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S1068aa..............................................by JUDICIARY AND RULES MEDICAL CONSENT AND NATURAL DEATH ACT - Repeals and adds to existing law to set forth the Medical Consent and Natural Death Act; to set forth purposes; to provide for application; to state who may consent to their own care; to state who may give consent to care for others; to provide for blood testing; to set forth provisions applicable to sufficiency of consent and the form of consent; to set forth responsibility for consent and documentation; to provide a statement of legislative policy; to define terms; to provide a living will and durable power of attorney for health care; to provide for revocation; to provide for execution; to provide immunity; and to set forth general provisions. 01/31 Senate intro - 1st rdg - to printing 02/01 Rpt prt - to Jud 02/21 Rpt out - to 14th Ord 02/23 Rpt out amen - to engros 02/24 Rpt engros - 1st rdg - to 2nd rdg as amen 02/25 2nd rdg - to 3rd rdg as amen 03/01 3rd rdg as amen - PASSED - 31-0-4 AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Noble, Schroeder, Stegner, Werk, Williams NAYS -- None Absent and excused -- Pearce, Richardson, Stennett, Sweet Floor Sponsor - Davis Title apvd - to House 03/02 House intro - 1st rdg - to Jud 03/10 Rpt out - rec d/p - to 2nd rdg 03/11 2nd rdg - to 3rd rdg 03/15 3rd rdg - PASSED - 69-0-1 AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart(Jacobson), Harwood, Henbest, Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- None Absent and excused -- Crow Floor Sponsors - Smith(24) & LaFavour Title apvd - to Senate 03/16 To enrol 03/17 Rpt enrol - Pres signed 03/18 Sp signed 03/21 To Governor 03/23 Governor signed Session Law Chapter 120 Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005IN THE SENATE SENATE BILL NO. 1068 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE NATURAL DEATH AND MEDICAL CONSENT ACT; REPEALING CHAPTERS 43 3 AND 45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDI- 4 TION OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES, TO 5 PROVIDE FOR CHAPTER APPLICATION, TO PROVIDE A STATEMENT OF LEGISLATIVE 6 POLICY, TO DEFINE TERMS, TO PROVIDE FOR A LIVING WILL AND DURABLE POWER OF 7 ATTORNEY FOR HEALTH CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECU- 8 TION, TO PROVIDE IMMUNITY, TO SET FORTH GENERAL PROVISIONS, TO STATE WHO 9 MAY CONSENT TO THEIR OWN CARE, TO STATE WHO MAY GIVE CONSENT TO CARE FOR 10 OTHERS, TO PROVIDE FOR BLOOD TESTING, TO SET FORTH PROVISIONS APPLICABLE 11 TO THE FORM OF CONSENT AND TO SET FORTH RESPONSIBILITY FOR CONSENT AND 12 DOCUMENTATION; AMENDING SECTION 5-332, IDAHO CODE, TO PROVIDE A CORRECT 13 CODE REFERENCE; AMENDING SECTION 31-3910, IDAHO CODE, TO PROVIDE A CORRECT 14 CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT 15 CODE REFERENCE; AMENDING SECTION 39-4509, IDAHO CODE, TO PROVIDE A CORRECT 16 CODE REFERENCE; AMENDING SECTION 54-1142, IDAHO CODE, TO PROVIDE A CORRECT 17 CODE REFERENCE; AMENDING SECTION 56-1015, IDAHO CODE, TO PROVIDE A CORRECT 18 CODE REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE, TO PROVIDE A COR- 19 RECT CODE REFERENCE. 20 Be It Enacted by the Legislature of the State of Idaho: 21 SECTION 1. That Chapters 43 and 45, Title 39, Idaho Code, be, and the 22 same are hereby repealed. 23 SECTION 2. That Title 39, Idaho Code, be, and the same is hereby amended 24 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 25 ter 45, Title 39, Idaho Code, and to read as follows: 26 CHAPTER 45 27 THE NATURAL DEATH AND MEDICAL CONSENT ACT 28 39-4501. PURPOSES -- APPLICATION. (1) The primary purposes of this chap- 29 ter are: 30 (a) To provide and codify Idaho law concerning consent for the furnishing 31 of hospital, medical, dental or surgical care, treatment or procedures, 32 and concerning what constitutes an informed consent for such care, treat- 33 ment or procedures; and 34 (b) To provide certainty and clarity in the law of medical consent in the 35 furtherance of high standards of health care and its ready availability in 36 proper cases. 37 (2) Nothing in this chapter shall be deemed to amend or repeal the provi- 38 sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi- 39 cal attendance upon or hospitalization of the mentally ill, nor the provisions 40 of chapter 6, title 18, Idaho Code, pertaining to provision of examinations, 41 prescriptions, devices and informational materials regarding prevention of 2 1 pregnancy or pertaining to therapeutic abortions and consent to the perfor- 2 mance thereof. 3 (3) Nothing in this chapter shall be construed to permit or require the 4 provision of health care for a patient in contravention of the patient's 5 stated or implied objection thereto upon religious grounds nor shall anything 6 in this chapter be construed to require the granting of permission for or on 7 behalf of any patient who is not able to act for himself by his parent, spouse 8 or guardian in violation of the religious beliefs of the patient or the 9 patient's parent or spouse. 10 39-4502. STATEMENT OF POLICY. (1) The legislature finds that adult per- 11 sons have the fundamental right to control the decisions relating to the ren- 12 dering of their medical care, including the decision to have life sustaining 13 procedures withheld or withdrawn. The legislature further finds that modern 14 medical technology has made possible the artificial prolongation of human life 15 beyond natural limits. The legislature further finds that patients are some- 16 times unable to express their desire to withhold or withdraw such artificial 17 life prolongation procedures which provide nothing medically necessary or ben- 18 eficial to the patient because of the patient's inability to communicate with 19 the physician. 20 (2) In recognition of the dignity and privacy which patients have a right 21 to expect, the legislature hereby declares that the laws of this state shall 22 recognize the right of a competent person to have his wishes for medical 23 treatment and for the withdrawal of artificial life sustaining procedures car- 24 ried out even though that person is no longer able to communicate with the 25 physician. 26 (3) It is the intent of the legislature to establish an effective means 27 for such communication. It is not the intent of the legislature that the pro- 28 cedures described in this chapter are the only effective means of such commu- 29 nication, and nothing in this chapter shall impair or supersede any legal 30 right or legal responsibility which a person may have to effect the withhold- 31 ing or withdrawal of life sustaining procedures in any lawful manner. Any 32 authentic expression of a person's wishes with respect to health care should 33 be honored. 34 39-4503. DEFINITIONS. As used in this chapter: 35 (1) "Artificial life-sustaining procedure" means any medical procedure or 36 intervention that utilizes mechanical means to sustain or supplant a vital 37 function which when applied to a qualified patient, would serve only to arti- 38 ficially prolong life. "Artificial life-sustaining procedure" does not include 39 the administration of medication or the performance of any medical procedure 40 deemed necessary to alleviate pain. 41 (2) "Artificial nutrition and hydration" means supplying food and water 42 through a conduit, such as a tube or intravenous line, where the recipient is 43 not required to chew or swallow voluntarily, but does not include assisted 44 feeding, such as spoon feeding or bottle feeding. 45 (3) "Attending physician" means the physician licensed by the state board 46 of medicine who is selected by, or assigned to, the patient and who has pri- 47 mary responsibility for the treatment and care of the patient. 48 (4) "Competent person" means any emancipated minor or any person eighteen 49 (18) or more years of age who is of sound mind. 50 (5) "Consent to care" includes refusal to consent to care and/or with- 51 drawal of care. 52 39-4504. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. Any 3 1 competent person may execute a document known as a "Living Will and Durable 2 Power of Attorney for Health Care." Such document shall be in substantially 3 the following form, or in another form that contains the elements set forth in 4 this chapter. A "Living Will and Durable Power of Attorney for Health Care" 5 executed prior to the effective date of this act, but which was in the "Living 6 Will" and/or "Durable Power of Attorney for Health Care" form pursuant to 7 prior Idaho law at the time of execution, or in another form that contained 8 the elements set forth in this chapter at the time of execution, shall be 9 deemed to be in compliance with this chapter. A "Living Will and Durable Power 10 of Attorney for Health Care" or similar document(s) executed in another state 11 which substantially complies with this chapter shall be deemed to be in com- 12 pliance with this chapter. In this chapter, a "Living Will and Durable Power 13 of Attorney for Health Care" may be referred to as a "directive." Any portions 14 of the "Living Will and Durable Power of Attorney for Health Care" which are 15 left blank by the person executing the document shall be deemed to be inten- 16 tional and shall not invalidate the document. 17 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE 18 Date of Directive:.................... 19 Name of person executing Directive:........................................... 20 Address of person executing Directive:........................................ 21 A LIVING WILL 22 A Directive to Withhold or to Provide Treatment 23 1. Being of sound mind, I willfully and voluntarily make known my desire that 24 my life shall not be prolonged artificially under the circumstances set forth 25 below. This Directive shall only be effective if I am unable to communicate my 26 instructions and: 27 a. I have an incurable injury, disease, illness or condition and two (2) 28 medical doctors who have examined me have certified: 29 1. That such injury, disease, illness or condition is terminal; and 30 2. That the application of artificial life-sustaining procedures 31 would serve only to prolong artificially my life; and 32 3. That my death is imminent, whether or not artificial life- 33 sustaining procedures are utilized; or 34 b. I have been diagnosed as being in a persistent vegetative state. 35 In such event, I direct that the following marked expression of my intent be 36 followed, and that I receive any medical treatment or care that may be 37 required to keep me free of pain or distress. 38 Check one box and initial the line after such box: 39 ........ I direct that all medical treatment, care and procedures neces- 40 sary to restore my health, sustain my life, and to abolish or alleviate pain 41 or distress be provided to me. Nutrition and hydration, whether artificial or 42 nonartificial, shall not be withheld or withdrawn from me if I would likely 43 die primarily from malnutrition or dehydration rather than from my injury, 44 disease, illness or condition. 45 OR 4 1 ........ I direct that all medical treatment, care and procedures, 2 including artificial life-sustaining procedures, be withheld or withdrawn, 3 except that nutrition and hydration, whether artificial or nonartificial shall 4 not be withheld or withdrawn from me if, as a result, I would likely die pri- 5 marily from malnutrition or dehydration rather than from my injury, disease, 6 illness or condition, as follows: (If none of the following boxes are checked 7 and initialed, then both nutrition and hydration, of any nature, whether arti- 8 ficial or nonartificial, shall be administered.) 9 Check one box and initial the line after such box: 10 A. ........ Only hydration of any nature, whether artificial or 11 nonartificial, shall be administered; 12 B. ........ Only nutrition, of any nature, whether artificial or 13 nonartificial, shall be administered; 14 C. ........ Both nutrition and hydration, of any nature, whether 15 artificial or nonartificial shall be administered. 16 OR 17 ........ I direct that all medical treatment, care and procedures be 18 withheld or withdrawn, including withdrawal of the administration of artifi- 19 cial nutrition and hydration. 20 2. This Directive shall be the final expression of my legal right to refuse 21 or accept medical and surgical treatment, and I accept the consequences of 22 such refusal or acceptance. 23 3. If I have been diagnosed as pregnant, this Directive shall have no force 24 during the course of my pregnancy. 25 4. I understand the full importance of this Directive and am mentally compe- 26 tent to make this Directive. No participant in the making of this Directive or 27 in its being carried into effect shall be held responsible in any way for com- 28 plying with my directions. 29 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE 30 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated 31 as your agent: (1) your treating health care provider; (2) a nonrelative 32 employee of your treating health care provider; (3) an operator of a community 33 care facility; or (4) a nonrelative employee of an operator of a community 34 care facility. If the agent or an alternate agent designated in this Directive 35 is my spouse, and our marriage is thereafter dissolved, such designation shall 36 be thereupon revoked. 37 I do hereby designate and appoint the following individual as my attorney in 38 fact (agent) to make health care decisions for me as authorized in this Direc- 39 tive. (Insert name, address and telephone number of one individual only as 40 your agent to make health care decisions for you.) 41 Name of Health Care Agent:.................................................... 42 Address of Health Care Agent:................................................. 43 Telephone Number of Health Care Agent:........................................ 5 1 For the purposes of this Directive, "health care decision" means consent, 2 refusal of consent, or withdrawal of consent to any care, treatment, service 3 or procedure to maintain, diagnose or treat an individual's physical condi- 4 tion. 5 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of 6 this Directive, I create a durable power of attorney for health care. This 7 power of attorney shall not be affected by my subsequent incapacity. This 8 power shall be effective only when I am unable to communicate rationally. 9 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this 10 Directive, including as set forth in paragraph 2 immediately above, I hereby 11 grant to my agent full power and authority to make health care decisions for 12 me to the same extent that I could make such decisions for myself if I had the 13 capacity to do so. In exercising this authority, my agent shall make health 14 care decisions that are consistent with my desires as stated in this Directive 15 or otherwise made known to my agent including, but not limited to, my desires 16 concerning obtaining or refusing or withdrawing life-prolonging care, treat- 17 ment, services and procedures, including such desires set forth in a living 18 will or similar document executed by me, if any. (If you want to limit the 19 authority of your agent to make health care decisions for you, you can state 20 the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and 21 Limitations") below. You can indicate your desires by including a statement of 22 your desires in the same paragraph.) 23 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent 24 must make health care decisions that are consistent with your known desires. 25 You can, but are not required to, state your desires in the space provided 26 below. You should consider whether you want to include a statement of your 27 desires concerning life-prolonging care, treatment, services and procedures. 28 You can also include a statement of your desires concerning other matters 29 relating to your health care, including a list of one or more persons whom you 30 designate to be able to receive medical information about you and/or to be 31 allowed to visit you in a medical institution. You can also make your desires 32 known to your agent by discussing your desires with your agent or by some 33 other means. If there are any types of treatment that you do not want to be 34 used, you should state them in the space below. If you want to limit in any 35 other way the authority given your agent by this Directive, you should state 36 the limits in the space below. If you do not state any limits, your agent will 37 have broad powers to make health care decisions for you, except to the extent 38 that there are limits provided by law.) In exercising the authority under this 39 durable power of attorney for health care, my agent shall act consistently 40 with my desires as stated below and is subject to the special provisions and 41 limitations stated in a living will or similar document executed by me, if 42 any. Additional statement of desires, special provisions, and limitations:.... 43 .............................................................................. 44 (You may attach additional pages or documents if you need more space to com- 45 plete your statement.) 46 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL 47 HEALTH. 48 A. General Grant of Power and Authority. Subject to any limitations in this 49 Directive, my agent has the power and authority to do all of the following: 50 (1) Request, review and receive any information, verbal or written, regarding 6 1 my physical or mental health including, but not limited to, medical and hospi- 2 tal records; (2) Execute on my behalf any releases or other documents that may 3 be required in order to obtain this information; (3) Consent to the disclosure 4 of this information; and (4) Consent to the donation of any of my organs for 5 medical purposes. (If you want to limit the authority of your agent to receive 6 and disclose information relating to your health, you must state the limita- 7 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita- 8 tions") above.) 9 B. HIPAA Release Authority. My agent shall be treated as I would be with 10 respect to my rights regarding the use and disclosure of my individually iden- 11 tifiable health information or other medical records. This release authority 12 applies to any information governed by the Health Insurance Portability and 13 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 14 164. I authorize any physician, health care professional, dentist, health 15 plan, hospital, clinic, laboratory, pharmacy, or other covered health care 16 provider, any insurance company, and the Medical Information Bureau, Inc. or 17 other health care clearinghouse that has provided treatment or services to me, 18 or that has paid for or is seeking payment from me for such services, to give, 19 disclose and release to my agent, without restriction, all of my individually 20 identifiable health information and medical records regarding any past, pres- 21 ent or future medical or mental health condition, including all information 22 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental 23 illness, and drug or alcohol abuse. The authority given my agent shall super- 24 sede any other agreement that I may have made with my health care providers to 25 restrict access to or disclosure of my individually identifiable health infor- 26 mation. The authority given my agent has no expiration date and shall expire 27 only in the event that I revoke the authority in writing and deliver it to my 28 health care provider. 29 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the 30 health care decisions that my agent is authorized by this Directive to make, 31 my agent has the power and authority to execute on my behalf all of the fol- 32 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat- 33 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces- 34 sary waiver or release from liability required by a hospital or physician. 