1 HB191
2 216429-4
3 By Representatives Oliver, Isbell, Reynolds, Shaver, Lovvorn,
4 Rafferty, Shiver, Lee and Lipscomb
5 RFD: Health
6 First Read: 01-FEB-22
Page 0 HB191
1
2 ENROLLED, An Act,
3 Relating to end-of-life care; to amend Section
4 22-8A-11, Code of Alabama 1975; to provide further for the
5 certification of a surrogate designated to make end-of-life
6 decisions for a terminally ill patient.
7 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
8 Section 1. Section 22-8A-11, Code of Alabama 1975,
9 is amended to read as follows:
10 "ยง22-8A-11.
11 "(a) If no advance directive for health care has
12 been made, or if no duly appointed health care proxy is
13 reasonably available, or if a valid advance directive for
14 health care fails to address a particular circumstance,
15 subject to the provisions of subsection (c) hereof, a
16 surrogate, in consultation with the attending physician, may,
17 subject to the provisions of Section 22-8A-6, determine
18 whether to provide, withdraw, or withhold life-sustaining
19 treatment or artificially provided nutrition and hydration if
20 all of the following conditions are met:
21 "(1) The attending physician determines, to a
22 reasonable degree of medical certainty, that:
23 "a. The individual is no longer able to understand,
24 appreciate, and direct his or her medical treatment, and
Page 1 HB191
1 "b. The individual has no hope of regaining such
2 ability.
3 "(2) Two physicians, one of whom is the attending
4 physician and one of whom shall be is qualified and
5 experienced in making such diagnosis, have personally examined
6 the individual and have diagnosed and certified in the medical
7 record that the individual has a terminal illness or injury or
8 has a condition of permanent unconsciousness.
9 "(3) The attending physician or other health care
10 provider and the surrogate have no actual knowledge of the
11 existence of a valid advance directive for health care that
12 would give guidance to the provider in treating the
13 individual's condition.
14 "(4) The treating physician determines, to a
15 reasonable degree of medical certainty, that withholding or
16 withdrawing the life-sustaining treatment or artificially
17 provided nutrition and hydration will not result in undue pain
18 or discomfort for the patient.
19 "(b) The surrogate shall be a competent adult.
20 "(c) The surrogate shall consult with the attending
21 physician and make decisions permitted herein that conform as
22 closely as possible to what the patient would have done or
23 intended under the circumstances, taking into account any
24 evidence of the patient's religious, spiritual, personal,
25 philosophical, and moral beliefs and ethics, to the extent
Page 2 HB191
1 these are known to the surrogate. Where possible, the
2 surrogate shall consider how the patient would have weighed
3 the burdens and benefits of initiating or continuing
4 life-sustaining treatment or artificially provided nutrition
5 and hydration against the burdens and benefits to the patient
6 of that treatment;, except, that any decision by a surrogate
7 regarding the withdrawal or withholding of artificially
8 provided nutrition and hydration from a person who is
9 permanently unconscious shall only be made upon clear and
10 convincing evidence of the patient's desires. The decision to
11 provide, withdraw, or withhold life-sustaining treatment or
12 artificially provided nutrition and hydration by the surrogate
13 shall be made in good faith and without consideration of the
14 financial benefit or burden which that will accrue to the
15 surrogate or the health care provider as a result of the
16 decision.
17 "(d) Any of the following persons, in order of
18 priority stated, when persons in prior classes are not
19 available or willing to serve, may serve as a surrogate
20 pursuant to the provisions of this section:
21 "(1) A judicially appointed guardian, provided the
22 appointment specifically authorizes the guardian to make
23 decisions regarding the withholding of life-sustaining
24 treatment or artificially provided nutrition and hydration.
25 Nothing in this section subsection shall be construed to
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1 require a judicial appointment before a decision can be made
2 under this chapter. In addition, this section subsection shall
3 not be construed to require a judicially appointed guardian
4 who has not been specifically authorized by a court to make
5 decisions regarding the providing, withholding, or withdrawing
6 of life-sustaining treatment or artificially provided
7 nutrition and hydration to make those decisions or to seek
8 court approval to make those decisions;.
9 "(2) The patient's spouse, unless legally separated
10 or a party to a divorce proceeding;.
11 "(3) An adult child of the patient;.
12 "(4) One of the patient's parents;.
13 "(5) An adult sibling of the patient;.
14 "(6) Any one of the patient's surviving adult
15 relatives who are of the next closest degree of kinship to the
16 patient; or.
17 "(7) If the patient has no relatives known to the
18 attending physician or to an administrator of the facility
19 where the patient is being treated, and none can be found
20 after a reasonable inquiry, a committee composed of the
21 patient's primary treating physician and the ethics committee
22 of the facility where the patient is undergoing treatment or
23 receiving care, acting unanimously; or if there is no ethics
24 committee, by unanimous consent of a committee appointed by
25 the chief of medical staff or chief executive officer of the
Page 4 HB191
1 facility and consisting of at least the following: (i) the
2 primary treating physician; (ii) the chief of medical staff or
3 his or her designee; (iii) the patient's clergyman, if known
4 and available, or a member of the clergy who is associated
5 with, but not employed by or an independent contractor of the
6 facility, or a social worker associated with but neither
7 employed by nor an independent contractor of the facility. In
8 the event a surrogate decision is being made by an ethics
9 committee or appointed committee of the facility where the
10 patient is undergoing treatment or receiving care, the
11 facility shall notify the Alabama Department of Human
12 Resources for the purpose of allowing the department to
13 participate in the review of the matter pursuant to its
14 responsibilities under the Adult Protective Services Act,
15 Chapter 9 of Title 38.
16 "(e) The surrogate shall certify and attest under
17 oath that he or she has contacted one or more of the person or
18 persons who is or are in a class equal to or higher than the
19 surrogate and that each class has either consented or
20 expressed no objections to him or her acting as surrogate or
21 to the decision made by the surrogate. The certification shall
22 be included in the medical record.
