CHAPTER 386

FORMERLY

SENATE BILL NO. 560

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND PART II, TITLE 16 OF THE DELAWARE CODE RELATING TO "LIVING WILLS" AND SIMILAR DOCUMENTS WHEREIN TERMINALLY-ILL PATIENTS AND OTHER PERSONS MAY AUTHORIZE THE DISCONTINUANCE OF CERTAIN MEDICAL PROCEDURES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part II, Title 16 of the Delaware Code by adding thereto a new chapter, designated as Chapter 25, which new chapter shall read as follows;

"CHAPTER 25. PATIENTS RIGHT TO TERMINATE TREATMENT.

§2501. Definitions

(a) 'Artificial means' shall mean manufactured or technical contrivances which may be attached to or integrated into the human body, but which are not normally a part of the human body.

(b) 'Attending physician' shall mean the physician selected by the patient or someone on his behalf, or assigned by a health care facility to the patient, which physician has primary responsibility for the treatment and care of the patient.

(c) 'Declarant' shall mean the person on whose behalf a declaration, In accordance with this chapter, is made.

(d) 'Declaration' shall mean a written statement voluntarily executed by the declarant or his agent directing the withholding or withdrawal of certain medical treatment, even if such treatment is the sole means of sustaining life, during a future state of incompetency.

(e) 'Maintenance medical treatment' shall mean any medical or surgical procedure or intervention which utilizes mechanical or other artifical means to sustain, restore, or supplant a vital function; and which would serve only to artifically prolong the dying process and delay the moment of death where death is imminent, whether or not such procedures are utilized. The words 'maintenance medical treatment' shall not include the administration of medication, nor the performance of any medical procedure necessary to provide comfort care or to alleviate pain.

(a) 'Terminal condition' shall mean any disease, illness, injury or condition sustained by any human being from which there is no reasonable medical expectation of recovery and which, as a medical probability, will result in the death of such human being regardless of the use or discontinuance of medical treatment Implemented for the purpose of sustaining life, or the life processes.

§2502. Right of Self-determination

(a) An individual, legally adult, who is competent and of sound mind, has the right to refuse medical or surgical treatment if such refusal is not contrary to existing public health laws. Such individual has the right to make a written, dated declaration instructing any physician, including without limitation the treating physician, to cease or refrain from medical or surgical treatment during a possible pre-stated future incompetency of such person. The declaration shall take effect whenever the circumstances described in the declaration take place, and the fact they have taken place is confirmed in writing by two physicians.

(a) An adult person by written declaration may appoint an agent who will act on behalf of such appointor if, due to a condition resulting from illness or injury and, In the Judgment of the attending physician, the appointor becomes incapable of making a decision in the exercise of the right to accept or refuse medical treatment.

(a) An agent appointed in accordance with this section may accept or refuse medical treatment proposed for the appointor if, in the Judgment of the attending physician, the appointor is incapable of making that decision. This authority shall include the right to refuse medical treatment which would extend the appointor's life. An agent authorized to make decisions under this chapter has a duty to act in good faith, and with due regard for the benefit and Interests of the appointor.

2503. Written Declaration

(a) Any adult person may execute a declaration directing the withholding or withdrawal of maintenance medical treatment, where the person is in a terminal condition and under such circumstances as may be set forth in the declaration. The declaration made pursuant to this chapter shall be:

(1) in writing;

(2) signed by the person making the declaration, or by another person in the declarant's presence and at the declarant's expressed direction;

(3) dated; and

(4) signed in the presence of two or more adult witnesses, as set forth in subsection (b).

(b) The declaration shall be signed by the declarant in the presence of two subscribing witnesses, neither of whom:

(1) is related to the declarant by blood or marriage;

(2) is entitled to any portion of the estate of the declarant under any will of the declarant or codicial thereto then existing nor, at the time of the declaration, Is so entitled by operation of law then existing;

(3) has, at the time of the execution of the declaration, a present or inchoate claim against any portion of the estate of the declarant;

(4) has a direct financial responsibility for the declarant's medical care; or

(5) is an employee of the hospital or other health care facility in which the declarant is a patient.

(c) Each witness to the declaration shall verify that he Is not prohibited, under subsection (b) of this section, from being a witness under the provisions of this chapter.

(d) The declaration of a patient diagnosed as pregnant by the attending physician shall he of no effect during the course of the patient's pregnancy. Where a declaration is lacking any requirement under this subsection and such defect is later corrected by amendment or codicil, whether formally or informally prepared, such declaration shall be valid ab initio, notwithstanding the earlier defect.

§2504. Revocation

(a) The desires of a declarant who is competent shall at all times supercede the effect of the declaration. A declarant may revoke his declaration at any time, without regard to his mental state or competency. Any of the following methods is sufficent for revocation:

(1) Destruction, cancellation, obliteration, or mutilation of the declaration with an intent to revoke it. If physical disability has rendered the declarant unable to destroy, cancel, obliterate, or mutilate the declaration, he may direct another individual to do so in his presence;

(2) An oral statement made in the presence of two persons, each eighteen years of age or older, which expresses an Intent contrary to that expressed in the declaration;

(3) Either a new declaration, made in the same manner with the same formality as the former declaration, which expresses an Intent contrary to that expressed in the prior declaration; or a written revocation signed and dated by the declarant.