35 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any 36 alternate agents but you may do so. Any alternate agent you designate will be 37 able to make the same health care decisions as the agent you designated in 38 paragraph 1 above, in the event that agent is unable or ineligible to act as 39 your agent. If an alternate agent you designate is your spouse, he or she 40 becomes ineligible to act as your agent if your marriage is thereafter dis- 41 solved.) If the person designated as my agent in paragraph 1 is not available 42 or becomes ineligible to act as my agent to make a health care decision for me 43 or loses the mental capacity to make health care decisions for me, or if I 44 revoke that person's appointment or authority to act as my agent to make 45 health care decisions for me, then I designate and appoint the following per- 46 sons to serve as my agent to make health care decisions for me as authorized 47 in this Directive, such persons to serve in the order listed below: 48 A. First Alternate Agent: 49 Name.......................................................................... 50 Address....................................................................... 51 Telephone Number.............................................................. 7 1 B. Second Alternate Agent: 2 Name.......................................................................... 3 Address....................................................................... 4 Telephone Number.............................................................. 5 C. Third Alternate Agent: 6 Name.......................................................................... 7 Address....................................................................... 8 Telephone Number.............................................................. 9 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney 10 for health care. 11 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and 12 Durable Power of Attorney for Health Care.) 13 I sign my name to this Statutory Form Living Will and Durable Power of Attor- 14 ney for Health Care on the date set forth at the beginning of this Form at 15 ............... (City, State).................... 16 .............................. 17 Signature 18 39-4505. REVOCATION. (1) A "Living Will and Durable Power of Attorney 19 for Health Care" may be revoked at any time by the maker thereof, without 20 regard to his mental state or competence, by any of the following methods: 21 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise 22 destroyed by the maker thereof, or by some person in his presence and by 23 his direction; 24 (b) By a written, signed revocation of the maker thereof expressing his 25 intent to revoke; or 26 (c) By an oral expression by the maker thereof expressing his intent to 27 revoke. 28 (2) There shall be no criminal or civil liability on the part of any per- 29 son for the failure to act upon a revocation of a "Living Will and Durable 30 Power of Attorney for Health Care" made pursuant to this section unless that 31 person has actual knowledge of the revocation. 32 39-4506. EXECUTION OF LIVING WILL AND DURABLE POWER OF ATTORNEY FOR 33 HEALTH CARE. A "Living Will and Durable Power of Attorney for Health Care" 34 shall be effective from the date of execution unless otherwise revoked. Noth- 35 ing in this chapter shall be construed to prevent a competent person from 36 reexecuting a "Living Will and Durable Power of Attorney for Health Care" at 37 any time. 38 39-4507. IMMUNITY. (1) No medical personnel or health care facility shall 39 be civilly or criminally liable for acts or omissions carried out or performed 40 pursuant to the directives in a facially valid living will or by the holder of 41 a facially valid durable power of attorney or directive for health care if the 42 medical personnel or health care facility acts in good faith. 43 (2) Any physician or other health care provider who for ethical or pro- 44 fessional reasons is incapable or unwilling to conform to the desires of the 45 patient as expressed by the procedures set forth in this chapter may withdraw 46 without incurring any civil or criminal liability provided the physician or 47 other health care provider makes a good faith effort to assist the patient in 8 1 obtaining the services of another physician or other health care provider 2 before withdrawal. 3 (3) No person who exercises the responsibilities of a durable power of 4 attorney for health care in good faith shall be subject to civil or criminal 5 liability as a result. 6 39-4508. GENERAL PROVISIONS. (1) This chapter shall have no effect or be 7 in any manner construed to apply to persons not executing a "Living Will and 8 Durable Power of Attorney for Health Care" pursuant to this chapter nor shall 9 it in any manner affect the rights of any such persons or of others acting for 10 or on behalf of such persons to give or refuse to give consent or withhold 11 consent for any medical care, neither shall this chapter be construed to 12 affect chapter 3, title 66, Idaho Code, in any manner. 13 (2) The making of a "Living Will and Durable Power of Attorney for Health 14 Care" pursuant to this chapter shall not restrict, inhibit or impair in any 15 manner the sale, procurement or issuance of any policy of life insurance, nor 16 shall it be deemed to modify the terms of an existing policy of life insur- 17 ance. No policy of life insurance shall be legally impaired or invalidated in 18 any manner by the withholding or withdrawal of artificial life-sustaining pro- 19 cedures from an insured patient, notwithstanding any term of the policy to the 20 contrary. 21 (3) No physician, health facility or other health care provider and no 22 health care service plan, insurer issuing disability insurance, self-insured 23 employee plan, welfare benefit plan or nonprofit hospital service plan shall 24 require any person to execute a "Living Will and Durable Power of Attorney for 25 Health Care" as a condition for being insured for, or receiving, health care 26 services. 27 39-4509. PERSONS WHO MAY CONSENT TO THEIR OWN CARE. Any adult person of 28 ordinary intelligence and awareness sufficient for him or her generally to 29 comprehend the need for, the nature of and the significant risks ordinarily 30 inherent in, any contemplated hospital, medical, dental or surgical care, 31 treatment or procedure is competent to consent thereto on his or her own 32 behalf. Any physician, dentist, hospital or other duly authorized person may 33 provide such health care and services in reliance upon such a consent if the 34 physician or dentist to whom it is given or by whom it is secured has made 35 such disclosures and given such advice respecting pertinent facts and consid- 36 erations as would ordinarily be made and given under the same or similar cir- 37 cumstances by a like physician or dentist of good standing practicing in the 38 same community. As used in this section, the term "in the same community" 39 refers to that geographical area ordinarily served by the licensed general 40 hospital at or nearest to which such consent is given. 41 39-4510. PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS. (1) The fol- 42 lowing persons may give consent to care for another person if such other per- 43 son is not then capable of giving such consent, including by reason of minor- 44 ity, in the order of priority set forth below, if the physician or dentist to 45 whom it is given or by whom it is secured has made such disclosures and given 46 such advice respecting pertinent facts and considerations as would ordinarily 47 be made and given under the same or similar circumstances by a like physician 48 or dentist of good standing practicing in the same community. As used in this 49 section, the term "in the same community" refers to that geographical area 50 ordinarily served by the licensed general hospital at or nearest to which such 51 consent is given: 52 (a) The legal guardian of such person; 9 1 (b) The person named in a "Living Will and Durable Power of Attorney for 2 Health Care" pursuant to section 39-4504, Idaho Code, or a similar docu- 3 ment authorized by this chapter; 4 (c) If married, the spouse of such person; 5 (d) The parent(s) of such person; 6 (e) Any relative representing himself or herself to be an appropriate, 7 responsible person to act under the circumstances; 8 (f) Any other competent individual representing himself or herself to be 9 responsible for the health care of such person; or 10 (g) If the subject person presents a medical emergency or there is a sub- 11 stantial likelihood of his or her life or health being seriously endan- 12 gered by withholding or delay in the rendering of such hospital, medical, 13 dental or surgical care to such patient, the attending physician or den- 14 tist may, in his or her discretion, authorize and/or provide such care, 15 treatment or procedure as he or she deems appropriate, and all persons, 16 agencies and institutions thereafter furnishing the same, including such 17 physician or dentist, may proceed as if informed, valid consent therefor 18 had been otherwise duly given. 19 (2) No person who, in good faith, gives consent or authorization for the 20 provision of hospital, medical, dental or surgical care, treatment or proce- 21 dures to another as provided by this chapter shall be subject to civil liabil- 22 ity therefor. 23 39-4511. BLOOD TESTING. (1) A physician may consent to ordering tests of 24 a patient's or a deceased person's blood or other body fluids for the presence 25 of blood-transmitted or body fluid-transmitted viruses or diseases without the 26 prior consent of the patient if: 27 (a) There has been or is likely to be a significant exposure to the 28 patient's or a deceased person's blood or body fluids by a person provid- 29 ing emergency or medical services to such patient which may result in the 30 transmittal of a virus or disease; and 31 (b) The patient is unconscious or incapable of giving informed consent 32 and the physician is unable to obtain consent pursuant to section 39-4509, 33 Idaho Code. 34 (2) The department of health and welfare shall promulgate rules identify- 35 ing the blood-transmitted or body fluid-transmitted viruses or diseases for 36 which blood tests or body fluid tests can be ordered under this section and 37 defining the term "significant exposure" as provided in this section. 38 (3) Results of tests conducted under this section which confirm the pres- 39 ence of a blood-transmitted or body fluid-transmitted virus or disease shall 40 be reported to the director of the department of health and welfare in the 41 name of the patient or deceased person. The department records containing such 42 test results shall be used only by public health officials who must conduct 43 investigations. The exposed person shall only be informed of the results of 44 the test and shall not be informed of the name of the patient or deceased per- 45 son. Protocols shall be established by hospitals to maintain confidentiality 46 while disseminating the necessary test result information to persons who may 47 have a significant exposure to blood or other body fluids and to maintain 48 records of such tests to preserve the confidentiality of the test results. 49 (4) Any person who willfully or maliciously discloses the results of a 50 test conducted under this section, except pursuant to a written authorization 51 by the person whose blood was tested or by such person's authorized represen- 52 tative, or as otherwise authorized by law, shall be guilty of a misdemeanor. 53 39-4512. FORM OF CONSENT. It is not essential to the validity of any con- 10 1 sent for the furnishing of hospital, medical, surgical or dental care, treat- 2 ment or procedures that the consent be in writing or any other form of expres- 3 sion; provided however, when the giving of such consent is recited or docu- 4 mented in writing and expressly authorizes the care, treatment or procedures 5 to be furnished, and when such writing or form has been executed or initialed 6 by a person competent to give such consent for himself or another, such writ- 7 ten consent, in the absence of convincing proof that it was secured mali- 8 ciously or by fraud, is presumed to be valid for the furnishing of such care, 9 treatment or procedures, and the advice and disclosures of the attending phy- 10 sician or dentist, as well as the level of informed awareness of the giver of 11 such consent, shall be presumed to be sufficient. 12 39-4513. RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent 13 for health care is the duty of the attending physician or dentist or of 14 another physician or dentist acting on his or her behalf or actually providing 15 the contemplated care, treatment or procedure; provided however, a licensed 16 hospital and any medical or dental office lay or professional employee, acting 17 with the approval of such an attending or other physician or dentist, may per- 18 form the ministerial act of documenting such consent by securing the comple- 19 tion and execution of a form or statement in which the giving of consent for 20 such care is documented by or on behalf of the patient. In performing such a 21 ministerial act, the hospital or medical or dental office lay or professional 22 employee shall not be deemed to have engaged in the practice of medicine or 23 dentistry. 24 SECTION 3. That Section 5-332, Idaho Code, be, and the same is hereby 25 amended to read as follows: 26 5-332. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 27 refusal of consent for emergency medical treatment under sections 5-330 or 28 5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 29 SECTION 4. That Section 31-3910, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 31-3910. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 32 refusal of consent for emergency medical treatment under chapter 39, title 31, 33 Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 34 SECTION 5. That Section 39-3902, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 39-3902. DEFINITIONS. For purposes of this chapter, the following words 37 and terms have the meaning hereinafter stated: 38 (1) "Emergency medical treatment" means immediate medical intervention 39 required, according to the prevailing medical standards of judgment and prac- 40 tice within the community, because of the medical condition of the person sub- 41 ject to this chapter. 42 (2) "Evaluation committee" means an interdisciplinary team consisting of 43 at least four (4) individuals qualified by education and training to evaluate 44 an individual as required by the provisions of this chapter, and an advocate 45 designated by the person subject to this chapter. Each committee must include: 46 two (2) social workers, at least one (1) of whom must be a master's level; a 47 clinical psychologist or a psychiatrist; and a physician. 48 (3) "Informed assent" means a process by which a person subject to this 11 1 chapter who lacks or is alleged to lack the capacity to consent to steriliza- 2 tion is given a fair opportunity to acknowledge the nature, risks and conse- 3 quences of the procedures and, insofar as he or she is able to, indicates 4 willingness and choice to undergo sterilization. 5 (4) "Interested person" means an interested, responsible adult including, 6 but not limited to, the legal guardian, spouse, parent, legal counsel, adult 7 child, or next of kin of a person subject to this chapter, or if none of these 8 are available, the department of health and welfare. 9 (5) "Medically necessary" means that, according to the prevailing medical 10 standards of judgment and practice within the community, the procedure is rea- 11 sonably calculated to prevent or treat conditions in the person subject to 12 this chapter that endanger life, cause severe pain, or cause functionally sig- 13 nificant deformity or malfunction, and for which there is not an equally 14 effective alternative course of treatment available or suitable. 15 (6) "Person subject to this chapter" means all adults, except adults who 16 may consent to their own treatment pursuant to chapter 435, title 39, Idaho 17 Code. Adults who are alleged to lack this capacity are also persons subject to 18 this chapter. 19 (7) "Physician" means a person duly licensed in the state of Idaho to 20 practice medicine and surgery without restriction pursuant to laws of the 21 state of Idaho. 22 (8) "Records" includes, but is not limited to, all court files of judi- 23 cial proceedings brought under this chapter, written clinical information, 24 observations and reports, or fiscal documents relating to a person subject to 25 this chapter who has undergone or is about to undergo sterilization and which 26 are related to the sterilization. 27 (9) "Sterilization" means any medical or surgical operation or procedure 28 which can be expected to result in a patient's permanent inability to repro- 29 duce. 30 SECTION 6. That Section 39-4509, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 39-4509. GENERAL PROVISIONS. (1) This chapter shall have no effect or be 33 in any manner construed to apply to persons not executing a directive pursuant 34 to this chapter nor shall it in any manner affect the rights of any such per- 35 sons or of others acting for or on behalf of such persons to give or refuse to 36 give consent or withhold consent for any medical care, neither shall this 37 chapter be construed to affect chapter 435, title 39, nor chapter 3, title 66, 38 Idaho Code, in any manner. 39 (2) The making of a directive pursuant to this chapter shall not 40 restrict, inhibit or impair in any manner the sale, procurement, or issuance 41 of any policy of life insurance, nor shall it be deemed to modify the terms of 42 existing policy of life insurance. No policy of life insurance shall be 43 legally impaired or invalidated in any manner by the withholding or withdrawal 44 of artificial life-sustaining procedures from an insured patient, notwith- 45 standing any term of the policy to the contrary. 46 (3) No physician, health facility or other health provider and no health 47 care service plan, insurer issuing disability insurance, self-insured 48 employee, welfare benefit plan, or nonprofit hospital service plan, shall 49 require any person to execute a directive as a condition for being insured 50 for, or receiving, health care services. 