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H0119aa...............................................by HEALTH AND WELFARE
MEDICAL CARE DECISIONS - Amends, adds to and repeals existing law relating
to medical care decisions to define terms; to revise terminology; to revise
provisions applicable to persons who may give consent to care for others;
to provide for the refusal to consent; to provide for a specific form of
expression relating to form of consent; to delete language referencing lay
or professional employees; to revise the statement of policy; to revise
provisions applicable to a living will and durable power of attorney for
health care; to revise provisions applicable to revocation; to provide for
physician orders for scope of treatment; to set forth provisions applicable
to adherence to physician orders for scope of treatment protocol; to
provide a duty to inspect; to revise provisions relating to immunity; and
to revise general provisions.
02/07 House intro - 1st rdg - to printing
02/08 Rpt prt - to Health/Wel
02/23 Rpt out - to Gen Ord
02/27 Rpt out amen - to engros
02/28 Rpt engros - 1st rdg - to 2nd rdg as amen
03/01 2nd rdg - to 3rd rdg as amen
03/05 3rd rdg as amen - PASSED - 66-0-4
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
Block, Bock, Boe, Bolz, Brackett, Chadderdon, Chavez, Chew, Clark,
Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart, Harwood,
Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador, Lake,
LeFavour, Loertscher, Luker, Marriott, Mathews, Mortimer, Nielsen,
Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring, Ringo,
Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2), Shepherd(8),
Shively, Smith(30), Smith(24), Snodgrass, Stevenson, Thayn, Trail,
Vander Woude, Wills, Wood(27), Wood(35), Mr. Speaker
NAYS -- None
Absent and excused -- Bradford, McGeachin, Moyle, Shirley
Floor Sponsor - Henbest
Title apvd - to Senate
03/06 Senate intro - 1st rdg - to Health/Wel
03/13 Rpt out - rec d/p - to 2nd rdg
03/14 2nd rdg - to 3rd rdg
03/19 3rd rdg - PASSED - 31-1-3
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Cameron,
Coiner, Corder, Darrington, Davis, Geddes, Goedde, Hammond, Heinrich,
Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, McGee,
McKague, McKenzie, Pearce, Richardson, Schroeder, Siddoway, Stegner,
Stennett, Werk
NAYS -- Burkett
Absent and excused -- Fulcher, Gannon, Malepeai
Floor Sponsors - Coiner & Lodge
Title apvd - to House
03/20 To enrol - Rpt enrol - Sp signed
03/21 Pres signed - To Governor
03/27 Governor signed
Session Law Chapter 196
Effective: 07/01/07
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 119
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO MEDICAL CARE DECISIONS; AMENDING SECTION 39-4501, IDAHO CODE, TO
3 PROVIDE A CODE REFERENCE; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY
4 THE ADDITION OF A NEW SECTION 39-4502, IDAHO CODE, TO DEFINE TERMS; AMEND-
5 ING SECTION 39-4502, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO REVISE
6 TERMINOLOGY; AMENDING SECTION 39-4503, IDAHO CODE, TO REDESIGNATE THE SEC-
7 TION AND TO REVISE PROVISIONS APPLICABLE TO PERSONS WHO MAY GIVE CONSENT
8 TO CARE FOR OTHERS; AMENDING SECTION 39-4504, IDAHO CODE, TO REDESIGNATE
9 THE SECTION AND TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION
10 39-4505, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO PROVIDE FOR THE
11 REFUSAL TO CONSENT; AMENDING SECTION 39-4506, IDAHO CODE, TO REDESIGNATE
12 THE SECTION AND TO PROVIDE FOR A SPECIFIC FORM OF EXPRESSION RELATING TO
13 FORM OF CONSENT; AMENDING SECTION 39-4507, IDAHO CODE, TO REDESIGNATE THE
14 SECTION AND TO DELETE LANGUAGE REFERENCING LAY OR PROFESSIONAL EMPLOYEES;
15 AMENDING SECTION 39-4508, IDAHO CODE, TO REDESIGNATE THE SECTION, TO
16 REVISE DESCRIPTIVE LANGUAGE, TO REVISE THE STATEMENT OF POLICY AND TO
17 DEFINE A TERM; REPEALING SECTION 39-4509, IDAHO CODE, RELATING TO DEFINI-
18 TIONS; AMENDING SECTION 39-4510, IDAHO CODE, TO REVISE PROVISIONS APPLICA-
19 BLE TO A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE; AMEND-
20 ING SECTION 39-4511, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO REVO-
21 CATION; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A
22 NEW SECTION 39-4512A, IDAHO CODE, TO PROVIDE FOR PHYSICIAN ORDERS FOR
23 SCOPE OF TREATMENT; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE
24 ADDITION OF A NEW SECTION 39-4512B, IDAHO CODE, TO SET FORTH PROVISIONS
25 APPLICABLE TO ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT PROTO-
26 COL; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A NEW
27 SECTION 39-4512C, IDAHO CODE, TO PROVIDE A DUTY TO INSPECT; AMENDING SEC-
28 TION 39-4513, IDAHO CODE, TO REVISE PROVISIONS RELATING TO IMMUNITY;
29 AMENDING SECTION 39-4514, IDAHO CODE, TO REVISE GENERAL PROVISIONS;
30 REPEALING SECTIONS 56-1020 THROUGH 56-1035, IDAHO CODE, RELATING TO DECI-
31 SIONS RELATIVE TO THE RENDERING OR WITHHOLDING OF MEDICAL CARE; AND AMEND-
32 ING SECTION 66-405, IDAHO CODE, TO REVISE A CODE REFERENCE.
33 Be It Enacted by the Legislature of the State of Idaho:
34 SECTION 1. That Section 39-4501, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 39-4501. PURPOSES -- APPLICATION. (1) The primary purposes of this chap-
37 ter are:
38 (a) To provide and codify Idaho law concerning consent for the furnishing
39 of hospital, medical, dental or surgical care, treatment or procedures,
40 and concerning what constitutes an informed consent for such care, treat-
41 ment or procedures; and
42 (b) To provide certainty and clarity in the law of medical consent in the
43 furtherance of high standards of health care and its ready availability in
2
1 proper cases.
2 (2) Nothing in this chapter shall be deemed to amend or repeal the provi-
3 sions of chapter 3 or chapter 4, title 66, Idaho Code, as those provisions
4 pertain to hospitalization of the mentally ill, nor the provisions of chapter
5 6, title 18, Idaho Code, pertaining to the provision of examinations, pre-
6 scriptions, devices and informational materials regarding prevention of preg-
7 nancy or pertaining to therapeutic abortions and consent to the performance
8 thereof.
9 (3) Nothing in this chapter shall be construed to permit or require the
10 provision of health care for a patient in contravention of the patient's
11 stated or implied objection thereto upon religious grounds nor shall anything
12 in this chapter be construed to require the granting of permission for or on
13 behalf of any patient who is not able to act for himself by his parent, spouse
14 or guardian in violation of the religious beliefs of the patient or the
15 patient's parent or spouse.
16 SECTION 2. That Chapter 45, Title 39, Idaho Code, be, and the same is
17 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
18 ignated as Section 39-4502, Idaho Code, and to read as follows:
19 39-4502. DEFINITIONS. As used in this chapter:
20 (1) "Artificial life-sustaining procedure" means any medical procedure or
21 intervention that utilizes mechanical means to sustain or supplant a vital
22 function which, when applied to a qualified patient, would serve only to arti-
23 ficially prolong life. "Artificial life-sustaining procedure" does not include
24 the administration of pain management medication or the performance of any
25 medical procedure deemed necessary to provide comfort care or to alleviate
26 pain.
27 (2) "Artificial nutrition and hydration" means supplying food and water
28 through a conduit, such as a tube or intravenous line, where the recipient is
29 not required to chew or swallow voluntarily, but does not include assisted
30 feeding, such as spoon feeding or bottle feeding.
31 (3) "Attending physician" means the physician licensed by the state board
32 of medicine who is selected by, or assigned to, the patient and who has pri-
33 mary responsibility for the treatment and care of the patient.
34 (4) "Cardiopulmonary resuscitation" or "CPR" means measures to restore
35 cardiac function and/or to support ventilation in the event of cardiac or
36 respiratory arrest.
37 (5) "Comfort care" means treatment and care to provide comfort and clean-
38 liness. "Comfort care" includes:
39 (a) Oral and body hygiene;
40 (b) Reasonable efforts to offer food and fluids orally;
41 (c) Medication, positioning, warmth, appropriate lighting and other mea-
42 sures to relieve pain and suffering; and
43 (d) Privacy and respect for the dignity and humanity of the patient.
44 (6) "Consent to care" includes refusal to consent to care and/or with-
45 drawal of care.
46 (7) "Directive" or "health care directive" means a document meeting the
47 requirements of section 39-4510(1), Idaho Code, and/or a "Physician Orders for
48 Scope of Treatment (POST)" form signed by a physician.
49 (8) "Emergency medical services personnel" means personnel engaged in
50 providing initial emergency medical assistance including, but not limited to,
51 first responders, emergency medical technicians and paramedics.
52 (9) "Health care provider" or "provider" means any person or entity
53 licensed, certified, or otherwise authorized by law to administer health care
3
1 in the ordinary course of business or practice of a profession, including
2 emergency or other medical services personnel.
3 (10) "Persistent vegetative state" means an irreversible state that has
4 been medically confirmed by a neurological specialist who is an expert in the
5 examination of nonresponsive individuals in which the person has intact brain
6 stem function but no higher cortical function and no awareness of self or
7 environment.
8 (11) "Physician" means a person who holds a current active license to
9 practice medicine and surgery or osteopathic medicine and surgery in Idaho and
10 is in good standing with no restriction upon or actions taken against his or
11 her license.
12 (12) "Physician orders for scope of treatment (POST) form" means a stan-
13 dardized form containing orders by a physician that states a person's treat-
14 ment wishes.
15 (13) "Physician orders for scope of treatment (POST) identification
16 device" means standardized jewelry which can be worn around the wrist, neck or
17 ankle, and which has been approved by the department of health and welfare.
18 (14) "Terminal condition" means an incurable or irreversible condition
19 which, without the administration of life-sustaining procedures, will, in the
20 opinion of a physician, result in death if it runs its usual course.
21 SECTION 3. That Section 39-4502, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 39-45023. PERSONS WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
24 nary intelligence and awareness sufficient for him or her generally to compre-
25 hend the need for, the nature of and the significant risks ordinarily inherent
26 in, any contemplated hospital, medical, dental or surgical care, treatment or
27 procedure is competent to consent thereto on his or her own behalf. Any physi-
28 cian, dentist, hospital or other duly authorized person health care provider
29 may provide such health care and services in reliance upon such a consent if
30 the consenting person appears to the physician or dentist health care provider
31 securing the consent to possess such requisite intelligence and awareness at
32 the time of giving the consent.
33 SECTION 4. That Section 39-4503, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 39-45034. PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS. (1) Consent
36 for the furnishing of hospital, medical, dental or surgical care, treatment or
37 procedures to any person who is not then capable of giving such consent as
38 provided in this chapter or who is a minor or incompetent person, may be given
39 or refused in the order of priority set forth hereafter unless the patient is
40 a competent person who has refused to give such consent, and provided further
41 that this subsection shall not be deemed to authorize any person to override
42 the express refusal by a competent patient to give such consent himself:
43 (a) The legal guardian of such person;
44 (b) The person named in a "Living Will and Durable Power of Attorney for
45 Health Care" pursuant to section 39-4510, Idaho Code, or a similar docu-
46 ment authorized by this chapter;
47 (c) If married, the spouse of such person;
48 (d) A parent of such person;
49 (e) Any relative representing himself or herself to be an appropriate,
50 responsible person to act under the circumstances;
51 (f) Any other competent individual representing himself or herself to be
4
1 responsible for the health care of such person; or
2 (g) If the subject person presents a medical emergency or there is a sub-
3 stantial likelihood of his or her life or health being seriously endan-
4 gered by withholding or delay in the rendering of such hospital, medical,
5 dental or surgical care to such patient and the subject person has not
6 communicated and is unable to communicate his or her treatment wishes, the
7 attending physician or dentist may, in his or her discretion, authorize
8 and/or provide such care, treatment or procedure as he or she deems appro-
9 priate, and all persons, agencies and institutions thereafter furnishing
10 the same, including such physician or dentist, may proceed as if informed,
11 valid consent therefor had been otherwise duly given.
