Chapter 459 Declarations, Life Support

459.030 - Physician or health facility unwilling to comply to transfer declarant.

Steven Groce, Attorney Advertisement

1.An attending physician who is unwilling to comply with the requirements of section 459.025 or who is unwilling to comply with the declaration of a patient in accordance with section 459.015 shall take all reasonable steps to effect the transfer of the declarant to another physician.

2.If the policies of a health care facility preclude compliance with the declaration of a patient under sections 459.010 to 459.055, that facility shall take all reasonable steps to effect the transfer of the declarant to a facility in which the provisions of sections 459.010 to 459.055 can be carried out.

(L. 1985 S.B. 51 § 5)

459.020 - Revocation — mental or physical condition not considered part of medical records — liability for failure to act, when.

1.A declaration may be revoked at any time and in any manner by which the declarant is able to communicate his intent to revoke, without regard to mental or physical condition.

2.The attending physician or health care provider shall make the revocation a part of the declarant's medical record.

3.There shall be no criminal or civil liability on the part of any person for failure to act upon a revocation made pursuant to this section unless the revocation is in the patient's medical record or unless that person has actual knowledge of the revocation.

(L. 1985 S.B. 51 § 3)

459.055 - Purposes of declaration.

Sections 459.010 to 459.055 shall be interpreted consistent with the following:

(1)Each person has the primary right to request or refuse medical treatment subject to the state's interest in protecting innocent third parties, preventing homicide and suicide and preserving good ethical standards in the medical profession.

(2)Nothing in sections 459.010 to 459.055 shall be interpreted to increase or decrease the right of a patient to make decisions regarding use of medical procedures so long as the patient is able to do so, nor to impair or supersede any right or responsibility that any person has to effect the withholding or withdrawal of medical care in any lawful manner.In that respect, the provisions of sections 459.010 to 459.055 are cumulative.

(3)Sections 459.010 to 459.055 shall create no presumption concerning the intention of an individual who has not executed a declaration to consent to the use or withholding of medical procedures.

(4)Communication regarding treatment decisions among patients, the families and physicians is encouraged.

(5)Sections 459.010 to 459.055 do not condone, authorize or approve mercy killing or euthanasia nor permit any affirmative or deliberate act or omission to shorten or end life.

(L. 1985 S.B. 51 § 10)

459.045 - Unprofessional conduct by physician, when — inheritance rights forfeited, when — destroying or forging declaration — penalties.

1.It shall constitute unprofessional conduct if a physician or other licensed health care professional or facility with actual knowledge of a declaration acts, when the declarant is in a terminal condition and unable to make treatment decisions, contrary to the expressed intention of the declarant, as stated in his declaration, without serious reason therefor consistent with the best interest of the declarant.

2.Any person with actual knowledge of a declaration who acts, when the declarant is in a terminal condition and unable to make treatment decisions, contrary to the expressed intention of the patient as stated in his declaration, without serious reason therefor consistent with the best interests of the patient, shall lose such rights of inheritance to the extent such loss is provided for by the patient's last will and testament.

3.Any person who willfully conceals, cancels, defaces, obliterates or destroys the declaration of another without such declarant's consent or who falsifies or forges a revocation of the declaration of another shall be guilty of a class A misdemeanor.

4.Any person who falsifies or forges the declaration of another, or who willfully conceals or withholds personal knowledge of the revocation of a declaration, with the purpose of causing withholding or withdrawal of medical procedures contrary to the wishes of the declarant, and thereby, because of such act, directly causes medical procedures to be withheld or withdrawn, causing death or causing death to be hastened, shall be guilty of a class B felony.

(L. 1985 S.B. 51 § 8)

459.010 - Definitions.

As used in sections 459.010 to 459.055, the following terms mean:

(1)"Attending physician", the physician selected by, or assigned to, the patient who has primary responsibility for the treatment and care of the patient;

(2)"Competent person", a person eighteen years of age or older of sound mind who is able to receive and evaluate information and to communicate a decision;

(3)"Death-prolonging procedure", any medical procedure or intervention which, when applied to a patient, would serve only to prolong artificially the dying process and where, in the judgment of the attending physician pursuant to usual and customary medical standards, death will occur within a short time whether or not such procedure or intervention is utilized.Death-prolonging procedure shall not include the administration of medication or the performance of medical procedure deemed necessary to provide comfort, care or to alleviate pain nor the performance of any procedure to provide nutrition or hydration;

(4)"Declaration", a document executed in accordance with the requirements of section 459.015;

(5)"Physician", a person licensed to practice medicine and surgery by the state board of registration for the healing arts;

(6)"Terminal condition", an incurable or irreversible condition which, in the opinion of the attending physician, is such that death will occur within a short time regardless of the application of medical procedures.

(L. 1985 S.B. 51 § 1)

(1988) A guardian may not order termination of nutrition and hydration from incompetent ward who is neither dead nor terminally ill although ward is in persistent vegetative state. Cruzan, by Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc).

(1990) United States Constitution does not prohibit Missouri from requiring that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proven by clear and convincing evidence. Cruzan v. Director, Mo. Dept. of Health, 110 S. Ct. 2841.

459.040 - Physicians not liable, when.

A physician, licensed health care professional, medical care facility or employee thereof or other person who, in good faith and pursuant to usual and customary medical standards, causes or participates in the withholding or withdrawal of death-prolonging procedures, which acts are not otherwise unlawful, from a patient pursuant to a declaration made in accordance with sections 459.010 to 459.055 shall not, as a result thereof, be subject to criminal or civil liability or be found to have committed an act of unprofessional conduct.

(L. 1985 S.B. 51 § 7)

459.015 - Declaration, who may execute requirements of declaration — form — witnesses required, when — notice to physician — filed — where.