51 SECTION 7. That Section 54-1142, Idaho Code, be, and the same is hereby 52 amended to read as follows: 12 1 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the 2 decedent has not made a prearranged funeral plan as set forth in section 3 54-1139, Idaho Code, the right to control the disposition of the remains of a 4 deceased person vests in, and devolves upon the following in the order named: 5 (a) The person designated in a written document executed by the decedent 6 and acknowledged in the same manner as required for instruments conveying 7 real property, and subject to such limitations, restrictions, or direc- 8 tions, as may be set forth in such document; 9 (b) The person designated as agent under a durable power of attorney for 10 health care executed by the decedent, unless such durable power of attor- 11 ney for health care contains express and clear language denying such 12 right; 13 (c) The person designated in a durable power of attorney executed by the 14 decedent, if such power of attorney contains express and clear language 15 granting such right to the agent named in such power of attorney; 16 (d) The competent surviving spouse of the decedent; 17 (e) A majority of the competent surviving adult children of the decedent, 18 provided that less than one-half (1/2) of the competent surviving adult 19 children shall be vested with the right to control the disposition of the 20 remains of the decedent if they have used reasonable efforts to notify all 21 other competent surviving adult children of their instructions to dispose 22 of the decedent's remains and are not aware of any opposition to those 23 instructions on the part of more than one-half (1/2) of all competent sur- 24 viving adult children; 25 (f) The competent surviving parents or parent of the decedent, provided 26 that if one (1) of the competent surviving parents is absent, the remain- 27 ing competent surviving parent shall be vested with the right to control 28 the disposition of the remains of the decedent after reasonable efforts 29 have been made and are unsuccessful in locating the absent competent sur- 30 viving parent; 31 (g) The person appointed by a court of competent jurisdiction as the per- 32 sonal representative or administrator of the estate of the decedent; 33 (h) The person nominated as the personal representative of the estate of 34 the decedent in the will of the decedent; 35 (i) The competent adult person or persons entitled to inherit from the 36 decedent under the intestate succession laws of the state of Idaho, 37 respectively in the next degrees of kinship, provided that if there is 38 more than one (1) competent surviving adult person of the same degree of 39 kinship, the majority of those persons, and provided further that less 40 than the majority of competent surviving adult persons of the same degree 41 of kinship shall be vested with the right to control the disposition of 42 the remains of the decedent if those persons have used reasonable efforts 43 to notify all other competent surviving adult persons of the same degree 44 of kinship of their instructions to dispose of the decedent's remains and 45 are not aware of any opposition to those instructions on the part of one- 46 half (1/2) or more of all competent surviving adult persons of the same 47 degree of kinship. 48 (2) If any person to whom the right of control has vested pursuant to the 49 foregoing has been charged with first or second degree murder or voluntary 50 manslaughter in connection with the decedent's death, and those charges are 51 known to the funeral director or cemetery authority, the right of control is 52 relinquished and passed on to the next qualifying person as listed above as if 53 the charged person did not exist; provided however, that if the charges 54 against such person are dropped, or if such person is acquitted of the 55 charges, the right of control is returned to the person. 13 1 (3) For purposes of this section: 2 (a) "Adult" means an individual who is eighteen (18) years of age or 3 older; 4 (b) "Child" means a natural or adopted child of the decedent; 5 (c) "Competent" means the individual has not been declared incompetent by 6 a court of law, or who has been declared competent by a court of law after 7 a prior declaration of incompetence; 8 (d) "Durable power of attorney" means a power of attorney described in 9 section 15-5-501, Idaho Code, or any similar document properly executed 10 under the laws of another jurisdiction; and 11 (e) "Durable power of attorney for health care" means the document 12 described insection 39-4505chapter 45, title 39, Idaho Code, or any sim- 13 ilar document properly executed under the laws of another jurisdiction; 14 (f) "Will" means any testamentary device which is valid under the Idaho 15 probate code, including, but not limited to, sections 15-2-503, 15-2-504 16 and 15-2-506, Idaho Code, whether or not originally executed in, or under 17 the laws of, the state of Idaho. 18 (4) (a) A cemetery authority or licensed funeral director or a licensed 19 hospital or its authorized personnel may permit or assist in, and a physi- 20 cian may perform, an autopsy of any remains of a decedent in its custody: 21 (i) If the decedent, prior to his death, authorizes an autopsy in 22 his will or in another written instrument, including, but not limited 23 to, a durable power of attorney for health care; or 24 (ii) Upon the receipt of a written authorization signed by, 25 telegrammed from, or received by facsimile transmission from, a per- 26 son representing himself to be the person who is entitled under this 27 section to control the disposition of the remains of the decedent, or 28 to be a coroner or any other duly authorized public officer; or 29 (iii) Upon the receipt of an oral authorization obtained by tele- 30 phone, and recorded on tape or other recording device, from a person 31 representing himself to be the person who is entitled under this sec- 32 tion to control the disposition of the remains of the decedent, or to 33 be a coroner or any other duly authorized public officer. 34 (b) A cemetery authority or a licensed funeral director of a licensed 35 hospital or its authorized personnel is not liable for permitting or 36 assisting, and a physician is not liable for performing, an autopsy pursu- 37 ant to the authorization provided in paragraph (a) of this subsection 38 unless he has actual notice that such representation is untrue at the time 39 the autopsy is performed. If such authorization is contained in a will, 40 the autopsy may be performed regardless of the validity of the will in 41 other respects and regardless of whether the will may not be offered for, 42 or admitted to, probate until a later date. 43 (c) This subsection shall not authorize the obtaining of an oral authori- 44 zation by telephone, recorded on tape or other recording device, for the 45 autopsy of a deceased person if it is made known to the physician who is 46 to perform the autopsy that the deceased person was, at the time of his 47 death, a member of a religion or group which opposes autopsies. 48 SECTION 8. That Section 56-1015, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 56-1015. FAILURE TO OBTAIN CONSENT. No person certified under sections 51 56-1011 through 56-1018B, Idaho Code, or physician or hospital licensed in 52 this state shall be subject to civil liability, based solely upon failure to 53 obtain consent in rendering emergency medical, surgical, hospital or health 14 1 services to any individual regardless of age where that individual is unable 2 to give this consent for any reason and there is no other person reasonably 3 available who is legally authorized to consent to the providing of such care, 4 provided, however, that such person, physician, or hospital has acted in good 5 faith and without knowledge of facts negating consent. The provision or 6 refusal of consent under sections 56-1011 through 56-1018B, Idaho Code, shall 7 be governed by chapter 435, title 39, Idaho Code. 8 SECTION 9. That Section 66-405, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the 11 respondent is not developmentally disabled but appears in need of protective 12 services, the court may cause the proceeding to be expanded or altered for 13 consideration under the uniform probate code. 14 (2) If it is determined that the respondent is able to manage financial 15 resources and meet essential requirements for physical health or safety, the 16 court shall dismiss the petition. 17 (3) If it is determined that the respondent is developmentally disabled 18 and is unable to manage some financial resources or meet some essential 19 requirements for physical health or safety, the court may appoint a partial 20 guardian and/or partial conservator on behalf of the respondent. An order 21 establishing partial guardianship or partial conservatorship shall define the 22 powers and duties of the partial guardian or partial conservator so as to per- 23 mit the respondent to meet essential requirements for physical health or 24 safety and to manage financial resources commensurate with his ability to do 25 so, and shall specify all legal restrictions to which he is subject. A person 26 for whom a partial guardianship or partial conservatorship has been appointed 27 under this chapter retains all legal and civil rights except those which have 28 by court order been limited or which have been specifically granted to the 29 partial guardian or partial conservator by the court. 30 (4) If it is determined that the respondent is developmentally disabled 31 and is unable to manage financial resources or meet essential requirements for 32 physical health or safety even with the appointment of a partial guardian or 33 partial conservator, the court may appoint a total guardian and/or total con- 34 servator. 35 (5) In the event that more than one (1) person seeks to be appointed 36 guardian and/or conservator, the court shall appoint the person or persons 37 most capable of serving on behalf of the respondent; the court shall not cus- 38 tomarily or ordinarily appoint the department or any other organization or 39 individual, public or private, that is or is likely to be providing services 40 to the respondent. 41 (6) Subject to the limitations of the provisions of subsection (7) of 42 this section, guardians or conservators may have any of the duties and powers 43 as provided in sections 15-5-312(a)(1) through (4), 15-5-424 and 15-5-425, 44 Idaho Code, and as specified in the order. Any order appointing a partial or 45 total guardian or partial or total conservator under the provisions of this 46 section must require a report to the court at least annually. In addition to 47 such other requirements imposed by law or order, the report shall include: 48 (a) A description of the respondent's current mental, physical and social 49 condition; 50 (b) The respondent's present address and living arrangement; 51 (c) A description of any significant changes in the capacity of the 52 respondent to meet essential requirements for physical health or safety or 53 to manage financial resources; 15 1 (d) A description of services being provided the respondent; 2 (e) A description of significant actions taken by the guardian or conser- 3 vator during the reporting period; 4 (f) Any significant problems relating to the guardianship or conservator- 5 ship; 6 (g) A complete financial statement of the financial resources under the 7 control or supervision of the guardian or conservator; and 8 (h) A description of the need for continued guardianship or conservator- 9 ship services. 10 (7) No guardian appointed under this chapter shall have the authority to 11 refuse or withhold consent for medically necessary treatment when the effect 12 of withholding such treatment would seriously endanger the life or health and 13 well-being of the person with a developmental disability. To withhold or 14 attempt to withhold such treatment shall constitute neglect of the person and 15 be cause for removal of the guardian. No physician or caregiver shall withhold 16 or withdraw such treatment for a respondent whose condition is not terminal or 17 whose death is not imminent. If the physician or caregiver cannot obtain valid 18 consent for medically necessary treatment from the guardian, he shall provide 19 the medically necessary treatment as authorized by section39-4303(c)20 39-4510(1)(g), Idaho Code. 21 (8) A guardian appointed under this chapter may consent to withholding or 22 withdrawal of artificial life-sustaining procedures, only if the respondent: 23 (a) Has an incurable injury, disease, illness or condition, certified by 24 the respondent's attending physician and at least one (1) other physician 25 to be terminal such that the application of artificial life-sustaining 26 procedures would not result in the possibility of saving or significantly 27 prolonging the life of the respondent, and would only serve to prolong the 28 moment of the respondent's death for a period of hours, days or weeks, and 29 where both physicians certify that death is imminent, whether or not the 30 life-sustaining procedures are used; or 31 (b) Has been diagnosed by the respondent's attending physician and at 32 least one (1) other physician as being in a persistent vegetative state 33 which is irreversible and from which the respondent will never regain con- 34 sciousness. 35 (9) Any person, who has information that medically necessary treatment of 36 a respondent has been withheld or withdrawn, may report such information to 37 adult protective services or to the Idaho protection and advocacy system for 38 people with developmental disabilities, who shall have the authority to inves- 39 tigate the report and in appropriate cases to seek a court order to ensure 40 that medically necessary treatment is provided. 41 If adult protective services or the protection and advocacy system deter- 42 mines that withholding of medical treatment violates the provisions of this 43 section, they may petition the court for an ex parte order to provide or con- 44 tinue the medical treatment in question. If the court finds, based on affida- 45 vits or other evidence, that there is probable cause to believe that the with- 46 holding of medical treatment in a particular case violates the provisions of 47 this section, and that the life or health of the patient is endangered 48 thereby, the court shall issue an ex parte order to continue or to provide the 49 treatment until such time as the court can hear evidence from the parties 50 involved. Petitions for court orders under this section shall be expedited by 51 the courts and heard as soon as possible. No bond shall be required of a peti- 52 tioner under this section. 53 (10) No partial or total guardian or partial or total conservator 54 appointed under the provisions of this section may without specific approval 55 of the court in a proceeding separate from that in which such guardian or con- 16 1 servator was appointed: 2 (a) Consent to medical or surgical treatment the effect of which perma- 3 nently prohibits the conception of children by the respondent unless the 4 treatment or procedures are necessary to protect the physical health of 5 the respondent and would be prescribed for a person who is not developmen- 6 tally disabled; 7 (b) Consent to experimental surgery, procedures or medications; or 8 (c) Delegate the powers granted by the order.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005Moved by Davis Seconded by Darrington IN THE SENATE SENATE AMENDMENT TO S.B. NO. 1068 1 AMENDMENT TO THE BILL 2 On page 1 of the printed bill, delete lines 21 through 41 and delete pages 3 2 through 16 and insert: 4 "SECTION 1. That Chapters 43 and 45, Title 39, Idaho Code, be, and the 5 same are hereby repealed. 6 SECTION 2. That Title 39, Idaho Code, be, and the same is hereby amended 7 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 8 ter 45, Title 39, Idaho Code, and to read as follows: 9 CHAPTER 45 10 THE MEDICAL CONSENT AND NATURAL DEATH ACT 11 39-4501. PURPOSES -- APPLICATION. (1) The primary purposes of this chap- 12 ter are: 13 (a) To provide and codify Idaho law concerning consent for the furnishing 14 of hospital, medical, dental or surgical care, treatment or procedures, 15 and concerning what constitutes an informed consent for such care, treat- 16 ment or procedures; and 17 (b) To provide certainty and clarity in the law of medical consent in the 18 furtherance of high standards of health care and its ready availability in 19 proper cases. 20 (2) Nothing in this chapter shall be deemed to amend or repeal the provi- 21 sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi- 22 cal attendance upon or hospitalization of the mentally ill, nor the provisions 23 of chapter 6, title 18, Idaho Code, pertaining to the provision of examina- 24 tions, prescriptions, devices and informational materials regarding prevention 25 of pregnancy or pertaining to therapeutic abortions and consent to the perfor- 26 mance thereof. 27 (3) Nothing in this chapter shall be construed to permit or require the 28 provision of health care for a patient in contravention of the patient's 29 stated or implied objection thereto upon religious grounds nor shall anything 30 in this chapter be construed to require the granting of permission for or on 31 behalf of any patient who is not able to act for himself by his parent, spouse 32 or guardian in violation of the religious beliefs of the patient or the 33 patient's parent or spouse. 34 39-4502. PERSONS WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi- 35 nary intelligence and awareness sufficient for him or her generally to compre- 36 hend the need for, the nature of and the significant risks ordinarily inherent 37 in, any contemplated hospital, medical, dental or surgical care, treatment or 38 procedure is competent to consent thereto on his or her own behalf. Any physi- 39 cian, dentist, hospital or other duly authorized person may provide such 2 1 health care and services in reliance upon such a consent if the consenting 2 person appears to the physician or dentist securing the consent to possess 3 such requisite intelligence and awareness at the time of giving the consent. 4 39-4503. PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS. (1) Consent 5 for the furnishing of hospital, medical, dental or surgical care, treatment or 6 procedures to any person who is not then capable of giving such consent as 7 provided in this chapter or who is a minor or incompetent person, may be given 8 or refused in the order of priority set forth hereafter unless the patient is 9 a competent person who has refused to give such consent, and provided further 10 that this subsection shall not be deemed to authorize any person to override 11 the express refusal by a competent patient to give such consent himself: 12 (a) The legal guardian of such person; 13 (b) The person named in a "Living Will and Durable Power of Attorney for 14 Health Care" pursuant to section 39-4510, Idaho Code, or a similar docu- 15 ment authorized by this chapter; 16 (c) If married, the spouse of such person; 17 (d) A parent of such person; 18 (e) Any relative representing himself or herself to be an appropriate, 19 responsible person to act under the circumstances; 20 (f) Any other competent individual representing himself or herself to be 21 responsible for the health care of such person; or 22 (g) If the subject person presents a medical emergency or there is a sub- 23 stantial likelihood of his or her life or health being seriously endan- 24 gered by withholding or delay in the rendering of such hospital, medical, 25 dental or surgical care to such patient, the attending physician or den- 26 tist may, in his or her discretion, authorize and/or provide such care, 27 treatment or procedure as he or she deems appropriate, and all persons, 28 agencies and institutions thereafter furnishing the same, including such 29 physician or dentist, may proceed as if informed, valid consent therefor 30 had been otherwise duly given. 31 (2) No person who, in good faith, gives consent or authorization for the 32 provision of hospital, medical, dental or surgical care, treatment or proce- 33 dures to another as provided by this chapter shall be subject to civil liabil- 34 ity therefor. 35 (3) No physician, dentist, hospital or other duly authorized person who 36 in good faith obtains consent from a person pursuant to either section 39-4502 37 or 39-4503(1), Idaho Code, shall be subject to civil liability therefor. 38 39-4504. BLOOD TESTING. (1) A physician may consent to ordering tests of 39 a patient's or a deceased person's blood or other body fluids for the presence 40 of blood-transmitted or body fluid-transmitted viruses or diseases without the 41 prior consent of the patient if: 42 (a) There has been or is likely to be a significant exposure to the 43 patient's or a deceased person's blood or body fluids by a person provid- 44 ing emergency or medical services to such patient which may result in the 45 transmittal of a virus or disease; and 46 (b) The patient is unconscious or incapable of giving informed consent 47 and the physician is unable to obtain consent pursuant to section 39-4503, 48 Idaho Code. 49 (2) The department of health and welfare shall promulgate rules identify- 50 ing the blood-transmitted or body fluid-transmitted viruses or diseases for 51 which blood tests or body fluid tests can be ordered under this section and 52 defining the term "significant exposure" as provided in this section. 