Chapter 127 — Powers
of Attorney; Advance Directives for Health Care;
Physician
Orders for Life-Sustaining Treatment Registry;
Declarations
for Mental Health Treatment; Death with Dignity
2011 EDITION
POWERS OF ATTORNEY; HEALTH CARE
DIRECTIVES
PROTECTIVE PROCEEDINGS; POWERS OF
ATTORNEY; TRUSTS
POWERS OF ATTORNEY
127.002 Definitions
for ORS 127.005 to 127.045
127.005 When
power of attorney in effect; accounting to conservator
127.015 Power
of attorney not revoked until death or other event known
127.025 Authority
under power of attorney recognizable regardless of date of execution
127.035 Limitations
on liability of person reasonably relying on power of attorney
127.045 Duty
of agent under power of attorney
ADVANCE DIRECTIVES FOR HEALTH CARE
(Definitions)
127.505 Definitions
for ORS 127.505 to 127.660
(Health Care Decisions Generally)
127.507 Capable
adults may make own health care decisions
(Formalities of Executing Advance
Directive)
127.510 Designation
of attorney-in-fact; execution of health care instruction; duration
127.515 Manner
of executing advance directive; forms; witnesses; directives executed out of
state
127.520 Persons
not eligible to serve as attorney-in-fact; manner of disqualifying persons for
service as attorney-in-fact
127.525 Accep`tance
of appointment; withdrawal
(Form of Advance Directive)
127.531 Form
of advance directive
(Effect of Executing Advance Directive)
127.535 Authority
of health care representative; duties; objection by principal
127.540 Limitations
on authority of health care representative
(Provisions Generally Applicable to
Advance Directives and Health Care Decisions)
127.545 Revocation
of advance directive or health care decision; when revocation effective; effect
of executing power of attorney for health care
127.550 Petition
for judicial review of advance directives; scope of review; authority to file
petition
127.555 Designation
of attending physician; liability of health care representative and health care
provider
127.560 Provisions
not exclusive; effect of provisions on civil and criminal liability of health
care representative and provider
127.565 Independent
medical judgment of provider; effect of advance directive on insurance
127.570 Mercy
killing; suicide
127.575 Instrument
presumed valid
127.580 Presumption
of consent to artificially administered nutrition and hydration; exceptions
127.625 Providers
under no duty to participate in withdrawal or withholding of certain health
care; duty of provider who is unwilling to participate
127.635 Withdrawal
of life-sustaining procedures; conditions; selection of health care
representative in certain cases; required consultation
127.640 Physician
to determine that conditions met before withdrawing or withholding certain
health care
127.642 Principal
to be provided with certain care to insure comfort and cleanliness
(Requirements Imposed on Health Care Organizations
Relating to Rights of Individuals to Make Health Care Decisions)
127.646 Definitions
for ORS 127.646 to 127.654
127.649 Health
care organizations required to have written policies and procedures on
providing information on patient’s right to make health care decisions
127.652 Time
of providing information
127.654 Scope
of requirement; limitation on liability for failure to comply
(Previously Executed Advance Directives)
127.658 Effect
of ORS 127.505 to 127.660 on previously executed advance directives
(Short Title)
127.660 Short
title
PHYSICIAN ORDERS FOR LIFE-SUSTAINING
TREATMENT REGISTRY
127.663 Definitions
for ORS 127.663 to 127.684
127.666 Establishment
of registry; rules
127.669 Oregon
Health Authority not required to perform certain acts
127.672 POLST
not required; revocation
127.675 Oregon
POLST Registry Advisory Committee; members; meetings; term
127.678 Confidentiality
127.681 Immunity
from liability
127.684 Short
title
DECLARATIONS FOR MENTAL HEALTH TREATMENT
127.700 Definitions
for ORS 127.700 to 127.737
127.702 Persons
who may make declaration for mental health treatment; period of validity
127.703 Required
policies regarding mental health treatment rights information; declarations for
mental health treatment
127.705 Designation
of attorney-in-fact for decisions about mental health treatment
127.707 Execution
of declaration; witnesses
127.710 Operation
of declaration; physician or provider to act in accordance with declaration
127.712 Scope
of authority of attorney-in-fact; powers and duties; limitation on liability
127.715 Prohibitions
against requiring person to execute or refrain from executing declaration
127.717 Declaration
to be made part of medical record; physician or provider to comply with
declaration; withdrawal of physician or provider
127.720 Circumstances
in which physician or provider may disregard declaration
127.722 Revocation
of declaration
127.725 Limitations
on liability of physician or provider
127.727 Persons
prohibited from serving as attorney-in-fact
127.730 Persons
prohibited from serving as witnesses to declaration
127.732 Withdrawal
of attorney-in-fact; rescission of withdrawal
127.736 Form
of declaration
127.737 Certain
other laws applicable to declaration
CONSENT TO HEALTH CARE SERVICES BY
PERSON APPOINTED BY HOSPITAL
127.760 Consent
to health care services by person appointed by hospital; exceptions
THE OREGON DEATH WITH DIGNITY ACT
(General Provisions)
127.800 Definitions
(Written Request for Medication to End
One’s Life in a Humane and Dignified Manner)
127.805 Who
may initiate a written request for medication
127.810 Form
of the written request
(Safeguards)
127.815 Attending
physician responsibilities
127.820 Consulting
physician confirmation
127.825 Counseling
referral
127.830 Informed
decision
127.835 Family
notification
127.840 Written
and oral requests
127.845 Right
to rescind request
127.850 Waiting
periods
127.855 Medical
record documentation requirements
127.860 Residency
requirement
127.865 Reporting
requirements
127.870 Effect
on construction of wills, contracts and statutes
127.875 Insurance
or annuity policies
127.880 Construction
of Act
(Immunities and Liabilities)
127.885 Immunities;
basis for prohibiting health care provider from participation; notification;
permissible sanctions
127.890 Liabilities
127.892 Claims
by governmental entity for costs incurred
(Severability)
127.895 Severability
(Form of the Request)
127.897 Form
of the request
PENALTIES
127.995 Penalties
POWERS OF ATTORNEY
127.002 Definitions for ORS 127.005 to
127.045. For the purposes of ORS 127.005 to
127.045:
(1)
“Agent” includes an attorney-in-fact; and
(2)
“Financially incapable” has the meaning given that term in ORS 125.005. [2009
c.46 §1]
127.005 When power of attorney in effect; accounting
to conservator. (1) When a principal designates
another person as an agent by a power of attorney in writing, and the power of
attorney does not contain words that otherwise delay or limit the period of
time of its effectiveness:
(a)
The power of attorney becomes effective when executed and remains in effect
until the power is revoked by the principal;
(b)
The powers of the agent are unaffected by the passage of time; and
(c)
The powers of the agent are exercisable by the agent on behalf of the principal
even though the principal becomes financially incapable.
(2)
The terms of a power of attorney may provide that the power of attorney will
become effective at a specified future time, or will become effective upon the
occurrence of a specified future event or contingency such as the principal
becoming financially incapable. If a power of attorney becomes effective upon
the occurrence of a specified future event or contingency, the power of
attorney may designate a person or persons to determine whether the specified
event or contingency has occurred, and the manner in which the determination
must be made. A person designated by a power of attorney to determine whether
the principal is financially incapable is the principal’s personal
representative for the purposes of ORS 192.553 to 192.581 and the federal
Health Insurance Portability and Accountability Act privacy regulations, 45
C.F.R. parts 160 and 164.
(3)
If a power of attorney becomes effective upon the principal becoming
financially incapable and either the power of attorney does not designate a
person or persons to make the determination as to whether the principal is
financially incapable or none of the designated persons is willing or able to
make the determination, a determination that the principal is financially
incapable may be made by any physician. The physician’s determination must be
made in writing.
(4)
All acts done by an agent under a power of attorney during a period in which
the principal is financially incapable have the same effect, and inure to the
benefit of and bind the principal, as though the principal were not financially
incapable.
(5)
If a conservator is appointed for a principal, the agent shall account to the
conservator, rather than to the principal, for so long as the conservatorship
lasts. The conservator has the same power that the principal would have to
revoke, suspend or terminate all or any part of the power of attorney.
(6)
This section does not apply to powers of attorney for health care executed
under ORS 127.505 to 127.660 and 127.995. [Formerly 126.407; 1993 c.767 §25;
2001 c.395 §4; 2009 c.46 §2]
127.010 [Repealed
by 1969 c.591 §305]
127.015 Power of attorney not revoked
until death or other event known. (1) The death
of a principal who has executed a power of attorney in writing, or the
occurrence of any other event that would otherwise terminate the authority of
the agent, does not revoke or terminate the authority of an agent who, without
actual knowledge of the death of the principal or other event, acts in good
faith under the power of attorney. Any action so taken, unless otherwise
invalid or unenforceable, binds the principal and heirs, devisees and personal
representatives of the principal.
(2)
An affidavit executed by an agent that states that the agent did not have, at
the time of doing an act under the power of attorney, actual knowledge of the
revocation or termination of the power of attorney by death or other event, is,
in the absence of fraud, conclusive proof of the nonrevocation or
nontermination of the power at that time. If the exercise of the power requires
execution and delivery of any instrument that is recordable, the affidavit may
also be recorded.
