The West Virginia Health Care Decisions Act repeals the Natural Death Act, the Medical Power of Attorney Act, and the Health Care Surrogate Act. It also amends the consent provisions in the Autopsies on Bodies of Deceased Persons Act. It becomes effective June 10, 2000.
User-friendly language
The language in the Living Will and Medical Power of Attorney forms has been modified to make it more user-friendly; underneath the title of each form is a statement of the purpose of the form in lay language: "The Kind of Medical Treatment I Want and Don't Want If I Have a Terminal Condition or Am In a Persistent Vegetative State;" and "The Person I Want to Make Health Care Decisions For Me When I Can't Make Them for Myself."
Both the Living Will and Medical Power of Attorney forms under the Special Directives or Limitations section of the form ask for specific comments about tube feedings, breathing machines, cardiopulmonary resuscitation, and dialysis. The "if none, write none" language has been removed. This new wording is an effort to encourage people to put helpful directives for family and physicians on their advance directive forms.
The "offers no medical hope of benefit" language on the Medical Power of Attorney form was confusing and subject to different interpretations by different attorneys. It has been removed from the form, and the findings in §16-30-2(b)3 now refer to "...intervening treatments or procedures which, in some cases, offer no hope of medical benefit."
Need for two physicians eliminated
Only one physician is required to certify that the patient is in a persistent vegetative state or terminally ill on the Living Will form.
Only one physician (or a licensed psychologist or an advanced practice nurse in collaboration with a physician) is required to determine that a patient lacks decision-making capacity for a Living Will or Medical Power of Attorney to become effective.
The requirement that two physicians render an opinion about the lack of benefit of a life-prolonging intervention before a Medical Power of Attorney representative is authorized to decide about withholding or withdrawing such treatments has been eliminated.
Only one health care professional is required to determine incapacity before the health care surrogate selection process can begin.
Clear penalty for failing to honor advance directives for health care providers and facilities
Section 22 of the new law specifies liability for health care professionals and facilities who fail to act in accordance with the known directives in a patient's Living Will or Medical Power of Attorney or the decisions of that patient's Medical Power of Attorney representative or health care surrogate. For there to be liability for the health care professional or facility, the provider or facility must have actual knowledge of the advance directive. When the health care professional or facility has actual knowledge and fails to act in accordance with the patient's advance directive, that health care professional or facility may be subject to disciplinary action by the appropriate licensing board.
Section 22 (c) of the new law requires that once a patient has been determined to be incapacitated, two physicians or a physician and a psychologist or a physician and an advanced practice nurse in collaboration with a physician must certify that the patient has regained capacity before a patient's request contrary to his or her advance directive is followed.
Flexibility in the use of forms
Reciprocity with advance directives from other states has now been expanded. "A Living Will or Medical Power of Attorney executed in another state is validly executed for the purposes of this article if it is executed in compliance with the laws of this state or with the laws of the state where executed."
The new law stipulates that the Living Will and Medical Power of Attorney forms "may, but need not, be in the... form [described in the law], and may include other specific directions not inconsistent with other provisions of this article."
Other advance directive forms such as "Five Wishes" may be used but they would need to be witnessed and notarized for use in West Virginia.
Conflict Resolution
The new law specifies how to resolve conflict between the patient's expressed directive, and the decision of the Medical Power of Attorney representative or surrogate. The patient's expressed directive takes precedence and shall be followed.
The law also specifies that if there are two advance directives in conflict, the one most recently completed takes precedence only to the extent needed to resolve the inconsistency.
Ethics committees are explicitly mentioned in section 5(d) with regard to conflict resolution. "If there is a conflict between the decisions of the Medical Power of Attorney representative or health care surrogate and the patient's best interest as determined by the attending physician when the patient's wishes are unknown, the attending physician shall attempt to resolve the conflict by consultation with a qualified physician, an ethics committee, or by some other means."
If there is a conflict between an advance directive completed prior to the effective date of the Health Care Decisions Act and the act, the provisions of new act which directly conflict with the written directives contained in a Living Will or Medical Power of Attorney executed prior to the effective date of the new act shall not apply.