12 (2) No person who, in good faith, gives consent or authorization for the
13 provision of hospital, medical, dental or surgical care, treatment or proce-
14 dures to another as provided by this chapter shall be subject to civil liabil-
15 ity therefor.
16 (3) No physician, dentist, hospital or other duly authorized person
17 health care provider who, in good faith, obtains consent from a person pursu-
18 ant to either section 39-45023 or 39-45034(1), Idaho Code, shall be subject to
19 civil liability therefor.
20 SECTION 5. That Section 39-4504, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 39-45045. BLOOD TESTING. (1) A physician may consent to ordering tests of
23 a patient's or a deceased person's blood or other body fluids for the presence
24 of blood-transmitted or body fluid-transmitted viruses or diseases without the
25 prior consent of the patient if:
26 (a) There has been or is likely to be a significant exposure to the
27 patient's or a deceased person's blood or body fluids by a person provid-
28 ing emergency or medical services to such patient which may result in the
29 transmittal of a virus or disease; and
30 (b) The patient is unconscious or incapable of giving informed consent
31 and the physician is unable to obtain consent pursuant to section
32 39-45034, Idaho Code.
33 (2) The department of health and welfare shall promulgate rules identify-
34 ing the blood-transmitted or body fluid-transmitted viruses or diseases for
35 which blood tests or body fluid tests can be ordered under this section and
36 defining the term "significant exposure" as provided in this section.
37 (3) Results of tests conducted under this section which confirm the pres-
38 ence of a blood-transmitted or body fluid-transmitted virus or disease shall
39 be reported to the director of the department of health and welfare in the
40 name of the patient or deceased person. The department records containing such
41 test results shall be used only by public health officials who must conduct
42 investigations. The exposed person shall only be informed of the results of
43 the test and shall not be informed of the name of the patient or deceased per-
44 son. Protocols shall be established by hospitals to maintain confidentiality
45 while disseminating the necessary test result information to persons who may
46 have a significant exposure to blood or other body fluids and to maintain
47 records of such tests to preserve the confidentiality of the test results.
48 (4) Any person who willfully or maliciously discloses the results of a
49 test conducted under this section, except pursuant to a written authorization
50 by the person whose blood was tested or by such person's authorized represen-
51 tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
52 SECTION 6. That Section 39-4505, Idaho Code, be, and the same is hereby
5
1 amended to read as follows:
2 39-45056. SUFFICIENCY OF CONSENT. Consent, or refusal to consent, for the
3 furnishing of hospital, medical, dental or surgical care, treatment or proce-
4 dures shall be valid in all respects if the person giving or refusing the con-
5 sent is sufficiently aware of pertinent facts respecting the need for, the
6 nature of, and the significant risks ordinarily attendant upon, such a patient
7 receiving such care, as to permit the giving or withholding of such consent to
8 be a reasonably informed decision. Any such consent shall be deemed valid and
9 so informed if the physician or dentist to whom it is given or by whom it is
10 secured has made such disclosures and given such advice respecting pertinent
11 facts and considerations as would ordinarily be made and given under the same
12 or similar circumstances, by a like physician or dentist of good standing
13 practicing in the same community. As used in this section, the term "in the
14 same community" refers to that geographic area ordinarily served by the
15 licensed general hospital at or nearest to which such consent is given.
16 SECTION 7. That Section 39-4506, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 39-45067. FORM OF CONSENT. It is not essential to the validity of any
19 consent for the furnishing of hospital, medical, dental or surgical care,
20 treatment or procedures that the consent be in writing or any other specific
21 form of expression; provided however, when the giving of such consent is
22 recited or documented in writing and expressly authorizes the care, treatment
23 or procedures to be furnished, and when such writing or form has been executed
24 or initialed by a person competent to give such consent for himself or
25 another, such written consent, in the absence of convincing proof that it was
26 secured maliciously or by fraud, is presumed to be valid for the furnishing of
27 such care, treatment or procedures, and the advice and disclosures of the
28 attending physician or dentist, as well as the level of informed awareness of
29 the giver of such consent, shall be presumed to be sufficient.
30 SECTION 8. That Section 39-4507, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 39-45078. RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent
33 for health care is the duty of the attending physician or dentist or of
34 another physician or dentist acting on his or her behalf or actually providing
35 the contemplated care, treatment or procedure; provided however, a licensed
36 hospital and any medical or dental office lay or professional employee, acting
37 with the approval of such an attending or other physician or dentist, may per-
38 form the ministerial act of documenting such consent by securing the comple-
39 tion and execution of a form or statement in which the giving of consent for
40 such care is documented by or on behalf of the patient. In performing such a
41 ministerial act, the hospital or medical or dental office lay or professional
42 employee shall not be deemed to have engaged in the practice of medicine or
43 dentistry.
44 SECTION 9. That Section 39-4508, Idaho Code, be, and the same is hereby
45 amended to read as follows:
46 39-45089. STATEMENT OF POLICY -- DEFINITION. For purposes of sections
47 39-45089 through 39-45145, Idaho Code:
48 (1) The legislature finds that recognizes the established common law and
6
1 the fundamental right of adult persons have the fundamental right to control
2 the decisions relating to the rendering of their medical care, including the
3 decision to have life-sustaining procedures withheld or withdrawn. The legis-
4 lature further finds that modern medical technology has made possible the
5 artificial prolongation of human life beyond natural limits. The legislature
6 further finds that patients are sometimes unable to express their desire to
7 withhold or withdraw such artificial life prolongation procedures which pro-
8 vide nothing medically necessary or beneficial to the patient because of the
9 patient's inability to communicate with the physician.
10 (2) In recognition of the dignity and privacy which patients have a right
11 to expect, the legislature hereby declares that the laws of this state shall
12 recognize the right of a competent person to have his or her wishes for medi-
13 cal treatment and for the withdrawal of artificial life-sustaining procedures
14 carried out even though that person is no longer able to communicate with the
15 physician.
16 (3) It is the intent of the legislature to establish an effective means
17 for such communication. It is not the intent of the legislature that the pro-
18 cedures described in this chapter sections 39-4509 through 39-4515, Idaho
19 Code, are the only effective means of such communication, and nothing in this
20 chapter sections 39-4509 through 39-4515, Idaho Code, shall impair or super-
21 sede any legal right or legal responsibility which a person may have to effect
22 the withholding or withdrawal of life-sustaining procedures in any lawful man-
23 ner. Any authentic expression of a person's wishes with respect to health care
24 should be honored.
25 (4) "Competent person" means any emancipated minor or person eighteen
26 (18) or more years of age who is of sound mind.
27 SECTION 10. That Section 39-4509, Idaho Code, be, and the same is hereby
28 repealed.
29 SECTION 11. That Section 39-4510, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 39-4510. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. (1)
32 Any competent person may execute a document known as a "Living Will and Dura-
33 ble Power of Attorney for Health Care." Such document shall be in substan-
34 tially the following form, or in another form that contains the elements set
35 forth in this chapter. A "Living Will and Durable Power of Attorney for Health
36 Care" executed prior to the effective date of this act, but which was in the
37 "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
38 to prior Idaho law at the time of execution, or in another form that contained
39 the elements set forth in this chapter at the time of execution, shall be
40 deemed to be in compliance with this chapter. A "Living Will and Durable Power
41 of Attorney for Health Care" or similar document(s) executed in another state
42 which substantially complies with this chapter shall be deemed to be in com-
43 pliance with this chapter. In this chapter, a "Living Will and Durable Power
44 of Attorney for Health Care" may be referred to as a "directive." Any portions
45 of the "Living Will and Durable Power of Attorney for Health Care" which are
46 left blank by the person executing the document shall be deemed to be inten-
47 tional and shall not invalidate the document.
48 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
49 Date of Directive:....................
7
1 Name of person executing Directive:...........................................
2 Address of person executing Directive:........................................
3 A LIVING WILL
4 A Directive to Withhold or to Provide Treatment
5 1. Being of sound mind, I willfully and voluntarily make known my desire that
6 my life shall not be prolonged artificially under the circumstances set forth
7 below. This Directive shall only be effective if I am unable to communicate my
8 instructions and:
9 a. I have an incurable or irreversible injury, disease, illness or condi-
10 tion, and two (2) a medical doctors who have has examined me have has cer-
11 tified:
12 1. That such injury, disease, illness or condition is terminal; and
13 2. That the application of artificial life-sustaining procedures
14 would serve only to prolong artificially my life; and
15 3. That my death is imminent, whether or not artificial life-
16 sustaining procedures are utilized; or
17 b. I have been diagnosed as being in a persistent vegetative state.
18 In such event, I direct that the following marked expression of my intent be
19 followed, and that I receive any medical treatment or care that may be
20 required to keep me free of pain or distress.
21 Check one box and initial the line after such box:
22 ........ I direct that all medical treatment, care and procedures neces-
23 sary to restore my health, and sustain my life, and to abolish or alleviate
24 pain or distress be provided to me. Nutrition and hydration, whether artifi-
25 cial or nonartificial, shall not be withheld or withdrawn from me if I would
26 likely die primarily from malnutrition or dehydration rather than from my
27 injury, disease, illness or condition.
28 OR
29 ........ I direct that all medical treatment, care and procedures,
30 including artificial life-sustaining procedures, be withheld or withdrawn,
31 except that nutrition and hydration, whether artificial or nonartificial shall
32 not be withheld or withdrawn from me if, as a result, I would likely die pri-
33 marily from malnutrition or dehydration rather than from my injury, disease,
34 illness or condition, as follows: (If none of the following boxes are checked
35 and initialed, then both nutrition and hydration, of any nature, whether arti-
36 ficial or nonartificial, shall be administered.)
37 Check one box and initial the line after such box:
38 A. ........ Only hydration of any nature, whether artificial or
39 nonartificial, shall be administered;
40 B. ........ Only nutrition, of any nature, whether artificial or
41 nonartificial, shall be administered;
42 C. ........ Both nutrition and hydration, of any nature, whether
43 artificial or nonartificial shall be administered.
44 OR
45 ........ I direct that all medical treatment, care and procedures be
8
1 withheld or withdrawn, including withdrawal of the administration of artifi-
2 cial nutrition and hydration.
3 2. This Directive shall be the final expression of my legal right to refuse
4 or accept medical and surgical treatment, and I accept the consequences of
5 such refusal or acceptance.
6 3. If I have been diagnosed as pregnant, this Directive shall have no force
7 during the course of my pregnancy.
8 43. I understand the full importance of this Directive and am mentally compe-
9 tent to make this Directive. No participant in the making of this Directive or
10 in its being carried into effect shall be held responsible in any way for com-
11 plying with my directions.
12 4. Check one box and initial the line after such box:
13 ........ I have discussed these decisions with my physician and have also
14 completed a Physician Orders for Scope of Treatment (POST) form that contains
15 directions that may be more specific than, but are compatible with, this
16 Directive. I hereby approve of those orders and incorporate them herein as if
17 fully set forth.
18 OR
19 ........ I have not completed a Physician Orders for Scope of Treatment
20 (POST) form. If a POST form is later signed by my physician, then this living
21 will shall be deemed modified to be compatible with the terms of the POST
22 form.
23 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
24 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated
25 as your agent: (1) your treating health care provider; (2) a nonrelative
26 employee of your treating health care provider; (3) an operator of a community
27 care facility; or (4) a nonrelative employee of an operator of a community
28 care facility. If the agent or an alternate agent designated in this Directive
29 is my spouse, and our marriage is thereafter dissolved, such designation shall
30 be thereupon revoked.