(b) There shall be no criminal nor civil liability on the part of any person for failure to act in accordance with a revocation, unless such person has actual or constructive knowledge of the revocation.

(c) If the declarant becomes comatose or is rendered incapable of communicating, the declaration shall remain in effect for the termination of the comatose condition, or until such time as the declarant's condition renders him able to communicate.

§2505. Health Care Personnel; Legal Immunity

Physicians or nurses who act in reliance on a document executed in accordance with this chapter, where such health care personnel have no actual notice of revocation or contrary indication, by withholding medical procedures from an individual who executed such document shall be presumed to be acting in good faith, and unless negligent shall be immune from civil or criminal liability.

For purposes of this chapter a physician or nurse may presume, in the absence of actual notice to the contrary, that an individual who executed a document under this chapter was of sound mind when it was executed.

§2506. Safeguard Provisions

(a) Anyone who has good reason to believe that the withdrawal or withholding of a maintenance medical treatment in a particular case:

(1) is contrary to the most recent expressed wishes of a declarant;

(2) is being proposed pursuant to a Declaration that has been falsified, forged, or coerced; or

(3) is being considered without the benefit of a revocation which has been unlawfully concealed, destroyed, altered or cancelled;

may petition the Court of Chancery for appointment of a guardian for such declarant.

(b) Upon receipt of a declaration, the hospital or the attending physician shall acknowledge receipt of same, and shall include the declaration as part of the declarant's medical records.

(c) A declaration shall be effective for ten years from the date it was declared or executed, unless sooner revoked in a manner permitted under this chapter. Nothing in this chapter shall be construed to prevent any person from re-executing a Declaration at any time.

(d) The Division of Aging and the Public Guardian shall have oversight over any declaration executed by a resident of a sanatorium, rest home, nursing home, boarding home, or related institution as the same is defined in §1101, Title 16 of the Delaware Code. Such declaration shall have no force nor effect if the declarant is a resident of a sanatorium, rest home, nursing home, boarding home or related institution at the time the declaration is executed unless one of the witnesses Is a person designated as a patient advocate or ombudsman by either the Division of Aging or the Public Guardian. The patient advocate or ombusdman must have the qualifications required of other witnesses under this Chapter.

§2507. Assumptions and Presumptions

(a) Neither the execution of a declaration under this Chapter nor the fact that maintenance medical treatment is withheld from a patient in accordance therewith shall, for any purpose, constitute a suicide.

(b) The making of a declaration pursuant to this Chapter shall not restrict, inhibit, nor impair in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed or presumed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of maintenance medical treatment from an insured patient, notwithstanding any term of the policy to the contrary.

(c) No physician, health facility, or other health care provider, nor any health care service plan, Insurer issuing disability insurance, self-insured employee welfare benefit plan, or non-profit hospital service plan, shall require any person to execute a Declaration as a condition to being insured, or for receiving health care services, nor shall the signing of a Declaration be a bar.

(d) This chapter shall create no presumption concerning the intentions of an individual, who has not executed a declaration, to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition.

§2508. Penalties

(a) Whoever threatens directly or indirectly, coerces, or intimidates any person to execute a declaration directing the withholding or withdrawal of maintenance medical treatment shall be guilty of a misdemeanor and upon conviction shall be fined not less than $500 nor more than $1,000; be imprisoned not less than 30 days nor more than 90 days; or both. The Superior Court shall have Jurisdiction over such offenses.

(b) Whoever knowingly conceals, destroys, falsifies or forges a document with intent to create the false impression that another person has directed that maintenance medical treatment be utilized for the prolongation of his life is guilty of a Class C felony.

(c) The Superior Court shall have Jurisdiction over all offenses under this Chapter.

§2509. Exemption from Liability; Defense

(a) No physician or other individual, nor any health care facility which, acting in accordance with the requirement of this Chapter, causes the withholding or withdrawal of life-sustaining procedures from a patient, shall be subject to civil liability therefrom. No physician or other person acting under the direction of a physician who participates in the withholding or withdrawal of a life-sustaining procedure in accordance with the provisions of this Chapter shall be guilty of any criminal act or of unprofessional conduct, other determinations to the contrary notwithstanding.

(b) In any action for malpractice governed by Chapter 68 of Title 18, brought against any attending physician or any health care facility, arising out of the observance of the provisions of this Chapter, it shall be a defense to such action that the attending physician or health care facility acted in accordance with a written declaration meeting all of the procedural requirements of this Chapter.

Section 2. This Act shall be known and may be cited as the Delaware Death with Dignity Act.

Section 3. Nothing in this Act shall be construed to condone, authorize, or approve of mercy killing; be construed to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying; nor be construed to be a method of defining or determining a technical state of death.

Section 4. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 12, 1982.