(3)
This section does not alter or affect any provision for revocation or
termination contained in the power of attorney. [Formerly 126.413; 2009 c.46 §3]
127.020
[Repealed by 1969 c.591 §305]
127.025 Authority under power of attorney
recognizable regardless of date of execution. A
person may not refuse to recognize the authority of an agent under a power of
attorney based solely on the passage of time since the power of attorney was
executed. [2001 c.395 §1; 2009 c.46 §4]
127.030
[Repealed by 1969 c.591 §305]
127.035 Limitations on liability of person
reasonably relying on power of attorney. Any person
who reasonably relies in good faith on the authority of an agent under a power
of attorney is not liable to any other person based on that reliance, and is
not required to ensure that assets of the principal that are paid or delivered
to the agent are properly applied. Any person who has not received actual
notice of revocation of a power of attorney is not liable to any other person
by reason of relying on a power of attorney that has been revoked. [2001 c.395 §2;
2009 c.46 §5]
127.040
[Repealed by 1969 c.591 §305]
127.045 Duty of agent under power of
attorney. Unless otherwise provided in the power
of attorney document, an agent must use the property of the principal for the
benefit of the principal. [2001 c.395 §3; 2009 c.46 §6]
127.050
[Repealed by 1969 c.591 §305]
127.060
[Repealed by 1969 c.591 §305]
127.070
[Repealed by 1969 c.591 §305]
127.080
[Repealed by 1969 c.591 §305]
127.090
[Repealed by 1969 c.591 §305]
127.100
[Repealed by 1969 c.591 §305]
127.110
[Repealed by 1969 c.591 §305]
127.120
[Repealed by 1969 c.591 §305]
127.130
[Repealed by 1969 c.591 §305]
127.140
[Repealed by 1969 c.591 §305]
127.150
[Repealed by 1969 c.591 §305]
127.160
[Repealed by 1969 c.591 §305]
127.170
[Repealed by 1969 c.591 §305]
127.180
[Repealed by 1969 c.591 §305]
127.190
[Repealed by 1969 c.591 §305]
127.310
[Repealed by 1969 c.591 §305]
127.320
[Repealed by 1969 c.591 §305]
127.330
[Repealed by 1969 c.591 §305]
127.340
[Repealed by 1969 c.591 §305]
127.350
[Repealed by 1969 c.591 §305]
ADVANCE DIRECTIVES FOR HEALTH CARE
(Definitions)
127.505 Definitions for ORS 127.505 to
127.660. As used in ORS 127.505 to 127.660 and
127.995:
(1)
“Adult” means an individual who is 18 years of age or older, who has been
adjudicated an emancipated minor or who is married.
(2)
“Advance directive” means a document that contains a health care instruction or
a power of attorney for health care.
(3)
“Appointment” means a power of attorney for health care, letters of
guardianship or a court order appointing a health care representative.
(4)
“Artificially administered nutrition and hydration” means a medical
intervention to provide food and water by tube, mechanical device or other
medically assisted method. “Artificially administered nutrition and hydration”
does not include the usual and typical provision of nutrition and hydration,
such as the provision of nutrition and hydration by cup, hand, bottle, drinking
straw or eating utensil.
(5)
“Attending physician” means the physician who has primary responsibility for
the care and treatment of the principal.
(6)
“Attorney-in-fact” means an adult appointed to make health care decisions for a
principal under a power of attorney for health care, and includes an
alternative attorney-in-fact.
(7)
“Dementia” means a degenerative condition that causes progressive deterioration
of intellectual functioning and other cognitive skills, including but not
limited to aphasia, apraxia, memory, agnosia and executive functioning, that
leads to a significant impairment in social or occupational function and that
represents a significant decline from a previous level of functioning.
Diagnosis is by history and physical examination.
(8)
“Health care” means diagnosis, treatment or care of disease, injury and
congenital or degenerative conditions, including the use, maintenance,
withdrawal or withholding of life-sustaining procedures and the use,
maintenance, withdrawal or withholding of artificially administered nutrition
and hydration.
(9)
“Health care decision” means consent, refusal of consent or withholding or
withdrawal of consent to health care, and includes decisions relating to
admission to or discharge from a health care facility.
(10)
“Health care facility” means a health care facility as defined in ORS 442.015,
a domiciliary care facility as defined in ORS 443.205, a residential facility as
defined in ORS 443.400, an adult foster home as defined in ORS 443.705 or a
hospice program as defined in ORS 443.850.
(11)
“Health care instruction” or “instruction” means a document executed by a
principal to indicate the principal’s instructions regarding health care
decisions.
(12)
“Health care provider” means a person licensed, certified or otherwise
authorized or permitted by the law of this state to administer health care in
the ordinary course of business or practice of a profession, and includes a
health care facility.
(13)
“Health care representative” means:
(a)
An attorney-in-fact;
(b)
A person who has authority to make health care decisions for a principal under
the provisions of ORS 127.635 (2) or (3); or
(c)
A guardian or other person, appointed by a court to make health care decisions
for a principal.
(14)
“Incapable” means that in the opinion of the court in a proceeding to appoint
or confirm authority of a health care representative, or in the opinion of the
principal’s attending physician, a principal lacks the ability to make and
communicate health care decisions to health care providers, including
communication through persons familiar with the principal’s manner of
communicating if those persons are available. “Capable” means not incapable.
(15)
“Instrument” means an advance directive, acceptance, disqualification,
withdrawal, court order, court appointment or other document governing health
care decisions.
(16)
“Life support” means life-sustaining procedures.
(17)
“Life-sustaining procedure” means any medical procedure, pharmaceutical,
medical device or medical intervention that maintains life by sustaining,
restoring or supplanting a vital function. “Life-sustaining procedure” does not
include routine care necessary to sustain patient cleanliness and comfort.
(18)
“Medically confirmed” means the medical opinion of the attending physician has
been confirmed by a second physician who has examined the patient and who has
clinical privileges or expertise with respect to the condition to be confirmed.
(19)
“Permanently unconscious” means completely lacking an awareness of self and
external environment, with no reasonable possibility of a return to a conscious
state, and that condition has been medically confirmed by a neurological specialist
who is an expert in the examination of unresponsive individuals.
(20)
“Physician” means an individual licensed to practice medicine by the Oregon
Medical Board.
(21)
“Power of attorney for health care” means a power of attorney document that authorizes
an attorney-in-fact to make health care decisions for the principal when the
principal is incapable.
(22)
“Principal” means:
(a)
An adult who has executed an advance directive;
(b)
A person of any age who has a health care representative;
(c)
A person for whom a health care representative is sought; or
(d)
A person being evaluated for capability who will have a health care
representative if the person is determined to be incapable.
(23)
“Terminal condition” means a health condition in which death is imminent
irrespective of treatment, and where the application of life-sustaining
procedures or the artificial administration of nutrition and hydration serves
only to postpone the moment of death of the principal.
(24)
“Tube feeding” means artificially administered nutrition and hydration. [1989
c.914 §1; 1991 c.470 §11; 1993 c.767 §1; 2009 c.381 §1]
(Health Care Decisions Generally)
127.507 Capable adults may make own health
care decisions. Capable adults may make their
own health care decisions. [1993 c.767 §2]
(Formalities of Executing Advance
Directive)
127.510 Designation of attorney-in-fact;
execution of health care instruction; duration.
(1) A capable adult may designate in writing a competent adult to serve as
attorney-in-fact for health care. A capable adult may also designate a
competent adult to serve as alternative attorney-in-fact if the original
designee is unavailable, unable or unwilling to serve as attorney-in-fact at
any time after the power of attorney for health care is executed. The power of
attorney for health care is effective when it is signed, witnessed and accepted
as required by ORS 127.505 to 127.660 and 127.995. The attorney-in-fact so
appointed shall make health care decisions on behalf of the principal if the
principal becomes incapable.
(2)
A capable adult may execute a health care instruction. The instruction shall be
effective when it is signed and witnessed as required by ORS 127.505 to 127.660
and 127.995.
(3)
Unless the period of time that an advance directive is to be effective is
limited by the terms of the advance directive, the advance directive shall
continue in effect until:
(a)
The principal dies; or
(b)
The advance directive is revoked, suspended or superseded pursuant to ORS
127.545.
(4)
Notwithstanding subsection (3) of this section, if the principal is incapable
at the expiration of the term of the advance directive, the advance directive
continues in effect until:
(a)
The principal is no longer incapable;
(b)
The principal dies; or
(c)
The advance directive is revoked, suspended or superseded pursuant to the
provisions of ORS 127.545.
(5)
A health care provider shall make a copy of an advance directive and any other
instrument a part of the principal’s medical record when a copy of that instrument
is provided to the principal’s health care provider.
(6)
Notwithstanding subsections (3) and (4) of this section, an anatomical gift, as
defined in ORS 97.953, made on an advance directive is effective. [1989 c.914 §2;
1993 c.767 §3; 1995 c.717 §13; 2007 c.681 §28]
127.515 Manner of executing advance
directive; forms; witnesses; directives executed out of state.
(1) An advance directive may be executed by a resident or nonresident adult of
this state in the manner provided by ORS 127.505 to 127.660 and 127.995.
(2)
A power of attorney for health care must be in the form provided by Part B of
the advance directive form set forth in ORS 127.531, or must be in the form
provided by ORS 127.530 (1991 Edition).
(3)
A health care instruction must be in the form provided by Part C of the advance
directive form set forth in ORS 127.531, or must be in the form provided by ORS
127.610 (1991 Edition).
(4)
An advance directive must reflect the date of the principal’s signature. To be
valid, an advance directive must be witnessed by at least two adults as
follows:
(a)
Each witness shall witness either the signing of the instrument by the
principal or the principal’s acknowledgment of the signature of the principal.
(b)
Each witness shall make the written declaration as set forth in the form
provided in ORS 127.531.
(c)
One of the witnesses shall be a person who is not:
(A)
A relative of the principal by blood, marriage or adoption;
(B)
A person who at the time the advance directive is signed would be entitled to
any portion of the estate of the principal upon death under any will or by
operation of law; or
(C)
An owner, operator or employee of a health care facility where the principal is
a patient or resident.
(d)
The attorney-in-fact for health care or alternative attorney-in-fact may not be
a witness. The principal’s attending physician at the time the advance
directive is signed may not be a witness.
