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Indicates Matter Stricken
Indicates New Matter
Sponsors: Reps. Clark, Pinson, Davenport, Altman, Frye and Hosey
Document Path: l:\council\bills\nbd\11747ac05.doc
Introduced in the House on April 28, 2005
Currently residing in the House Committee on Judiciary
Summary: Starvation and Dehydration of Persons with Disabilities Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 4/28/2005 House Introduced and read first time HJ-46 4/28/2005 House Referred to Committee on Judiciary HJ-47
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 65 TO TITLE 44, SO AS TO ENACT THE "SOUTH CAROLINA STARVATION AND DEHYDRATION OF PERSONS WITH DISABILITIES PREVENTION ACT" WHICH PROVIDES A PRESUMPTION THAT EVERY PERSON LEGALLY INCAPABLE OF MAKING HEALTH CARE DECISIONS HAS DIRECTED TO BE PROVIDED WITH NUTRITION AND HYDRATION SUFFICIENT TO SUSTAIN LIFE AND TO PROVIDE EXCEPTIONS, INCLUDING, AMONG OTHER THINGS, THAT PROVIDING NUTRITION AND HYDRATION IS NOT MEDICALLY POSSIBLE OR WOULD HASTEN DEATH OR THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE PERSON, WHEN CAPABLE, GAVE CONTRARY DIRECTIVES; AND TO AUTHORIZE SEEKING INJUNCTIVE RELIEF AGAINST A PERSON IN VIOLATION OF THIS CHAPTER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
Section 44-65-10. This act may be cited as the 'South Carolina Starvation and Dehydration of Persons with Disabilities Prevention Act'.
Section 44-65-20. As used in this chapter:
(1) 'Attending physician' means the physician who has primary responsibility for the overall medical treatment and care of a person.
(2) 'Health care provider' means a person who is licensed, certified, or otherwise authorized by the law of this State to administer health care in the ordinary course of business or practice of a profession.
(3) 'Express and informed consent' means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
(4) 'Nutrition' means sustenance administered by way of the gastrointestinal tract.
(5) 'Person legally incapable of making health care decisions' means a person who:
(a) has been declared legally incompetent to make decisions affecting medical treatment or care;
(b) in the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services; or
(c) is a minor.
(6) 'Physician' means a physician licensed pursuant to Chapter 47, Title 40.
(7) 'Reasonable medical judgment' means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
Section 44-65-30. (A) It is presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.
(B) No guardian, surrogate, public or private agency, court, or any other person has the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person except in the circumstances and under the conditions specifically provided for in Section 44-65-40.
Section 44-65-40. The presumption provided for in Section 44-65-30 does not apply:
(1) to the extent that, in reasonable medical judgment:
(a) provision of nutrition and hydration is not medically possible;
(b) provision of nutrition and hydration would hasten death; or
(c) because of the medical condition of the person legally incapable of making health care decisions, that person would be incapable of digesting or absorbing the nutrition and hydration so that its provision would not contribute to sustaining the person's life;
(2) if the person executed a directive in accordance with Chapter 77 specifically authorizing the withholding or withdrawal of nutrition or hydration, or both, to the extent the authorization applies;
(3) if there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
Section 44-65-50. (A) Injunctive relief may be sought against a person who is reasonably believed to be about to violate or who is in the course of violating this chapter or to secure a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
(B) The action provided for in subsection (A) may be brought by:
(1) the spouse, parent, child, or sibling of the person;
(2) a current or former health care provider of the person;
(3) a legally appointed guardian of the person;
(4) Protection and Advocacy for People with Disabilities, Inc.; or
(5) a public official with appropriate jurisdiction to prosecute or enforce the laws of this State.
(C) Pending the final determination of the court, the court shall direct that nutrition and hydration be provided unless it determines that Section 44-65-40(1) is applicable."
SECTION 2. This act takes effect upon approval by the Governor.
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