WEST virginia Legislature
2018 regular session
House Bill 4247
By Delegates Kessinger, Pack, Hill, Paynter and Howell
22, 2018; Referred
to the Committee on Health and Human Resources then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-30-26, relating to life-sustaining treatment policies of health care facilities.
Be it enacted by the Legislature of West Virginia:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-26. Simon’s Law; life sustaining procedures.
(a) This section may be known and cited as “Simon’s Law”.
(b) As used in this section:
"Life-sustaining" procedures, food, medication, or nutrition are life-sustaining if, in reasonable medical judgment, the withdrawal or withholding of such procedures, food, medication, or nutrition would result in or hasten the death of the patient; and
"Reasonable medical judgment", is a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(c) Upon the request of a patient or resident or a prospective patient or resident, a health care facility, nursing home, or physician shall disclose in writing any policies relating to a patient or resident or the services a patient or resident may receive involving life-sustaining treatment, including any policies related to health care deemed futile, inappropriate, or nonbeneficial, within the health care facility or agency.
(d) No health care facility, nursing home, physician, nurse, or medical staff may withhold life-sustaining procedures, food, medication, or nutrition, nor place any restrictions on life-sustaining procedures including, but not limited to, food, medication, or nutrition for any patient, resident, or ward under eighteen years of age who is not emancipated without the written permission of at least one parent or legal guardian of the patient or ward.
(e) A do-not-resuscitate order or similar physician’s order may not be instituted either orally or in writing without the written permission of at least one parent or legal guardian of the patient or resident or prospective patient or resident under eighteen years of age who is not emancipated.
(f) Permission previously given under subsection (d) or (e) of this section may be revoked in writing by the legal guardian or either parent of the patient. If the parents are unable to agree to withhold life-sustaining procedures, food, medication, nutrition, or resuscitation, either parent may petition a circuit court of the county in which the patient resides or in which the patient is receiving treatment to resolve the conflict based on a presumption in favor of the provision of life-sustaining procedures, food, medication, nutrition, and resuscitation, unless there is clear and convincing evidence that the provision is contrary to the best interests of the child. Upon receiving the petition, the circuit court shall issue an order fixing the date, time, and place of the trial on the petition and order that notice of the trial shall be given to persons the court specifies. The trial may be held forthwith and without notice, if the court determines that holding a trial forthwith and without notice is in the best interests of the petitioner. In the court's discretion, a trial may be conducted in a courtroom, a treatment facility, or at some other suitable place. Pending the final outcome of the proceedings, including any appeals, no permission under subsection (d) or (e) of this section may be implemented.
(g) Subject to the provisions of subsection (f) of this section, the requirements for written permission in subsection (d) and (e) of this section do not apply if providing resuscitation, food, medication, or nutrition would be:
(1) Futile because, in reasonable medical judgment, withholding resuscitation, food, medication, or nutrition would not cause or hasten the death of the patient; or
(2) Medically inappropriate because, in reasonable medical judgment, providing resuscitation, food, medication, or nutrition would create a greater risk of causing or hastening the death of the patient than withholding resuscitation, food, medication, or nutrition.
(h) Subsection (g) of this section may be implemented, so long as a reasonably diligent effort has been made to contact at least one parent or legal guardian who, if contacted, has been informed of the planned withholding of food, medication, or nutrition or do-not-resuscitate order, and the health care provider has cooperated with the parent or legal guardian's efforts to obtain other medical opinions or a transfer of the patient to a provider selected by the parent or guardian, if so requested.
(i) Nothing in this section requires a health care facility, nursing home, or physician to have a written policy relating to or involving life-sustaining or nonbeneficial treatment for patients under eighteen years of age who are not emancipated or adult patients, residents, or wards.
NOTE: The purpose of this bill is to prohibit health care facilities and others from withholding life-sustaining procedures from a minor patient without the written consent of a parent or legal guardian.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.