(e)
If the principal is a patient in a long term care facility at the time the
advance directive is executed, one of the witnesses must be an individual
designated by the facility and having any qualifications that may be specified
by the Department of Human Services by rule.
(5)
Notwithstanding subsections (2) to (4) of this section, an advance directive executed
by an adult who at the time of execution resided in another state, in
compliance with the formalities of execution required by the laws of that
state, the laws of the state where the principal was located at the time of
execution or the laws of this state, is validly executed for the purposes of
ORS 127.505 to 127.660 and 127.995 and may be given effect in accordance with
its provisions, subject to the laws of this state. [1989 c.914 §3; 1993 c.767 §4]
127.520 Persons not eligible to serve as
attorney-in-fact; manner of disqualifying persons for service as
attorney-in-fact. (1) Except as provided in ORS
127.635 or as may be allowed by court order, the following persons may not
serve as health care representatives:
(a)
If unrelated to the principal by blood, marriage or adoption:
(A)
The attending physician or an employee of the attending physician; or
(B)
An owner, operator or employee of a health care facility in which the principal
is a patient or resident, unless the health care representative was appointed
before the principal’s admission to the facility; or
(b)
A person who is the principal’s parent or former guardian and:
(A)
At any time while the principal was under the care, custody or control of the
person, a court entered an order:
(i)
Taking the principal into protective custody under ORS 419B.150; or
(ii)
Committing the principal to the legal custody of the Department of Human
Services for care, placement and supervision under ORS 419B.337; and
(B)
The court entered a subsequent order that:
(i)
The principal should be permanently removed from the person’s home, or
continued in substitute care, because it was not safe for the principal to be
returned to the person’s home, and no subsequent order of the court was entered
that permitted the principal to return to the person’s home before the
principal’s wardship was terminated under ORS 419B.328; or
(ii)
Terminated the person’s parental rights under ORS 419B.500 and 419B.502 to
419B.524.
(2)
A principal, while not incapable, may petition the court to remove a
prohibition contained in subsection (1)(b) of this section.
(3)
A capable adult may disqualify any other person from making health care
decisions for the capable adult. The disqualification must be in writing and
signed by the capable adult. The disqualification must specifically designate
those persons who are disqualified.
(4)
A health care representative whose authority has been revoked by a court is
disqualified.
(5)
A health care provider who has actual knowledge of a disqualification may not
accept a health care decision from a disqualified individual.
(6)
A person who has been disqualified from making health care decisions for a
principal, and who is aware of that disqualification, may not make health care
decisions for the principal. [1989 c.914 §4; 1993 c.767 §5; 2011 c.194 §2]
127.525 Acceptance of appointment;
withdrawal. For an appointment under a power of
attorney for health care to be effective, the attorney-in-fact must accept the
appointment in writing. Subject to the right of the attorney-in-fact to
withdraw, the acceptance imposes a duty on the attorney-in-fact to make health
care decisions on behalf of the principal at such time as the principal becomes
incapable. Until the principal becomes incapable, the attorney-in-fact may
withdraw by giving notice to the principal. After the principal becomes
incapable, the attorney-in-fact may withdraw by giving notice to the health
care provider. [1989 c.914 §5; 1993 c.767 §6]
(Form of Advance Directive)
127.530 [1989
c.914 §6; repealed by 1993 c.767 §7 (127.531 enacted in lieu of 127.530)]
127.531 Form of advance directive.
(1) The form of an advance directive executed by an Oregon resident must be the
same as the form set forth in this section to be valid. In any place in the
form that requires the initials of the principal, any mark by the principal is
effective to indicate the principal’s intent.
(2)
An advance directive shall be in the following form:
______________________________________________________________________________
ADVANCE
DIRECTIVE
YOU DO NOT
HAVE TO FILL OUT AND SIGN THIS FORM
PART A:
IMPORTANT INFORMATION ABOUT THIS ADVANCE DIRECTIVE
This
is an important legal document. It can control critical decisions about your
health care. Before signing, consider these important facts:
Facts About
Part B
(Appointing a
Health Care Representative)
You
have the right to name a person to direct your health care when you cannot do
so. This person is called your “health care representative.” You can do this by
using Part B of this form. Your representative must accept on Part E of this
form.
You
can write in this document any restrictions you want on how your representative
will make decisions for you. Your representative must follow your desires as
stated in this document or otherwise made known. If your desires are unknown,
your representative must try to act in your best interest. Your representative
can resign at any time.
Facts About
Part C
(Giving Health
Care Instructions)
You
also have the right to give instructions for health care providers to follow if
you become unable to direct your care. You can do this by using Part C of this
form.
Facts About
Completing This Form
This
form is valid only if you sign it voluntarily and when you are of sound mind.
If you do not want an advance directive, you do not have to sign this form.
Unless
you have limited the duration of this advance directive, it will not expire. If
you have set an expiration date, and you become unable to direct your health
care before that date, this advance directive will not expire until you are
able to make those decisions again.
You
may revoke this document at any time. To do so, notify your representative and
your health care provider of the revocation.
Despite
this document, you have the right to decide your own health care as long as you
are able to do so.
If
there is anything in this document that you do not understand, ask a lawyer to
explain it to you.
You
may sign PART B, PART C, or both parts. You may cross out words that don’t
express your wishes or add words that better express your wishes. Witnesses
must sign PART D.
Print
your NAME, BIRTHDATE AND ADDRESS here:
___________________________
(Name)
_______________
(Birthdate)
___________________________
___________________________
(Address)
Unless
revoked or suspended, this advance directive will continue for:
INITIAL ONE:
__ My entire life
__ Other period (__Years)
PART B: APPOINTMENT OF HEALTH CARE
REPRESENTATIVE
I
appoint _______________ as my health care representative. My representative’s
address is ________ and telephone number is________.
I
appoint _______________ as my alternate health care representative. My
alternate’s address is ________ and telephone number is________.
I
authorize my representative (or alternate) to direct my health care when I can’t
do so.
NOTE:
You may not appoint your doctor, an employee of your doctor, or an owner,
operator or employee of your health care facility, unless that person is
related to you by blood, marriage or adoption or that person was appointed
before your admission into the health care facility.
1. Limits. Special Conditions or
Instructions:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
INITIAL
IF THIS APPLIES:
__ I have executed a Health Care Instruction or
Directive to Physicians. My representative is to honor it.
2. Life
Support. “Life support” refers to any medical means for maintaining life,
including procedures, devices and medications. If you refuse life support, you
will still get routine measures to keep you clean and comfortable.
INITIAL
IF THIS APPLIES:
__ My representative MAY decide about life
support for me. (If you don’t initial this space, then your representative MAY
NOT decide about life support.)
3. Tube
Feeding. One sort of life support is food and water supplied artificially
by medical device, known as tube feeding.
INITIAL
IF THIS APPLIES:
__ My representative MAY decide about tube
feeding for me. (If you don’t initial this space, then your representative MAY
NOT decide about tube feeding.)
________ (Date)
SIGN HERE TO
APPOINT A HEALTH CARE REPRESENTATIVE
___________________________
(Signature of person making appointment)
PART C: HEALTH CARE INSTRUCTIONS
NOTE:
In filling out these instructions, keep the following in mind:
• The term “as my physician recommends” means
that you want your physician to try life support if your physician believes it
could be helpful and then discontinue it if it is not helping your health
condition or symptoms.
• “Life support” and “tube feeding” are
defined in Part B above.
• If you refuse tube feeding, you should
understand that malnutrition, dehydration and death will probably result.
• You will get care for your comfort and
cleanliness, no matter what choices you make.
• You may either give specific instructions
by filling out Items 1 to 4 below, or you may use the general instruction
provided by Item 5.
Here
are my desires about my health care if my doctor and another knowledgeable
doctor confirm that I am in a medical condition described below:
1.
Close to Death. If I am close to death and life support would only
postpone the moment of my death:
A. INITIAL ONE:
__ I want to receive tube feeding.
__ I want tube feeding only as my physician
recommends.
__ I DO NOT WANT tube feeding.
B. INITIAL ONE:
__ I want any other life support that may apply.
__ I want life support only as my physician
recommends.
__ I want NO life support.
2.
Permanently Unconscious. If I am unconscious and it is very unlikely
that I will ever become conscious again:
A. INITIAL ONE:
__ I want to receive tube feeding.
__ I want tube feeding only as my physician
recommends.
__ I DO NOT WANT tube feeding.
B. INITIAL ONE:
__ I want any other life support that may apply.
__ I want life support only as my physician
recommends.
__ I want NO life support.
3.
Advanced Progressive Illness. If I have a progressive illness that will
be fatal and is in an advanced stage, and I am consistently and permanently
unable to communicate by any means, swallow food and water safely, care for
myself and recognize my family and other people, and it is very unlikely that
my condition will substantially improve:
A. INITIAL ONE:
__ I want to receive tube feeding.
__ I want tube feeding only as my physician
recommends.
__ I DO NOT WANT tube feeding.
B. INITIAL ONE:
__ I want any other life support that may apply.
__ I want life support only as my physician
recommends.
__ I want NO life support.
4.
Extraordinary Suffering. If life support would not help my medical
condition and would make me suffer permanent and severe pain:
A. INITIAL ONE:
__ I want to receive tube feeding.
__ I want tube feeding only as my physician
recommends.
__ I DO NOT WANT tube feeding.
B. INITIAL ONE:
__ I want any other life support that may apply.
__ I want life support only as my physician
recommends.
__ I want NO life support.
5.
General Instruction.
INITIAL
IF THIS APPLIES:
__ I do not want my life to be prolonged by life
support. I also do not want tube feeding as life support. I want my doctors to
allow me to die naturally if my doctor and another knowledgeable doctor confirm
I am in any of the medical conditions listed in Items 1 to 4 above.
6.
Additional Conditions or Instructions.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert description of what you want
done.)
7.