31 I do hereby designate and appoint the following individual as my attorney in
32 fact (agent) to make health care decisions for me as authorized in this Direc-
33 tive. (Insert name, address and telephone number of one individual only as
34 your agent to make health care decisions for you.)
35 Name of Health Care Agent: ...................................................
36 Address of Health Care Agent: ................................................
37 Telephone Number of Health Care Agent: .......................................
38 For the purposes of this Directive, "health care decision" means consent,
39 refusal of consent, or withdrawal of consent to any care, treatment, service
40 or procedure to maintain, diagnose or treat an individual's physical condi-
41 tion.
42 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
9
1 this Directive, I create a durable power of attorney for health care. This
2 power of attorney shall not be affected by my subsequent incapacity. This
3 power shall be effective only when I am unable to communicate rationally.
4 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
5 Directive, including as set forth in paragraph 2 immediately above, I hereby
6 grant to my agent full power and authority to make health care decisions for
7 me to the same extent that I could make such decisions for myself if I had the
8 capacity to do so. In exercising this authority, my agent shall make health
9 care decisions that are consistent with my desires as stated in this Directive
10 or otherwise made known to my agent including, but not limited to, my desires
11 concerning obtaining or refusing or withdrawing artificial life-prolongingsus-
12 taining care, treatment, services and procedures, including such desires set
13 forth in a living will, Physician Orders for Scope of Treatment (POST) form,
14 or similar document executed by me, if any. (If you want to limit the author-
15 ity of your agent to make health care decisions for you, you can state the
16 limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
17 Limitations") below. You can indicate your desires by including a statement of
18 your desires in the same paragraph.)
19 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent
20 must make health care decisions that are consistent with your known desires.
21 You can, but are not required to, state your desires in the space provided
22 below. You should consider whether you want to include a statement of your
23 desires concerning artificial life-prolongingsustaining care, treatment, ser-
24 vices and procedures. You can also include a statement of your desires con-
25 cerning other matters relating to your health care, including a list of one or
26 more persons whom you designate to be able to receive medical information
27 about you and/or to be allowed to visit you in a medical institution. You can
28 also make your desires known to your agent by discussing your desires with
29 your agent or by some other means. If there are any types of treatment that
30 you do not want to be used, you should state them in the space below. If you
31 want to limit in any other way the authority given your agent by this Direc-
32 tive, you should state the limits in the space below. If you do not state any
33 limits, your agent will have broad powers to make health care decisions for
34 you, except to the extent that there are limits provided by law.) In exercis-
35 ing the authority under this durable power of attorney for health care, my
36 agent shall act consistently with my desires as stated below and is subject to
37 the special provisions and limitations stated in my Physician Orders for Scope
38 of Treatment (POST) form, a living will, or similar document executed by me,
39 if any. Additional statement of desires, special provisions, and limitations:.
40 .......(You may attach additional pages or documents if you need more space to
41 complete your statement.)
42 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
43 HEALTH.
44 A. General Grant of Power and Authority. Subject to any limitations in this
45 Directive, my agent has the power and authority to do all of the following:
46 (1) Request, review and receive any information, verbal or written, regarding
47 my physical or mental health including, but not limited to, medical and hospi-
48 tal records; (2) Execute on my behalf any releases or other documents that may
49 be required in order to obtain this information; (3) Consent to the disclosure
50 of this information; and (4) Consent to the donation of any of my organs for
51 medical purposes. (If you want to limit the authority of your agent to receive
10
1 and disclose information relating to your health, you must state the limita-
2 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita-
3 tions") above.)
4 B. HIPAA Release Authority. My agent shall be treated as I would be with
5 respect to my rights regarding the use and disclosure of my individually iden-
6 tifiable health information or other medical records. This release authority
7 applies to any information governed by the Health Insurance Portability and
8 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
9 164. I authorize any physician, health care professional, dentist, health
10 plan, hospital, clinic, laboratory, pharmacy, or other covered health care
11 provider, any insurance company, and the Medical Information Bureau, Inc. or
12 other health care clearinghouse that has provided treatment or services to me,
13 or that has paid for or is seeking payment from me for such services, to give,
14 disclose and release to my agent, without restriction, all of my individually
15 identifiable health information and medical records regarding any past, pres-
16 ent or future medical or mental health condition, including all information
17 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
18 illness, and drug or alcohol abuse. The authority given my agent shall super-
19 sede any other agreement that I may have made with my health care providers to
20 restrict access to or disclosure of my individually identifiable health infor-
21 mation. The authority given my agent has no expiration date and shall expire
22 only in the event that I revoke the authority in writing and deliver it to my
23 health care provider.
24 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
25 health care decisions that my agent is authorized by this Directive to make,
26 my agent has the power and authority to execute on my behalf all of the fol-
27 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
28 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces-
29 sary waiver or release from liability required by a hospital or physician.
30 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any
31 alternate agents but you may do so. Any alternate agent you designate will be
32 able to make the same health care decisions as the agent you designated in
33 paragraph 1 above, in the event that agent is unable or ineligible to act as
34 your agent. If an alternate agent you designate is your spouse, he or she
35 becomes ineligible to act as your agent if your marriage is thereafter dis-
36 solved.) If the person designated as my agent in paragraph 1 is not available
37 or becomes ineligible to act as my agent to make a health care decision for me
38 or loses the mental capacity to make health care decisions for me, or if I
39 revoke that person's appointment or authority to act as my agent to make
40 health care decisions for me, then I designate and appoint the following per-
41 sons to serve as my agent to make health care decisions for me as authorized
42 in this Directive, such persons to serve in the order listed below:
43 A. First Alternate Agent:
44 Name..........................................................................
45 Address.......................................................................
46 Telephone Number..............................................................
47 B. Second Alternate Agent:
48 Name..........................................................................
49 Address.......................................................................
50 Telephone Number..............................................................
11
1 C. Third Alternate Agent:
2 Name..........................................................................
3 Address.......................................................................
4 Telephone Number..............................................................
5 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney
6 for health care.
7 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
8 Durable Power of Attorney for Health Care.)
9 I sign my name to this Statutory Form Living Will and Durable Power of Attor-
10 ney for Health Care on the date set forth at the beginning of this Form at
11 ............... (City, State)....................
12 ..............................
13 Signature
14 (2) A health care directive meeting the requirements of subsection (1) of
15 this section may be registered with the secretary of state pursuant to the
16 provisions of section 39-4515, Idaho Code. Failure to register the health care
17 directive shall not affect the validity of the health care directive.
18 SECTION 12. That Section 39-4511, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 39-4511. REVOCATION. (1) A "Lliving Wwill and Ddurable Ppower of
21 Aattorney for Hhealth Ccare" or physician orders for scope of treatment
22 (POST) form may be revoked at any time by the maker thereof, without regard to
23 his mental state or competence, by any of the following methods:
24 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise
25 destroyed by the maker thereof, or by some person in his presence and by
26 his direction;
27 (b) By a written, signed revocation of the maker thereof expressing his
28 intent to revoke; or
29 (c) By an oral expression by the maker thereof expressing his intent to
30 revoke.
31 (2) The maker of the revoked living will and durable power of attorney
32 for health care is responsible for notifying his physician of the revocation.
33 (3) There shall be no criminal or civil liability on the part of any per-
34 son for the failure to act upon a revocation of a "Lliving Wwill and Ddurable
35 Ppower of Aattorney for Hhealth Ccare" or physician orders for scope of treat-
36 ment (POST) form made pursuant to this section unless that person has actual
37 knowledge of the revocation.
38 (3) A person may register a revocation of a health care directive which
39 meets the requirements of subsection (1)(b) of this section with the secretary
40 of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
41 register a revocation of the health care directive shall not affect the valid-
42 ity of the revocation.
43 SECTION 13. That Chapter 45, Title 39, Idaho Code, be, and the same is
44 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
45 ignated as Section 39-4512A, Idaho Code, and to read as follows:
46 39-4512A. PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST). (1) A physician
12
1 orders for scope of treatment (POST) form is appropriate in cases where a
2 patient has an incurable or irreversible injury, disease, illness or condi-
3 tion, or where a patient is in a persistent vegetative state. A POST form is
4 also appropriate if such conditions are anticipated.
5 (2) The POST form shall be effective from the date of execution unless
6 otherwise revoked. If there is a conflict between the person's expressed
7 directives, the POST form, and the decisions of the durable power of attorney
8 representative or surrogate, the orders contained in the POST form shall be
9 followed.
10 (3) The attending physician shall, upon request of the patient, provide
11 the patient with a copy of the POST form, discuss with the patient the form's
12 content and ramifications and treatment options, and assist the patient in the
13 completion of the form.
14 (4) The attending physician shall review the POST form:
15 (a) Each time the physician examines the patient, or at least every seven
16 (7) days, for patients who are hospitalized; and
17 (b) Each time the patient is transferred from one (1) care setting or
18 care level to another; and
19 (c) Any time there is a substantial change in the patient's health sta-
20 tus; and
21 (d) Any time the patient's treatment preferences change.
22 Failure to meet these review requirements does not affect the POST form's
23 validity or enforceability. As conditions warrant, the physician may issue a
24 superseding POST form. The physician shall, whenever practical, consult with
25 the patient or the patient's agent.
26 (5) A patient who has completed a POST form signed by a physician may
27 wear a POST identification device as provided in section 39-4502(13), Idaho
28 Code.
29 (6) The department of health and welfare shall develop the POST form.
30 SECTION 14. That Chapter 45, Title 39, Idaho Code, be, and the same is
31 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
32 ignated as Section 39-4512B, Idaho Code, and to read as follows:
33 39-4512B. ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST)
34 PROTOCOL. (1) Health care providers and emergency medical services personnel
35 shall comply with a patient's physician orders for scope of treatment (POST)
36 instruction when presented with a completed POST form signed by a physician or
37 when a patient is wearing a proper POST identification device pursuant to sec-
38 tion 39-4512A(5), Idaho Code.
39 (2) A completed POST form is deemed to meet the requirements of "Do Not
40 Resuscitate (DNR)" forms of all Idaho health care facilities. Health care
41 providers and emergency medical services personnel shall not require the com-
42 pletion of other forms in order for the patient's wishes to be respected.
43 SECTION 15. That Chapter 45, Title 39, Idaho Code, be, and the same is
44 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
45 ignated as Section 39-4512C, Idaho Code, and to read as follows:
46 39-4512C. DUTY TO INSPECT. Health care providers and emergency medical
47 services personnel shall make reasonable efforts to inquire as to whether the
48 patient has completed a physician orders for scope of treatment (POST) form
49 and inspect the patient for a POST identification device when presented with a
50 situation calling for artificial life-sustaining treatment not caused by
51 severe trauma or involving mass casualties and with no indication of homicide
13
1 or suicide.
2 SECTION 16. That Section 39-4513, Idaho Code, be, and the same is hereby
3 amended to read as follows:
4 39-4513. IMMUNITY. (1) No emergency medical services personnel, or health
5 care provider, facility, or individual employed by, acting as the agent of, or
6 under contract with any such health care provider or facility shall be civilly
7 or criminally liable or subject to discipline for unprofessional conduct for
8 acts or omissions carried out or performed in good faith pursuant to the
9 directives in a facially valid living will or by the holder of a facially
10 valid durable power of attorney or directive for health care. if the medical
11 personnel or health care facility acts in good faith.
12 (2) Any physician or other health care provider who for ethical or pro-
13 fessional reasons is incapable or unwilling to conform to the desires of the
14 patient as expressed by the procedures set forth in this chapter may withdraw
15 without incurring any civil or criminal liability provided the physician or
16 other health care provider, before withdrawal of his or her participation,
17 makes a good faith effort to assist the patient in obtaining the services of
18 another physician or other health care provider before withdrawal who is will-
19 ing to provide care for the patient in accordance with the patient's expressed
20 or documented wishes.
