of this chapter; or]
201 [(ii) a witnessed oral statement, made by an individual, in accordance with the
202 requirements of this chapter.]
203 [(12)] (14) "Health care facility" means:
204 (a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
205 Licensing and Inspection Act; and
206 (b) private offices of physicians, dentists, and other health care providers licensed to
207 provide health care under Title 58, Occupations and Professions.
208 [(13)] (15) "Health care provider" is as defined in Section 78-14-3 , except that it does
209 not include an emergency medical services provider.
210 [(14) "Individual":]
211 [(a) means:]

212 [(i) a person 18 years of age or older; or]
213 [(ii) an emancipated minor as defined in Sections 78-3a-1001 to 78-3a-1105 ; and]
214 [(b) includes:]
215 [(i) a declarant; and]
216 [(ii) a person who has not completed an advance health care directive.]
217 (16) (a) "Life sustaining care" means any medical intervention, including procedures,
218 administration of medication, or use of a medical device, that maintains life by sustaining,
219 restoring, or supplanting a vital function.
220 (b) "Life sustaining care" does not include care provided for the purpose of keeping a
221 person comfortable.
222 (17) "Life with dignity order" means an order, designated by the Department of Health
223 under Section 75-2a-106 (5)(a), that gives direction to health care providers, health care
224 facilities, and emergency medical services providers regarding the specific health care
225 decisions of the person to whom the order relates.
226 (18) "Minor" means a person who:
227 (a) is under 18 years of age; and
228 (b) is not an emancipated minor.
229 (19) "Physician" means a physician and surgeon or osteopathic surgeon licensed under
230 Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68, Utah Osteopathic Medical
231 Practice Act.
232 [(15)] (20) "Reasonably available" means:
233 (a) readily able to be contacted without undue effort; and
234 (b) willing and able to act in a timely manner considering the urgency of the
235 [individual's health care needs] circumstances.
236 (21) "Substituted judgment" means the standard to be applied by a surrogate when
237 making a health care decision for an adult who previously had the capacity to make health care
238 decisions, which requires the surrogate to consider:
239 (a) specific preferences expressed by the adult:
240 (i) when the adult had the capacity to make health care decisions; and
241 (ii) at the time the decision is being made;
242 (b) the surrogate's understanding of the adult's health care preferences;

243 (c) the surrogate's understanding of what the adult would have wanted under the
244 circumstances; and
245 (d) to the extent that the preferences described in Subsections (21)(a) through (c) are
246 unknown, the best interest of the adult.
247 [(16)] (22) "Surrogate" means a health care decision maker who is:
248 (a) an appointed agent;
249 (b) a default surrogate [decision maker] under the provisions of Section 75-2a-108 ; or
250 (c) a [court-appointed] guardian.
251 Section 3. Section 75-2a-104 is amended to read:
252 75-2a-104. Capacity to make health care decisions -- Presumption -- Overcoming
253 presumption.
254 (1) An [individual] adult is presumed to have:
255 (a) health care decision making capacity; and
256 (b) capacity to make or revoke [a] an advance health care directive.
257 (2) To overcome the presumption of capacity, a physician or an APRN who has
258 personally examined the [individual] adult and assessed the [individual's] adult's health care
259 decision making capacity must:
260 (a) find that the [individual] adult lacks health care decision making capacity;
261 (b) record the finding in the [individual's] adult's medical chart including an indication
262 of whether the [individual] adult is likely to regain health care decision making capacity; and
263 (c) make a reasonable effort to communicate the determination to:
264 (i) the [individual] adult;
265 (ii) other health care providers or health care facilities that the physician or APRN
266 would routinely inform of such a finding; and
267 (iii) if the [individual] adult has a surrogate, any known surrogate.
268 (3) (a) If a physician or APRN finds that an [individual] adult lacks health care
269 decision making capacity in accordance with Subsection (2), the [individual] adult may at any
270 time, challenge the finding by:
271 (i) submitting to a health care provider a written notice stating that the [individual]
272 adult disagrees with the physician's finding; or
273 (ii) orally informing the health care provider that the [individual] adult disagrees with

274 the [physician's] finding.
275 (b) A health care provider who is informed of a challenge [pursuant to] under
276 Subsection (3)(a), shall, if the adult has a surrogate, promptly inform [an individual, if any,
277 who is serving as] the surrogate of the [individual's] adult's challenge.
278 (c) A surrogate informed of a challenge to a finding under this section, or the
279 [individual] adult if no surrogate is acting on the [individual's] adult's behalf, shall inform the
280 following of the [individual's] adult's challenge:
281 (i) any other health care providers involved in the [individual's] adult's care; and
282 (ii) the health care facility, if any, in which the [individual] adult is receiving care.
283 [(d) An individual's challenge to a finding under this section is binding on a health care
284 provider and a health care facility unless otherwise ordered by a court.]
285 (d) Unless otherwise ordered by a court, a finding by a physician, under Subsection (2),
286 that the adult lacks health care decision making capacity, is not in effect if the adult challenges
287 the finding under Subsection (3)(a).
288 (e) If an [individual] adult does not challenge [a] the finding described in Subsection
289 (2), the health care provider and health care facility may rely on a surrogate, pursuant to the
290 provisions of this chapter, to make health care decisions for the [individual] adult.
291 (4) A health care provider or health care facility [providing care to the individual] that
292 relies on a surrogate to make decisions on behalf of an [individual] adult has an ongoing
293 obligation to consider whether the [individual] adult continues to lack health care decision
294 making capacity.
295 (5) If at any time a health care provider finds, based on an examination and assessment,
296 that the [individual] adult has regained health care decision making capacity, the health care
297 provider shall record the results of the assessment in the [individual's] adult's medical record,
298 and the [individual] adult can direct [his] the adult's own health care.
299 Section 4. Section 75-2a-105 is amended to read:
300 75-2a-105. Capacity to complete an advance health care directive.
301 (1) An [individual] adult is presumed to have the capacity to complete an advance
302 health care directive.
303 (2) An [individual] adult who is found to lack health care decision making capacity
304 under the provisions of Section 75-2a-104 :