Other Documents. A “health care power of attorney” is any document you
may have signed to appoint a representative to make health care decisions for
you.
INITIAL
ONE:
__ I
have previously signed a health care power of attorney. I want it to remain in
effect unless I appointed a health care representative after signing the health
care power of attorney.
__ I have a health care power of attorney, and I
REVOKE IT.
__ I DO NOT have a health care power of attorney.
_______________
(Date)
SIGN HERE TO
GIVE INSTRUCTIONS
___________________________
(Signature)
______________________________________________________________________________
PART D: DECLARATION OF WITNESSES
We
declare that the person signing this advance directive:
(a)
Is personally known to us or has provided proof of identity;
(b)
Signed or acknowledged that person’s signature on this advance directive in our
presence;
(c)
Appears to be of sound mind and not under duress, fraud or undue influence;
(d)
Has not appointed either of us as health care representative or alternative
representative; and
(e)
Is not a patient for whom either of us is attending physician.
Witnessed By:
___________ ___________
(Signature of (Printed Name
Witness/Date) of Witness)
___________ ___________
(Signature of (Printed Name
Witness/Date) of Witness)
NOTE: One witness must not be a relative
(by blood, marriage or adoption) of the person signing this advance directive.
That witness must also not be entitled to any portion of the person’s estate
upon death. That witness must also not own, operate or be employed at a health
care facility where the person is a patient or resident.
______________________________________________________________________________
PART
E: ACCEPTANCE BY HEALTH CARE REPRESENTATIVE
I accept this appointment and agree to
serve as health care representative. I understand I must act consistently with
the desires of the person I represent, as expressed in this advance directive
or otherwise made known to me. If I do not know the desires of the person I
represent, I have a duty to act in what I believe in good faith to be that
person’s best interest. I understand that this document allows me to decide
about that person’s health care only while that person cannot do so. I
understand that the person who appointed me may revoke this appointment. If I
learn that this document has been suspended or revoked, I will inform the
person’s current health care provider if known to me.
___________________________
(Signature
of Health Care Representative/Date)
___________________________
(Printed
name)
___________________________
(Signature
of Alternate Health Care Representative/Date)
___________________________
(Printed
name)
______________________________________________________________________________
[1993 c.767 §8 (enacted in lieu of 127.530)]
(Effect
of Executing Advance Directive)
127.535
Authority of health care representative; duties; objection by principal.
(1) The health care representative has all the authority over the principal’s
health care that the principal would have if not incapable, subject to the
limitations of the appointment and ORS 127.540 and 127.580. A health care
representative who is known to the health care provider to be available to make
health care decisions has priority over any person other than the principal to
act for the principal in all health care decisions. A health care
representative has authority to make a health care decision for a principal
only when the principal is incapable.
(2) A health care representative is not
personally responsible for the cost of health care provided to the principal
solely because the health care representative makes health care decisions for
the principal.
(3) Except to the extent the right is
limited by the appointment or any federal law, a health care representative for
an incapable principal has the same right as the principal to receive
information regarding the proposed health care, to receive and review medical
records and to consent to the disclosure of medical records. The right of the
health care representative to receive this information is not a waiver of any
evidentiary privilege or any right to assert confidentiality with respect to
others.
(4) In making health care decisions, the
health care representative has a duty to act consistently with the desires of
the principal as expressed in the principal’s advance directive, or as
otherwise made known by the principal to the health care representative at any
time. If the principal’s desires are unknown, the health care representative
has a duty to act in what the health care representative in good faith believes
to be the best interests of the principal.
(5) ORS 127.505 to 127.660 do not
authorize a health care representative or health care provider to withhold or
withdraw life-sustaining procedures or artificially administered nutrition and
hydration in any situation if the principal manifests an objection to the
health care decision. If the principal objects to such a health care decision,
the health care provider shall proceed as though the principal were capable for
the purposes of the health care decision objected to.
(6) An instrument that would be a valid
advance directive except that the instrument is not a form described in ORS
127.515, has expired, is not properly witnessed or otherwise fails to meet the
formal requirements of ORS 127.505 to 127.660 shall constitute evidence of the
patient’s desires and interests.
(7) A health care representative is a
personal representative for the purposes of ORS 192.553 to 192.581 and the
federal Health Insurance Portability and Accountability Act privacy
regulations, 45 C.F.R. parts 160 and 164. [1989 c.914 §7; 1993 c.767 §9; 2005
c.53 §1; 2009 c.381 §§2,3]
127.540
Limitations on authority of health care representative.
ORS 127.505 to 127.660 do not authorize an appointed health care representative
to make a health care decision with respect to any of the following on behalf
of the principal:
(1) Convulsive treatment.
(2) Psychosurgery.
(3) Sterilization.
(4) Abortion.
(5) Withholding or withdrawing of a
life-sustaining procedure unless:
(a) The appointed health care
representative has been given authority to make decisions on withholding or
withdrawing life-sustaining procedures; or
(b) The principal has been medically
confirmed to be in one of the following conditions:
(A) A terminal condition.
(B) Permanently unconscious.
(C) A condition in which administration of
life-sustaining procedures would not benefit the principal’s medical condition
and would cause permanent and severe pain.
(D) A progressive, debilitating illness that
will be fatal and is in its advanced stages, and the principal is consistently
and permanently unable to communicate, swallow food and water safely, care for
the principal, and recognize the principal’s family and other people, and there
is no reasonable chance that the principal’s underlying condition will improve.
(6) Withholding or withdrawing
artificially administered nutrition and hydration, other than
hyperalimentation, necessary to sustain life except as provided in ORS 127.580.
[1989 c.914 §8; 1993 c.442 §18; 1993 c.767 §10; 2011 c.149 §1]
(Provisions
Generally Applicable to Advance Directives and Health Care Decisions)
127.545
Revocation of advance directive or health care decision; when revocation
effective; effect of executing power of attorney for health care.
(1) An advance directive or a health care decision by a health care
representative may:
(a) If it involves the decision to
withhold or withdraw life-sustaining procedures or artificially administered
nutrition and hydration, be revoked at any time and in any manner by which the
principal is able to communicate the intent to revoke; or
(b) Be revoked at any time and in any
manner by a capable principal.
(2) Revocation is effective upon
communication by the principal to the attending physician or health care
provider, or to the health care representative. If the communication is to the
health care representative, and the principal is incapable and is under the
care of a health care provider known to the representative, the health care
representative must promptly inform the attending physician or health care
provider of the revocation.
(3) Upon learning of the revocation, the
health care provider or attending physician shall cause the revocation to be
made a part of the principal’s medical records.
(4) Execution of a valid power of attorney
for health care revokes any prior power of attorney for health care. Unless the
health care instruction provides otherwise, execution of a valid health care
instruction revokes any prior health care instruction.
(5) Unless the advance directive provides
otherwise, the directions as to health care decisions in a valid advance
directive supersede:
(a) Any directions contained in a previous
court appointment or advance directive; and
(b) Any prior inconsistent expression of
desires with respect to health care decisions.
(6) Unless the power of attorney for
health care provides otherwise, valid appointment of an attorney-in-fact for
health care supersedes:
(a) Any power of a guardian or other person
appointed by a court to make health care decisions for the protected person;
and
(b) Any other prior appointment or
designation of a health care representative.
(7) Unless the power of attorney for
health care expressly provides otherwise, a power of attorney for health care
is suspended:
(a) If both the attorney-in-fact and the
alternative attorney-in-fact have withdrawn; or
(b) If the power of attorney names the
principal’s spouse as attorney-in-fact, a petition for dissolution or annulment
of marriage is filed and the principal does not reaffirm the appointment in
writing after the filing of the petition.
(8) If the principal has both a valid
health care instruction and a valid power of attorney for health care, and the
directions reflected in those documents are inconsistent, the document last
executed governs to the extent of the inconsistency.
(9) Any reinstatement of an advance
directive must be in writing. [1989 c.914 §9; 1993 c.571 §26a; 1993 c.767 §12]
127.550
Petition for judicial review of advance directives; scope of review; authority
to file petition. (1) A health care decision made
by an individual who is authorized to make the decision under ORS 127.505 to
127.660 and 127.995 is effective immediately and does not require judicial approval.
(2) A petition may be filed under ORS
127.505 to 127.660 and 127.995 for any one or more of the following purposes:
(a) Determining whether a principal is
incapable.
(b) Determining whether an appointment of
the health care representative or a health care instruction is valid or has
been suspended, reinstated, revoked or terminated.
(c) Determining whether the acts or
proposed acts of the health care representative breach any duty of the
representative and whether those acts should be enjoined.
(d) Declaring that an individual is
authorized to act as a health care representative.
(e) Disqualifying the health care
representative upon a determination of the court that the health care
representative has violated, failed to perform or is unable to perform the
duties under ORS 127.535 (4).
(f) Approving any health care decision
that by law requires court approval.
(g) Determining whether the acts or
proposed acts of the health care representative are clearly inconsistent with
the desires of the principal as made known to the health care representative,
or where the desires of the principal are unknown or unclear, whether the acts
or proposed acts of the health care representative are clearly contrary to the
best interests of the principal.
(h) Declaring that a power of attorney for
health care is revoked upon a determination by the court that the
attorney-in-fact has made a health care decision for the principal that
authorized anything illegal. A suspension or revocation of a power of attorney
under this paragraph shall be in the discretion of the court.
(i) Considering any other matter that the
court determines needs to be decided for the protection of the principal.
(3) A petition may be filed by any of the
following:
(a) The principal.
(b) The health care representative.
(c) The spouse, parent, sibling or adult
child of the principal.
(d) An adult relative or adult friend of
the principal who is familiar with the desires of the principal.
(e) The guardian of the principal.
(f) The conservator of the principal.
(g) The attending physician or health care
provider of the principal.
