Bill Text: MS HB1172 | 2012 | Regular Session | Introduced

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Bill Title: Starvation and Dehydration of Persons with Disabilities Prevention Act; create.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2012-03-06 - Died In Committee [HB1172 Detail]

Download: Mississippi-2012-HB1172-Introduced.html

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MISSISSIPPI LEGISLATURE

2012 Regular Session

To: Public Health and Human Services; Judiciary B

By: Representative Monsour (By Request)

House Bill 1172

AN ACT TO CREATE THE STARVATION AND DEHYDRATION OF PERSONS WITH DISABILITIES PREVENTION ACT; TO DEFINE CERTAIN TERMS; TO CREATE A PRESUMPTION IN FAVOR OF NUTRITION AND HYDRATION TO SUSTAIN LIFE; TO PROVIDE EXCEPTIONS TO THE PRESUMPTION; TO PROVIDE CIVIL REMEDIES; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  This act shall be known and may be cited as the "Starvation and Dehydration of Persons with Disabilities Prevention Act."

     SECTION 2.  The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:

          (a)  "Attending physician" means the physician who has primary responsibility for the overall medical treatment and care of a person.

          (b)  "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.

          (c)  "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.

          (d)  "Nutrition" means sustenance administered by way of the gastrointestinal tract.

          (e)  "Person legally incapable of making health care decisions" means any person who:

              (i)  Has been declared legally incompetent to make decisions affecting medical treatment or care;

              (ii)  In the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services; or

              (iii)  Is a minor.

          (f)  "Physician" means a physician licensed by the State Board of Medical Licensure.

          (g)  "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 3.  (1)  It shall be 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.

     (2)  No guardian, surrogate, public or private agency, court or any other person shall have 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 4 of this act.

     SECTION 4.  The presumption pursuant to Section 3 of this act shall not apply:

          (a)  To the extent that, in reasonable medical judgment, the medical condition of the person legally incapable of making health care decisions is such that the provision of nutrition or hydration would not contribute to sustaining that person's life or to providing comfort to that person.

          (b)  If the person executed a directive as provided by law specifically authorizing the withholding or withdrawal of nutrition and/or hydration, to the extent the authorization applies.

          (c)  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 5.  (1)  A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating this act, 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.

     (2)  The action may be brought by any person who is:

          (a)  The spouse, parent, child, or sibling of the person;

          (b)  A current or former health care provider of the person;

          (c)  A legally appointed guardian of the person;

          (d)  The state protection and advocacy agency; or

          (e)  A public official with appropriate jurisdiction to

prosecute or enforce the laws of this state.

     (3)  Pending the final determination of the court, it shall direct that nutrition and hydration be provided unless it determines that Section 4(1) is applicable.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2012.