305 (a) lacks the capacity to give an advance health care directive, including Part II of the
306 form created in Section 75-2a-117 , or any other substantially similar form expressing a health
307 care preference; and
308 (b) may retain the capacity to appoint an agent and complete Part I of the form created
309 in Section 75-2a-117 .
310 (3) The following factors shall be considered by a health care provider, attorney, or
311 court when determining whether an [individual] adult described in Subsection (2)(b) has
312 retained the capacity to appoint an agent:
313 (a) whether the [individual] adult has expressed over time an intent to appoint the same
314 person as agent;
315 (b) whether the choice of agent is consistent with past relationships and patterns of
316 behavior between the [individual] adult and the prospective agent, or, if inconsistent, whether
317 there is a reasonable justification for the change; and
318 (c) whether the [individual's] adult's expression of the intent to appoint the agent
319 occurs at times when, or in settings where, the [individual] adult has the greatest ability to
320 make and communicate decisions.
321 Section 5. Section 75-2a-106 is repealed and reenacted to read:
322 75-2a-106. Emergency medical services -- Life with dignity order.
323 (1) A life with dignity order may be created by or on behalf of a person as described in
324 this section.
325 (2) A life with dignity order shall, in consultation with the person authorized to consent
326 to the order pursuant to this section, be prepared by:
327 (a) the physician or APRN of the person to whom the life with dignity order relates; or
328 (b) a health care provider who:
329 (i) is acting under the supervision of a person described in Subsection (2)(a); and
330 (ii) is:
331 (A) a nurse, licensed under Title 58, Chapter 31b, Nurse Practice Act;
332 (B) a physician assistant, licensed under Title 58, Chapter 70a, Physician Assistant
333 Act;
334 (C) a mental health professional, licensed under Title 58, Chapter 60, Mental Health
335 Professional Practice Act; or

336 (D) another health care provider, designated by rule as described in Subsection (10).
337 (3) A life with dignity order shall be signed:
338 (a) personally, by the physician or APRN of the person to whom the life with dignity
339 order relates; and
340 (b) (i) if the person to whom the life with dignity order relates is an adult with health
341 care decision making capacity, by:
342 (A) the person; or
343 (B) an adult who is directed by the person to sign the life with dignity order on behalf
344 of the person;
345 (ii) if the person to whom the life with dignity order relates is an adult who lacks health
346 care decision making capacity, by:
347 (A) the surrogate with the highest priority under Section 75-2a-111 ;
348 (B) the majority of the class of surrogates with the highest priority under Section
349 75-2a-111 ; or
350 (C) a person directed to sign the order by, and on behalf of, the persons described in
351 Subsection (3)(b)(ii)(a) or (B); or
352 (iii) if the person to whom the life with dignity order relates is a minor, by a parent or
353 guardian of the minor.
354 (4) If a life with dignity order relates to a minor and directs that life sustaining
355 treatment be withheld or withdrawn from the minor, the order shall include a certification by
356 two physicians that, in their clinical judgment, an order to withhold or withdraw life sustaining
357 treatment is in the best interest of the minor.
358 (5) A life with dignity order:
359 (a) shall be in writing, on a form approved by the Department of Health;
360 (b) shall state the date on which the order was made;
361 (c) may specify the level of life sustaining care to be provided to the person to whom
362 the order relates; and
363 (d) may direct that life sustaining care be withheld or withdrawn from the person to
364 whom the order relates.
365 (6) A health care provider or emergency medical service provider, licensed or certified
366 under Title 26, Chapter 8a, Utah Emergency Medical Services System Act, is immune from

367 civil or criminal liability, and is not subject to discipline for unprofessional conduct, for:
368 (a) complying with a life with dignity order in good faith; or
369 (b) providing life sustaining treatment to a person when a life with dignity order directs
370 that the life sustaining treatment be withheld or withdrawn.
371 (7) To the extent that the provisions of a life with dignity order described in this
372 section conflict with the provisions of an advance health care directive made under Section
373 75-2a-107 , the provisions of the life with dignity order take precedence.
374 (8) An adult, or a parent or guardian of a minor, may revoke a life with dignity order
375 by:
376 (a) orally informing emergency service personnel;
377 (b) writing "void" across the form;
378