(4) A petition under this section shall be
filed in the circuit court in the county in which the principal resides or is
located.
(5) Any of the determinations described in
this section may be made by the court as a part of a protective proceeding
under ORS chapter 125 if a guardian or temporary guardian has been appointed
for the principal, or if the petition seeks the appointment of a guardian or a
temporary guardian for the principal. [1989 c.914 §9a; 1993 c.767 §13; 2001
c.396 §2]
127.555
Designation of attending physician; liability of health care representative and
health care provider. (1) If there is more than one
physician caring for a principal, the principal shall designate one physician
as the attending physician. If the principal is incapable, the health care
representative for the principal shall designate the attending physician.
(2) Health care representatives, and
persons who are acting under a reasonable belief that they are health care
representatives, shall not be guilty of any criminal offense, or subject to
civil liability, or in violation of any professional oath, affirmation or
standard of care for any action taken in good faith as a health care
representative.
(3) A health care provider acting or
declining to act in reliance on the health care decision made in an advance
directive, made by an attending physician under ORS 127.635 (3), or made by a
person who the provider believes is the health care representative for an
incapable principal, is not subject to criminal prosecution, civil liability or
professional disciplinary action on the grounds that the health care decision
is unauthorized unless the provider:
(a) Fails to satisfy a duty that ORS
127.505 to 127.660 and 127.995 place on the provider;
(b) Acts without medical confirmation as
required under ORS 127.505 to 127.660 and 127.995;
(c) Knows or has reason to know that the
requirements of ORS 127.505 to 127.660 and 127.995 have not been satisfied; or
(d) Acts after receiving notice that:
(A) The authority or decision on which the
provider relied is revoked, suspended, superseded or subject to other legal
infirmity;
(B) A court challenge to the health care
decision or the authority relied on in making the health care decision is
pending; or
(C) The health care representative has
withdrawn or has been disqualified.
(4) The immunities provided by this
section do not apply to:
(a) The manner of administering health
care pursuant to a health care decision made by the health care representative
or by a health care instruction; or
(b) The manner of determining the health
condition or incapacity of the principal.
(5) A health care provider who determines
that a principal is incapable is not subject to criminal prosecution, civil
liability or professional disciplinary action for failing to follow that
principal’s direction except for a failure to follow a principal’s
manifestation of an objection to a health care decision under ORS 127.535 (5). [1989
c.914 §10; 1993 c.767 §14]
127.560
Provisions not exclusive; effect of provisions on civil and criminal liability
of health care representative and provider. (1)
Except as otherwise specifically provided, ORS 127.505 to 127.660 and 127.995 do
not impair or supersede the laws of this state relating to:
(a) Any requirement of notice to others of
proposed health care;
(b) The standard of care required of a
health care provider in the administration of health care;
(c) Whether consent is required for health
care;
(d) The elements of informed consent for
health care under ORS 677.097 or other law;
(e) The provision of health care in an
emergency;
(f) Any right a capable person may have to
consent or withhold consent to health care administered in good faith pursuant
to religious tenets of the individual requiring health care;
(g) Delegation of authority by a health
care representative;
(h) Any legal right or responsibility any
person may have to effect the withholding or withdrawal of life-sustaining
procedures including artificially administered nutrition and hydration in any
lawful manner;
(i) Guardianship or conservatorship
proceedings; or
(j) Any right persons may otherwise have
to make their own health care decisions, or to make health care decisions for
another.
(2) The provisions of ORS 127.505 to
127.660 and 127.995 do not in themselves impose civil or criminal liability on
a health care representative or health care provider who withholds or withdraws
or directs the withholding or withdrawal of life-sustaining procedures or
artificially administered nutrition and hydration when a principal is in a
health condition other than those conditions described in ORS 127.540 (5)(b),
127.580 or 127.635 (1). The provisions of ORS 127.505 to 127.660 and 127.995 do
not abolish or limit the civil or criminal liability of a health care
representative under other statutory or common law if the health care
representative withholds or withdraws or directs the withholding or withdrawal
of life-sustaining procedures or artificially administered nutrition and
hydration when a principal is in a health condition other than those conditions
described in ORS 127.540 (5)(b), 127.580 or 127.635 (1). [1989 c.914 §11; 1993
c.767 §15; 2011 c.149 §2]
127.565
Independent medical judgment of provider; effect of advance directive on
insurance. (1) In following a health care
instruction or the decision of a health care representative, a health care
provider shall exercise the same independent medical judgment that the health
care provider would exercise in following the decisions of the principal if the
principal were capable.
(2) No person shall be required either to
execute or to refrain from executing an advance directive as a criterion for
insurance. No health care provider shall condition the provision of health care
or otherwise discriminate against an individual based on whether or not the
individual has executed an advance directive.
(3) No existing or future policy of
insurance shall be legally impaired or invalidated in any manner by actions
taken under ORS 127.505 to 127.660 and 127.995. No person shall be
discriminated against in premium or contract rates because of the existence or
absence of an advance directive or appointment of a health care representative.
(4) Nothing in ORS 127.505 to 127.660 and
127.995 is intended to impair or supersede any conflicting federal statute. [1989
c.914 §12; 1993 c.767 §16]
127.570
Mercy killing; suicide. (1) Nothing in ORS 127.505 to
127.660 and 127.995 is intended to condone, authorize or approve mercy killing,
or to permit an affirmative or deliberate act or omission to end life, other
than to allow the natural process of dying. In making a health care decision, a
health care representative may not consider an attempted suicide by the
principal as any indication of the principal’s wishes with regard to health
care.
(2) The withholding or withdrawing of a
life-sustaining procedure or of artificially administered nutrition and
hydration in accordance with the provisions of ORS 127.505 to 127.660 and
127.995 does not, for any purpose, constitute a suicide, assisting a suicide,
mercy killing or assisted homicide. [1989 c.914 §14; 1993 c.767 §17]
127.575
Instrument presumed valid. A health care provider has no
duty to give effect to any instrument unless the provider has received a copy
of the instrument. Health care providers are entitled to assume the validity
and enforceability of an advance directive if the directive on its face is in
compliance with ORS 127.505 to 127.660 and 127.995, and the provider has
not been given notice of a suspension, reinstatement, revocation, superseding
document, disqualification, withdrawal, dispute or other legal infirmity
raising a question as to the validity or enforceability of the directive.
Health care providers are entitled to assume the validity and enforceability of
any other instrument if the provider has not been given notice of a suspension,
reinstatement, revocation, superseding document, disqualification, withdrawal,
dispute or other legal infirmity raising a question as to the validity or
enforceability of the instrument. [1989 c.914 §15; 1993 c.767 §18]
127.580
Presumption of consent to artificially administered nutrition and hydration;
exceptions. (1) It shall be presumed that every
person who is temporarily or permanently incapable has consented to
artificially administered nutrition and hydration, other than
hyperalimentation, that are necessary to sustain life except in one or more of
the following circumstances:
(a) The person while a capable adult
clearly and specifically stated that the person would have refused artificially
administered nutrition and hydration.
(b) Administration of such nutrition and
hydration is not medically feasible or would itself cause severe, intractable
or long-lasting pain.
(c) The person has an appointed health
care representative who has been given authority to make decisions on the use,
maintenance, withholding or withdrawing of artificially administered nutrition
and hydration.
(d) The person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, and the
person is permanently unconscious.
(e) The person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, the
person is incapable, and the person has a terminal condition.
(f) The person has a progressive illness
that will be fatal and is in an advanced stage, the person is consistently and
permanently unable to communicate by any means, swallow food and water safely,
care for the person’s self and recognize the person’s family and other people,
and it is very unlikely that the person’s condition will substantially improve.
(2) If a person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, but the
presumption established by this section has been overcome under the provisions
of subsection (1)(a), (b), (d), (e) or (f) of this section, artificially
administered nutrition and hydration may be withheld or withdrawn under the provisions
of ORS 127.635 (2), (3) and (4).
(3) The medical conditions specified in
subsection (1)(b), (d), (e) and (f) of this section must be medically confirmed
to overcome the presumption established by subsection (1) of this section. [1989
c.914 §16; 1993 c.767 §18a]
127.585
[1989 c.914 §13; 1993 c.767 §19; renumbered 127.995 in 1993]
127.605
[Formerly 97.050; 1991 c.470 §12; repealed by 1993 c.767 §29]
127.610
[Formerly 97.055; repealed by 1993 c.767 §29]
127.615
[Formerly 97.060; repealed by 1993 c.767 §29]
127.620
[Formerly 97.065; repealed by 1993 c.767 §29]
127.625
Providers under no duty to participate in withdrawal or withholding of certain
health care; duty of provider who is unwilling to participate.
(1) No health care provider shall be under any duty, whether by contract, by
statute or by any other legal requirement to participate in the withdrawal or
withholding of life-sustaining procedures or of artificially administered
nutrition or hydration.
(2) If a health care provider is unable or
unwilling to carry out a health care instruction or the decisions of the health
care representative, the following provisions apply:
(a) The health care provider shall
promptly notify the health care representative, if there is a health care representative;
(b) If the authority or decision of the
health care representative is in dispute, the health care representative or
provider may seek the guidance of the court in the manner provided in ORS
127.550;
(c) If the representative’s authority or decision
is not in dispute, the representative shall make a reasonable effort to
transfer the principal to the care of another physician or health care
provider; and
(d) If there is no health care
representative for an incapable patient, and the health care decisions are not
in dispute, the health care provider shall, without abandoning the patient,
either discharge the patient or make a reasonable effort to locate a different
health care provider and authorize the transfer of the patient to that provider.
[Formerly 97.070; 1993 c.767 §20]
127.630
[Formerly 97.080; repealed by 1993 c.767 §29]
127.635
Withdrawal of life-sustaining procedures; conditions; selection of health care
representative in certain cases; required consultation.