53 (3) Results of tests conducted under this section which confirm the pres- 3 1 ence of a blood-transmitted or body fluid-transmitted virus or disease shall 2 be reported to the director of the department of health and welfare in the 3 name of the patient or deceased person. The department records containing such 4 test results shall be used only by public health officials who must conduct 5 investigations. The exposed person shall only be informed of the results of 6 the test and shall not be informed of the name of the patient or deceased per- 7 son. Protocols shall be established by hospitals to maintain confidentiality 8 while disseminating the necessary test result information to persons who may 9 have a significant exposure to blood or other body fluids and to maintain 10 records of such tests to preserve the confidentiality of the test results. 11 (4) Any person who willfully or maliciously discloses the results of a 12 test conducted under this section, except pursuant to a written authorization 13 by the person whose blood was tested or by such person's authorized represen- 14 tative, or as otherwise authorized by law, shall be guilty of a misdemeanor. 15 39-4505. SUFFICIENCY OF CONSENT. Consent for the furnishing of hospital, 16 medical, dental or surgical care, treatment or procedures shall be valid in 17 all respects if the person giving the consent is sufficiently aware of perti- 18 nent facts respecting the need for, the nature of, and the significant risks 19 ordinarily attendant upon, such a patient receiving such care, as to permit 20 the giving or withholding of such consent to be a reasonably informed deci- 21 sion. Any such consent shall be deemed valid and so informed if the physician 22 or dentist to whom it is given or by whom it is secured has made such disclo- 23 sures and given such advice respecting pertinent facts and considerations as 24 would ordinarily be made and given under the same or similar circumstances, by 25 a like physician or dentist of good standing practicing in the same community. 26 As used in this section, the term "in the same community" refers to that geo- 27 graphic area ordinarily served by the licensed general hospital at or nearest 28 to which such consent is given. 29 39-4506. FORM OF CONSENT. It is not essential to the validity of any con- 30 sent for the furnishing of hospital, medical, dental or surgical care, treat- 31 ment or procedures that the consent be in writing or any other form of expres- 32 sion; provided however, when the giving of such consent is recited or docu- 33 mented in writing and expressly authorizes the care, treatment or procedures 34 to be furnished, and when such writing or form has been executed or initialed 35 by a person competent to give such consent for himself or another, such writ- 36 ten consent, in the absence of convincing proof that it was secured mali- 37 ciously or by fraud, is presumed to be valid for the furnishing of such care, 38 treatment or procedures, and the advice and disclosures of the attending phy- 39 sician or dentist, as well as the level of informed awareness of the giver of 40 such consent, shall be presumed to be sufficient. 41 39-4507. RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent 42 for health care is the duty of the attending physician or dentist or of 43 another physician or dentist acting on his or her behalf or actually providing 44 the contemplated care, treatment or procedure; provided however, a licensed 45 hospital and any medical or dental office lay or professional employee, acting 46 with the approval of such an attending or other physician or dentist, may per- 47 form the ministerial act of documenting such consent by securing the comple- 48 tion and execution of a form or statement in which the giving of consent for 49 such care is documented by or on behalf of the patient. In performing such a 50 ministerial act, the hospital or medical or dental office lay or professional 51 employee shall not be deemed to have engaged in the practice of medicine or 52 dentistry. 4 1 39-4508. STATEMENT OF POLICY. For purposes of sections 39-4508 through 2 39-4514, Idaho Code: 3 (1) The legislature finds that adult persons have the fundamental right 4 to control the decisions relating to the rendering of their medical care, 5 including the decision to have life-sustaining procedures withheld or with- 6 drawn. The legislature further finds that modern medical technology has made 7 possible the artificial prolongation of human life beyond natural limits. The 8 legislature further finds that patients are sometimes unable to express their 9 desire to withhold or withdraw such artificial life prolongation procedures 10 which provide nothing medically necessary or beneficial to the patient because 11 of the patient's inability to communicate with the physician. 12 (2) In recognition of the dignity and privacy which patients have a right 13 to expect, the legislature hereby declares that the laws of this state shall 14 recognize the right of a competent person to have his wishes for medical 15 treatment and for the withdrawal of artificial life-sustaining procedures car- 16 ried out even though that person is no longer able to communicate with the 17 physician. 18 (3) It is the intent of the legislature to establish an effective means 19 for such communication. It is not the intent of the legislature that the pro- 20 cedures described in this chapter are the only effective means of such commu- 21 nication, and nothing in this chapter shall impair or supersede any legal 22 right or legal responsibility which a person may have to effect the withhold- 23 ing or withdrawal of life-sustaining procedures in any lawful manner. Any 24 authentic expression of a person's wishes with respect to health care should 25 be honored. 26 39-4509. DEFINITIONS. As used in sections 39-4508 through 39-4514, Idaho 27 Code: 28 (1) "Artificial life-sustaining procedure" means any medical procedure or 29 intervention that utilizes mechanical means to sustain or supplant a vital 30 function which when applied to a qualified patient, would serve only to arti- 31 ficially prolong life. "Artificial life-sustaining procedure" does not include 32 the administration of medication or the performance of any medical procedure 33 deemed necessary to alleviate pain. 34 (2) "Artificial nutrition and hydration" means supplying food and water 35 through a conduit, such as a tube or intravenous line, where the recipient is 36 not required to chew or swallow voluntarily, but does not include assisted 37 feeding, such as spoon feeding or bottle feeding. 38 (3) "Attending physician" means the physician licensed by the state board 39 of medicine who is selected by, or assigned to, the patient and who has pri- 40 mary responsibility for the treatment and care of the patient. 41 (4) "Competent person" means any emancipated minor or any person eighteen 42 (18) or more years of age who is of sound mind. 43 (5) "Consent to care" includes refusal to consent to care and/or with- 44 drawal of care. 45 39-4510. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. Any 46 competent person may execute a document known as a "Living Will and Durable 47 Power of Attorney for Health Care." Such document shall be in substantially 48 the following form, or in another form that contains the elements set forth in 49 this chapter. A "Living Will and Durable Power of Attorney for Health Care" 50 executed prior to the effective date of this act, but which was in the "Living 51 Will" and/or "Durable Power of Attorney for Health Care" form pursuant to 52 prior Idaho law at the time of execution, or in another form that contained 53 the elements set forth in this chapter at the time of execution, shall be 5 1 deemed to be in compliance with this chapter. A "Living Will and Durable Power 2 of Attorney for Health Care" or similar document(s) executed in another state 3 which substantially complies with this chapter shall be deemed to be in com- 4 pliance with this chapter. In this chapter, a "Living Will and Durable Power 5 of Attorney for Health Care" may be referred to as a "directive." Any por- 6 tions of the "Living Will and Durable Power of Attorney for Health Care" which 7 are left blank by the person executing the document shall be deemed to be 8 intentional and shall not invalidate the document. 9 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE 10 Date of Directive:.................... 11 Name of person executing Directive:........................................... 12 Address of person executing Directive:........................................ 13 A LIVING WILL 14 A Directive to Withhold or to Provide Treatment 15 1. Being of sound mind, I willfully and voluntarily make known my desire that 16 my life shall not be prolonged artificially under the circumstances set forth 17 below. This Directive shall only be effective if I am unable to communicate my 18 instructions and: 19 a. I have an incurable injury, disease, illness or condition and two (2) 20 medical doctors who have examined me have certified: 21 1. That such injury, disease, illness or condition is terminal; and 22 2. That the application of artificial life-sustaining procedures 23 would serve only to prolong artificially my life; and 24 3. That my death is imminent, whether or not artificial life- 25 sustaining procedures are utilized; or 26 b. I have been diagnosed as being in a persistent vegetative state. 27 In such event, I direct that the following marked expression of my intent be 28 followed, and that I receive any medical treatment or care that may be 29 required to keep me free of pain or distress. 30 Check one box and initial the line after such box: 31 ........ I direct that all medical treatment, care and procedures neces- 32 sary to restore my health, sustain my life, and to abolish or alleviate pain 33 or distress be provided to me. Nutrition and hydration, whether artificial or 34 nonartificial, shall not be withheld or withdrawn from me if I would likely 35 die primarily from malnutrition or dehydration rather than from my injury, 36 disease, illness or condition. 37 OR 38 ........ I direct that all medical treatment, care and procedures, 39 including artificial life-sustaining procedures, be withheld or withdrawn, 40 except that nutrition and hydration, whether artificial or nonartificial shall 41 not be withheld or withdrawn from me if, as a result, I would likely die pri- 42 marily from malnutrition or dehydration rather than from my injury, disease, 43 illness or condition, as follows: (If none of the following boxes are checked 44 and initialed, then both nutrition and hydration, of any nature, whether arti- 45 ficial or nonartificial, shall be administered.) 6 1 Check one box and initial the line after such box: 2 A. ........ Only hydration of any nature, whether artificial or 3 nonartificial, shall be administered; 4 B. ........ Only nutrition, of any nature, whether artificial or 5 nonartificial, shall be administered; 6 C. ........ Both nutrition and hydration, of any nature, whether 7 artificial or nonartificial shall be administered. 8 OR 9 ........ I direct that all medical treatment, care and procedures be 10 withheld or withdrawn, including withdrawal of the administration of artifi- 11 cial nutrition and hydration. 12 2. This Directive shall be the final expression of my legal right to refuse 13 or accept medical and surgical treatment, and I accept the consequences of 14 such refusal or acceptance. 15 3. If I have been diagnosed as pregnant, this Directive shall have no force 16 during the course of my pregnancy. 17 4. I understand the full importance of this Directive and am mentally compe- 18 tent to make this Directive. No participant in the making of this Directive or 19 in its being carried into effect shall be held responsible in any way for com- 20 plying with my directions. 21 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE 22 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated 23 as your agent: (1) your treating health care provider; (2) a nonrelative 24 employee of your treating health care provider; (3) an operator of a community 25 care facility; or (4) a nonrelative employee of an operator of a community 26 care facility. If the agent or an alternate agent designated in this Directive 27 is my spouse, and our marriage is thereafter dissolved, such designation shall 28 be thereupon revoked. 29 I do hereby designate and appoint the following individual as my attorney in 30 fact (agent) to make health care decisions for me as authorized in this Direc- 31 tive. (Insert name, address and telephone number of one individual only as 32 your agent to make health care decisions for you.) 33 Name of Health Care Agent:.................................................... 34 Address of Health Care Agent:................................................. 35 Telephone Number of Health Care Agent:........................................ 36 For the purposes of this Directive, "health care decision" means consent, 37 refusal of consent, or withdrawal of consent to any care, treatment, service 38 or procedure to maintain, diagnose or treat an individual's physical condi- 39 tion. 40 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of 41 this Directive, I create a durable power of attorney for health care. This 42 power of attorney shall not be affected by my subsequent incapacity. This 43 power shall be effective only when I am unable to communicate rationally. 7 1 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this 2 Directive, including as set forth in paragraph 2 immediately above, I hereby 3 grant to my agent full power and authority to make health care decisions for 4 me to the same extent that I could make such decisions for myself if I had the 5 capacity to do so. In exercising this authority, my agent shall make health 6 care decisions that are consistent with my desires as stated in this Directive 7 or otherwise made known to my agent including, but not limited to, my desires 8 concerning obtaining or refusing or withdrawing life-prolonging care, treat- 9 ment, services and procedures, including such desires set forth in a living 10 will or similar document executed by me, if any. (If you want to limit the 11 authority of your agent to make health care decisions for you, you can state 12 the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and 13 Limitations") below. You can indicate your desires by including a statement of 14 your desires in the same paragraph.) 15 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent 16 must make health care decisions that are consistent with your known desires. 17 You can, but are not required to, state your desires in the space provided 18 below. You should consider whether you want to include a statement of your 19 desires concerning life-prolonging care, treatment, services and procedures. 20 You can also include a statement of your desires concerning other matters 21 relating to your health care, including a list of one or more persons whom you 22 designate to be able to receive medical information about you and/or to be 23 allowed to visit you in a medical institution. You can also make your desires 24 known to your agent by discussing your desires with your agent or by some 25 other means. If there are any types of treatment that you do not want to be 26 used, you should state them in the space below. If you want to limit in any 27 other way the authority given your agent by this Directive, you should state 28 the limits in the space below. If you do not state any limits, your agent will 29 have broad powers to make health care decisions for you, except to the extent 30 that there are limits provided by law.) In exercising the authority under this 31 durable power of attorney for health care, my agent shall act consistently 32 with my desires as stated below and is subject to the special provisions and 33 limitations stated in a living will or similar document executed by me, if 34 any. Additional statement of desires, special provisions, and limitations:.... 35 .............................................................................. 36 (You may attach additional pages or documents if you need more space to com- 37 plete your statement.) 38 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL 39 HEALTH. 40 A. General Grant of Power and Authority. Subject to any limitations in this 41 Directive, my agent has the power and authority to do all of the following: 42 (1) Request, review and receive any information, verbal or written, regarding 43 my physical or mental health including, but not limited to, medical and hospi- 44 tal records; (2) Execute on my behalf any releases or other documents that may 45 be required in order to obtain this information; (3) Consent to the disclosure 46 of this information; and (4) Consent to the donation of any of my organs for 47 medical purposes. (If you want to limit the authority of your agent to receive 48 and disclose information relating to your health, you must state the limita- 49 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita- 50 tions") above.) 51 B. HIPAA Release Authority. My agent shall be treated as I would be with 8 1 respect to my rights regarding the use and disclosure of my individually iden- 2 tifiable health information or other medical records. This release authority 3 applies to any information governed by the Health Insurance Portability and 4 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 5 164. I authorize any physician, health care professional, dentist, health 6 plan, hospital, clinic, laboratory, pharmacy, or other covered health care 7 provider, any insurance company, and the Medical Information Bureau, Inc. or 8 other health care clearinghouse that has provided treatment or services to me, 9 or that has paid for or is seeking payment from me for such services, to give, 10 disclose and release to my agent, without restriction, all of my individually 11 identifiable health information and medical records regarding any past, pres- 12 ent or future medical or mental health condition, including all information 13 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental 14 illness, and drug or alcohol abuse. The authority given my agent shall super- 15 sede any other agreement that I may have made with my health care providers to 16 restrict access to or disclosure of my individually identifiable health infor- 17 mation. The authority given my agent has no expiration date and shall expire 18 only in the event that I revoke the authority in writing and deliver it to my 19 health care provider. 20 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the 21 health care decisions that my agent is authorized by this Directive to make, 22 my agent has the power and authority to execute on my behalf all of the fol- 23 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat- 24 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces- 25 sary waiver or release from liability required by a hospital or physician. 