21 (3) No person who exercises the responsibilities of a durable power of
22 attorney for health care in good faith shall be subject to civil or criminal
23 liability as a result.
24 (4) Neither the registration of a health care directive in the health
25 care directive registry under section 39-4515, Idaho Code, nor the revocation
26 of such a directive requires a health care provider to request information
27 from that registry. The decision of a health care provider to request or not
28 to request a health care directive document from the registry shall be immune
29 from civil or criminal liability. A health care provider who in good faith
30 acts in reliance on a facially valid health care directive received from the
31 health care directive registry shall be immune from civil or criminal liabil-
32 ity for those acts done in such reliance.
33 (5) Health care providers and emergency medical services personnel may
34 disregard the POST form or a POST identification device:
35 (a) If they believe in good faith that the order has been revoked; or
36 (b) To avoid oral or physical confrontation; or
37 (c) If ordered to do so by the attending physician.
38 SECTION 17. That Section 39-4514, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 39-4514. GENERAL PROVISIONS. (1) Application. This chapter shall have no
41 effect or be in any manner construed to apply to persons not executing a
42 "Lliving Wwill and Ddurable Ppower of Aattorney for Hhealth Care" care or POST
43 form pursuant to this chapter nor shall it in any manner affect the rights of
44 any such persons or of others acting for or on behalf of such persons to give
45 or refuse to give consent or withhold consent for any medical care, neither
46 shall this chapter be construed to affect chapter 3 or chapter 4, title 66,
47 Idaho Code, in any manner.
48 (2) The making of a "Living Will and Durable Power of Attorney for Health
49 Care" pursuant to this chapter shall not restrict, inhibit or impair in any
50 manner the sale, procurement or issuance of any policy of life insurance, nor
51 shall it be deemed to modify the terms of an existing policy of life insur-
14
1 ance. No policy of life insurance shall be legally impaired or invalidated in
2 any manner by the withholding or withdrawal of artificial life-sustaining pro-
3 cedures from an insured patient, notwithstanding any term of the policy to the
4 contrary Euthanasia, mercy killing, or assisted suicide. This chapter does not
5 make legal, and in no way condones, euthanasia, mercy killing, or assisted
6 suicide or permit an affirmative or deliberate act or omission to end life,
7 other than to allow the natural process of dying.
8 (3) No physician, health facility or other health care provider and no
9 health care service plan, insurer issuing disability insurance, self-insured
10 employee plan, welfare benefit plan or nonprofit hospital service plan shall
11 require any person to execute a "Living Will and Durable Power of Attorney for
12 Health Care" as a condition for being insured for, or receiving, health care
13 services Comfort care. Individuals caring for a patient for whom artificial
14 life-sustaining procedures or artificially administered nutrition and
15 hydration are withheld or withdrawn shall provide comfort care as defined in
16 section 39-4502, Idaho Code.
17 (4) Presumed consent to resuscitation. There is a presumption in favor of
18 consent to cardiopulmonary resuscitation (CPR) unless:
19 (a) A completed living will for that person is in effect, pursuant to
20 section 39-4510, Idaho Code, and the person is in a terminal condition or
21 persistent vegetative state; or
22 (b) A completed durable power of attorney for health care for that person
23 is in effect, pursuant to section 39-4510, Idaho Code, in which the person
24 has indicated that he or she does not wish to receive cardiopulmonary re-
25 suscitation, or his or her representative has determined that the person
26 would not wish to receive cardiopulmonary resuscitation; or
27 (c) The patient has a completed physician orders for scope of treatment
28 (POST) form indicating otherwise and/or proper POST identification pursu-
29 ant to section 39-4502(13), Idaho Code.
30 (5) Futile care. Nothing in this chapter shall be construed to require
31 medical treatment that is medically inappropriate or futile.
32 (6) Existing directives and directives from other states. A health care
33 directive executed prior to July 1, 2007, but which was in the living will,
34 durable power of attorney for health care, DNR, or POST form pursuant to prior
35 Idaho law at the time of execution, or in another form that contained the ele-
36 ments set forth in this chapter at the time of execution, shall be deemed to
37 be in compliance with this chapter. Health care directives or similar docu-
38 ments executed in another state that substantially comply with this chapter
39 shall be deemed to be in compliance with this chapter.
40 (7) Insurance.
41 (a) The making of a living will and/or durable power of attorney for
42 health care or physician orders for scope of treatment (POST) form pursu-
43 ant to this chapter shall not restrict, inhibit or impair in any manner
44 the sale, procurement or issuance of any policy of life insurance, nor
45 shall it be deemed to modify the terms of an existing policy of life
46 insurance. No policy of life insurance shall be legally impaired or inval-
47 idated in any manner by the withholding or withdrawal of artificial life-
48 sustaining procedures from an insured patient, notwithstanding any term of
49 the policy to the contrary.
50 (b) No physician, health care facility or other health care provider and
51 no health care service plan, insurer issuing disability insurance,
52 self-insured employee plan, welfare benefit plan or nonprofit hospital
53 service plan shall require any person to execute a living will and durable
54 power of attorney for health care or physician orders for scope of treat-
55 ment (POST) form as a condition for being insured for, or receiving,
15
1 health care services.
2 (8) Portability and copies.
3 (a) A completed physician orders for scope of treatment (POST) form
4 signed by a physician shall be transferred with the patient to, and be
5 effective in, all care settings including, but not limited to, home care,
6 ambulance or other transport, hospital, residential care facility, and
7 hospice care. The POST form shall remain in effect until such time as
8 there is a valid revocation pursuant to section 39-4511, Idaho Code, or
9 new orders are issued by a physician.
10 (b) A photostatic, facsimile or electronic copy of a valid physician
11 orders for scope of treatment (POST) form may be treated as an original by
12 a health care provider or by an institution receiving or treating a
13 patient.
14 (9) Registration. A directive or the revocation of a directive meeting
15 the requirements of this chapter may be registered with the secretary of state
16 pursuant to section 39-4515, Idaho Code. Failure to register the health care
17 directive shall not affect the validity of the health care directive.
18 (10) Rulemaking authority.
19 (a) The department of health and welfare shall adopt those rules and
20 protocols necessary to administer the provisions of this chapter.
21 (b) In the adoption of a physician orders for scope of treatment (POST)
22 or DNR protocol, the department shall adopt standardized POST identifica-
23 tion to be used statewide.
24 SECTION 18. That Sections 56-1020 through 56-1035, Idaho Code, be, and
25 the same are hereby repealed.
26 SECTION 19. That Section 66-405, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
29 respondent is not developmentally disabled but appears in need of protective
30 services, the court may cause the proceeding to be expanded or altered for
31 consideration under the uniform probate code.
32 (2) If it is determined that the respondent is able to manage financial
33 resources and meet essential requirements for physical health or safety, the
34 court shall dismiss the petition.
35 (3) If it is determined that the respondent is developmentally disabled
36 and is unable to manage some financial resources or meet some essential
37 requirements for physical health or safety, the court may appoint a partial
38 guardian and/or partial conservator on behalf of the respondent. An order
39 establishing partial guardianship or partial conservatorship shall define the
40 powers and duties of the partial guardian or partial conservator so as to per-
41 mit the respondent to meet essential requirements for physical health or
42 safety and to manage financial resources commensurate with his ability to do
43 so, and shall specify all legal restrictions to which he is subject. A person
44 for whom a partial guardianship or partial conservatorship has been appointed
45 under this chapter retains all legal and civil rights except those which have
46 by court order been limited or which have been specifically granted to the
47 partial guardian or partial conservator by the court.
48 (4) If it is determined that the respondent is developmentally disabled
49 and is unable to manage financial resources or meet essential requirements for
50 physical health or safety even with the appointment of a partial guardian or
51 partial conservator, the court may appoint a total guardian and/or total con-
52 servator.
16
1 (5) In the event that more than one (1) person seeks to be appointed
2 guardian and/or conservator, the court shall appoint the person or persons
3 most capable of serving on behalf of the respondent; the court shall not cus-
4 tomarily or ordinarily appoint the department or any other organization or
5 individual, public or private, that is or is likely to be providing services
6 to the respondent.
7 (6) Subject to the limitations of the provisions of subsection (7) of
8 this section, guardians or conservators may have any of the duties and powers
9 as provided in sections 15-5-312(a)(1) through (4), 15-5-424 and 15-5-425,
10 Idaho Code, and as specified in the order. Any order appointing a partial or
11 total guardian or partial or total conservator under the provisions of this
12 section must require a report to the court at least annually. In addition to
13 such other requirements imposed by law or order, the report shall include:
14 (a) A description of the respondent's current mental, physical and social
15 condition;
16 (b) The respondent's present address and living arrangement;
17 (c) A description of any significant changes in the capacity of the
18 respondent to meet essential requirements for physical health or safety or
19 to manage financial resources;
20 (d) A description of services being provided the respondent;
21 (e) A description of significant actions taken by the guardian or conser-
22 vator during the reporting period;
23 (f) Any significant problems relating to the guardianship or conservator-
24 ship;
25 (g) A complete financial statement of the financial resources under the
26 control or supervision of the guardian or conservator; and
27 (h) A description of the need for continued guardianship or conservator-
28 ship services.
29 (7) No guardian appointed under this chapter shall have the authority to
30 refuse or withhold consent for medically necessary treatment when the effect
31 of withholding such treatment would seriously endanger the life or health and
32 well-being of the person with a developmental disability. To withhold or
33 attempt to withhold such treatment shall constitute neglect of the person and
34 be cause for removal of the guardian. No physician or caregiver shall withhold
35 or withdraw such treatment for a respondent whose condition is not terminal or
36 whose death is not imminent. If the physician or caregiver cannot obtain valid
37 consent for medically necessary treatment from the guardian, he shall provide
38 the medically necessary treatment as authorized by section 39-45034(1)(g),
39 Idaho Code.
40 (8) A guardian appointed under this chapter may consent to withholding or
41 withdrawal of artificial life-sustaining procedures, only if the respondent:
42 (a) Has an incurable injury, disease, illness or condition, certified by
43 the respondent's attending physician and at least one (1) other physician
44 to be terminal such that the application of artificial life-sustaining
45 procedures would not result in the possibility of saving or significantly
46 prolonging the life of the respondent, and would only serve to prolong the
47 moment of the respondent's death for a period of hours, days or weeks, and
48 where both physicians certify that death is imminent, whether or not the
49 life-sustaining procedures are used; or
50 (b) Has been diagnosed by the respondent's attending physician and at
51 least one (1) other physician as being in a persistent vegetative state
52 which is irreversible and from which the respondent will never regain con-
53 sciousness.
54 (9) Any person, who has information that medically necessary treatment of
55 a respondent has been withheld or withdrawn, may report such information to
17
1 adult protective services or to the Idaho protection and advocacy system for
2 people with developmental disabilities, who shall have the authority to inves-
3 tigate the report and in appropriate cases to seek a court order to ensure
4 that medically necessary treatment is provided.
5 If adult protective services or the protection and advocacy system deter-
6 mines that withholding of medical treatment violates the provisions of this
7 section, they may petition the court for an ex parte order to provide or con-
8 tinue the medical treatment in question. If the court finds, based on affida-
9 vits or other evidence, that there is probable cause to believe that the with-
10 holding of medical treatment in a particular case violates the provisions of
11 this section, and that the life or health of the patient is endangered
12 thereby, the court shall issue an ex parte order to continue or to provide the
13 treatment until such time as the court can hear evidence from the parties
14 involved. Petitions for court orders under this section shall be expedited by
15 the courts and heard as soon as possible. No bond shall be required of a peti-
16 tioner under this section.