(1) Life-sustaining procedures as defined in ORS 127.505 that would otherwise
be applied to an incapable principal who does not have an appointed health care
representative or applicable valid advance directive may be withheld or
withdrawn in accordance with subsections (2) and (3) of this section if the
principal has been medically confirmed to be in one of the following
conditions:
(a) A terminal condition;
(b) Permanently unconscious;
(c) A condition in which administration of
life-sustaining procedures would not benefit the principal’s medical condition
and would cause permanent and severe pain; or
(d) The person has a progressive illness
that will be fatal and is in an advanced stage, the person is consistently and
permanently unable to communicate by any means, swallow food and water safely,
care for the person’s self and recognize the person’s family and other people,
and it is very unlikely that the person’s condition will substantially improve.
(2) If a principal’s condition has been
determined to meet one of the conditions set forth in subsection (1) of this
section, and the principal does not have an appointed health care
representative or applicable advance directive, the principal’s health care
representative shall be the first of the following, in the following order, who
can be located upon reasonable effort by the health care facility and who is
willing to serve as the health care representative:
(a) A guardian of the principal who is
authorized to make health care decisions, if any;
(b) The principal’s spouse;
(c) An adult designated by the others
listed in this subsection who can be so located, if no person listed in this
subsection objects to the designation;
(d) A majority of the adult children of
the principal who can be so located;
(e) Either parent of the principal;
(f) A majority of the adult siblings of
the principal who can be located with reasonable effort; or
(g) Any adult relative or adult friend.
(3) If none of the persons described in
subsection (2) of this section is available, then life-sustaining procedures
may be withheld or withdrawn upon the direction and under the supervision of
the attending physician.
(4) Life-sustaining procedures may be
withheld or withdrawn upon the direction and under the supervision of the
attending physician at the request of a person designated the health care
representative under subsections (2) and (3) of this section only after the
person has consulted with concerned family and close friends, and if the
principal has a case manager, as defined by rules adopted by the Department of
Human Services, after giving notice to the principal’s case manager.
(5) Notwithstanding subsection (2) of this
section, a person who is the principal’s parent or former guardian may not
withhold or withdraw life-sustaining procedures under this section if:
(a) At any time while the principal was
under the care, custody or control of the person, a court entered an order:
(A) Taking the principal into protective
custody under ORS 419B.150; or
(B) Committing the principal to the legal
custody of the Department of Human Services for care, placement and supervision
under ORS 419B.337; and
(b) The court entered a subsequent order
that:
(A) The principal should be permanently
removed from the person’s home, or continued in substitute care, because it was
not safe for the principal to be returned to the person’s home, and no
subsequent order of the court was entered that permitted the principal to
return to the person’s home before the principal’s wardship was terminated
under ORS 419B.328; or
(B) Terminated the person’s parental
rights under ORS 419B.500 and 419B.502 to 419B.524.
(6) A principal, while not incapable, may
petition the court to remove a prohibition contained in subsection (5) of this
section. [Formerly 97.083; 1993 c.767 §21; 2011 c.194 §3]
127.640
Physician to determine that conditions met before withdrawing or withholding
certain health care. Before withholding or
withdrawing life-sustaining procedures or artificially administered nutrition
and hydration under the provisions of ORS 127.540, 127.580 or 127.635, the
attending physician shall determine that the conditions of ORS 127.540, 127.580
and 127.635 have been met. [Formerly 97.084; 1993 c.767 §22]
127.642
Principal to be provided with certain care to insure comfort and cleanliness.
Individuals caring for a principal from whom life-sustaining procedures or
artificially administered nutrition and hydration are withheld or withdrawn
shall provide care to insure comfort and cleanliness, including but not limited
to the following:
(1) Oral and body hygiene.
(2) Reasonable efforts to offer food and
fluids orally.
(3) Medication, positioning, warmth,
appropriate lighting and other measures to relieve pain and suffering.
(4) Privacy and respect for the dignity
and humanity of the principal. [1993 c.767 §11]
127.645
[Formerly 97.085; repealed by 1993 c.767 §29]
(Requirements
Imposed on Health Care Organizations Relating to Rights of Individuals to
Make
Health Care Decisions)
127.646
Definitions for ORS 127.646 to 127.654. As used in
ORS 127.646 to 127.654:
(1) “Health care organization” means a
home health agency, hospice program, hospital, long term care facility or
health maintenance organization.
(2) “Health maintenance organization” has
the meaning given that term in ORS 750.005, except that “health maintenance
organization” includes only those organizations that participate in the federal
Medicare or Medicaid programs.
(3) “Home health agency” has the meaning
given that term in ORS 443.005.
(4) “Hospice program” has the meaning
given that term in ORS 443.850.
(5) “Hospital” has the meaning given that
term in ORS 442.015. “Hospital” does not include a special inpatient care
facility.
(6) “Long term care facility” has the
meaning given that term in ORS 442.015, except that “long term care facility”
does not include an intermediate care facility for individuals with mental
retardation. [1991 c.761 §1; 2001 c.104 §38; 2009 c.595 §87; 2009 c.792 §30]
127.649
Health care organizations required to have written policies and procedures on
providing information on patient’s right to make health care decisions.
(1) Subject to the provisions of ORS 127.652 and 127.654, all health care
organizations shall maintain written policies and procedures, applicable to all
capable adults who are receiving health care by or through the health care
organization, that provide for:
(a) Delivering to those individuals the
following information and materials, in written form, without recommendation:
(A) Information on the rights of the
individual under Oregon law to make health care decisions, including the right
to accept or refuse medical or surgical treatment and the right to execute
advance directives;
(B) Information on the policies of the
health care organization with respect to the implementation of the rights of
the individual under Oregon law to make health care decisions;
(C) A copy of the advance directive set
forth in ORS 127.531, along with a disclaimer on the first line of the first
page of each form in at least 16-point boldfaced type stating “You do not have
to fill out and sign this form.”; and
(D) The name of a person who can provide
additional information concerning the forms for advance directives.
(b) Documenting in a prominent place in
the individual’s medical record whether the individual has executed an advance
directive.
(c) Ensuring compliance by the health care
organization with Oregon law relating to advance directives.
(d) Educating the staff and the community
on issues relating to advance directives.
(2) A health care organization need not
furnish a copy of an advance directive to an individual if the health care
organization has reason to believe that the individual has received a copy of
an advance directive in the form set forth in ORS 127.531 within the preceding
12-month period or has previously executed an advance directive. [1991 c.761 §2;
1993 c.767 §26]
127.650
[Formerly 97.090; repealed by 1993 c.767 §29]
127.652
Time of providing information. The written
information described in ORS 127.649 (1) shall be provided:
(1) By hospitals, not later than five days
after an individual is admitted as an inpatient, but in any event before
discharge;
(2) By long term care facilities, not
later than five days after an individual is admitted as a resident, but in any
event before discharge;
(3) By a home health agency or a hospice
program, not later than 15 days after the initial provision of care by the
agency or program but in any event before ceasing to provide care; and
(4) By a health maintenance organization,
not later than the time allowed under federal law. [1991 c.761 §3]
127.654
Scope of requirement; limitation on liability for failure to comply.
(1) The requirements of ORS 127.646 to 127.654 are in addition to any
requirements that may be imposed under federal law, but ORS 127.646 to 127.654
shall be interpreted in a fashion consistent with the Patient
Self-Determination Act, enacted by sections 4206 and 4751 of Public Law
101-508. Nothing in ORS 127.646 to 127.654 requires any health care
organization, or any employee or agent of a health care organization, to act in
a manner inconsistent with federal law or contrary to individual religious or
philosophical beliefs.
(2) No health care organization shall be
subject to criminal prosecution or civil liability for failure to comply with
ORS 127.646 to 127.654. [1991 c.761 §4]
(Previously
Executed Advance Directives)
127.658
Effect of ORS 127.505 to 127.660 on previously executed advance directives.
(1) ORS 127.505 to 127.660 and 127.995 do not impair or supersede any power of
attorney for health care, directive to physicians or health care instruction in
effect before November 4, 1993.
(2) Any power of attorney for health care
or directive to physicians executed before November 4, 1993, shall be governed
by the provisions of ORS 127.505 to 127.660 and 127.995, except that:
(a) The directive to physicians or power
of attorney for health care shall be valid if it complies with the provisions
of either ORS 127.505 to 127.660 and 127.995 or the statutes in effect as of
the date of execution;
(b) The terms in a directive to physicians
in the form prescribed by ORS 127.610 (1991 Edition) or predecessor
statute have those meanings given in ORS 127.605 (1991 Edition) or predecessor
statute in effect at the time of execution; and
(c) The terms in a power of attorney for
health care in the form prescribed by ORS 127.530 (1991 Edition) have
those meanings given in ORS 127.505 in effect at the time of execution.
(3) A health care organization, as defined
in ORS 127.646, that on November 4, 1993, has printed materials with the
information and forms which were required by ORS 127.649, prior to November 4,
1993, may use such printed materials until December 1, 1993. [1993 c.767 §23]
(Short
Title)
127.660
Short title. ORS 127.505 to 127.660 and 127.995 may
be cited as the Oregon Health Care Decisions Act. [1993 c.767 §24]
PHYSICIAN
ORDERS FOR LIFE-SUSTAINING TREATMENT REGISTRY
127.663
Definitions for ORS 127.663 to 127.684. As used in
ORS 127.663 to 127.684:
(1) “Authorized user” means a person
authorized by the Oregon Health Authority to provide information to or receive
information from the POLST registry.
(2) “Life-sustaining treatment” means any
medical procedure, pharmaceutical, medical device or medical intervention that
maintains life by sustaining, restoring or supplanting a vital function. “Life-sustaining
treatment” does not include routine care necessary to sustain patient
cleanliness and comfort.
(3) “Nurse practitioner” has the meaning
given that term in ORS 678.010.