26 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any 27 alternate agents but you may do so. Any alternate agent you designate will be 28 able to make the same health care decisions as the agent you designated in 29 paragraph 1 above, in the event that agent is unable or ineligible to act as 30 your agent. If an alternate agent you designate is your spouse, he or she 31 becomes ineligible to act as your agent if your marriage is thereafter dis- 32 solved.) If the person designated as my agent in paragraph 1 is not available 33 or becomes ineligible to act as my agent to make a health care decision for me 34 or loses the mental capacity to make health care decisions for me, or if I 35 revoke that person's appointment or authority to act as my agent to make 36 health care decisions for me, then I designate and appoint the following per- 37 sons to serve as my agent to make health care decisions for me as authorized 38 in this Directive, such persons to serve in the order listed below: 39 A. First Alternate Agent: 40 Name.......................................................................... 41 Address....................................................................... 42 Telephone Number.............................................................. 43 B. Second Alternate Agent: 44 Name.......................................................................... 45 Address....................................................................... 46 Telephone Number.............................................................. 47 C. Third Alternate Agent: 48 Name.......................................................................... 49 Address....................................................................... 50 Telephone Number.............................................................. 9 1 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney 2 for health care. 3 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and 4 Durable Power of Attorney for Health Care.) 5 I sign my name to this Statutory Form Living Will and Durable Power of Attor- 6 ney for Health Care on the date set forth at the beginning of this Form at 7 ............... (City, State).................... 8 .............................. 9 Signature 10 39-4511. REVOCATION. (1) A "Living Will and Durable Power of Attorney 11 for Health Care" may be revoked at any time by the maker thereof, without 12 regard to his mental state or competence, by any of the following methods: 13 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise 14 destroyed by the maker thereof, or by some person in his presence and by 15 his direction; 16 (b) By a written, signed revocation of the maker thereof expressing his 17 intent to revoke; or 18 (c) By an oral expression by the maker thereof expressing his intent to 19 revoke. 20 (2) There shall be no criminal or civil liability on the part of any per- 21 son for the failure to act upon a revocation of a "Living Will and Durable 22 Power of Attorney for Health Care" made pursuant to this section unless that 23 person has actual knowledge of the revocation. 24 39-4512. EXECUTION OF LIVING WILL AND DURABLE POWER OF ATTORNEY FOR 25 HEALTH CARE. A "Living Will and Durable Power of Attorney for Health Care" 26 shall be effective from the date of execution unless otherwise revoked. Noth- 27 ing in this chapter shall be construed to prevent a competent person from 28 reexecuting a "Living Will and Durable Power of Attorney for Health Care" at 29 any time. 30 39-4513. IMMUNITY. (1) No medical personnel or health care facility shall 31 be civilly or criminally liable for acts or omissions carried out or per- 32 formed pursuant to the directives in a facially valid living will or by the 33 holder of a facially valid durable power of attorney or directive for health 34 care if the medical personnel or health care facility acts in good faith. 35 (2) Any physician or other health care provider who for ethical or pro- 36 fessional reasons is incapable or unwilling to conform to the desires of the 37 patient as expressed by the procedures set forth in this chapter may withdraw 38 without incurring any civil or criminal liability provided the physician or 39 other health care provider makes a good faith effort to assist the patient in 40 obtaining the services of another physician or other health care provider 41 before withdrawal. 42 (3) No person who exercises the responsibilities of a durable power of 43 attorney for health care in good faith shall be subject to civil or criminal 44 liability as a result. 45 39-4514. GENERAL PROVISIONS. (1) This chapter shall have no effect or be 46 in any manner construed to apply to persons not executing a "Living Will and 47 Durable Power of Attorney for Health Care" pursuant to this chapter nor shall 48 it in any manner affect the rights of any such persons or of others acting for 10 1 or on behalf of such persons to give or refuse to give consent or withhold 2 consent for any medical care, neither shall this chapter be construed to 3 affect chapter 3, title 66, Idaho Code, in any manner. 4 (2) The making of a "Living Will and Durable Power of Attorney for Health 5 Care" pursuant to this chapter shall not restrict, inhibit or impair in any 6 manner the sale, procurement or issuance of any policy of life insurance, nor 7 shall it be deemed to modify the terms of an existing policy of life insur- 8 ance. No policy of life insurance shall be legally impaired or invalidated in 9 any manner by the withholding or withdrawal of artificial life-sustaining pro- 10 cedures from an insured patient, notwithstanding any term of the policy to the 11 contrary. 12 (3) No physician, health facility or other health care provider and no 13 health care service plan, insurer issuing disability insurance, self-insured 14 employee plan, welfare benefit plan or nonprofit hospital service plan shall 15 require any person to execute a "Living Will and Durable Power of Attorney for 16 Health Care" as a condition for being insured for, or receiving, health care 17 services. 18 SECTION 3. That Section 5-332, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 5-332. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 21 refusal of consent for emergency medical treatment under sections5-330 or 22 5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 23 SECTION 4. That Section 31-3910, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 31-3910. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 26 refusal of consent for emergency medical treatment under chapter 39, title 31, 27 Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 28 SECTION 5. That Section 39-3902, Idaho Code, be, and the same is hereby 29 amended to read as follows: 30 39-3902. DEFINITIONS. For purposes of this chapter, the following words 31 and terms have the meanings hereinafter stated: 32 (1) "Emergency medical treatment" means immediate medical intervention 33 required, according to the prevailing medical standards of judgment and prac- 34 tice within the community, because of the medical condition of the person sub- 35 ject to this chapter. 36 (2) "Evaluation committee" means an interdisciplinary team consisting of 37 at least four (4) individuals qualified by education and training to evaluate 38 an individual as required by the provisions of this chapter, and an advocate 39 designated by the person subject to this chapter. Each committee must include: 40 two (2) social workers, at least one (1) of whom must be a master's level; a 41 clinical psychologist or a psychiatrist; and a physician. 42 (3) "Informed assent" means a process by which a person subject to this 43 chapter who lacks or is alleged to lack the capacity to consent to steriliza- 44 tion is given a fair opportunity to acknowledge the nature, risks and conse- 45 quences of the procedures and, insofar as he or she is able to, indicates 46 willingness and choice to undergo sterilization. 47 (4) "Interested person" means an interested, responsible adult including, 48 but not limited to, the legal guardian, spouse, parent, legal counsel, adult 49 child, or next of kin of a person subject to this chapter, or if none of these 11 1 are available, the department of health and welfare. 2 (5) "Medically necessary" means that, according to the prevailing medical 3 standards of judgment and practice within the community, the procedure is rea- 4 sonably calculated to prevent or treat conditions in the person subject to 5 this chapter that endanger life, cause severe pain, or cause functionally sig- 6 nificant deformity or malfunction, and for which there is not an equally 7 effective alternative course of treatment available or suitable. 8 (6) "Person subject to this chapter" means all adults, except adults who 9 may consent to their own treatment pursuant to chapter 435, title 39, Idaho 10 Code. Adults who are alleged to lack this capacity are also persons subject to 11 this chapter. 12 (7) "Physician" means a person duly licensed in the state of Idaho to 13 practice medicine and surgery without restriction pursuant to laws of the 14 state of Idaho. 15 (8) "Records" includes, but is not limited to, all court files of judi- 16 cial proceedings brought under this chapter, written clinical information, 17 observations and reports, or fiscal documents relating to a person subject to 18 this chapter who has undergone or is about to undergo sterilization and which 19 are related to the sterilization. 20 (9) "Sterilization" means any medical or surgical operation or procedure 21 which can be expected to result in a patient's permanent inability to repro- 22 duce. 23 SECTION 6. That Section 54-1142, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the 26 decedent has not made a prearranged funeral plan as set forth in section 27 54-1139, Idaho Code, the right to control the disposition of the remains of a 28 deceased person vests in, and devolves upon the following in the order named: 29 (a) The person designated in a written document executed by the decedent 30 and acknowledged in the same manner as required for instruments conveying 31 real property, and subject to such limitations, restrictions, or direc- 32 tions, as may be set forth in such document; 33 (b) The person designated as agent under a durable power of attorney for 34 health care executed by the decedent, unless such durable power of attor- 35 ney for health care contains express and clear language denying such 36 right; 37 (c) The person designated in a durable power of attorney executed by the 38 decedent, if such power of attorney contains express and clear language 39 granting such right to the agent named in such power of attorney; 40 (d) The competent surviving spouse of the decedent; 41 (e) A majority of the competent surviving adult children of the decedent, 42 provided that less than one-half (1/2) of the competent surviving adult 43 children shall be vested with the right to control the disposition of the 44 remains of the decedent if they have used reasonable efforts to notify all 45 other competent surviving adult children of their instructions to dispose 46 of the decedent's remains and are not aware of any opposition to those 47 instructions on the part of more than one-half (1/2) of all competent sur- 48 viving adult children; 49 (f) The competent surviving parents or parent of the decedent, provided 50 that if one (1) of the competent surviving parents is absent, the remain- 51 ing competent surviving parent shall be vested with the right to control 52 the disposition of the remains of the decedent after reasonable efforts 53 have been made and are unsuccessful in locating the absent competent sur- 12 1 viving parent; 2 (g) The person appointed by a court of competent jurisdiction as the per- 3 sonal representative or administrator of the estate of the decedent; 4 (h) The person nominated as the personal representative of the estate of 5 the decedent in the will of the decedent; 6 (i) The competent adult person or persons entitled to inherit from the 7 decedent under the intestate succession laws of the state of Idaho, 8 respectively in the next degreesof kinship, provided that if there is 9 more than one (1) competent surviving adult person of the same degree of 10 kinship, the majority of those persons, and provided further that less 11 than the majority of competent surviving adult persons of the same degree 12 of kinship shall be vested with the right to control the disposition of 13 the remains of the decedent if those persons have used reasonable efforts 14 to notify all other competent surviving adult persons of the same degree 15 of kinship of their instructions to dispose of the decedent's remains and 16 are not aware of any opposition to those instructions on the part of one- 17 half (1/2) or more of all competent surviving adult persons of the same 18 degree of kinship. 19 (2) If any person to whom the right of control has vested pursuant to the 20 foregoing has been charged with first or second degree murder or voluntary 21 manslaughter in connection with the decedent's death, and those charges are 22 known to the funeral director or cemetery authority, the right of control is 23 relinquished and passed on to the next qualifying person as listed above as if 24 the charged person did not exist; provided however, that if the charges 25 against such person are dropped, or if such person is acquitted of the 26 charges, the right of control is returned to the person. 27 (3) For purposes of this section: 28 (a) "Adult" means an individual who is eighteen (18) years of age or 29 older; 30 (b) "Child" means a natural or adopted child of the decedent; 31 (c) "Competent" means the individual has not been declared incompetent by 32 a court of law, or who has been declared competent by a court of law after 33 a prior declaration of incompetence; 34 (d) "Durable power of attorney" means a power of attorney described in 35 section 15-5-501, Idaho Code, or any similar document properly executed 36 under the laws of another jurisdiction; and 37 (e) "Durable power of attorney for health care" means the document 38 described insection 39-4505chapter 45, title 39, Idaho Code, or any sim- 39 ilar document properly executed under the laws of another jurisdiction; 40 (f) "Will" means any testamentary device which is valid under the Idaho 41 probate code, including, but not limited to, sections 15-2-503, 15-2-504 42 and 15-2-506, Idaho Code, whether or not originally executed in, or under 43 the laws of, the state of Idaho. 44 (4) (a) A cemetery authority or licensed funeral director or a licensed 45 hospital or its authorized personnel may permit or assist in, and a physi- 46 cian may perform, an autopsy of any remains of a decedent in its custody: 47 (i) If the decedent, prior to his death, authorizes an autopsy in 48 his will or in another written instrument, including, but not limited 49 to, a durable power of attorney for health care; or 50 (ii) Upon the receipt of a written authorization signed by, 51 telegrammed from, or received by facsimile transmission from, a per- 52 son representing himself to be the person who is entitled under this 53 section to control the disposition of the remains of the decedent, or 54 to be a coroner or any other duly authorized public officer; or 55 (iii) Upon the receipt of an oral authorization obtained by tele- 13 1 phone, and recorded on tape or other recording device, from a person 2 representing himself to be the person who is entitled under this sec- 3 tion to control the disposition of the remains of the decedent, or to 4 be a coroner or any other duly authorized public officer. 5 (b) A cemetery authority or a licensed funeral director of a licensed 6 hospital or its authorized personnel is not liable for permitting or 7 assisting, and a physician is not liable for performing, an autopsy pursu- 8 ant to the authorization provided in paragraph (a) of this subsection 9 unless he has actual notice that such representation is untrue at the time 10 the autopsy is performed. If such authorization is contained in a will, 11 the autopsy may be performed regardless of the validity of the will in 12 other respects and regardless of whether the will may not be offered for, 13 or admitted to, probate until a later date. 14 (c) This subsection shall not authorize the obtaining of an oral authori- 15 zation by telephone, recorded on tape or other recording device, for the 16 autopsy of a deceased person if it is made known to the physician who is 17 to perform the autopsy that the deceased person was, at the time of his 18 death, a member of a religion or group which opposes autopsies. 19 SECTION 7. That Section 56-1015, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 56-1015. FAILURE TO OBTAIN CONSENT. No person certified under sections 22 56-1011 through 56-1018B, Idaho Code, or physician or hospital licensed in 23 this state shall be subject to civil liability, based solely upon failure to 24 obtain consent in rendering emergency medical, surgical, hospital or health 25 services to any individual regardless of age where that individual is unable 26 to give this consent for any reason and there is no other person reasonably 27 available who is legally authorized to consent to the providing of such care, 28 provided, however, that such person, physician, or hospital has acted in good 29 faith and without knowledge of facts negating consent. The provision or 30 refusal of consent under sections 56-1011 through 56-1018B, Idaho Code, shall 31 be governed by chapter 435, title 39, Idaho Code. 32 SECTION 8. That Section 66-405, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the 35 respondent is not developmentally disabled but appears in need of protective 36 services, the court may cause the proceeding to be expanded or altered for 37 consideration under the uniform probate code. 38 (2) If it is determined that the respondent is able to manage financial 39 resources and meet essential requirements for physical health or safety, the 40 court shall dismiss the petition. 41 (3) If it is determined that the respondent is developmentally disabled 42 and is unable to manage some financial resources or meet some essential 43 requirements for physical health or safety, the court may appoint a partial 44 guardian and/or partial conservator on behalf of the respondent. An order 45 establishing partial guardianship or partial conservatorship shall define the 46 powers and duties of the partial guardian or partial conservator so as to per- 47 mit the respondent to meet essential requirements for physical health or 48 safety and to manage financial resources commensurate with his ability to do 49 so, and shall specify all legal restrictions to which he is subject. A person 50 for whom a partial guardianship or partial conservatorship has been appointed 51 under this chapter retains all legal and civil rights except those which have 14 1 by court order been limited or which have been specifically granted to the 2 partial guardian or partial conservator by the court. 3 (4) If it is determined that the respondent is developmentally disabled 4 and is unable to manage financial resources or meet essential requirements for 5 physical health or safety even with the appointment of a partial guardian or 6 partial conservator, the court may appoint a total guardian and/or total con- 7 servator. 8 (5) In the event that more than one (1) person seeks to be appointed 9 guardian and/or conservator, the court shall appoint the person or persons 10 most capable of serving on behalf of the respondent; the court shall not cus- 11 tomarily or ordinarily appoint the department or any other organization or 12 individual, public or private, that is or is likely to be providing services 13 to the respondent. 