Psychiatric Mental Illness
There was confusion among attorneys and health care professionals regarding the application of the West Virginia Health Care Surrogate Act of 1993 to patients with psychiatric mental illness. The new act may be used for patients who are incapacitated with psychiatric mental illness. Under the new act "for patients with psychiatric mental illness, mental retardation or addiction who have been determined by their attending physician or a qualified physician to be incapacitated, a second opinion by a qualified physician or qualified psychologist that the person is incapacitated is required before the attending physician is authorized to select a surrogate. The requirement for a second opinion shall not apply in those instances in which the medical treatment to be rendered is not for the person's psychiatric mental illness." Use of the Health Care Decisions Act may simplify the treatment of patients with psychiatric mental illness; previously commitment may have been necessary to obtain authorization to treat these patients.
Continuous care for incapacitated patients between health care settings
A Medical Power of Attorney representative or health care surrogate who has been making decisions for a patient in one health care setting may continue to do so in a new setting without a new determination of incapacity. The law reads as follows, "In the event that a person admitted to any health care facility in this state has been determined to lack capacity and that person's medical power of attorney has been declared to be in effect or a surrogate decision maker has been selected for that person all in accordance with the requirements of this article, and that person is subsequently transferred from one health care facility to another, the receiving health care facility may rely upon the prior determination of incapacity and the activation of the Medical Power of Attorney or selection of a surrogate decision maker as valid and continuing until such time as an attending physician, a qualified physician, a qualified psychologist or advanced practice nurse in collaboration with a physician in the receiving facility assesses the person's capacity. Should the reassessment by the attending physician, a qualified physician, a qualified psychologist or an advanced practice nurse in collaboration with a physician of the person at the receiving facility result in a determination of continued incapacity, the receiving facility may rely upon the Medical Power of Attorney representative or surrogate decision maker who provided health care decisions at the transferring facility to continue to make all health care decisions at the receiving facility until such time as the person regains capacity. If a person admitted to any health care facility in this state has been determined to lack capacity and the person's Medical Power of Attorney has been declared to be in effect or a surrogate decision maker has been selected for that person all in accordance with the requirements of this article, and that person is subsequently discharged home in the care of a home health care agency or hospice, the home health care agency or hospice may rely upon the prior determination of incapacity. The home health care agency or hospice may rely upon the Medical Power of Attorney representative or health care surrogate who provided health care decisions at the transferring facility to continue to make all health care decisions until such time as the person regains capacity."
New authority for Medical Power of Attorney representative and health care surrogate
The Medical Power of Attorney representative and the health care surrogate are now authorized to consent to autopsies on bodies of deceased persons under the Health Care Decisions Act and the Autopsies on Bodies of Deceased Persons Act.
The authority of the Medical Power of Attorney representative or health care surrogate terminates upon the death of the incapacitated person except with respect to decisions regarding organ and tissue donation, autopsy, and funeral arrangements or cremation.
In this regard the law reads as follows, "If an incapacitated person previously expressed his or her wishes regarding autopsy, funeral arrangements or cremation, organ or tissue donation, or the desire to make an anatomical gift by a written directive such as a Living Will, Medical Power of Attorney, donor card, drivers' license or other means, the Medical Power of Attorney representative or surrogate shall follow the person's expressed wishes regarding autopsy, funeral arrangements or cremation, organ and tissue donation or anatomical gift. In the absence of any written directives, any decision regarding anatomical gifts shall be made pursuant to the provisions of article nineteen of this chapter [in the West Virginia Code]."
New Definitions
The definition of an adult now includes a mature minor. Mature minors can now complete advance directives.
A mature minor means a person less than eighteen years of age who has been determined by a qualified physician, a qualified psychologist or an advanced practice nurse in collaboration with a physician to have the capacity to make health care decisions.
The definition of a life-prolonging intervention has been expanded. It now includes, among other things, nutrition and hydration administered intravenously or through a feeding tube.
Principal is now the term used to describe an individual who has completed either a Living Will or a Medical Power of Attorney. The word declarant is no longer used.
Because of the difficulties with prognostication, the definition of terminal condition has been changed to remove the specification that death occurs "within a relatively short time." The new definition reads as follows, "Terminal condition means an incurable or irreversible condition as diagnosed by the attending physician or a qualified physician for which the administration of life?prolonging intervention will serve only to prolong the dying process."