17 (10) No partial or total guardian or partial or total conservator
18 appointed under the provisions of this section may without specific approval
19 of the court in a proceeding separate from that in which such guardian or con-
20 servator was appointed:
21 (a) Consent to medical or surgical treatment the effect of which perma-
22 nently prohibits the conception of children by the respondent unless the
23 treatment or procedures are necessary to protect the physical health of
24 the respondent and would be prescribed for a person who is not developmen-
25 tally disabled;
26 (b) Consent to experimental surgery, procedures or medications; or
27 (c) Delegate the powers granted by the order.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
Moved by Rusche
Seconded by Henbest
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENT TO H.B. NO. 119
1 AMENDMENT TO SECTION 16
2 On page 13 of the printed bill, in line 9, following "valid" insert: "POST
3 form or".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 119, As Amended
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO MEDICAL CARE DECISIONS; AMENDING SECTION 39-4501, IDAHO CODE, TO
3 PROVIDE A CODE REFERENCE; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY
4 THE ADDITION OF A NEW SECTION 39-4502, IDAHO CODE, TO DEFINE TERMS; AMEND-
5 ING SECTION 39-4502, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO REVISE
6 TERMINOLOGY; AMENDING SECTION 39-4503, IDAHO CODE, TO REDESIGNATE THE SEC-
7 TION AND TO REVISE PROVISIONS APPLICABLE TO PERSONS WHO MAY GIVE CONSENT
8 TO CARE FOR OTHERS; AMENDING SECTION 39-4504, IDAHO CODE, TO REDESIGNATE
9 THE SECTION AND TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION
10 39-4505, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO PROVIDE FOR THE
11 REFUSAL TO CONSENT; AMENDING SECTION 39-4506, IDAHO CODE, TO REDESIGNATE
12 THE SECTION AND TO PROVIDE FOR A SPECIFIC FORM OF EXPRESSION RELATING TO
13 FORM OF CONSENT; AMENDING SECTION 39-4507, IDAHO CODE, TO REDESIGNATE THE
14 SECTION AND TO DELETE LANGUAGE REFERENCING LAY OR PROFESSIONAL EMPLOYEES;
15 AMENDING SECTION 39-4508, IDAHO CODE, TO REDESIGNATE THE SECTION, TO
16 REVISE DESCRIPTIVE LANGUAGE, TO REVISE THE STATEMENT OF POLICY AND TO
17 DEFINE A TERM; REPEALING SECTION 39-4509, IDAHO CODE, RELATING TO DEFINI-
18 TIONS; AMENDING SECTION 39-4510, IDAHO CODE, TO REVISE PROVISIONS APPLICA-
19 BLE TO A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE; AMEND-
20 ING SECTION 39-4511, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO REVO-
21 CATION; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A
22 NEW SECTION 39-4512A, IDAHO CODE, TO PROVIDE FOR PHYSICIAN ORDERS FOR
23 SCOPE OF TREATMENT; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE
24 ADDITION OF A NEW SECTION 39-4512B, IDAHO CODE, TO SET FORTH PROVISIONS
25 APPLICABLE TO ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT PROTO-
26 COL; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A NEW
27 SECTION 39-4512C, IDAHO CODE, TO PROVIDE A DUTY TO INSPECT; AMENDING SEC-
28 TION 39-4513, IDAHO CODE, TO REVISE PROVISIONS RELATING TO IMMUNITY;
29 AMENDING SECTION 39-4514, IDAHO CODE, TO REVISE GENERAL PROVISIONS;
30 REPEALING SECTIONS 56-1020 THROUGH 56-1035, IDAHO CODE, RELATING TO DECI-
31 SIONS RELATIVE TO THE RENDERING OR WITHHOLDING OF MEDICAL CARE; AND AMEND-
32 ING SECTION 66-405, IDAHO CODE, TO REVISE A CODE REFERENCE.
33 Be It Enacted by the Legislature of the State of Idaho:
34 SECTION 1. That Section 39-4501, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 39-4501. PURPOSES -- APPLICATION. (1) The primary purposes of this chap-
37 ter are:
38 (a) To provide and codify Idaho law concerning consent for the furnishing
39 of hospital, medical, dental or surgical care, treatment or procedures,
40 and concerning what constitutes an informed consent for such care, treat-
41 ment or procedures; and
42 (b) To provide certainty and clarity in the law of medical consent in the
43 furtherance of high standards of health care and its ready availability in
2
1 proper cases.
2 (2) Nothing in this chapter shall be deemed to amend or repeal the provi-
3 sions of chapter 3 or chapter 4, title 66, Idaho Code, as those provisions
4 pertain to hospitalization of the mentally ill, nor the provisions of chapter
5 6, title 18, Idaho Code, pertaining to the provision of examinations, pre-
6 scriptions, devices and informational materials regarding prevention of preg-
7 nancy or pertaining to therapeutic abortions and consent to the performance
8 thereof.
9 (3) Nothing in this chapter shall be construed to permit or require the
10 provision of health care for a patient in contravention of the patient's
11 stated or implied objection thereto upon religious grounds nor shall anything
12 in this chapter be construed to require the granting of permission for or on
13 behalf of any patient who is not able to act for himself by his parent, spouse
14 or guardian in violation of the religious beliefs of the patient or the
15 patient's parent or spouse.
16 SECTION 2. That Chapter 45, Title 39, Idaho Code, be, and the same is
17 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
18 ignated as Section 39-4502, Idaho Code, and to read as follows:
19 39-4502. DEFINITIONS. As used in this chapter:
20 (1) "Artificial life-sustaining procedure" means any medical procedure or
21 intervention that utilizes mechanical means to sustain or supplant a vital
22 function which, when applied to a qualified patient, would serve only to arti-
23 ficially prolong life. "Artificial life-sustaining procedure" does not include
24 the administration of pain management medication or the performance of any
25 medical procedure deemed necessary to provide comfort care or to alleviate
26 pain.
27 (2) "Artificial nutrition and hydration" means supplying food and water
28 through a conduit, such as a tube or intravenous line, where the recipient is
29 not required to chew or swallow voluntarily, but does not include assisted
30 feeding, such as spoon feeding or bottle feeding.
31 (3) "Attending physician" means the physician licensed by the state board
32 of medicine who is selected by, or assigned to, the patient and who has pri-
33 mary responsibility for the treatment and care of the patient.
34 (4) "Cardiopulmonary resuscitation" or "CPR" means measures to restore
35 cardiac function and/or to support ventilation in the event of cardiac or
36 respiratory arrest.
37 (5) "Comfort care" means treatment and care to provide comfort and clean-
38 liness. "Comfort care" includes:
39 (a) Oral and body hygiene;
40 (b) Reasonable efforts to offer food and fluids orally;
41 (c) Medication, positioning, warmth, appropriate lighting and other mea-
42 sures to relieve pain and suffering; and
43 (d) Privacy and respect for the dignity and humanity of the patient.
44 (6) "Consent to care" includes refusal to consent to care and/or with-
45 drawal of care.
46 (7) "Directive" or "health care directive" means a document meeting the
47 requirements of section 39-4510(1), Idaho Code, and/or a "Physician Orders for
48 Scope of Treatment (POST)" form signed by a physician.
49 (8) "Emergency medical services personnel" means personnel engaged in
50 providing initial emergency medical assistance including, but not limited to,
51 first responders, emergency medical technicians and paramedics.
52 (9) "Health care provider" or "provider" means any person or entity
53 licensed, certified, or otherwise authorized by law to administer health care
3
1 in the ordinary course of business or practice of a profession, including
2 emergency or other medical services personnel.
3 (10) "Persistent vegetative state" means an irreversible state that has
4 been medically confirmed by a neurological specialist who is an expert in the
5 examination of nonresponsive individuals in which the person has intact brain
6 stem function but no higher cortical function and no awareness of self or
7 environment.
8 (11) "Physician" means a person who holds a current active license to
9 practice medicine and surgery or osteopathic medicine and surgery in Idaho and
10 is in good standing with no restriction upon or actions taken against his or
11 her license.
12 (12) "Physician orders for scope of treatment (POST) form" means a stan-
13 dardized form containing orders by a physician that states a person's treat-
14 ment wishes.
15 (13) "Physician orders for scope of treatment (POST) identification
16 device" means standardized jewelry which can be worn around the wrist, neck or
17 ankle, and which has been approved by the department of health and welfare.
18 (14) "Terminal condition" means an incurable or irreversible condition
19 which, without the administration of life-sustaining procedures, will, in the
20 opinion of a physician, result in death if it runs its usual course.
21 SECTION 3. That Section 39-4502, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 39-45023. PERSONS WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
24 nary intelligence and awareness sufficient for him or her generally to compre-
25 hend the need for, the nature of and the significant risks ordinarily inherent
26 in, any contemplated hospital, medical, dental or surgical care, treatment or
27 procedure is competent to consent thereto on his or her own behalf. Any physi-
28 cian, dentist, hospital or other duly authorized person health care provider
29 may provide such health care and services in reliance upon such a consent if
30 the consenting person appears to the physician or dentist health care provider
31 securing the consent to possess such requisite intelligence and awareness at
32 the time of giving the consent.
33 SECTION 4. That Section 39-4503, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 39-45034. PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS. (1) Consent
36 for the furnishing of hospital, medical, dental or surgical care, treatment or
37 procedures to any person who is not then capable of giving such consent as
38 provided in this chapter or who is a minor or incompetent person, may be given
39 or refused in the order of priority set forth hereafter unless the patient is
40 a competent person who has refused to give such consent, and provided further
41 that this subsection shall not be deemed to authorize any person to override
42 the express refusal by a competent patient to give such consent himself:
43 (a) The legal guardian of such person;
44 (b) The person named in a "Living Will and Durable Power of Attorney for
45 Health Care" pursuant to section 39-4510, Idaho Code, or a similar docu-
46 ment authorized by this chapter;
47 (c) If married, the spouse of such person;
48 (d) A parent of such person;
49 (e) Any relative representing himself or herself to be an appropriate,
50 responsible person to act under the circumstances;
51 (f) Any other competent individual representing himself or herself to be
4
1 responsible for the health care of such person; or
2 (g) If the subject person presents a medical emergency or there is a sub-
3 stantial likelihood of his or her life or health being seriously endan-
4 gered by withholding or delay in the rendering of such hospital, medical,
5 dental or surgical care to such patient and the subject person has not
6 communicated and is unable to communicate his or her treatment wishes, the
7 attending physician or dentist may, in his or her discretion, authorize
8 and/or provide such care, treatment or procedure as he or she deems appro-
9 priate, and all persons, agencies and institutions thereafter furnishing
10 the same, including such physician or dentist, may proceed as if informed,
11 valid consent therefor had been otherwise duly given.
12 (2) No person who, in good faith, gives consent or authorization for the
13 provision of hospital, medical, dental or surgical care, treatment or proce-
14 dures to another as provided by this chapter shall be subject to civil liabil-
15 ity therefor.
16 (3) No physician, dentist, hospital or other duly authorized person
17 health care provider who, in good faith, obtains consent from a person pursu-
18 ant to either section 39-45023 or 39-45034(1), Idaho Code, shall be subject to
19 civil liability therefor.
20 SECTION 5. That Section 39-4504, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 39-45045. BLOOD TESTING. (1) A physician may consent to ordering tests of
23 a patient's or a deceased person's blood or other body fluids for the presence
24 of blood-transmitted or body fluid-transmitted viruses or diseases without the
25 prior consent of the patient if:
26 (a) There has been or is likely to be a significant exposure to the
27 patient's or a deceased person's blood or body fluids by a person provid-
28 ing emergency or medical services to such patient which may result in the
29 transmittal of a virus or disease; and
30 (b) The patient is unconscious or incapable of giving informed consent
31 and the physician is unable to obtain consent pursuant to section
32 39-45034, Idaho Code.
33 (2) The department of health and welfare shall promulgate rules identify-
34 ing the blood-transmitted or body fluid-transmitted viruses or diseases for
35 which blood tests or body fluid tests can be ordered under this section and
36 defining the term "significant exposure" as provided in this section.
