Medical Treatment Decision Act Exposed

The Medical Treatment Decision Act was adopted by ALEC's Health and Human Services Task Force and approved by the ALEC Board of Directors in 1990. According to ALEC.org, the Act was re-approved by the Board of Directors on January 28, 2013. (Accessed on 2/10/2016).

ALEC Bill Text

{Title, enacting clause, etc.}

Section 1. The legislature finds that a competent adult has been traditionally reorganized as having the right to accept or reject medical treatment concerning his person. The legislature also finds that recent advances in medical technology have made it possible to prolong dying through the use of extraordinary, extreme, or radical medical or surgical procedures. The use of such medical or surgical procedures often involves patients who are unconscious or otherwise incompetent to accept or reject medical treatment. Therefore, the Legislature finds that the right to accept or reject medical treatment should be available to an adult while he is competent, notwithstanding the fact that such medical or surgical treatment may be offered or applied when he is suffering from a terminal condition and is unconscious or otherwise incompetent to decide whether such medical or surgical treatment should be accepted or rejected.

Section 2. As used in this Act, the following terms have the following meanings:

(A) “Adult” means any person eighteen years or age or older.

(B) “Attending physician” means the physician, whether selected by or assigned to a patient, who has primary responsibility for the treatment and care of said patient.

(C) “Court” means the District Court of the county in which the declarant having a terminal condition is located at the time of commencement of a proceeding pursuant to this Act.

(D) “Declarant” means a mentally competent adult who executes a declaration.

(E) “Declaration” means a written document, voluntarily executed by a declarant, in accordance with the Requirements of Section 3.

(F) “Life-sustaining procedure” means any medical procedure or intervention that, if administered to a qualified patient, would serve only to prolong the dying process. “Life sustaining procedure” shall not include any medical procedure or intervention to nourish the qualified patient, or considered necessary b the attending physician to provide comfort or alleviate pain.

(G) “Qualified patient” means a patient who has executed a declaration in accordance with Section 3 of this Act and who has been certified by the attending physician and two other physicians to be in a terminal condition.

(H) “Terminal condition” means an incurable or irreversible condition for which the administering of life-sustaining procedures will serve only to postpone the moment of death.

Section 3.

(A) Any competent adult may execute a declaration directing that life-sustaining procedures be withheld or withdrawn if at some future time, he is in a terminal condition and either unconscious or otherwise incompetent to decide whether any medical procedure or intervention should be accepted or rejected. It shall be the responsibility of the declarant or someone acting for him to submit the declaration to the attending physician for inclusion in the declarant’s medical record.

(B) A declaration executed before two witnesses by any competent adult shall be legally effective for purposes of this Act regardless of form. In the event that the declarant is physically unable to sign the declaration, it may be signed by some other person in the declarant’s presence and at his direction. Such other person shall not be:

(1) The attending physician or any other physician; or

(2) An employee of the attending physician or a health are facility where the declarant is a patient; or

(3) A person who has a claim against any portion of the estate of the declarant at the time of his death at the time the declaration is signed; or

(4) A person who knows or believes that he is entitled to any portion of the estate of the declarant upon his death either as a beneficiary of a will in existence at the time the declaration is signed or as an heir at law.

(C) The declaration shall be signed in the presence of two witnesses. Said witnesses shall not include any person specified in Paragraphs (1) through (4) of Subsection B.

Section 4. In the case of a declaration of a qualified patient known to the attending physician to be pregnant, the declaration shall be given no force or effect.

Section 5.

(A) In the event that an attending physician is presented with an unrevoked declaration executed by a declarant whom the physician believes has a terminal condition, the attending physician shall cause the declarant to be examined by two other physicians. If all three physicians find that the declarant has a terminal condition, they shall certify such fact in writing and enter such in the qualified patient’s medical record together with a copy of the declaration.

(B) If the attending physician has actual knowledge of the whereabouts of the qualified patient’s spouse, any of his adult children, a parent, a brother, or sister, or attorney-in-fact under a durable power of attorney, the attending physician shall immediately make a good faith effort to notify at least one of said persons, in the order names, that certificate of terminal condition has been signed.

(C) If no action to challenge the validity of a declaration, in accordance with Section 6 of this Act, has been filed within seventy-two hours after the certification is made by the physicians, the attending physician shall withdraw or withhold all life-sustaining treatment pursuant to the terms of the declaration.

Section 6.

(A) Any person who is the spouse, adult child, parent, brother or sister, or attorney-in-fact under a durable power of attorney of the qualified patient may challenge the validity of a declaration in the appropriate Court of the county in which the qualified patient is located. No other person or group shall have standing to challenge the validity of a declaration under this Act.

(B) Upon the filing of a petition to challenge the validity of a declaration and notification to the attending physician, a temporary restraining order shall be issued until a final determination of validity shall be made.

(C)

(1) In proceedings pursuant to this Section, the Court shall appoint a guardian ad litem shall take such action as he deems necessary and prudent in the best interest of the qualified patient, and shall present to the Court a report of his actions, findings, conclusions, and recommendations.

(2) Unless the Court for good cause shown provides for a different method of time to notice, the petitioner, at least five days prior to the hearing, shall cause notice of the time and place of the hearing to be given to the qualified patient’s guardian or conservator, if any; to the Court appointed guardian ad litem; and to such other parties as the Court shall direct.

(3) The Court may require such evidence, including independent medical evidence, as it deems necessary.

(4) Upon the determination of the validity of the declaration, the Court shall enter any appropriate order.

Section 7. A declaration may be revoked by the declarant either orally, in writing, or by burning, tearing, canceling, obliterating, or destroying said document.

Section 8.

(A) With respect to any declaration which appears on its face to have been executed in accordance with this Act:

(1) Any physician may act in compliance with such declaration in the absence of actual notice of revocation, fraud, misrepresentation, or improper execution;

(2) No physician signing a certificate of terminal condition or withholding or withdrawing life-sustaining procedures in compliance with a declaration shall be subject to civil liability, criminal penalty, or licensing sanction therefore;

(3) No hospital or person acting under the direction of a physician and participating in the withholding or withdrawing of life-sustaining procedures in compliance with a declaration shall be subject to civil liability, criminal penalty, or licensing sanction therefore.

Section 9.

(A) The existence of a declaration shall not affect, impair, alter, or modify any existing contract of life insurance or annuity or be the basis for any delay in issuing or refusing to issue any annuity or policy of life insurance or any increase in the premium therefore.

(B) No insurer or provider of health care services shall require a person to execute a declaration as condition of being insured or receiving health care services; nor shall the failure to execute a declaration be the basis for any increased or additional premium for a contract or policy for health insurance.

Section 10. Nothing in this Act shall be construed as altering or amending the standards of the practice of medicine, or as condoning, authorizing, or approving euthanasia, or mercy killing, nor as permitting any affirmation or deliberate act or omission to end life except as provided by this act, or to permit the withholding of any medical procedure or intervention to nourish the qualified patient.

Section 11. An attending physician who refuses to comply with the terms of a declaration valid on its face shall transfer the care of the declaration to another physician who is willing to comply with the declaration. Failure of a physician to comply with the terms of a declaration valid on its face or to transfer the care of the declarant to another physician who is willing to comply with the declaration shall constitute unprofessional conduct as defined by the laws of this State.

Section 12. {Severability clause}

Section 13. {Repealer clause}

Section 14. {Effective date}

Adopted by the Health and Human Services Task Force and approved by the ALEC Board of Directors in 1990.