14 (6) Subject to the limitations of the provisions of subsection (7) of 15 this section, guardians or conservators may have any of the duties and powers 16 as provided in sections 15-5-312(a)(1) through (4), 15-5-424 and 15-5-425, 17 Idaho Code, and as specified in the order. Any order appointing a partial or 18 total guardian or partial or total conservator under the provisions of this 19 section must require a report to the court at least annually. In addition to 20 such other requirements imposed by law or order, the report shall include: 21 (a) A description of the respondent's current mental, physical and social 22 condition; 23 (b) The respondent's present address and living arrangement; 24 (c) A description of any significant changes in the capacity of the 25 respondent to meet essential requirements for physical health or safety or 26 to manage financial resources; 27 (d) A description of services being provided the respondent; 28 (e) A description of significant actions taken by the guardian or conser- 29 vator during the reporting period; 30 (f) Any significant problems relating to the guardianship or conservator- 31 ship; 32 (g) A complete financial statement of the financial resources under the 33 control or supervision of the guardian or conservator; and 34 (h) A description of the need for continued guardianship or conservator- 35 ship services. 36 (7) No guardian appointed under this chapter shall have the authority to 37 refuse or withhold consent for medically necessary treatment when the effect 38 of withholding such treatment would seriously endanger the life or health and 39 well-being of the person with a developmental disability. To withhold or 40 attempt to withhold such treatment shall constitute neglect of the person and 41 be cause for removal of the guardian. No physician or caregiver shall withhold 42 or withdraw such treatment for a respondent whose condition is not terminal or 43 whose death is not imminent. If the physician or caregiver cannot obtain valid 44 consent for medically necessary treatment from the guardian, he shall provide 45 the medically necessary treatment as authorized by section39-4303(c)46 39-4503(1)(g), Idaho Code. 47 (8) A guardian appointed under this chapter may consent to withholding or 48 withdrawal of artificial life-sustaining procedures, only if the respondent: 49 (a) Has an incurable injury, disease, illness or condition, certified by 50 the respondent's attending physician and at least one (1) other physician 51 to be terminal such that the application of artificial life-sustaining 52 procedures would not result in the possibility of saving or significantly 53 prolonging the life of the respondent, and would only serve to prolong the 54 moment of the respondent's death for a period of hours, days or weeks, and 55 where both physicians certify that death is imminent, whether or not the 15 1 life-sustaining procedures are used; or 2 (b) Has been diagnosed by the respondent's attending physician and at 3 least one (1) other physician as being in a persistent vegetative state 4 which is irreversible and from which the respondent will never regain con- 5 sciousness. 6 (9) Any person, who has information that medically necessary treatment of 7 a respondent has been withheld or withdrawn, may report such information to 8 adult protective services or to the Idaho protection and advocacy system for 9 people with developmental disabilities, who shall have the authority to inves- 10 tigate the report and in appropriate cases to seek a court order to ensure 11 that medically necessary treatment is provided. 12 If adult protective services or the protection and advocacy system deter- 13 mines that withholding of medical treatment violates the provisions of this 14 section, they may petition the court for an ex parte order to provide or con- 15 tinue the medical treatment in question. If the court finds, based on affida- 16 vits or other evidence, that there is probable cause to believe that the with- 17 holding of medical treatment in a particular case violates the provisions of 18 this section, and that the life or health of the patient is endangered 19 thereby, the court shall issue an ex parte order to continue or to provide the 20 treatment until such time as the court can hear evidence from the parties 21 involved. Petitions for court orders under this section shall be expedited by 22 the courts and heard as soon as possible. No bond shall be required of a peti- 23 tioner under this section. 24 (10) No partial or total guardian or partial or total conservator 25 appointed under the provisions of this section may without specific approval 26 of the court in a proceeding separate from that in which such guardian or con- 27 servator was appointed: 28 (a) Consent to medical or surgical treatment the effect of which perma- 29 nently prohibits the conception of children by the respondent unless the 30 treatment or procedures are necessary to protect the physical health of 31 the respondent and would be prescribed for a person who is not developmen- 32 tally disabled; 33 (b) Consent to experimental surgery, procedures or medications; or 34 (c) Delegate the powers granted by the order.". 35 CORRECTION TO TITLE 36 On page 1, delete lines 2 through 19 and insert: 37 "RELATING TO THE MEDICAL CONSENT AND NATURAL DEATH ACT; REPEALING CHAPTERS 43 38 AND 45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDI- 39 TION OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES, TO 40 PROVIDE FOR CHAPTER APPLICATION, TO STATE WHO MAY CONSENT TO THEIR OWN 41 CARE, TO STATE WHO MAY GIVE CONSENT TO CARE FOR OTHERS, TO PROVIDE FOR 42 BLOOD TESTING, TO SET FORTH PROVISIONS APPLICABLE TO SUFFICIENCY OF CON- 43 SENT AND THE FORM OF CONSENT, TO SET FORTH RESPONSIBILITY FOR CONSENT AND 44 DOCUMENTATION, TO PROVIDE A STATEMENT OF LEGISLATIVE POLICY, TO DEFINE 45 TERMS, TO PROVIDE FOR A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR 46 HEALTH CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECUTION, TO PRO- 47 VIDE IMMUNITY AND TO SET FORTH GENERAL PROVISIONS; AMENDING SECTION 5-332, 48 IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A TECHNICAL 49 CORRECTION; AMENDING SECTION 31-3910, IDAHO CODE, TO PROVIDE A CORRECT 50 CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT 51 CODE REFERENCE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 52 54-1142, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A 53 TECHNICAL CORRECTION; AMENDING SECTION 56-1015, IDAHO CODE, TO PROVIDE A 54 CORRECT CODE REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE, TO PRO- 16 1 VIDE A CORRECT CODE REFERENCE.".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005IN THE SENATE SENATE BILL NO. 1068, As Amended BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE MEDICAL CONSENT AND NATURAL DEATH ACT; REPEALING CHAPTERS 43 3 AND 45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDI- 4 TION OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES, TO 5 PROVIDE FOR CHAPTER APPLICATION, TO STATE WHO MAY CONSENT TO THEIR OWN 6 CARE, TO STATE WHO MAY GIVE CONSENT TO CARE FOR OTHERS, TO PROVIDE FOR 7 BLOOD TESTING, TO SET FORTH PROVISIONS APPLICABLE TO SUFFICIENCY OF CON- 8 SENT AND THE FORM OF CONSENT, TO SET FORTH RESPONSIBILITY FOR CONSENT AND 9 DOCUMENTATION, TO PROVIDE A STATEMENT OF LEGISLATIVE POLICY, TO DEFINE 10 TERMS, TO PROVIDE FOR A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR 11 HEALTH CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECUTION, TO PRO- 12 VIDE IMMUNITY AND TO SET FORTH GENERAL PROVISIONS; AMENDING SECTION 5-332, 13 IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A TECHNICAL 14 CORRECTION; AMENDING SECTION 31-3910, IDAHO CODE, TO PROVIDE A CORRECT 15 CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT 16 CODE REFERENCE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 17 54-1142, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A 18 TECHNICAL CORRECTION; AMENDING SECTION 56-1015, IDAHO CODE, TO PROVIDE A 19 CORRECT CODE REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE, TO PRO- 20 VIDE A CORRECT CODE REFERENCE. 21 Be It Enacted by the Legislature of the State of Idaho: 22 SECTION 1. That Chapters 43 and 45, Title 39, Idaho Code, be, and the 23 same are hereby repealed. 24 SECTION 2. That Title 39, Idaho Code, be, and the same is hereby amended 25 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 26 ter 45, Title 39, Idaho Code, and to read as follows: 27 CHAPTER 45 28 THE MEDICAL CONSENT AND NATURAL DEATH ACT 29 39-4501. PURPOSES -- APPLICATION. (1) The primary purposes of this chap- 30 ter are: 31 (a) To provide and codify Idaho law concerning consent for the furnishing 32 of hospital, medical, dental or surgical care, treatment or procedures, 33 and concerning what constitutes an informed consent for such care, treat- 34 ment or procedures; and 35 (b) To provide certainty and clarity in the law of medical consent in the 36 furtherance of high standards of health care and its ready availability in 37 proper cases. 38 (2) Nothing in this chapter shall be deemed to amend or repeal the provi- 39 sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi- 40 cal attendance upon or hospitalization of the mentally ill, nor the provisions 41 of chapter 6, title 18, Idaho Code, pertaining to the provision of examina- 2 1 tions, prescriptions, devices and informational materials regarding prevention 2 of pregnancy or pertaining to therapeutic abortions and consent to the perfor- 3 mance thereof. 4 (3) Nothing in this chapter shall be construed to permit or require the 5 provision of health care for a patient in contravention of the patient's 6 stated or implied objection thereto upon religious grounds nor shall anything 7 in this chapter be construed to require the granting of permission for or on 8 behalf of any patient who is not able to act for himself by his parent, spouse 9 or guardian in violation of the religious beliefs of the patient or the 10 patient's parent or spouse. 11 39-4502. PERSONS WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi- 12 nary intelligence and awareness sufficient for him or her generally to compre- 13 hend the need for, the nature of and the significant risks ordinarily inherent 14 in, any contemplated hospital, medical, dental or surgical care, treatment or 15 procedure is competent to consent thereto on his or her own behalf. Any physi- 16 cian, dentist, hospital or other duly authorized person may provide such 17 health care and services in reliance upon such a consent if the consenting 18 person appears to the physician or dentist securing the consent to possess 19 such requisite intelligence and awareness at the time of giving the consent. 20 39-4503. PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS. (1) Consent 21 for the furnishing of hospital, medical, dental or surgical care, treatment or 22 procedures to any person who is not then capable of giving such consent as 23 provided in this chapter or who is a minor or incompetent person, may be given 24 or refused in the order of priority set forth hereafter unless the patient is 25 a competent person who has refused to give such consent, and provided further 26 that this subsection shall not be deemed to authorize any person to override 27 the express refusal by a competent patient to give such consent himself: 28 (a) The legal guardian of such person; 29 (b) The person named in a "Living Will and Durable Power of Attorney for 30 Health Care" pursuant to section 39-4510, Idaho Code, or a similar docu- 31 ment authorized by this chapter; 32 (c) If married, the spouse of such person; 33 (d) A parent of such person; 34 (e) Any relative representing himself or herself to be an appropriate, 35 responsible person to act under the circumstances; 36 (f) Any other competent individual representing himself or herself to be 37 responsible for the health care of such person; or 38 (g) If the subject person presents a medical emergency or there is a sub- 39 stantial likelihood of his or her life or health being seriously endan- 40 gered by withholding or delay in the rendering of such hospital, medical, 41 dental or surgical care to such patient, the attending physician or den- 42 tist may, in his or her discretion, authorize and/or provide such care, 43 treatment or procedure as he or she deems appropriate, and all persons, 44 agencies and institutions thereafter furnishing the same, including such 45 physician or dentist, may proceed as if informed, valid consent therefor 46 had been otherwise duly given. 47 (2) No person who, in good faith, gives consent or authorization for the 48 provision of hospital, medical, dental or surgical care, treatment or proce- 49 dures to another as provided by this chapter shall be subject to civil liabil- 50 ity therefor. 51 (3) No physician, dentist, hospital or other duly authorized person who 52 in good faith obtains consent from a person pursuant to either section 39-4502 53 or 39-4503(1), Idaho Code, shall be subject to civil liability therefor. 3 1 39-4504. BLOOD TESTING. (1) A physician may consent to ordering tests of 2 a patient's or a deceased person's blood or other body fluids for the presence 3 of blood-transmitted or body fluid-transmitted viruses or diseases without the 4 prior consent of the patient if: 5 (a) There has been or is likely to be a significant exposure to the 6 patient's or a deceased person's blood or body fluids by a person provid- 7 ing emergency or medical services to such patient which may result in the 8 transmittal of a virus or disease; and 9 (b) The patient is unconscious or incapable of giving informed consent 10 and the physician is unable to obtain consent pursuant to section 39-4503, 11 Idaho Code. 12 (2) The department of health and welfare shall promulgate rules identify- 13 ing the blood-transmitted or body fluid-transmitted viruses or diseases for 14 which blood tests or body fluid tests can be ordered under this section and 15 defining the term "significant exposure" as provided in this section. 16 (3) Results of tests conducted under this section which confirm the pres- 17 ence of a blood-transmitted or body fluid-transmitted virus or disease shall 18 be reported to the director of the department of health and welfare in the 19 name of the patient or deceased person. The department records containing such 20 test results shall be used only by public health officials who must conduct 21 investigations. The exposed person shall only be informed of the results of 22 the test and shall not be informed of the name of the patient or deceased per- 23 son. Protocols shall be established by hospitals to maintain confidentiality 24 while disseminating the necessary test result information to persons who may 25 have a significant exposure to blood or other body fluids and to maintain 26 records of such tests to preserve the confidentiality of the test results. 27 (4) Any person who willfully or maliciously discloses the results of a 28 test conducted under this section, except pursuant to a written authorization 29 by the person whose blood was tested or by such person's authorized represen- 30 tative, or as otherwise authorized by law, shall be guilty of a misdemeanor. 31 39-4505. SUFFICIENCY OF CONSENT. Consent for the furnishing of hospital, 32 medical, dental or surgical care, treatment or procedures shall be valid in 33 all respects if the person giving the consent is sufficiently aware of perti- 34 nent facts respecting the need for, the nature of, and the significant risks 35 ordinarily attendant upon, such a patient receiving such care, as to permit 36 the giving or withholding of such consent to be a reasonably informed deci- 37 sion. Any such consent shall be deemed valid and so informed if the physician 38 or dentist to whom it is given or by whom it is secured has made such disclo- 39 sures and given such advice respecting pertinent facts and considerations as 40 would ordinarily be made and given under the same or similar circumstances, by 41 a like physician or dentist of good standing practicing in the same community. 42 As used in this section, the term "in the same community" refers to that geo- 43 graphic area ordinarily served by the licensed general hospital at or nearest 44 to which such consent is given. 45 39-4506. FORM OF CONSENT. It is not essential to the validity of any con- 46 sent for the furnishing of hospital, medical, dental or surgical care, treat- 47 ment or procedures that the consent be in writing or any other form of expres- 48 sion; provided however, when the giving of such consent is recited or docu- 49 mented in writing and expressly authorizes the care, treatment or procedures 50 to be furnished, and when such writing or form has been executed or initialed 51 by a person competent to give such consent for himself or another, such writ- 52 ten consent, in the absence of convincing proof that it was secured mali- 53 ciously or by fraud, is presumed to be valid for the furnishing of such care, 4 1 treatment or procedures, and the advice and disclosures of the attending phy- 2 sician or dentist, as well as the level of informed awareness of the giver of 3 such consent, shall be presumed to be sufficient. 4 39-4507. RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent 5 for health care is the duty of the attending physician or dentist or of 6 another physician or dentist acting on his or her behalf or actually providing 7 the contemplated care, treatment or procedure; provided however, a licensed 8 hospital and any medical or dental office lay or professional employee, acting 9 with the approval of such an attending or other physician or dentist, may per- 10 form the ministerial act of documenting such consent by securing the comple- 11 tion and execution of a form or statement in which the giving of consent for 12 such care is documented by or on behalf of the patient. In performing such a 13 ministerial act, the hospital or medical or dental office lay or professional 14 employee shall not be deemed to have engaged in the practice of medicine or 15 dentistry. 16 39-4508. STATEMENT OF POLICY. For purposes of sections 39-4508 through 17 39-4514, Idaho Code: 18 (1) The legislature finds that adult persons have the fundamental right 19 to control the decisions relating to the rendering of their medical care, 20 including the decision to have life-sustaining procedures withheld or with- 21 drawn. The legislature further finds that modern medical technology has made 22 possible the artificial prolongation of human life beyond natural limits. The 23 legislature further finds that patients are sometimes unable to express their 24 desire to withhold or withdraw such artificial life prolongation procedures 25 which provide nothing medically necessary or beneficial to the patient because 26 of the patient's inability to communicate with the physician. 27 (2) In recognition of the dignity and privacy which patients have a right 28 to expect, the legislature hereby declares that the laws of this state shall 29 recognize the right of a competent person to have his wishes for medical 30 treatment and for the withdrawal of artificial life-sustaining procedures car- 31 ried out even though that person is no longer able to communicate with the 32 physician. 33 (3) It is the intent of the legislature to establish an effective means 34 for such communication. It is not the intent of the legislature that the pro- 35 cedures described in this chapter are the only effective means of such commu- 36 nication, and nothing in this chapter shall impair or supersede any legal 37 right or legal responsibility which a person may have to effect the withhold- 38 ing or withdrawal of life-sustaining procedures in any lawful manner. Any 39 authentic expression of a person's wishes with respect to health care should 40 be honored. 