37 (3) Results of tests conducted under this section which confirm the pres-
38 ence of a blood-transmitted or body fluid-transmitted virus or disease shall
39 be reported to the director of the department of health and welfare in the
40 name of the patient or deceased person. The department records containing such
41 test results shall be used only by public health officials who must conduct
42 investigations. The exposed person shall only be informed of the results of
43 the test and shall not be informed of the name of the patient or deceased per-
44 son. Protocols shall be established by hospitals to maintain confidentiality
45 while disseminating the necessary test result information to persons who may
46 have a significant exposure to blood or other body fluids and to maintain
47 records of such tests to preserve the confidentiality of the test results.
48 (4) Any person who willfully or maliciously discloses the results of a
49 test conducted under this section, except pursuant to a written authorization
50 by the person whose blood was tested or by such person's authorized represen-
51 tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
52 SECTION 6. That Section 39-4505, Idaho Code, be, and the same is hereby
5
1 amended to read as follows:
2 39-45056. SUFFICIENCY OF CONSENT. Consent, or refusal to consent, for the
3 furnishing of hospital, medical, dental or surgical care, treatment or proce-
4 dures shall be valid in all respects if the person giving or refusing the con-
5 sent is sufficiently aware of pertinent facts respecting the need for, the
6 nature of, and the significant risks ordinarily attendant upon, such a patient
7 receiving such care, as to permit the giving or withholding of such consent to
8 be a reasonably informed decision. Any such consent shall be deemed valid and
9 so informed if the physician or dentist to whom it is given or by whom it is
10 secured has made such disclosures and given such advice respecting pertinent
11 facts and considerations as would ordinarily be made and given under the same
12 or similar circumstances, by a like physician or dentist of good standing
13 practicing in the same community. As used in this section, the term "in the
14 same community" refers to that geographic area ordinarily served by the
15 licensed general hospital at or nearest to which such consent is given.
16 SECTION 7. That Section 39-4506, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 39-45067. FORM OF CONSENT. It is not essential to the validity of any
19 consent for the furnishing of hospital, medical, dental or surgical care,
20 treatment or procedures that the consent be in writing or any other specific
21 form of expression; provided however, when the giving of such consent is
22 recited or documented in writing and expressly authorizes the care, treatment
23 or procedures to be furnished, and when such writing or form has been executed
24 or initialed by a person competent to give such consent for himself or
25 another, such written consent, in the absence of convincing proof that it was
26 secured maliciously or by fraud, is presumed to be valid for the furnishing of
27 such care, treatment or procedures, and the advice and disclosures of the
28 attending physician or dentist, as well as the level of informed awareness of
29 the giver of such consent, shall be presumed to be sufficient.
30 SECTION 8. That Section 39-4507, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 39-45078. RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent
33 for health care is the duty of the attending physician or dentist or of
34 another physician or dentist acting on his or her behalf or actually providing
35 the contemplated care, treatment or procedure; provided however, a licensed
36 hospital and any medical or dental office lay or professional employee, acting
37 with the approval of such an attending or other physician or dentist, may per-
38 form the ministerial act of documenting such consent by securing the comple-
39 tion and execution of a form or statement in which the giving of consent for
40 such care is documented by or on behalf of the patient. In performing such a
41 ministerial act, the hospital or medical or dental office lay or professional
42 employee shall not be deemed to have engaged in the practice of medicine or
43 dentistry.
44 SECTION 9. That Section 39-4508, Idaho Code, be, and the same is hereby
45 amended to read as follows:
46 39-45089. STATEMENT OF POLICY -- DEFINITION. For purposes of sections
47 39-45089 through 39-45145, Idaho Code:
48 (1) The legislature finds that recognizes the established common law and
6
1 the fundamental right of adult persons have the fundamental right to control
2 the decisions relating to the rendering of their medical care, including the
3 decision to have life-sustaining procedures withheld or withdrawn. The legis-
4 lature further finds that modern medical technology has made possible the
5 artificial prolongation of human life beyond natural limits. The legislature
6 further finds that patients are sometimes unable to express their desire to
7 withhold or withdraw such artificial life prolongation procedures which pro-
8 vide nothing medically necessary or beneficial to the patient because of the
9 patient's inability to communicate with the physician.
10 (2) In recognition of the dignity and privacy which patients have a right
11 to expect, the legislature hereby declares that the laws of this state shall
12 recognize the right of a competent person to have his or her wishes for medi-
13 cal treatment and for the withdrawal of artificial life-sustaining procedures
14 carried out even though that person is no longer able to communicate with the
15 physician.
16 (3) It is the intent of the legislature to establish an effective means
17 for such communication. It is not the intent of the legislature that the pro-
18 cedures described in this chapter sections 39-4509 through 39-4515, Idaho
19 Code, are the only effective means of such communication, and nothing in this
20 chapter sections 39-4509 through 39-4515, Idaho Code, shall impair or super-
21 sede any legal right or legal responsibility which a person may have to effect
22 the withholding or withdrawal of life-sustaining procedures in any lawful man-
23 ner. Any authentic expression of a person's wishes with respect to health care
24 should be honored.
25 (4) "Competent person" means any emancipated minor or person eighteen
26 (18) or more years of age who is of sound mind.
27 SECTION 10. That Section 39-4509, Idaho Code, be, and the same is hereby
28 repealed.
29 SECTION 11. That Section 39-4510, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 39-4510. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. (1)
32 Any competent person may execute a document known as a "Living Will and Dura-
33 ble Power of Attorney for Health Care." Such document shall be in substan-
34 tially the following form, or in another form that contains the elements set
35 forth in this chapter. A "Living Will and Durable Power of Attorney for Health
36 Care" executed prior to the effective date of this act, but which was in the
37 "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
38 to prior Idaho law at the time of execution, or in another form that contained
39 the elements set forth in this chapter at the time of execution, shall be
40 deemed to be in compliance with this chapter. A "Living Will and Durable Power
41 of Attorney for Health Care" or similar document(s) executed in another state
42 which substantially complies with this chapter shall be deemed to be in com-
43 pliance with this chapter. In this chapter, a "Living Will and Durable Power
44 of Attorney for Health Care" may be referred to as a "directive." Any portions
45 of the "Living Will and Durable Power of Attorney for Health Care" which are
46 left blank by the person executing the document shall be deemed to be inten-
47 tional and shall not invalidate the document.
48 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
49 Date of Directive:....................
7
1 Name of person executing Directive:...........................................
2 Address of person executing Directive:........................................
3 A LIVING WILL
4 A Directive to Withhold or to Provide Treatment
5 1. Being of sound mind, I willfully and voluntarily make known my desire that
6 my life shall not be prolonged artificially under the circumstances set forth
7 below. This Directive shall only be effective if I am unable to communicate my
8 instructions and:
9 a. I have an incurable or irreversible injury, disease, illness or condi-
10 tion, and two (2) a medical doctors who have has examined me have has cer-
11 tified:
12 1. That such injury, disease, illness or condition is terminal; and
13 2. That the application of artificial life-sustaining procedures
14 would serve only to prolong artificially my life; and
15 3. That my death is imminent, whether or not artificial life-
16 sustaining procedures are utilized; or
17 b. I have been diagnosed as being in a persistent vegetative state.
18 In such event, I direct that the following marked expression of my intent be
19 followed, and that I receive any medical treatment or care that may be
20 required to keep me free of pain or distress.
21 Check one box and initial the line after such box:
22 ........ I direct that all medical treatment, care and procedures neces-
23 sary to restore my health, and sustain my life, and to abolish or alleviate
24 pain or distress be provided to me. Nutrition and hydration, whether artifi-
25 cial or nonartificial, shall not be withheld or withdrawn from me if I would
26 likely die primarily from malnutrition or dehydration rather than from my
27 injury, disease, illness or condition.
28 OR
29 ........ I direct that all medical treatment, care and procedures,
30 including artificial life-sustaining procedures, be withheld or withdrawn,
31 except that nutrition and hydration, whether artificial or nonartificial shall
32 not be withheld or withdrawn from me if, as a result, I would likely die pri-
33 marily from malnutrition or dehydration rather than from my injury, disease,
34 illness or condition, as follows: (If none of the following boxes are checked
35 and initialed, then both nutrition and hydration, of any nature, whether arti-
36 ficial or nonartificial, shall be administered.)
37 Check one box and initial the line after such box:
38 A. ........ Only hydration of any nature, whether artificial or
39 nonartificial, shall be administered;
40 B. ........ Only nutrition, of any nature, whether artificial or
41 nonartificial, shall be administered;
42 C. ........ Both nutrition and hydration, of any nature, whether
43 artificial or nonartificial shall be administered.
44 OR
45 ........ I direct that all medical treatment, care and procedures be
8
1 withheld or withdrawn, including withdrawal of the administration of artifi-
2 cial nutrition and hydration.
3 2. This Directive shall be the final expression of my legal right to refuse
4 or accept medical and surgical treatment, and I accept the consequences of
5 such refusal or acceptance.
6 3. If I have been diagnosed as pregnant, this Directive shall have no force
7 during the course of my pregnancy.
8 43. I understand the full importance of this Directive and am mentally compe-
9 tent to make this Directive. No participant in the making of this Directive or
10 in its being carried into effect shall be held responsible in any way for com-
11 plying with my directions.
12 4. Check one box and initial the line after such box:
13 ........ I have discussed these decisions with my physician and have also
14 completed a Physician Orders for Scope of Treatment (POST) form that contains
15 directions that may be more specific than, but are compatible with, this
16 Directive. I hereby approve of those orders and incorporate them herein as if
17 fully set forth.
18 OR
19 ........ I have not completed a Physician Orders for Scope of Treatment
20 (POST) form. If a POST form is later signed by my physician, then this living
21 will shall be deemed modified to be compatible with the terms of the POST
22 form.
23 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
24 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated
25 as your agent: (1) your treating health care provider; (2) a nonrelative
26 employee of your treating health care provider; (3) an operator of a community
27 care facility; or (4) a nonrelative employee of an operator of a community
28 care facility. If the agent or an alternate agent designated in this Directive
29 is my spouse, and our marriage is thereafter dissolved, such designation shall
30 be thereupon revoked.
31 I do hereby designate and appoint the following individual as my attorney in
32 fact (agent) to make health care decisions for me as authorized in this Direc-
33 tive. (Insert name, address and telephone number of one individual only as
34 your agent to make health care decisions for you.)
35 Name of Health Care Agent: ...................................................
36 Address of Health Care Agent: ................................................
37 Telephone Number of Health Care Agent: .......................................
38 For the purposes of this Directive, "health care decision" means consent,
39 refusal of consent, or withdrawal of consent to any care, treatment, service
40 or procedure to maintain, diagnose or treat an individual's physical condi-
41 tion.
42 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
9
1 this Directive, I create a durable power of attorney for health care. This
2 power of attorney shall not be affected by my subsequent incapacity. This
3 power shall be effective only when I am unable to communicate rationally.
4 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
5 Directive, including as set forth in paragraph 2 immediately above, I hereby
6 grant to my agent full power and authority to make health care decisions for
7 me to the same extent that I could make such decisions for myself if I had the
8 capacity to do so. In exercising this authority, my agent shall make health
9 care decisions that are consistent with my desires as stated in this Directive
10 or otherwise made known to my agent including, but not limited to, my desires
11 concerning obtaining or refusing or withdrawing artificial life-prolongingsus-
12 taining care, treatment, services and procedures, including such desires set
13 forth in a living will, Physician Orders for Scope of Treatment (POST) form,
14 or similar document executed by me, if any. (If you want to limit the author-
15 ity of your agent to make health care decisions for you, you can state the
16 limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
17 Limitations") below. You can indicate your desires by including a statement of
18 your desires in the same paragraph.)
19 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent
20 must make health care decisions that are consistent with your known desires.
