GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 1180

Short Title:  Right to Nutrition & Hydration.	(Public)
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Sponsors: Representative Arnold.
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Referred to:  Human Resources.
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April 12, 1989

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT PERSONS WHO ARE INCOMPETENT TO MAKE DECISIONS CONCERNING THEIR MEDICAL TREATMENT OR CARE ARE PRESUMED TO HAVE DIRECTED HEALTH CARE PROVIDERS TO PROVIDE THE NUTRITION AND HYDRATION NECESSARY TO SUSTAIN THE PERSON'S LIFE; AND TO PROVIDE THAT NO PERSON MAY MAKE A DECISION ON THE INCOMPETENT PERSON'S BEHALF TO WITHHOLD OR WITHDRAW NUTRITION OR HYDRATION EXCEPT AS PROVIDED IN THIS ACT.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 90 of the General Statutes is amended by adding a new Article to read:
“ARTICLE 23A.
"Nutrition and Hydration for Vulnerable Persons.
"§ 90-328.1. Short title.
This Article shall be known and may be cited as the Nutrition and Hydration for Vulnerable Persons Act.
"§ 90-328.2. Definitions.
As used in this Article, unless the context requires otherwise:
(1)	‘Attending physician' means the physician who has primary responsibility for the overall medical treatment and care of a person.
(2)	‘Competent' person means any adult or emancipated minor who is able to make decisions affecting medical treatment or care.
(3)	‘Health-care provider' means a person or entity that administers health care in the ordinary course of business or practice of a profession.
(4)	‘Hydration' means fluids administered orally, intravenously, or by way of the gastrointestinal tract.
(5)	‘Nutrition' means sustenance administered orally, by way of the gastrointestinal tract, or by any other means customarily employed by health-care providers;
(6)	‘Person' means a human being, individual, corporation, business trust, estate, trust, partnership, association, government, governmental, governmental subdivision or agency, court, or any other legal entity.
(7)	‘Physician' means a person licensed to practice medicine in this State.
(8)	‘Terminal illness or injury' means an incurable and irreversible medical condition that, even with the use of medical treatment and care, will result in the death of a person from that condition or a complication arising from that condition; provided, however, that ‘terminal illness or injury' does not include any form of mental illness, or any other chronic mental or physical impairment, including comatose conditions, that alone will not result in death.
(9)	‘Vulnerable person' means any natural person who (i) is an unemancipated minor, (ii) has been declared legally incompetent to make decisions affecting his medical treatment or care, or (iii) is unable to make decisions affecting his medical treatment or care.
"§ 90-328.3. Presumption; exceptions.
(a)	It shall be presumed that every vulnerable person as defined in this Article has directed his health-care providers to provide both nutrition and hydration to the degree necessary to sustain his life.
(b)	Notwithstanding subsection (a) of this section, this Article creates no presumption with regard to the use of artificially administered nutrition or hydration that, in the reasonable medical judgments of the attending physician and a second consulting physician, will itself cause severe, intractable, and long-lasting pain to the vulnerable person.
(c)	Notwithstanding subsection (a) of this section, this Article creates no presumption with regard to the use of artificially administered nutrition or hydration for a vulnerable person when, in the reasonable medical judgments of the attending physician and a second consulting physician, (i) the vulnerable person is chronically and irreversibly incompetent, (ii) the vulnerable person has a terminal illness or injury, (iii) the life expectancy of the vulnerable person is less than one week, and (iv) the artificially administered nutrition or hydration does not abolish or alleviate pain or discomfort of the vulnerable person; provided, however, that the withholding or withdrawing of nutrition or hydration does not result in death from malnutrition or dehydration, or complications thereof, rather than from an underlying terminal illness or injury.
(d)	Any competent person may issue a written directive that provides for a named surrogate to make an informed consent decision regarding the provision, maintenance, withholding, or withdrawing of artificially administered nutrition or hydration when the circumstances and conditions described in subsections (b) or (c) of this section apply.
"§ 90-328.4. Informed consent decisions.
(a)	The presumption established by this Article shall not apply when there is clear and convincing evidence that a person, after being diagnosed as terminally ill or injured, and while competent, decided based on information sufficient to establish informed consent, that artificially administered nutrition or hydration otherwise required as a result of the illness or injury should be withheld or withdrawn.
(b)	Nothing in this Article shall be construed to effect or to diminish any State interest such as in the preservation of human life, the maintenance of the ethical integrity of the medical profession, the protection of third parties, or the prevention of suicide, that may require artificially administered nutrition and hydration in a particular case.
(c)	Nothing in this Article, including the existence of a surrogate appointment made pursuant to this Article, shall relieve any physician of the duty to seek informed consent from the patient concerning reasonably foreseeable options regarding artificially administered nutrition and hydration during a likely future period of incompetence, if there is a reasonable opportunity to do so after the diagnosis of the illness or injury while the physician's patient is still competent.
"§ 90-328.5. Limited authority of decision maker other than the vulnerable person.
(a)	Except as otherwise provided in this Article, no surrogate, guardian, court, or person may make a decision on behalf of the vulnerable person to withhold or withdraw nutrition or hydration from the vulnerable person.
"§ 90-328.6. Rights and duties of health-care providers.  
For purposes of this Article, following are the rights and duties of health-care providers:
(1)	Withholding or withdrawing of nutrition or hydration, except as provided by this act, constitutes patient abuse pursuant to G.S. 14-32.2.
(2)	Any health-care provider who is licensed or credentialed to practice an occupation by a licensing agency and who willfully fails to conform to the standards, requirements, or limitations of this Article shall be disciplined after a hearing by the appropriate licensing agency.
(3)	Nothing in this Article shall be construed to require a health-care provider to provide or maintain artificially administered nutrition or hydration if it is not medically possible.
(4)	Notwithstanding any other provision of law, no health-care provider shall be required to participate in or provide facilities for any patient for whom nutrition or hydration is to be withheld or withdrawn if this would violate the policy or conscientious belief of the health-care provider.
(5)	The health-care provider for a person shall enter or cause to be entered into the permanent medical record of that person a copy of any document and any other evidence of a person's decision concerning nutrition or hydration, indicating the circumstances under which such decisions were made or documents issued.
(6)	Nothing in this act shall be construed to require, or to alter any duty that requires, any health-care provider to provide artificially administered nutrition or hydration for which the health-care provider will not be reimbursed.
(7)	The law of this State shall not be construed to permit withdrawing or withholding of medical treatment, medical care, nutrition, or hydration from a person because of the mental disability or mental status of that person.
"§ 90-328.7. Vulnerable pregnant women.
Notwithstanding G.S. 90-328.3, and unless the woman has specifically consented pursuant to the requirements of G.S. 90-328.4, when a vulnerable person as defined in this Article is a woman known to be pregnant, it shall be presumed that she has directed the use of artificially administered nutrition or hydration if, in the reasonable medical judgment of the attending physician, the use of such care will enable the woman's child to develop to a sufficient degree that the child would sustain life apart from the woman's body."
Sec. 2. The provisions of this act are severable, and if any provision of this act is held invalid by a court of competent jurisdiction, the invalidity shall not affect other provisions of the act which can be given effect without the invalid provision.
Sec. 3. This act shall become effective January 1, 1990.