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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 - 2005
IN 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 in section 39-4505 chapter 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 section 39-4303(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 - 2005
Moved 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 sections 5-330 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 degrees of 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 in section 39-4505 chapter 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 section 39-4303(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 - 2005
IN 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 sections 5-330 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 degrees of 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 in section 39-4505 chapter 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 section 39-4303(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