(4) “Physician” has the meaning given that
term in ORS 677.010.
(5) “Physician assistant” has the meaning
given that term in ORS 677.495.
(6) “POLST” means a physician order for
life-sustaining treatment signed by a physician, nurse practitioner or
physician assistant.
(7) “POLST registry” means the registry
established in ORS 127.666. [2009 c.595 §1182]
127.666
Establishment of registry; rules. (1) The
Oregon Health Authority shall establish and operate a statewide registry for
the collection and dissemination of physician orders for life-sustaining
treatment to help ensure that medical treatment preferences for an individual
nearing the end of the individual’s life are honored.
(2) The authority shall adopt rules for
the registry, including but not limited to rules that:
(a) Require submission of the following
documents to the registry, unless the patient has requested to opt out of the
registry:
(A) A copy of each POLST;
(B) A copy of a revised POLST; and
(C) Notice of any known revocation of a
POLST;
(b) Prescribe the manner for submitting
information described in paragraph (a) of this subsection;
(c) Require the release of registry
information to authorized users for treatment purposes;
(d) Authorize notification by the registry
to specified persons of the receipt, revision or revocation of a POLST; and
(e) Establish procedures to protect the
accuracy and confidentiality of information submitted to the registry.
(3) The authority may permit qualified
researchers to access registry data. If the authority permits qualified
researchers to have access to registry data, the authority shall adopt rules
governing the access to data that shall include but need not be limited to:
(a) The process for a qualified researcher
to request access to registry data;
(b) The types of data that a qualified
researcher may be provided from the registry; and
(c) The manner by which a researcher must
protect registry data obtained under this subsection.
(4) The authority may contract with a
private or public entity to establish or maintain the registry, and such
contract is exempt from the requirements of ORS chapters 279A, 279B and 279C. [2009
c.595 §1184]
127.669
Oregon Health Authority not required to perform certain acts.
Nothing in ORS 127.663 to 127.684 requires the Oregon Health Authority to:
(1) Prescribe the form or content of a
POLST;
(2) Disseminate forms to be used for a
POLST;
(3) Educate the public about POLSTs,
generally; or
(4) Train health care providers about
POLSTs. [2009 c.595 §1185]
127.672
POLST not required; revocation. Nothing in
ORS 127.663 to 127.684 is intended to require an individual to have a POLST or
to require a health professional to authorize or execute a POLST. A POLST may
be revoked at any time. [2009 c.595 §1183]
127.675
Oregon POLST Registry Advisory Committee; members; meetings; term.
(1) There is established the Oregon POLST Registry Advisory Committee to advise
the Oregon Health Authority regarding the implementation, operation and evaluation
of the POLST registry.
(2) The members of the Oregon POLST
Registry Advisory Committee shall be appointed by the Director of the Oregon
Health Authority and shall include, at a minimum:
(a) A health professional with extensive
experience and leadership in POLST issues;
(b) A physician who is a supervising
physician, as defined in ORS 682.025, for emergency medical services providers
and who has extensive experience and leadership in POLST issues;
(c) A representative from the hospital
community with extensive experience and leadership in POLST issues;
(d) A representative from the long term
care community with extensive experience and leadership in POLST issues;
(e) A representative from the hospice
community with extensive experience and leadership in POLST issues;
(f) An emergency medical services provider
actively involved in providing emergency medical services; and
(g) Two members of the public with active
interest in end-of-life treatment preferences, at least one of whom represents
the interests of minorities.
(3) The Director of the Emergency Medical
Services and Trauma Systems Program within the Oregon Health Authority, or a
designee of the director, shall serve as a voting ex officio member of the
committee.
(4) The Director of the Oregon Health
Authority may appoint additional members to the committee.
(5) The committee shall meet at least four
times per year, at times and places specified by the Director of the Oregon
Health Authority.
(6) The Oregon Health Authority shall provide
staff support for the committee.
(7) Except for the Director of the
Emergency Medical Services and Trauma Systems Program, a member of the
committee shall serve a term of two years. Before the expiration of the term of
a member, the director shall appoint a successor whose term begins on January 2
next following. A member is eligible for reappointment. If there is a vacancy
for any cause, the Director of the Oregon Health Authority shall make an
appointment to become immediately effective for the unexpired term.
(8) The Director of the Oregon Health
Authority, or a designee of the director, shall consult with the committee in
drafting rules on the implementation, operation and evaluation of the POLST
registry. [2009 c.595 §1186; 2011 c.703 §24]
Note:
Section 1187, chapter 595, Oregon Laws 2009, provides:
Sec.
1187. Notwithstanding the term of office
specified in section 1186 of this 2009 Act [127.675], of the members described
in section 1186 (2) of this 2009 Act who are first appointed to the Oregon
POLST Registry Advisory Committee:
(1) At least two shall serve for terms
ending January 1, 2011.
(2) At least three shall serve for terms
ending January 1, 2012.
(3) At least three shall serve for terms
ending January 1, 2013. [2009 c.595 §1187]
127.678
Confidentiality. Except as provided in ORS
127.666, all information collected or developed by the POLST registry that
identifies or could be used to identify a patient, health care provider or
facility is confidential and is not subject to civil or administrative subpoena
or to discovery in a civil action, including but not limited to a judicial,
administrative, arbitration or mediation proceeding. [2009 c.595 §1188]
127.681
Immunity from liability. Any person reporting information
to the POLST registry or acting on information obtained from the POLST registry
in good faith is immune from any civil or criminal liability that might
otherwise be incurred or imposed with respect to the reporting of information
to the POLST registry or acting on information obtained from the POLST
registry. [2009 c.595 §1189]
127.684
Short title. ORS 127.663 to 127.684 shall be known
and may be cited as the Oregon POLST Registry Act. [2009 c.595 §1181]
DECLARATIONS
FOR MENTAL HEALTH TREATMENT
127.700
Definitions for ORS 127.700 to 127.737. As used in
ORS 127.700 to 127.737:
(1) “Attending physician” shall have the
same meaning as provided in ORS 127.505.
(2) “Attorney-in-fact” means an adult
validly appointed under ORS 127.540, 127.700 to 127.737 and 426.385 to make mental
health treatment decisions for a principal under a declaration for mental
health treatment and also means an alternative attorney-in-fact.
(3) “Declaration” means a document making
a declaration of preferences or instructions regarding mental health treatment.
(4) “Health care facility” shall have the
same meaning as provided in ORS 127.505.
(5) “Incapable” means that, in the opinion
of the court in a protective proceeding under ORS chapter 125, or the opinion
of two physicians, a person’s ability to receive and evaluate information
effectively or communicate decisions is impaired to such an extent that the
person currently lacks the capacity to make mental health treatment decisions.
(6) “Mental health treatment” means
convulsive treatment, treatment of mental illness with psychoactive medication,
admission to and retention in a health care facility for a period not to exceed
17 days for care or treatment of mental illness, and outpatient services.
(7) “Outpatient services” means treatment
for a mental or emotional disorder that is obtained by appointment and is
provided by an outpatient service as defined in ORS 430.010.
(8) “Provider” means a mental health
treatment provider.
(9) “Representative” means “attorney-in-fact”
as defined in this section. [1993 c.442 §1; 1995 c.664 §88; 1997 c.563 §1; 1999
c.83 §1; 2001 c.104 §39]
127.702
Persons who may make declaration for mental health treatment; period of
validity. (1) An adult of sound mind may make a
declaration of preferences or instructions regarding mental health treatment.
The preferences or instructions may include consent to or refusal of mental
health treatment.
(2) A declaration for mental health
treatment continues in effect for a period of three years or until revoked. The
authority of a named attorney-in-fact and any alternative attorney-in-fact
named in the declaration continues in effect as long as the declaration
appointing the attorney-in-fact is in effect or until the attorney-in-fact has
withdrawn. If a declaration for mental health treatment has been invoked and is
in effect at the expiration of three years after its execution, the declaration
remains effective until the principal is no longer incapable. [1993 c.442 §2]
127.703
Required policies regarding mental health treatment rights information;
declarations for mental health treatment. (1)
All health care and mental health care organizations shall maintain written
policies and procedures, applicable to all capable adults who are receiving
mental health treatment by or through the organization, that provide for:
(a) Delivering to those individuals the
following information and materials, in written form, without recommendation:
(A) Information on the rights of the
individual under Oregon law to make mental health treatment decisions,
including the right to accept or refuse mental health treatment and the right
to execute declarations for mental health treatment;
(B) Information on the policies of the
organization with respect to implementation of the rights of the individual
under Oregon law to make mental health treatment decisions;
(C) A copy of the declaration for mental
health treatment set forth in ORS 127.736; and
(D) The name of a person who can provide
additional information concerning the forms for declarations for mental health
treatment.
(b) Documenting in a prominent place in
the individual’s medical record whether the individual has executed a
declaration for mental health treatment.
(c) Ensuring compliance by the
organization with Oregon law relating to declarations for mental health
treatment.
(d) Educating the staff and the community
on issues relating to declarations for mental health treatment.
(2) An organization need not furnish a
copy of a declaration for mental health treatment to an individual if the
organization has reason to believe that the individual has received a copy of a
declaration in the form set forth in ORS 127.736 within the preceding 12-month
period or has a validly executed declaration.
(3) The requirements of this section are
in addition to any requirements that may be imposed under federal law and shall
be interpreted in a manner consistent with federal law. Nothing in this section
requires any health care or mental health care organization, or any employee or
agent of an organization, to act in a manner inconsistent with federal law or
contrary to individual religious or philosophical beliefs.
(4) No health care or mental health care
organization shall be subject to criminal prosecution or civil liability for
failure to comply with this section.
(5) For purposes of this section, “health
care or mental health care organization” means a health care organization as
defined in ORS 127.646 or a community mental health program or facility that
provides mental health services. [1997 c.563 §5]
127.705
Designation of attorney-in-fact for decisions about mental health treatment.