41 39-4509. DEFINITIONS. As used in sections 39-4508 through 39-4514, Idaho 42 Code: 43 (1) "Artificial life-sustaining procedure" means any medical procedure or 44 intervention that utilizes mechanical means to sustain or supplant a vital 45 function which when applied to a qualified patient, would serve only to arti- 46 ficially prolong life. "Artificial life-sustaining procedure" does not include 47 the administration of medication or the performance of any medical procedure 48 deemed necessary to alleviate pain. 49 (2) "Artificial nutrition and hydration" means supplying food and water 50 through a conduit, such as a tube or intravenous line, where the recipient is 51 not required to chew or swallow voluntarily, but does not include assisted 52 feeding, such as spoon feeding or bottle feeding. 5 1 (3) "Attending physician" means the physician licensed by the state board 2 of medicine who is selected by, or assigned to, the patient and who has pri- 3 mary responsibility for the treatment and care of the patient. 4 (4) "Competent person" means any emancipated minor or any person eighteen 5 (18) or more years of age who is of sound mind. 6 (5) "Consent to care" includes refusal to consent to care and/or with- 7 drawal of care. 8 39-4510. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. Any 9 competent person may execute a document known as a "Living Will and Durable 10 Power of Attorney for Health Care." Such document shall be in substantially 11 the following form, or in another form that contains the elements set forth in 12 this chapter. A "Living Will and Durable Power of Attorney for Health Care" 13 executed prior to the effective date of this act, but which was in the "Living 14 Will" and/or "Durable Power of Attorney for Health Care" form pursuant to 15 prior Idaho law at the time of execution, or in another form that contained 16 the elements set forth in this chapter at the time of execution, shall be 17 deemed to be in compliance with this chapter. A "Living Will and Durable Power 18 of Attorney for Health Care" or similar document(s) executed in another state 19 which substantially complies with this chapter shall be deemed to be in com- 20 pliance with this chapter. In this chapter, a "Living Will and Durable Power 21 of Attorney for Health Care" may be referred to as a "directive." Any por- 22 tions of the "Living Will and Durable Power of Attorney for Health Care" which 23 are left blank by the person executing the document shall be deemed to be 24 intentional and shall not invalidate the document. 25 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE 26 Date of Directive:.................... 27 Name of person executing Directive:........................................... 28 Address of person executing Directive:........................................ 29 A LIVING WILL 30 A Directive to Withhold or to Provide Treatment 31 1. Being of sound mind, I willfully and voluntarily make known my desire that 32 my life shall not be prolonged artificially under the circumstances set forth 33 below. This Directive shall only be effective if I am unable to communicate my 34 instructions and: 35 a. I have an incurable injury, disease, illness or condition and two (2) 36 medical doctors who have examined me have certified: 37 1. That such injury, disease, illness or condition is terminal; and 38 2. That the application of artificial life-sustaining procedures 39 would serve only to prolong artificially my life; and 40 3. That my death is imminent, whether or not artificial life- 41 sustaining procedures are utilized; or 42 b. I have been diagnosed as being in a persistent vegetative state. 43 In such event, I direct that the following marked expression of my intent be 44 followed, and that I receive any medical treatment or care that may be 45 required to keep me free of pain or distress. 46 Check one box and initial the line after such box: 6 1 ........ I direct that all medical treatment, care and procedures neces- 2 sary to restore my health, sustain my life, and to abolish or alleviate pain 3 or distress be provided to me. Nutrition and hydration, whether artificial or 4 nonartificial, shall not be withheld or withdrawn from me if I would likely 5 die primarily from malnutrition or dehydration rather than from my injury, 6 disease, illness or condition. 7 OR 8 ........ I direct that all medical treatment, care and procedures, 9 including artificial life-sustaining procedures, be withheld or withdrawn, 10 except that nutrition and hydration, whether artificial or nonartificial shall 11 not be withheld or withdrawn from me if, as a result, I would likely die pri- 12 marily from malnutrition or dehydration rather than from my injury, disease, 13 illness or condition, as follows: (If none of the following boxes are checked 14 and initialed, then both nutrition and hydration, of any nature, whether arti- 15 ficial or nonartificial, shall be administered.) 16 Check one box and initial the line after such box: 17 A. ........ Only hydration of any nature, whether artificial or 18 nonartificial, shall be administered; 19 B. ........ Only nutrition, of any nature, whether artificial or 20 nonartificial, shall be administered; 21 C. ........ Both nutrition and hydration, of any nature, whether 22 artificial or nonartificial shall be administered. 23 OR 24 ........ I direct that all medical treatment, care and procedures be 25 withheld or withdrawn, including withdrawal of the administration of artifi- 26 cial nutrition and hydration. 27 2. This Directive shall be the final expression of my legal right to refuse 28 or accept medical and surgical treatment, and I accept the consequences of 29 such refusal or acceptance. 30 3. If I have been diagnosed as pregnant, this Directive shall have no force 31 during the course of my pregnancy. 32 4. I understand the full importance of this Directive and am mentally compe- 33 tent to make this Directive. No participant in the making of this Directive or 34 in its being carried into effect shall be held responsible in any way for com- 35 plying with my directions. 36 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE 37 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated 38 as your agent: (1) your treating health care provider; (2) a nonrelative 39 employee of your treating health care provider; (3) an operator of a community 40 care facility; or (4) a nonrelative employee of an operator of a community 41 care facility. If the agent or an alternate agent designated in this Directive 42 is my spouse, and our marriage is thereafter dissolved, such designation shall 43 be thereupon revoked. 7 1 I do hereby designate and appoint the following individual as my attorney in 2 fact (agent) to make health care decisions for me as authorized in this Direc- 3 tive. (Insert name, address and telephone number of one individual only as 4 your agent to make health care decisions for you.) 5 Name of Health Care Agent:.................................................... 6 Address of Health Care Agent:................................................. 7 Telephone Number of Health Care Agent:........................................ 8 For the purposes of this Directive, "health care decision" means consent, 9 refusal of consent, or withdrawal of consent to any care, treatment, service 10 or procedure to maintain, diagnose or treat an individual's physical condi- 11 tion. 12 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of 13 this Directive, I create a durable power of attorney for health care. This 14 power of attorney shall not be affected by my subsequent incapacity. This 15 power shall be effective only when I am unable to communicate rationally. 16 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this 17 Directive, including as set forth in paragraph 2 immediately above, I hereby 18 grant to my agent full power and authority to make health care decisions for 19 me to the same extent that I could make such decisions for myself if I had the 20 capacity to do so. In exercising this authority, my agent shall make health 21 care decisions that are consistent with my desires as stated in this Directive 22 or otherwise made known to my agent including, but not limited to, my desires 23 concerning obtaining or refusing or withdrawing life-prolonging care, treat- 24 ment, services and procedures, including such desires set forth in a living 25 will or similar document executed by me, if any. (If you want to limit the 26 authority of your agent to make health care decisions for you, you can state 27 the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and 28 Limitations") below. You can indicate your desires by including a statement of 29 your desires in the same paragraph.) 30 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent 31 must make health care decisions that are consistent with your known desires. 32 You can, but are not required to, state your desires in the space provided 33 below. You should consider whether you want to include a statement of your 34 desires concerning life-prolonging care, treatment, services and procedures. 35 You can also include a statement of your desires concerning other matters 36 relating to your health care, including a list of one or more persons whom you 37 designate to be able to receive medical information about you and/or to be 38 allowed to visit you in a medical institution. You can also make your desires 39 known to your agent by discussing your desires with your agent or by some 40 other means. If there are any types of treatment that you do not want to be 41 used, you should state them in the space below. If you want to limit in any 42 other way the authority given your agent by this Directive, you should state 43 the limits in the space below. If you do not state any limits, your agent will 44 have broad powers to make health care decisions for you, except to the extent 45 that there are limits provided by law.) In exercising the authority under this 46 durable power of attorney for health care, my agent shall act consistently 47 with my desires as stated below and is subject to the special provisions and 48 limitations stated in a living will or similar document executed by me, if 49 any. Additional statement of desires, special provisions, and limitations:.... 50 .............................................................................. 8 1 (You may attach additional pages or documents if you need more space to com- 2 plete your statement.) 3 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL 4 HEALTH. 5 A. General Grant of Power and Authority. Subject to any limitations in this 6 Directive, my agent has the power and authority to do all of the following: 7 (1) Request, review and receive any information, verbal or written, regarding 8 my physical or mental health including, but not limited to, medical and hospi- 9 tal records; (2) Execute on my behalf any releases or other documents that may 10 be required in order to obtain this information; (3) Consent to the disclosure 11 of this information; and (4) Consent to the donation of any of my organs for 12 medical purposes. (If you want to limit the authority of your agent to receive 13 and disclose information relating to your health, you must state the limita- 14 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita- 15 tions") above.) 16 B. HIPAA Release Authority. My agent shall be treated as I would be with 17 respect to my rights regarding the use and disclosure of my individually iden- 18 tifiable health information or other medical records. This release authority 19 applies to any information governed by the Health Insurance Portability and 20 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 21 164. I authorize any physician, health care professional, dentist, health 22 plan, hospital, clinic, laboratory, pharmacy, or other covered health care 23 provider, any insurance company, and the Medical Information Bureau, Inc. or 24 other health care clearinghouse that has provided treatment or services to me, 25 or that has paid for or is seeking payment from me for such services, to give, 26 disclose and release to my agent, without restriction, all of my individually 27 identifiable health information and medical records regarding any past, pres- 28 ent or future medical or mental health condition, including all information 29 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental 30 illness, and drug or alcohol abuse. The authority given my agent shall super- 31 sede any other agreement that I may have made with my health care providers to 32 restrict access to or disclosure of my individually identifiable health infor- 33 mation. The authority given my agent has no expiration date and shall expire 34 only in the event that I revoke the authority in writing and deliver it to my 35 health care provider. 36 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the 37 health care decisions that my agent is authorized by this Directive to make, 38 my agent has the power and authority to execute on my behalf all of the fol- 39 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat- 40 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces- 41 sary waiver or release from liability required by a hospital or physician. 42 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any 43 alternate agents but you may do so. Any alternate agent you designate will be 44 able to make the same health care decisions as the agent you designated in 45 paragraph 1 above, in the event that agent is unable or ineligible to act as 46 your agent. If an alternate agent you designate is your spouse, he or she 47 becomes ineligible to act as your agent if your marriage is thereafter dis- 48 solved.) If the person designated as my agent in paragraph 1 is not available 49 or becomes ineligible to act as my agent to make a health care decision for me 50 or loses the mental capacity to make health care decisions for me, or if I 9 1 revoke that person's appointment or authority to act as my agent to make 2 health care decisions for me, then I designate and appoint the following per- 3 sons to serve as my agent to make health care decisions for me as authorized 4 in this Directive, such persons to serve in the order listed below: 5 A. First Alternate Agent: 6 Name.......................................................................... 7 Address....................................................................... 8 Telephone Number.............................................................. 9 B. Second Alternate Agent: 10 Name.......................................................................... 11 Address....................................................................... 12 Telephone Number.............................................................. 13 C. Third Alternate Agent: 14 Name.......................................................................... 15 Address....................................................................... 16 Telephone Number.............................................................. 17 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney 18 for health care. 19 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and 20 Durable Power of Attorney for Health Care.) 21 I sign my name to this Statutory Form Living Will and Durable Power of Attor- 22 ney for Health Care on the date set forth at the beginning of this Form at 23 ............... (City, State).................... 24 .............................. 25 Signature 26 39-4511. REVOCATION. (1) A "Living Will and Durable Power of Attorney 27 for Health Care" may be revoked at any time by the maker thereof, without 28 regard to his mental state or competence, by any of the following methods: 29 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise 30 destroyed by the maker thereof, or by some person in his presence and by 31 his direction; 32 (b) By a written, signed revocation of the maker thereof expressing his 33 intent to revoke; or 34 (c) By an oral expression by the maker thereof expressing his intent to 35 revoke. 36 (2) There shall be no criminal or civil liability on the part of any per- 37 son for the failure to act upon a revocation of a "Living Will and Durable 38 Power of Attorney for Health Care" made pursuant to this section unless that 39 person has actual knowledge of the revocation. 40 39-4512. EXECUTION OF LIVING WILL AND DURABLE POWER OF ATTORNEY FOR 41 HEALTH CARE. A "Living Will and Durable Power of Attorney for Health Care" 42 shall be effective from the date of execution unless otherwise revoked. Noth- 43 ing in this chapter shall be construed to prevent a competent person from 44 reexecuting a "Living Will and Durable Power of Attorney for Health Care" at 45 any time. 10 1 39-4513. IMMUNITY. (1) No medical personnel or health care facility shall 2 be civilly or criminally liable for acts or omissions carried out or per- 3 formed pursuant to the directives in a facially valid living will or by the 4 holder of a facially valid durable power of attorney or directive for health 5 care if the medical personnel or health care facility acts in good faith. 6 (2) Any physician or other health care provider who for ethical or pro- 7 fessional reasons is incapable or unwilling to conform to the desires of the 8 patient as expressed by the procedures set forth in this chapter may withdraw 9 without incurring any civil or criminal liability provided the physician or 10 other health care provider makes a good faith effort to assist the patient in 11 obtaining the services of another physician or other health care provider 12 before withdrawal. 13 (3) No person who exercises the responsibilities of a durable power of 14 attorney for health care in good faith shall be subject to civil or criminal 15 liability as a result. 16 39-4514. GENERAL PROVISIONS. (1) This chapter shall have no effect or be 17 in any manner construed to apply to persons not executing a "Living Will and 18 Durable Power of Attorney for Health Care" pursuant to this chapter nor shall 19 it in any manner affect the rights of any such persons or of others acting for 20 or on behalf of such persons to give or refuse to give consent or withhold 21 consent for any medical care, neither shall this chapter be construed to 22 affect chapter 3, title 66, Idaho Code, in any manner. 23 (2) The making of a "Living Will and Durable Power of Attorney for Health 24 Care" pursuant to this chapter shall not restrict, inhibit or impair in any 25 manner the sale, procurement or issuance of any policy of life insurance, nor 26 shall it be deemed to modify the terms of an existing policy of life insur- 27 ance. No policy of life insurance shall be legally impaired or invalidated in 28 any manner by the withholding or withdrawal of artificial life-sustaining pro- 29 cedures from an insured patient, notwithstanding any term of the policy to the 30 contrary. 31 (3) No physician, health facility or other health care provider and no 32 health care service plan, insurer issuing disability insurance, self-insured 33 employee plan, welfare benefit plan or nonprofit hospital service plan shall 34 require any person to execute a "Living Will and Durable Power of Attorney for 35 Health Care" as a condition for being insured for, or receiving, health care 36 services. 37 SECTION 3. That Section 5-332, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 5-332. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 40 refusal of consent for emergency medical treatment under sections5-330 or 41 5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 42 SECTION 4. That Section 31-3910, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 31-3910. CONSENT FOR EMERGENCY MEDICAL TREATMENT. The authorization or 45 refusal of consent for emergency medical treatment under chapter 39, title 31, 46 Idaho Code, shall be governed by chapter 435, title 39, Idaho Code. 47 SECTION 5. That Section 39-3902, Idaho Code, be, and the same is hereby 48 amended to read as follows: 11 1 39-3902. DEFINITIONS. For purposes of this chapter, the following words 2 and terms have the meanings hereinafter stated: 3 (1) "Emergency medical treatment" means immediate medical intervention 4 required, according to the prevailing medical standards of judgment and prac- 5 tice within the community, because of the medical condition of the person sub- 6 ject to this chapter. 