HF 3255

2nd Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to health; establishing the Minnesota Starvation and Dehydration of
Persons with Disabilities Prevention Act; proposing coding for new law in
Minnesota Statutes, chapter 144.

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

Section 1.

new text begin [144.995] STARVATION AND DEHYDRATION PREVENTION.
new text end

new text begin Subdivision 1. new text end

new text begin Citation. new text end

new text begin This act may be cited as the "Minnesota Starvation and
Dehydration of Persons with Disabilities Prevention Act."
new text end

new text begin Subd. 2. new text end

new text begin Definitions. new text end

new text begin For purposes of this section, the following terms have the
meanings given them.
new text end

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

new text begin (b) "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 if the proposed treatment or procedures are
carried out and if they are not carried out, 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.
new text end

new text begin (c) "Health care provider" means an individual who is licensed, credentialed, or
otherwise authorized by the law of this state to administer health care in the ordinary
course of business or practice of a profession.
new text end

new text begin (d) "Hydration" means fluids administered by way of the gastrointestinal tract or
intravenously.
new text end

new text begin (e) "Nutrition" means sustenance administered by way of the gastrointestinal tract or
intravenously.
new text end

new text begin (f) "Person legally incapable of making health care decisions" means any person
who:
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new text begin (1) has been declared legally incompetent to make decisions affecting medical
treatment or care; or
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new text begin (2) in the reasonable judgment of the attending physician, is unable to make
decisions affecting medical treatment or other health care services.
new text end

new text begin (g) "Physician" means a physician licensed under section 147.02.
new text end

new text begin (h) "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.
new text end

new text begin Subd. 3. new text end

new text begin Public information for completing an advanced directive. new text end

new text begin (a) The
commissioner of health shall develop and carry out a statewide public campaign to:
new text end

new text begin (1) educate the public on the importance of making individual wishes known
concerning the receipt of nutrition, hydration, and life-preserving medical treatment by
completing a health care directive or health care living will; and
new text end

new text begin (2) educate the public concerning the presumptions established by subdivision
4 and the effective date.
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new text begin The campaign shall be carried out for a minimum of two years following the enactment of
this legislation, after which time subdivision 4 will become effective.
new text end

new text begin (b) The public information campaign under paragraph (a) may include the following,
all of which materials shall be objective, nonjudgmental, and designed to convey only
accurate scientific information, and which shall be designed to reach populations of
different ages, languages, and different social and economic backgrounds:
new text end

new text begin (1) the preparation, publication, and dissemination of information, pamphlets,
brochures, and other reports; and
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new text begin (2) the preparation and dissemination of a statewide media and public relations
campaign, including public service advertising.
new text end

new text begin (c) The commissioner of health shall develop and maintain a stable Internet Web
site, a link to which shall be featured on the home page of the Department of Health Web
site, to provide information concerning advance directives. No information revealing the
personal identity of individuals who use the Web site shall be collected or maintained.
The commissioner of health shall monitor the Web site on a weekly basis to prevent
and correct tampering. The Web site shall contain, in forms suitable for download and
printing, the Health Care Living Will form established by section 145B.04, the suggested
form of a health care directive established by section 145C.16, and all alternative forms
for a health care directive that the commissioner determines would meet the requirements
for legal sufficiency under section 145C.03 without containing any provision that would
direct or authorize conduct prohibited under section 609.215, together with explanatory
material, that are submitted to the commissioner with a request that they be included on
the Web site. Forms or material containing obscene or libelous matter may be excluded by
the commissioner. The section of the Web site containing these alternative forms shall
include the following prominently displayed statement: "This section of the Department
of Health Web site is a limited public forum containing advance directive forms and
explanatory material which have been submitted by private groups and individuals, and
represents different perspectives on treatment issues you may wish to review to see how
closely they would reflect your own choices. Although the department has determined that
each of the forms complies with Minnesota law, neither the Department of Health nor the
state of Minnesota endorses or assumes any responsibility for their content."
new text end

new text begin Subd. 4. new text end

new text begin Presumption of nutrition and hydration sufficient to sustain life. new text end

new text begin (a)
It shall be presumed that every person legally incapable of making health care decisions
has directed the person's health care providers to provide the person with nutrition and
hydration to a degree that is sufficient to sustain life. This presumption shall not apply to
any person under the age of 18; provided, that nutrition or hydration may not be withheld
or withdrawn from a minor in violation of applicable federal law and regulations relating
to child abuse and neglect to the extent applicable to the state based upon its receipt of
federal funds.
new text end

new text begin (b) 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 the person except
in the circumstances and under the conditions specifically provided for in subdivision 5.
new text end

new text begin Subd. 5. new text end

new text begin Presumption of nutrition and hydration, when inapplicable. new text end

new text begin The
presumption in subdivision 4 shall not apply:
new text end

new text begin (1) 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;
new text end

new text begin (2) to the extent that, in reasonable medical judgment, the person will die imminently
as a result of the person's underlying disease or injury, and not as a result of dehydration
or starvation, if nutrition or hydration is withheld or withdrawn, and the provision of
neither will provide comfort to that person;
new text end

new text begin (3) if the person executed a directive according to chapter 145B or 145C specifically
authorizing the withholding or withdrawal of nutrition or hydration or both, to the extent
the authorization applies; or
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new text begin (4) 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.
new text end

new text begin Subd. 6. new text end

new text begin Civil remedies. new text end

new text begin (a) 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 section, 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.
new text end

new text begin (b) The action may be brought by any person who is:
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new text begin (1) the spouse, parent, child, or sibling of the person;
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new text begin (2) a current or former health care provider of the person;
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new text begin (3) a legally appointed guardian of the person;
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new text begin (4) the state protection and advocacy agency; or
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new text begin (5) a public official with appropriate jurisdiction to prosecute or enforce the laws and
regulations of this state.
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new text begin (c) Pending the final determination of the court, the court shall direct that nutrition
and hydration be provided unless the court determines that subdivision 5, clause (1),
is applicable.
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new text begin Subd. 7. new text end

new text begin Severability. new text end

new text begin If any provision, word, phrase, or clause of this section or the
application to any person or circumstance is held invalid, the invalidity shall not affect
the provisions, words, phrases, clauses, or applications of this section which can be given
effect without the invalid provision, word, phrase, clause, or application, and to this end,
the provisions, words, phrases, and clauses of this section are severable.
new text end