1.Any competent person may execute a declaration directing the withholding or withdrawal of death-prolonging procedures.The declaration made pursuant to sections 459.010 to 459.055 shall be:

(1)In writing;

(2)Signed by the person making the declaration, or by another person in the declarant's presence and by the declarant's expressed direction;

(3)Dated; and

(4)If not wholly in the declarant's handwriting, signed in the presence of two or more witnesses at least eighteen years of age neither of whom shall be the person who signed the declaration on behalf of and at the direction of the person making the declaration.

2.It shall be the responsibility of the declarant to provide for notification to his attending physician of the existence of the declaration.Upon the request of the patient, the declaration shall be placed in the declarant's medical records as maintained by his attending physician and the medical records of any health facility of which he is a patient.

3.The declaration may be in the following form, but it shall not be necessary to use this sample form.In addition, the declaration may include other specific directions.Should any of the other specific directions be held to be invalid, such invalidity shall not affect other directions of the declaration which can be given effect without the invalid declaration, and to this end the directions in the declaration are severable.

DECLARATION
I have the primary right to make my own decisions concerning treatment that might unduly prolong the dying process. By this declaration I express to my physician, family and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administration of death-prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative or deliberate acts or omissions to shorten my life rather only to permit the natural process of dying.
Signed this ______ day of ______, ______.
Signature__________________
City, County and State of residence__________________
__________________
The declarant is known to me, is eighteen years of age or older, of sound mind and voluntarily signed this document in my presence.
Witness__________________
Address__________________
Witness__________________
Address__________________
REVOCATION PROVISION
I hereby revoke the above declaration.
Signed__________________
(Signature of Declarant)
Date__________________

(L. 1985 S.B. 51 § 2)

459.050 - Life insurance, declaration not to affect.

1.The making of a declaration pursuant to sections 459.010 to 459.055 shall not affect in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance.No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of death-prolonging procedures from an insured declarant, notwithstanding any term of the policy to the contrary.

2.No person, corporation or governmental agency shall require or induce any person to execute a declaration as a condition for a contract or for the provision of any service or benefit whatsoever.

(L. 1985 S.B. 51 § 9)

459.250 - Registry established — definitions — submission of documents by adult declarant — confidentiality — third-party to operate registry — rulemaking authority.

1.As used in this section, the following terms mean:

(1)"Adult", an individual who is eighteen years of age or older;

(2)"Advance health care directive", a power of attorney for health care or a declaration signed or authorized by an adult, containing the person's direction concerning a health care decision;

(3)"Declaration", a record, including but not limited to a living will or a do-not-resuscitate order, signed by an adult specifying the circumstances under which a life support system may be withheld or withdrawn;

(4)"Department", the department of health and senior services;

(5)"Health care decision", any decision regarding the health care of the person;

(6)"Intake point", any licensed health care provider or licensed attorney.

2.The department shall issue a request for proposal* and contract with a third party for the establishment of a secure online central registry for individuals to be known as the "Advance Health Care Directives Registry" to store advance health care directives and to give authorized health care providers access to such directives.

3.An adult declarant may submit an advance health care directive or declaration and the revocations of such documents to the registry established under subsection 2 of this section.

4.Any document and any revocation of a document submitted for filing in the registry shall be submitted electronically at an intake point and signed electronically with a unique identifier, such as a Social Security number, a driver's license number, or another unique government-issued identifier.The electronic submission of the document shall be accompanied by a fee not to exceed ten dollars.

5.All data and information contained in the registry shall remain confidential and shall be exempt from the provisions of chapter 610.

6.The third party awarded a contract pursuant to subsection 2 of this section shall be solely responsible for all issues applicable to the registry, including, but not limited to, the development and operation of the registry; educating the general public, licensed health care providers, and legal professionals about the registry; responding to questions; providing technical assistance to users; and collection of user fees not to exceed ten dollars.

7.The department may promulgate rules to carry out the provisions of this section which may include, but not be limited to:

(1)A determination of who may access the registry, including physicians, other licensed health care providers, the declarant, and his or her legal representatives or designees; and

(2)A means for the contracting third party to annually remind registry users of which documents they have registered.

8.Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028.This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2017, shall be invalid and void.

9.Failure to register a document with the registry maintained under this section shall not affect the document's validity.Failure to notify the registry of the revocation of a document previously filed with the registry shall not affect the validity of a revocation that meets the statutory requirements for such revocation to be valid.

(L. 2017 S.B. 50 § 194.600 merged with S.B. 501 §194.600)

*Word "proposals" appears in original rolls of S.B. 501, 2017.

459.025 - Declaration operative, when.

The directions of a declarant able to make treatment decisions shall at all times supersede the declaration.The declaration shall be given operative effect only if the declarant's condition is determined to be terminal and the declarant is not able to make treatment decisions.Such determinations shall be recorded in the declarant's medical record.A physician, health care professional or facility or other person shall not act contrary to the declarant's expressed intent to withhold or withdraw death-prolonging procedures without serious reason therefor consistent with the best interest of the declarant.Such reason shall be recorded in the declarant's medical record.The declaration to withdraw or withhold treatment by a patient diagnosed as pregnant by the attending physician shall have no effect during the course of the declarant's pregnancy.

(L. 1985 S.B. 51 § 4)

459.035 - Declarant presumed to be competent.

For the purpose of sections 459.010 to 459.055, a physician or medical care facility may presume in the absence of actual notice to the contrary that an individual who executed a declaration was competent when it was executed.The fact of an individual having executed a declaration shall not be considered as an indication of a declarant's mental incapacity.Advanced age of itself shall not be a bar to a determination of capacity.