7 (2) "Evaluation committee" means an interdisciplinary team consisting of 8 at least four (4) individuals qualified by education and training to evaluate 9 an individual as required by the provisions of this chapter, and an advocate 10 designated by the person subject to this chapter. Each committee must include: 11 two (2) social workers, at least one (1) of whom must be a master's level; a 12 clinical psychologist or a psychiatrist; and a physician. 13 (3) "Informed assent" means a process by which a person subject to this 14 chapter who lacks or is alleged to lack the capacity to consent to steriliza- 15 tion is given a fair opportunity to acknowledge the nature, risks and conse- 16 quences of the procedures and, insofar as he or she is able to, indicates 17 willingness and choice to undergo sterilization. 18 (4) "Interested person" means an interested, responsible adult including, 19 but not limited to, the legal guardian, spouse, parent, legal counsel, adult 20 child, or next of kin of a person subject to this chapter, or if none of these 21 are available, the department of health and welfare. 22 (5) "Medically necessary" means that, according to the prevailing medical 23 standards of judgment and practice within the community, the procedure is rea- 24 sonably calculated to prevent or treat conditions in the person subject to 25 this chapter that endanger life, cause severe pain, or cause functionally sig- 26 nificant deformity or malfunction, and for which there is not an equally 27 effective alternative course of treatment available or suitable. 28 (6) "Person subject to this chapter" means all adults, except adults who 29 may consent to their own treatment pursuant to chapter 435, title 39, Idaho 30 Code. Adults who are alleged to lack this capacity are also persons subject to 31 this chapter. 32 (7) "Physician" means a person duly licensed in the state of Idaho to 33 practice medicine and surgery without restriction pursuant to laws of the 34 state of Idaho. 35 (8) "Records" includes, but is not limited to, all court files of judi- 36 cial proceedings brought under this chapter, written clinical information, 37 observations and reports, or fiscal documents relating to a person subject to 38 this chapter who has undergone or is about to undergo sterilization and which 39 are related to the sterilization. 40 (9) "Sterilization" means any medical or surgical operation or procedure 41 which can be expected to result in a patient's permanent inability to repro- 42 duce. 43 SECTION 6. That Section 54-1142, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the 46 decedent has not made a prearranged funeral plan as set forth in section 47 54-1139, Idaho Code, the right to control the disposition of the remains of a 48 deceased person vests in, and devolves upon the following in the order named: 49 (a) The person designated in a written document executed by the decedent 50 and acknowledged in the same manner as required for instruments conveying 51 real property, and subject to such limitations, restrictions, or direc- 52 tions, as may be set forth in such document; 53 (b) The person designated as agent under a durable power of attorney for 12 1 health care executed by the decedent, unless such durable power of attor- 2 ney for health care contains express and clear language denying such 3 right; 4 (c) The person designated in a durable power of attorney executed by the 5 decedent, if such power of attorney contains express and clear language 6 granting such right to the agent named in such power of attorney; 7 (d) The competent surviving spouse of the decedent; 8 (e) A majority of the competent surviving adult children of the decedent, 9 provided that less than one-half (1/2) of the competent surviving adult 10 children shall be vested with the right to control the disposition of the 11 remains of the decedent if they have used reasonable efforts to notify all 12 other competent surviving adult children of their instructions to dispose 13 of the decedent's remains and are not aware of any opposition to those 14 instructions on the part of more than one-half (1/2) of all competent sur- 15 viving adult children; 16 (f) The competent surviving parents or parent of the decedent, provided 17 that if one (1) of the competent surviving parents is absent, the remain- 18 ing competent surviving parent shall be vested with the right to control 19 the disposition of the remains of the decedent after reasonable efforts 20 have been made and are unsuccessful in locating the absent competent sur- 21 viving parent; 22 (g) The person appointed by a court of competent jurisdiction as the per- 23 sonal representative or administrator of the estate of the decedent; 24 (h) The person nominated as the personal representative of the estate of 25 the decedent in the will of the decedent; 26 (i) The competent adult person or persons entitled to inherit from the 27 decedent under the intestate succession laws of the state of Idaho, 28 respectively in the next degreesof kinship, provided that if there is 29 more than one (1) competent surviving adult person of the same degree of 30 kinship, the majority of those persons, and provided further that less 31 than the majority of competent surviving adult persons of the same degree 32 of kinship shall be vested with the right to control the disposition of 33 the remains of the decedent if those persons have used reasonable efforts 34 to notify all other competent surviving adult persons of the same degree 35 of kinship of their instructions to dispose of the decedent's remains and 36 are not aware of any opposition to those instructions on the part of one- 37 half (1/2) or more of all competent surviving adult persons of the same 38 degree of kinship. 39 (2) If any person to whom the right of control has vested pursuant to the 40 foregoing has been charged with first or second degree murder or voluntary 41 manslaughter in connection with the decedent's death, and those charges are 42 known to the funeral director or cemetery authority, the right of control is 43 relinquished and passed on to the next qualifying person as listed above as if 44 the charged person did not exist; provided however, that if the charges 45 against such person are dropped, or if such person is acquitted of the 46 charges, the right of control is returned to the person. 47 (3) For purposes of this section: 48 (a) "Adult" means an individual who is eighteen (18) years of age or 49 older; 50 (b) "Child" means a natural or adopted child of the decedent; 51 (c) "Competent" means the individual has not been declared incompetent by 52 a court of law, or who has been declared competent by a court of law after 53 a prior declaration of incompetence; 54 (d) "Durable power of attorney" means a power of attorney described in 55 section 15-5-501, Idaho Code, or any similar document properly executed 13 1 under the laws of another jurisdiction; and 2 (e) "Durable power of attorney for health care" means the document 3 described insection 39-4505chapter 45, title 39, Idaho Code, or any sim- 4 ilar document properly executed under the laws of another jurisdiction; 5 (f) "Will" means any testamentary device which is valid under the Idaho 6 probate code, including, but not limited to, sections 15-2-503, 15-2-504 7 and 15-2-506, Idaho Code, whether or not originally executed in, or under 8 the laws of, the state of Idaho. 9 (4) (a) A cemetery authority or licensed funeral director or a licensed 10 hospital or its authorized personnel may permit or assist in, and a physi- 11 cian may perform, an autopsy of any remains of a decedent in its custody: 12 (i) If the decedent, prior to his death, authorizes an autopsy in 13 his will or in another written instrument, including, but not limited 14 to, a durable power of attorney for health care; or 15 (ii) Upon the receipt of a written authorization signed by, 16 telegrammed from, or received by facsimile transmission from, a per- 17 son representing himself to be the person who is entitled under this 18 section to control the disposition of the remains of the decedent, or 19 to be a coroner or any other duly authorized public officer; or 20 (iii) Upon the receipt of an oral authorization obtained by tele- 21 phone, and recorded on tape or other recording device, from a person 22 representing himself to be the person who is entitled under this sec- 23 tion to control the disposition of the remains of the decedent, or to 24 be a coroner or any other duly authorized public officer. 25 (b) A cemetery authority or a licensed funeral director of a licensed 26 hospital or its authorized personnel is not liable for permitting or 27 assisting, and a physician is not liable for performing, an autopsy pursu- 28 ant to the authorization provided in paragraph (a) of this subsection 29 unless he has actual notice that such representation is untrue at the time 30 the autopsy is performed. If such authorization is contained in a will, 31 the autopsy may be performed regardless of the validity of the will in 32 other respects and regardless of whether the will may not be offered for, 33 or admitted to, probate until a later date. 34 (c) This subsection shall not authorize the obtaining of an oral authori- 35 zation by telephone, recorded on tape or other recording device, for the 36 autopsy of a deceased person if it is made known to the physician who is 37 to perform the autopsy that the deceased person was, at the time of his 38 death, a member of a religion or group which opposes autopsies. 39 SECTION 7. That Section 56-1015, Idaho Code, be, and the same is hereby 40 amended to read as follows: 41 56-1015. FAILURE TO OBTAIN CONSENT. No person certified under sections 42 56-1011 through 56-1018B, Idaho Code, or physician or hospital licensed in 43 this state shall be subject to civil liability, based solely upon failure to 44 obtain consent in rendering emergency medical, surgical, hospital or health 45 services to any individual regardless of age where that individual is unable 46 to give this consent for any reason and there is no other person reasonably 47 available who is legally authorized to consent to the providing of such care, 48 provided, however, that such person, physician, or hospital has acted in good 49 faith and without knowledge of facts negating consent. The provision or 50 refusal of consent under sections 56-1011 through 56-1018B, Idaho Code, shall 51 be governed by chapter 435, title 39, Idaho Code. 52 SECTION 8. That Section 66-405, Idaho Code, be, and the same is hereby 14 1 amended to read as follows: 2 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the 3 respondent is not developmentally disabled but appears in need of protective 4 services, the court may cause the proceeding to be expanded or altered for 5 consideration under the uniform probate code. 6 (2) If it is determined that the respondent is able to manage financial 7 resources and meet essential requirements for physical health or safety, the 8 court shall dismiss the petition. 9 (3) If it is determined that the respondent is developmentally disabled 10 and is unable to manage some financial resources or meet some essential 11 requirements for physical health or safety, the court may appoint a partial 12 guardian and/or partial conservator on behalf of the respondent. An order 13 establishing partial guardianship or partial conservatorship shall define the 14 powers and duties of the partial guardian or partial conservator so as to per- 15 mit the respondent to meet essential requirements for physical health or 16 safety and to manage financial resources commensurate with his ability to do 17 so, and shall specify all legal restrictions to which he is subject. A person 18 for whom a partial guardianship or partial conservatorship has been appointed 19 under this chapter retains all legal and civil rights except those which have 20 by court order been limited or which have been specifically granted to the 21 partial guardian or partial conservator by the court. 22 (4) If it is determined that the respondent is developmentally disabled 23 and is unable to manage financial resources or meet essential requirements for 24 physical health or safety even with the appointment of a partial guardian or 25 partial conservator, the court may appoint a total guardian and/or total con- 26 servator. 27 (5) In the event that more than one (1) person seeks to be appointed 28 guardian and/or conservator, the court shall appoint the person or persons 29 most capable of serving on behalf of the respondent; the court shall not cus- 30 tomarily or ordinarily appoint the department or any other organization or 31 individual, public or private, that is or is likely to be providing services 32 to the respondent. 33 (6) Subject to the limitations of the provisions of subsection (7) of 34 this section, guardians or conservators may have any of the duties and powers 35 as provided in sections 15-5-312(a)(1) through (4), 15-5-424 and 15-5-425, 36 Idaho Code, and as specified in the order. Any order appointing a partial or 37 total guardian or partial or total conservator under the provisions of this 38 section must require a report to the court at least annually. In addition to 39 such other requirements imposed by law or order, the report shall include: 40 (a) A description of the respondent's current mental, physical and social 41 condition; 42 (b) The respondent's present address and living arrangement; 43 (c) A description of any significant changes in the capacity of the 44 respondent to meet essential requirements for physical health or safety or 45 to manage financial resources; 46 (d) A description of services being provided the respondent; 47 (e) A description of significant actions taken by the guardian or conser- 48 vator during the reporting period; 49 (f) Any significant problems relating to the guardianship or conservator- 50 ship; 51 (g) A complete financial statement of the financial resources under the 52 control or supervision of the guardian or conservator; and 53 (h) A description of the need for continued guardianship or conservator- 54 ship services. 15 1 (7) No guardian appointed under this chapter shall have the authority to 2 refuse or withhold consent for medically necessary treatment when the effect 3 of withholding such treatment would seriously endanger the life or health and 4 well-being of the person with a developmental disability. To withhold or 5 attempt to withhold such treatment shall constitute neglect of the person and 6 be cause for removal of the guardian. No physician or caregiver shall withhold 7 or withdraw such treatment for a respondent whose condition is not terminal or 8 whose death is not imminent. If the physician or caregiver cannot obtain valid 9 consent for medically necessary treatment from the guardian, he shall provide 10 the medically necessary treatment as authorized by section39-4303(c)11 39-4503(1)(g), Idaho Code. 12 (8) A guardian appointed under this chapter may consent to withholding or 13 withdrawal of artificial life-sustaining procedures, only if the respondent: 14 (a) Has an incurable injury, disease, illness or condition, certified by 15 the respondent's attending physician and at least one (1) other physician 16 to be terminal such that the application of artificial life-sustaining 17 procedures would not result in the possibility of saving or significantly 18 prolonging the life of the respondent, and would only serve to prolong the 19 moment of the respondent's death for a period of hours, days or weeks, and 20 where both physicians certify that death is imminent, whether or not the 21 life-sustaining procedures are used; or 22 (b) Has been diagnosed by the respondent's attending physician and at 23 least one (1) other physician as being in a persistent vegetative state 24 which is irreversible and from which the respondent will never regain con- 25 sciousness. 26 (9) Any person, who has information that medically necessary treatment of 27 a respondent has been withheld or withdrawn, may report such information to 28 adult protective services or to the Idaho protection and advocacy system for 29 people with developmental disabilities, who shall have the authority to inves- 30 tigate the report and in appropriate cases to seek a court order to ensure 31 that medically necessary treatment is provided. 32 If adult protective services or the protection and advocacy system deter- 33 mines that withholding of medical treatment violates the provisions of this 34 section, they may petition the court for an ex parte order to provide or con- 35 tinue the medical treatment in question. If the court finds, based on affida- 36 vits or other evidence, that there is probable cause to believe that the with- 37 holding of medical treatment in a particular case violates the provisions of 38 this section, and that the life or health of the patient is endangered 39 thereby, the court shall issue an ex parte order to continue or to provide the 40 treatment until such time as the court can hear evidence from the parties 41 involved. Petitions for court orders under this section shall be expedited by 42 the courts and heard as soon as possible. No bond shall be required of a peti- 43 tioner under this section. 44 (10) No partial or total guardian or partial or total conservator 45 appointed under the provisions of this section may without specific approval 46 of the court in a proceeding separate from that in which such guardian or con- 47 servator was appointed: 48 (a) Consent to medical or surgical treatment the effect of which perma- 49 nently prohibits the conception of children by the respondent unless the 50 treatment or procedures are necessary to protect the physical health of 51 the respondent and would be prescribed for a person who is not developmen- 52 tally disabled; 53 (b) Consent to experimental surgery, procedures or medications; or 54 (c) Delegate the powers granted by the order.
STATEMENT OF PURPOSE RS 14704 Section One: Currently there are two acts in the Idaho Code that deal with medical consents: Chapter 43 of Title 39; and, Chapter 45 of Title 39. This Act creates a single unified Act. Therefore, the existing Medical Consent Act, Chapter 43 of Title 39, is repealed in its entirety, and appropriate sections of that Act included in the new combined Act. Section Two: Similarly, the existing terms of the Natural Death Act, Chapter 45 of Title 39, Idaho Code, are repealed, and replaced by the new unified Act. The methods and purposes of the Medical Consent Act and the Natural Death Act are retained, but are clarified and simplified, with overlapping or conflicting sections brought together and unified. The Living Will and Durable Power of Attorney For Health Care, formerly spread into two documents, are combined in a single document, although the person executing the form can choose to fill out either or both of such subparts. The existing signature method of the Living Will is used for the combined form. FISCAL NOTE This bill will have no fiscal impact. CONTACT: Name: Robert L. Aldridge 1209 North Eighth Street Boise, Idaho 83702-4297 Telephone: office: (208) 336-9880 home: (208) 888-4668 Fax: (208) 336-9882 e-mail: rlaldridge@hotmail.com William A. Von tagen Deputy Attorney General Telephone: 334-4140 Fax: 334-3446 e-mail: bvontagen@ag.state.id.us Peter C. Sisson Sisson & Sisson 605 East Highland View Drive Boise, Idaho 83702 Telephone: (208) 387-0729 Fax: (208) 331-5009 e-mail: sissonlaw@cableone.net STATEMENT OF PURPOSE/FISCAL NOTE S 1068