23 "(f)(1) A surrogate's decision shall nevertheless be
24 valid if: (1) He he or she certifies that he or she is unable
25 to contact an individual whose consent or non-objection would
Page 5 HB191
1 otherwise be required because the individual's whereabouts are
2 unknown, because the individual is in a remote location and
3 cannot be contacted in sufficient time to participate in a
4 decision to provide, withhold, or withdraw the treatment, or
5 because the individual has been adjudged incompetent and
6 remains under that disability; and.
7 "(2) The surrogate certifies and attests to that
8 fact. In that case If the surrogate's decision is valid under
9 subdivision (1), the individual shall not be included in
10 determining whether the individual's class has consented or
11 expressed no objection as required pursuant to subsection (e).
12 "(g) A health care provider who provides, withholds,
13 or withdraws life-sustaining treatment or artificially
14 provided nutrition and hydration from a patient upon the
15 instructions of a surrogate who has certified and attested
16 that he or she has qualified as a surrogate as required by
17 this section shall not be subject to civil or criminal
18 liability or be found to have committed an act of
19 unprofessional conduct for providing, withdrawing, or
20 withholding the life-sustaining treatment or artificially
21 provided nutrition and hydration, nor shall the health care
22 provider be deemed to be under a duty to investigate the
23 truthfulness of the information certified and attested to by
24 the surrogate.
Page 6 HB191
1 "(h) A surrogate acting pursuant to this section
2 shall not be subject to civil or criminal liability or found
3 to have committed an act of unprofessional conduct for
4 decisions made in good faith to provide, withhold, withdraw,
5 continue, or institute life-sustaining treatment, or
6 artificially provided nutrition and hydration, unless the
7 surrogate falsely or fraudulently certifies or attests to
8 information required by this section.
9 "(i) The Alabama State Board of Health shall
10 prescribe by rule a form, which, when completed by a surrogate
11 and duly notarized and signed in the presence of two witnesses
12 who are at least 19 years of age, shall constitute the
13 certification of the surrogate as required by this chapter.
14 Any form created pursuant to this subsection shall
15 include the following statement: "Under penalty of perjury, I
16 affirm that I am exercising my best independent judgement and
17 agreeing to do what I believe the patient desires.
18 surrogate as required by this chapter. To be valid,
19 a certification requires the signature of the surrogate and
20 both witnesses. Any form created pursuant to this subsection
21 shall state the provisions set forth in subsections (a)
22 through (f) and include the following statement: "Under
23 penalty of perjury, I affirm that I am exercising my best
24 independent judgement and agreeing to do what I believe the
25 patient desires." Under no circumstances may the patient's
Page 7 HB191
1 health care provider, or an employee of the patient's health
2 care provider who is not a relative of the patient, serve as a
3 witness to the certification of the surrogate.
4 "(j) If any relative, health care provider who is
5 involved directly in the care of the patient, or other
6 individual who is involved directly in providing care to the
7 patient desires to dispute the authority or the decision of a
8 surrogate to determine whether to provide, withhold, or
9 withdraw medical treatment from a patient, he or she may file
10 an action for declaratory and injunctive relief in the circuit
11 court for the county where the patient is under treatment. A
12 health care provider who is confronted by more than one
13 individual who claims authority to act as surrogate for a
14 patient may file an action for declaratory relief in the
15 circuit court for the county where the patient is under
16 treatment.
17 "(k)(1) An individual who knowingly certifies and
18 attests to any information which is that meets all of the
19 following criteria shall be guilty of a Class C felony:
20 "(1) Required a. Is required by this chapter;.
21 "(2) Material b. Is material to his or her
22 authorization to act as a surrogate; and.
23 "(3) False, shall be guilty of a Class C felony c.
24 Is false.
Page 8 HB191
1 "(2) This The felony offense described in
2 subdivision (1) shall be in addition to, and not in lieu of,
3 penalties for other offenses of which the surrogate may be
4 guilty by reason of this conduct."
5 Section 2. This act shall become effective on the
6 first day of the third month following its passage and
7 approval by the Governor, or its otherwise becoming law.
Page 9 HB191
1
2
3
4
Speaker of the House of Representatives
5
6 President and Presiding Officer of the Senate
House of Representatives7
I hereby certify that the within Act originated in8
9 and was passed by the House 08-FEB-22, as amended.
10
11 Jeff Woodard
12 Clerk
13
14
Senate15 17-MAR-22 Amended and Passed
House16 07-APR-22
Concurred in Sen-
ate Amendment
17
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