21 You can, but are not required to, state your desires in the space provided
22 below. You should consider whether you want to include a statement of your
23 desires concerning artificial life-prolongingsustaining care, treatment, ser-
24 vices and procedures. You can also include a statement of your desires con-
25 cerning other matters relating to your health care, including a list of one or
26 more persons whom you designate to be able to receive medical information
27 about you and/or to be allowed to visit you in a medical institution. You can
28 also make your desires known to your agent by discussing your desires with
29 your agent or by some other means. If there are any types of treatment that
30 you do not want to be used, you should state them in the space below. If you
31 want to limit in any other way the authority given your agent by this Direc-
32 tive, you should state the limits in the space below. If you do not state any
33 limits, your agent will have broad powers to make health care decisions for
34 you, except to the extent that there are limits provided by law.) In exercis-
35 ing the authority under this durable power of attorney for health care, my
36 agent shall act consistently with my desires as stated below and is subject to
37 the special provisions and limitations stated in my Physician Orders for Scope
38 of Treatment (POST) form, a living will, or similar document executed by me,
39 if any. Additional statement of desires, special provisions, and limitations:.
40 .......(You may attach additional pages or documents if you need more space to
41 complete your statement.)
42 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
43 HEALTH.
44 A. General Grant of Power and Authority. Subject to any limitations in this
45 Directive, my agent has the power and authority to do all of the following:
46 (1) Request, review and receive any information, verbal or written, regarding
47 my physical or mental health including, but not limited to, medical and hospi-
48 tal records; (2) Execute on my behalf any releases or other documents that may
49 be required in order to obtain this information; (3) Consent to the disclosure
50 of this information; and (4) Consent to the donation of any of my organs for
51 medical purposes. (If you want to limit the authority of your agent to receive
10
1 and disclose information relating to your health, you must state the limita-
2 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita-
3 tions") above.)
4 B. HIPAA Release Authority. My agent shall be treated as I would be with
5 respect to my rights regarding the use and disclosure of my individually iden-
6 tifiable health information or other medical records. This release authority
7 applies to any information governed by the Health Insurance Portability and
8 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
9 164. I authorize any physician, health care professional, dentist, health
10 plan, hospital, clinic, laboratory, pharmacy, or other covered health care
11 provider, any insurance company, and the Medical Information Bureau, Inc. or
12 other health care clearinghouse that has provided treatment or services to me,
13 or that has paid for or is seeking payment from me for such services, to give,
14 disclose and release to my agent, without restriction, all of my individually
15 identifiable health information and medical records regarding any past, pres-
16 ent or future medical or mental health condition, including all information
17 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
18 illness, and drug or alcohol abuse. The authority given my agent shall super-
19 sede any other agreement that I may have made with my health care providers to
20 restrict access to or disclosure of my individually identifiable health infor-
21 mation. The authority given my agent has no expiration date and shall expire
22 only in the event that I revoke the authority in writing and deliver it to my
23 health care provider.
24 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
25 health care decisions that my agent is authorized by this Directive to make,
26 my agent has the power and authority to execute on my behalf all of the fol-
27 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
28 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces-
29 sary waiver or release from liability required by a hospital or physician.
30 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any
31 alternate agents but you may do so. Any alternate agent you designate will be
32 able to make the same health care decisions as the agent you designated in
33 paragraph 1 above, in the event that agent is unable or ineligible to act as
34 your agent. If an alternate agent you designate is your spouse, he or she
35 becomes ineligible to act as your agent if your marriage is thereafter dis-
36 solved.) If the person designated as my agent in paragraph 1 is not available
37 or becomes ineligible to act as my agent to make a health care decision for me
38 or loses the mental capacity to make health care decisions for me, or if I
39 revoke that person's appointment or authority to act as my agent to make
40 health care decisions for me, then I designate and appoint the following per-
41 sons to serve as my agent to make health care decisions for me as authorized
42 in this Directive, such persons to serve in the order listed below:
43 A. First Alternate Agent:
44 Name..........................................................................
45 Address.......................................................................
46 Telephone Number..............................................................
47 B. Second Alternate Agent:
48 Name..........................................................................
49 Address.......................................................................
50 Telephone Number..............................................................
11
1 C. Third Alternate Agent:
2 Name..........................................................................
3 Address.......................................................................
4 Telephone Number..............................................................
5 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney
6 for health care.
7 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
8 Durable Power of Attorney for Health Care.)
9 I sign my name to this Statutory Form Living Will and Durable Power of Attor-
10 ney for Health Care on the date set forth at the beginning of this Form at
11 ............... (City, State)....................
12 ..............................
13 Signature
14 (2) A health care directive meeting the requirements of subsection (1) of
15 this section may be registered with the secretary of state pursuant to the
16 provisions of section 39-4515, Idaho Code. Failure to register the health care
17 directive shall not affect the validity of the health care directive.
18 SECTION 12. That Section 39-4511, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 39-4511. REVOCATION. (1) A "Lliving Wwill and Ddurable Ppower of
21 Aattorney for Hhealth Ccare" or physician orders for scope of treatment
22 (POST) form may be revoked at any time by the maker thereof, without regard to
23 his mental state or competence, by any of the following methods:
24 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise
25 destroyed by the maker thereof, or by some person in his presence and by
26 his direction;
27 (b) By a written, signed revocation of the maker thereof expressing his
28 intent to revoke; or
29 (c) By an oral expression by the maker thereof expressing his intent to
30 revoke.
31 (2) The maker of the revoked living will and durable power of attorney
32 for health care is responsible for notifying his physician of the revocation.
33 (3) There shall be no criminal or civil liability on the part of any per-
34 son for the failure to act upon a revocation of a "Lliving Wwill and Ddurable
35 Ppower of Aattorney for Hhealth Ccare" or physician orders for scope of treat-
36 ment (POST) form made pursuant to this section unless that person has actual
37 knowledge of the revocation.
38 (3) A person may register a revocation of a health care directive which
39 meets the requirements of subsection (1)(b) of this section with the secretary
40 of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
41 register a revocation of the health care directive shall not affect the valid-
42 ity of the revocation.
43 SECTION 13. That Chapter 45, Title 39, Idaho Code, be, and the same is
44 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
45 ignated as Section 39-4512A, Idaho Code, and to read as follows:
46 39-4512A. PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST). (1) A physician
12
1 orders for scope of treatment (POST) form is appropriate in cases where a
2 patient has an incurable or irreversible injury, disease, illness or condi-
3 tion, or where a patient is in a persistent vegetative state. A POST form is
4 also appropriate if such conditions are anticipated.
5 (2) The POST form shall be effective from the date of execution unless
6 otherwise revoked. If there is a conflict between the person's expressed
7 directives, the POST form, and the decisions of the durable power of attorney
8 representative or surrogate, the orders contained in the POST form shall be
9 followed.
10 (3) The attending physician shall, upon request of the patient, provide
11 the patient with a copy of the POST form, discuss with the patient the form's
12 content and ramifications and treatment options, and assist the patient in the
13 completion of the form.
14 (4) The attending physician shall review the POST form:
15 (a) Each time the physician examines the patient, or at least every seven
16 (7) days, for patients who are hospitalized; and
17 (b) Each time the patient is transferred from one (1) care setting or
18 care level to another; and
19 (c) Any time there is a substantial change in the patient's health sta-
20 tus; and
21 (d) Any time the patient's treatment preferences change.
22 Failure to meet these review requirements does not affect the POST form's
23 validity or enforceability. As conditions warrant, the physician may issue a
24 superseding POST form. The physician shall, whenever practical, consult with
25 the patient or the patient's agent.
26 (5) A patient who has completed a POST form signed by a physician may
27 wear a POST identification device as provided in section 39-4502(13), Idaho
28 Code.
29 (6) The department of health and welfare shall develop the POST form.
30 SECTION 14. That Chapter 45, Title 39, Idaho Code, be, and the same is
31 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
32 ignated as Section 39-4512B, Idaho Code, and to read as follows:
33 39-4512B. ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST)
34 PROTOCOL. (1) Health care providers and emergency medical services personnel
35 shall comply with a patient's physician orders for scope of treatment (POST)
36 instruction when presented with a completed POST form signed by a physician or
37 when a patient is wearing a proper POST identification device pursuant to sec-
38 tion 39-4512A(5), Idaho Code.
39 (2) A completed POST form is deemed to meet the requirements of "Do Not
40 Resuscitate (DNR)" forms of all Idaho health care facilities. Health care
41 providers and emergency medical services personnel shall not require the com-
42 pletion of other forms in order for the patient's wishes to be respected.
43 SECTION 15. That Chapter 45, Title 39, Idaho Code, be, and the same is
44 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
45 ignated as Section 39-4512C, Idaho Code, and to read as follows:
46 39-4512C. DUTY TO INSPECT. Health care providers and emergency medical
47 services personnel shall make reasonable efforts to inquire as to whether the
48 patient has completed a physician orders for scope of treatment (POST) form
49 and inspect the patient for a POST identification device when presented with a
50 situation calling for artificial life-sustaining treatment not caused by
51 severe trauma or involving mass casualties and with no indication of homicide
13
1 or suicide.
2 SECTION 16. That Section 39-4513, Idaho Code, be, and the same is hereby
3 amended to read as follows:
4 39-4513. IMMUNITY. (1) No emergency medical services personnel, or health
5 care provider, facility, or individual employed by, acting as the agent of, or
6 under contract with any such health care provider or facility shall be civilly
7 or criminally liable or subject to discipline for unprofessional conduct for
8 acts or omissions carried out or performed in good faith pursuant to the
9 directives in a facially valid POST form or living will or by the holder of a
10 facially valid durable power of attorney or directive for health care. if the
11 medical personnel or health care facility acts in good faith.
12 (2) Any physician or other health care provider who for ethical or pro-
13 fessional reasons is incapable or unwilling to conform to the desires of the
14 patient as expressed by the procedures set forth in this chapter may withdraw
15 without incurring any civil or criminal liability provided the physician or
16 other health care provider, before withdrawal of his or her participation,
17 makes a good faith effort to assist the patient in obtaining the services of
18 another physician or other health care provider before withdrawal who is will-
19 ing to provide care for the patient in accordance with the patient's expressed
20 or documented wishes.
21 (3) No person who exercises the responsibilities of a durable power of
22 attorney for health care in good faith shall be subject to civil or criminal
23 liability as a result.
24 (4) Neither the registration of a health care directive in the health
25 care directive registry under section 39-4515, Idaho Code, nor the revocation
26 of such a directive requires a health care provider to request information
27 from that registry. The decision of a health care provider to request or not
28 to request a health care directive document from the registry shall be immune
29 from civil or criminal liability. A health care provider who in good faith
30 acts in reliance on a facially valid health care directive received from the
31 health care directive registry shall be immune from civil or criminal liabil-
32 ity for those acts done in such reliance.
33 (5) Health care providers and emergency medical services personnel may
34 disregard the POST form or a POST identification device:
35 (a) If they believe in good faith that the order has been revoked; or
36 (b) To avoid oral or physical confrontation; or
37 (c) If ordered to do so by the attending physician.
38 SECTION 17. That Section 39-4514, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 39-4514. GENERAL PROVISIONS. (1) Application. This chapter shall have no
41 effect or be in any manner construed to apply to persons not executing a
42 "Lliving Wwill and Ddurable Ppower of Aattorney for Hhealth Care" care or POST
43 form pursuant to this chapter nor shall it in any manner affect the rights of
44 any such persons or of others acting for or on behalf of such persons to give
45 or refuse to give consent or withhold consent for any medical care, neither
46 shall this chapter be construed to affect chapter 3 or chapter 4, title 66,
47 Idaho Code, in any manner.
48 (2) The making of a "Living Will and Durable Power of Attorney for Health
49 Care" pursuant to this chapter shall not restrict, inhibit or impair in any
50 manner the sale, procurement or issuance of any policy of life insurance, nor
51 shall it be deemed to modify the terms of an existing policy of life insur-
14
1 ance. No policy of life insurance shall be legally impaired or invalidated in
2 any manner by the withholding or withdrawal of artificial life-sustaining pro-
3 cedures from an insured patient, notwithstanding any term of the policy to the
4 contrary Euthanasia, mercy killing, or assisted suicide. This chapter does not
5 make legal, and in no way condones, euthanasia, mercy killing, or assisted
6 suicide or permit an affirmative or deliberate act or omission to end life,
7 other than to allow the natural process of dying.
8 (3) No physician, health facility or other health care provider and no
9 health care service plan, insurer issuing disability insurance, self-insured
10 employee plan, welfare benefit plan or nonprofit hospital service plan shall
11 require any person to execute a "Living Will and Durable Power of Attorney for
12 Health Care" as a condition for being insured for, or receiving, health care
13 services Comfort care. Individuals caring for a patient for whom artificial
14 life-sustaining procedures or artificially administered nutrition and
15 hydration are withheld or withdrawn shall provide comfort care as defined in
16 section 39-4502, Idaho Code.
17 (4) Presumed consent to resuscitation. There is a presumption in favor of
18 consent to cardiopulmonary resuscitation (CPR) unless:
19 (a) A completed living will for that person is in effect, pursuant to
20 section 39-4510, Idaho Code, and the person is in a terminal condition or
21 persistent vegetative state; or
22 (b) A completed durable power of attorney for health care for that person
23 is in effect, pursuant to section 39-4510, Idaho Code, in which the person
24 has indicated that he or she does not wish to receive cardiopulmonary re-
25 suscitation, or his or her representative has determined that the person
26 would not wish to receive cardiopulmonary resuscitation; or
27 (c) The patient has a completed physician orders for scope of treatment
28 (POST) form indicating otherwise and/or proper POST identification pursu-
29 ant to section 39-4502(13), Idaho Code.
30 (5) Futile care. Nothing in this chapter shall be construed to require
31 medical treatment that is medically inappropriate or futile.
32 (6) Existing directives and directives from other states. A health care
33 directive executed prior to July 1, 2007, but which was in the living will,
34 durable power of attorney for health care, DNR, or POST form pursuant to prior
35 Idaho law at the time of execution, or in another form that contained the ele-
36 ments set forth in this chapter at the time of execution, shall be deemed to
37 be in compliance with this chapter. Health care directives or similar docu-
38 ments executed in another state that substantially comply with this chapter
39 shall be deemed to be in compliance with this chapter.
40 (7) Insurance.
41 (a) The making of a living will and/or durable power of attorney for
42 health care or physician orders for scope of treatment (POST) form pursu-
43 ant to this chapter shall not restrict, inhibit or impair in any manner
44 the sale, procurement or issuance of any policy of life insurance, nor
45 shall it be deemed to modify the terms of an existing policy of life
46 insurance. No policy of life insurance shall be legally impaired or inval-
47 idated in any manner by the withholding or withdrawal of artificial life-
48 sustaining procedures from an insured patient, notwithstanding any term of
49 the policy to the contrary.
50 (b) No physician, health care facility or other health care provider and
51 no health care service plan, insurer issuing disability insurance,
52 self-insured employee plan, welfare benefit plan or nonprofit hospital
53 service plan shall require any person to execute a living will and durable
54 power of attorney for health care or physician orders for scope of treat-
55 ment (POST) form as a condition for being insured for, or receiving,
15
1 health care services.
2 (8) Portability and copies.
3 (a) A completed physician orders for scope of treatment (POST) form
4 signed by a physician shall be transferred with the patient to, and be
5 effective in, all care settings including, but not limited to, home care,
6 ambulance or other transport, hospital, residential care facility, and
7 hospice care. The POST form shall remain in effect until such time as
8 there is a valid revocation pursuant to section 39-4511, Idaho Code, or
9 new orders are issued by a physician.
10 (b) A photostatic, facsimile or electronic copy of a valid physician
11 orders for scope of treatment (POST) form may be treated as an original by
12 a health care provider or by an institution receiving or treating a
13 patient.
14 (9) Registration. A directive or the revocation of a directive meeting
15 the requirements of this chapter may be registered with the secretary of state
16 pursuant to section 39-4515, Idaho Code. Failure to register the health care
17 directive shall not affect the validity of the health care directive.
18 (10) Rulemaking authority.
19 (a) The department of health and welfare shall adopt those rules and
20 protocols necessary to administer the provisions of this chapter.
21 (b) In the adoption of a physician orders for scope of treatment (POST)
22 or DNR protocol, the department shall adopt standardized POST identifica-
23 tion to be used statewide.
24 SECTION 18. That Sections 56-1020 through 56-1035, Idaho Code, be, and
25 the same are hereby repealed.
26 SECTION 19. That Section 66-405, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
29 respondent is not developmentally disabled but appears in need of protective
30 services, the court may cause the proceeding to be expanded or altered for
31 consideration under the uniform probate code.
32 (2) If it is determined that the respondent is able to manage financial
33 resources and meet essential requirements for physical health or safety, the
34 court shall dismiss the petition.
35 (3) If it is determined that the respondent is developmentally disabled
36 and is unable to manage some financial resources or meet some essential
37 requirements for physical health or safety, the court may appoint a partial
38 guardian and/or partial conservator on behalf of the respondent. An order
39 establishing partial guardianship or partial conservatorship shall define the
40 powers and duties of the partial guardian or partial conservator so as to per-
41 mit the respondent to meet essential requirements for physical health or
42 safety and to manage financial resources commensurate with his ability to do
43 so, and shall specify all legal restrictions to which he is subject. A person
44 for whom a partial guardianship or partial conservatorship has been appointed
45 under this chapter retains all legal and civil rights except those which have
46 by court order been limited or which have been specifically granted to the
47 partial guardian or partial conservator by the court.
48 (4) If it is determined that the respondent is developmentally disabled
49 and is unable to manage financial resources or meet essential requirements for
50 physical health or safety even with the appointment of a partial guardian or
51 partial conservator, the court may appoint a total guardian and/or total con-
52 servator.
16
1 (5) In the event that more than one (1) person seeks to be appointed
2 guardian and/or conservator, the court shall appoint the person or persons
3 most capable of serving on behalf of the respondent; the court shall not cus-
4 tomarily or ordinarily appoint the department or any other organization or
5 individual, public or private, that is or is likely to be providing services
6 to the respondent.
7 (6) Subject to the limitations of the provisions of subsection (7) of
8 this section, guardians or conservators may have any of the duties and powers
9 as provided in sections 15-5-312(a)(1) through (4), 15-5-424 and 15-5-425,
10 Idaho Code, and as specified in the order. Any order appointing a partial or
11 total guardian or partial or total conservator under the provisions of this
12 section must require a report to the court at least annually. In addition to
13 such other requirements imposed by law or order, the report shall include:
14 (a) A description of the respondent's current mental, physical and social
15 condition;
16 (b) The respondent's present address and living arrangement;
17 (c) A description of any significant changes in the capacity of the
18 respondent to meet essential requirements for physical health or safety or
19 to manage financial resources;
20 (d) A description of services being provided the respondent;
21 (e) A description of significant actions taken by the guardian or conser-
22 vator during the reporting period;
23 (f) Any significant problems relating to the guardianship or conservator-
24 ship;
25 (g) A complete financial statement of the financial resources under the
26 control or supervision of the guardian or conservator; and
27 (h) A description of the need for continued guardianship or conservator-
28 ship services.
29 (7) No guardian appointed under this chapter shall have the authority to
30 refuse or withhold consent for medically necessary treatment when the effect
31 of withholding such treatment would seriously endanger the life or health and
32 well-being of the person with a developmental disability. To withhold or
33 attempt to withhold such treatment shall constitute neglect of the person and
34 be cause for removal of the guardian. No physician or caregiver shall withhold
35 or withdraw such treatment for a respondent whose condition is not terminal or
36 whose death is not imminent. If the physician or caregiver cannot obtain valid
37 consent for medically necessary treatment from the guardian, he shall provide
38 the medically necessary treatment as authorized by section 39-45034(1)(g),
39 Idaho Code.
40 (8) A guardian appointed under this chapter may consent to withholding or
41 withdrawal of artificial life-sustaining procedures, only if the respondent:
42 (a) Has an incurable injury, disease, illness or condition, certified by
43 the respondent's attending physician and at least one (1) other physician
44 to be terminal such that the application of artificial life-sustaining
45 procedures would not result in the possibility of saving or significantly
46 prolonging the life of the respondent, and would only serve to prolong the
47 moment of the respondent's death for a period of hours, days or weeks, and
48 where both physicians certify that death is imminent, whether or not the
49 life-sustaining procedures are used; or
50 (b) Has been diagnosed by the respondent's attending physician and at
51 least one (1) other physician as being in a persistent vegetative state
52 which is irreversible and from which the respondent will never regain con-
53 sciousness.
54 (9) Any person, who has information that medically necessary treatment of
55 a respondent has been withheld or withdrawn, may report such information to
17
1 adult protective services or to the Idaho protection and advocacy system for
2 people with developmental disabilities, who shall have the authority to inves-
3 tigate the report and in appropriate cases to seek a court order to ensure
4 that medically necessary treatment is provided.
5 If adult protective services or the protection and advocacy system deter-
6 mines that withholding of medical treatment violates the provisions of this
7 section, they may petition the court for an ex parte order to provide or con-
8 tinue the medical treatment in question. If the court finds, based on affida-
9 vits or other evidence, that there is probable cause to believe that the with-
10 holding of medical treatment in a particular case violates the provisions of
11 this section, and that the life or health of the patient is endangered
12 thereby, the court shall issue an ex parte order to continue or to provide the
13 treatment until such time as the court can hear evidence from the parties
14 involved. Petitions for court orders under this section shall be expedited by
15 the courts and heard as soon as possible. No bond shall be required of a peti-
16 tioner under this section.
17 (10) No partial or total guardian or partial or total conservator
18 appointed under the provisions of this section may without specific approval
19 of the court in a proceeding separate from that in which such guardian or con-
20 servator was appointed:
21 (a) Consent to medical or surgical treatment the effect of which perma-
22 nently prohibits the conception of children by the respondent unless the
23 treatment or procedures are necessary to protect the physical health of
24 the respondent and would be prescribed for a person who is not developmen-
25 tally disabled;
26 (b) Consent to experimental surgery, procedures or medications; or
27 (c) Delegate the powers granted by the order.
STATEMENT OF PURPOSE
RS 16757
Last year, the legislature adopted House Concurrent Resolution 40
("HCR4O"), which directed the Department of Health and Welfare
and the Attorney General to develop a form that could replace "do
not resuscitate" ("DNR") orders used at hospitals and other
health care institutions within the State of Idaho. HCR4O also
directed the Department of Health and Welfare and the Attorney
General to suggest necessary statutory changes to allow for the
adoption of such a form. This legislation is in response to
HCR4O. The physician orders for scope of treatment ("POST") form
envisioned by this legislation would be recognized by all medical
care providers and health institutions within the State of Idaho.
The POST form provides greater flexibility over the old DNR forms
and, more importantly, provides a high degree of portability. In
other words, the POST form stays with the patient, rather than
staying with the institution. Another advantage to the POST form
is that it is signed by both the doctor and the patient or the
patient s health care agent. Both the doctor and the patient are
involved in the process that results in the issuance of the POST.
The POST form does not replace a living will, although it does
replace the statutes on DNR orders. While health care
institutions may continue to utilize their own DNR orders within
the confines of the institution, the POST form proposed by this
legislation is intended to be portable. It is hoped that the POST
form will become the standard DNR form.
FISCAL NOTE
None.
Contact
Name: Bill von Tagen,
Office of the Attorney General
Phone: 208 334-4140
STATEMENT OF PURPOSE/FISCAL NOTE H 119