A declaration may designate a competent adult to act as attorney-in-fact to
make decisions about mental health treatment. An alternative attorney-in-fact
may also be designated to act as attorney-in-fact if the original designee is
unable or unwilling to act at any time. An attorney-in-fact who has accepted
the appointment in writing may make decisions about mental health treatment on
behalf of the principal only when the principal is incapable. The decisions
must be consistent with any desires the principal has expressed in the
declaration. [1993 c.442 §3]
127.707
Execution of declaration; witnesses. A declaration
is effective only if it is signed by the principal and two competent adult
witnesses. The witnesses must attest that the principal is known to them,
signed the declaration in their presence and appears to be of sound mind and
not under duress, fraud or undue influence. Persons specified in ORS 127.730 may
not act as witnesses. [1993 c.442 §4]
127.710
Operation of declaration; physician or provider to act in accordance with
declaration. A declaration becomes operative when it
is delivered to the principal’s physician or other mental health treatment
provider and remains valid until revoked or expired. The physician or provider
shall act in accordance with an operative declaration when the principal has
been found to be incapable. The physician or provider shall continue to obtain
the principal’s informed consent to all mental health treatment decisions if
the principal is capable of providing informed consent or refusal. [1993 c.442 §5]
127.712
Scope of authority of attorney-in-fact; powers and duties; limitation on
liability. (1) The attorney-in-fact does not have
authority to make mental health treatment decisions unless the principal is
incapable.
(2) The attorney-in-fact is not, as a
result of acting in that capacity, personally liable for the cost of treatment
provided to the principal.
(3) Except to the extent the right is
limited by the declaration or any federal law, an attorney-in-fact has the same
right as the principal to receive information regarding the proposed mental
health treatment and to receive, review and consent to disclosure of medical
records relating to that treatment. This right of access does not waive any
evidentiary privilege.
(4) In exercising authority under the
declaration, the attorney-in-fact has a duty to act consistently with the
desires of the principal as expressed in the declaration. If the principal’s
desires are not expressed in the declaration and not otherwise known by the
attorney-in-fact, the attorney-in-fact has a duty to act in what the
attorney-in-fact in good faith believes to be the best interests of the principal.
(5) An attorney-in-fact is not subject to
criminal prosecution, civil liability or professional disciplinary action for
any action taken in good faith pursuant to a declaration for mental health
treatment. [1993 c.442 §6]
127.715
Prohibitions against requiring person to execute or refrain from executing
declaration. A person shall not be required to
execute or to refrain from executing a declaration as a criterion for
insurance, as a condition for receiving mental or physical health services or as
a condition of discharge from a health care facility. [1993 c.442 §7]
127.717
Declaration to be made part of medical record; physician or provider to comply
with declaration; withdrawal of physician or provider.
Upon being presented with a declaration, a physician or other provider shall
make the declaration a part of the principal’s medical record. When acting
under authority of a declaration, a physician or provider must comply with it
to the fullest extent possible, consistent with reasonable medical practice,
the availability of treatments requested and applicable law. If the physician
or other provider is unable or unwilling at any time to carry out preferences
or instructions contained in a declaration or the decisions of the
attorney-in-fact, the physician or provider may withdraw from providing
treatment if withdrawal is consistent with the exercise of independent medical
judgment that is in the best interest of the principal. Upon withdrawing, a
physician or provider shall promptly notify the principal and the
attorney-in-fact and document the notification in the principal’s medical
record. [1993 c.442 §8; 1999 c.83 §2]
127.720
Circumstances in which physician or provider may disregard declaration.
(1) The physician or provider may subject the principal to mental health
treatment in a manner contrary to the principal’s wishes as expressed in a
declaration for mental health treatment only:
(a) If the principal is committed to the
Oregon Health Authority pursuant to ORS 426.005 to 426.390 and treatment is
authorized in compliance with ORS 426.385 (3) and administrative rule.
(b) If treatment is authorized in
compliance with administrative rule and:
(A) The principal is committed to a state
hospital or secure intensive community inpatient facility:
(i) As a result of being found guilty
except for insanity under ORS 161.295 or responsible except for insanity under
ORS 419C.411;
(ii) Under ORS 161.365; or
(iii) Under ORS 161.370; or
(B) The principal is transferred to a
state hospital or other facility under ORS 179.473 or 419C.530.
(c) In cases of emergency endangering life
or health.
(2) A declaration does not limit any
authority provided in ORS 426.005 to 426.390 either to take a person into
custody, or to admit, retain or treat a person in a health care facility. [1993
c.442 §9; 1995 c.141 §2; 2009 c.595 §88; 2011 c.279 §1]
127.722
Revocation of declaration. A declaration may be revoked in
whole or in part at any time by the principal if the principal is not
incapable. A revocation is effective when a capable principal communicates the
revocation to the attending physician or other provider. The attending
physician or other provider shall note the revocation as part of the principal’s
medical record. [1993 c.442 §10]
127.725
Limitations on liability of physician or provider.
A physician or provider who administers or does not administer mental health
treatment according to and in good faith reliance upon the validity of a
declaration is not subject to criminal prosecution, civil liability or
professional disciplinary action resulting from a subsequent finding of a
declaration’s invalidity. [1993 c.442 §11]
127.727
Persons prohibited from serving as attorney-in-fact.
(1) None of the following may serve as attorney-in-fact:
(a) The attending physician or mental
health service provider or an employee of the physician or provider, if the
physician, provider or employee is unrelated to the principal by blood,
marriage or adoption.
(b) An owner, operator or employee of a
health care facility in which the principal is a patient or resident, if the
owner, operator or employee is unrelated to the principal by blood, marriage or
adoption.
(c) A person who is the principal’s
parent, guardian or former guardian if:
(A) At any time while the principal was
under the care, custody or control of the person, a court entered an order:
(i) Taking the principal into protective
custody under ORS 419B.150; or
(ii) Committing the principal to the legal
custody of the Department of Human Services for care, placement and supervision
under ORS 419B.337; and
(B) The court entered a subsequent order
that:
(i) The principal should be permanently
removed from the person’s home, or continued in substitute care, because it was
not safe for the principal to be returned to the person’s home, and no
subsequent order of the court was entered that permitted the principal to
return to the person’s home before the principal’s wardship was terminated
under ORS 419B.328; or
(ii) Terminated the person’s parental
rights under ORS 419B.500 and 419B.502 to 419B.524.
(4) A principal, while not incapable, may
petition the court to remove a prohibition contained in subsection (1)(c) of
this section. [1993 c.442 §12; 2011 c.194 §4]
127.730
Persons prohibited from serving as witnesses to declaration.
None of the following may serve as a witness to the signing of a declaration:
(1) The attending physician or mental
health service provider or a relative of the physician or provider;
(2) An owner, operator or relative of an
owner or operator of a health care facility in which the principal is a patient
or resident; or
(3) A person related to the principal by
blood, marriage or adoption. [1993 c.442 §13]
127.732
Withdrawal of attorney-in-fact; rescission of withdrawal.
(1) An attorney-in-fact may withdraw by giving notice to the principal. If a
principal is incapable, the attorney-in-fact may withdraw by giving notice to
the attending physician or provider. The attending physician or provider shall
note the withdrawal as part of the principal’s medical record.
(2) A person who has withdrawn under the
provisions of subsection (1) of this section may rescind the withdrawal by
executing an acceptance after the date of the withdrawal. The acceptance must
be in the same form as provided by ORS 127.736 for accepting an appointment. A
person who rescinds a withdrawal must give notice to the principal if the
principal is capable or to the principal’s health care provider if the
principal is incapable. [1993 c.442 §14]
127.735
[1993 c.442 §15; repealed by 1997 c.563 §2 (127.736 enacted in lieu of
127.735)]
127.736
Form of declaration. A declaration for mental health
treatment shall be in substantially the following form:
______________________________________________________________________________
DECLARATION FOR MENTAL HEALTH
TREATMENT
I, ___________________, being an adult of
sound mind, willfully and voluntarily make this declaration for mental health
treatment. I want this declaration to be followed if a court or two physicians
determine that I am unable to make decisions for myself because my ability to
receive and evaluate information effectively or communicate decisions is
impaired to such an extent that I lack the capacity to refuse or consent to
mental health treatment. “Mental health treatment” means treatment of mental
illness with psychoactive medication, admission to and retention in a health
care facility for a period up to 17 days, convulsive treatment and outpatient
services that are specified in this declaration.
______________________________________________________________________________
CHOICE OF DECISION MAKER
If I become incapable of giving or
withholding informed consent for mental health treatment, I want these
decisions to be made by: (INITIAL ONLY ONE)
__ My
appointed representative consistent with my desires, or, if my desires are
unknown by my representative, in what my representative believes to be my best
interests.
__ By
the mental health treatment provider who requires my consent in order to treat
me, but only as specifically authorized in this declaration.
APPOINTED REPRESENTATIVE
If I have chosen to appoint a
representative to make mental health treatment decisions for me when I am
incapable, I am naming that person here. I may also name an alternate representative
to serve. Each person I appoint must accept my appointment in order to serve. I
understand that I am not required to appoint a representative in order to
complete this declaration.
I hereby appoint:
NAME _________
ADDRESS _________
TELEPHONE # _________
to
act as my representative to make decisions regarding my mental health treatment
if I become incapable of giving or withholding informed consent for that
treatment.
(OPTIONAL)
If the person named above refuses or is
unable to act on my behalf, or if I revoke that person’s authority to act as my
representative, I authorize the following person to act as my representative:
NAME _________
ADDRESS _________
TELEPHONE # _________
My representative is authorized to make
decisions that are consistent with the wishes I have expressed in this
declaration or, if not expressed, as are otherwise known to my representative.
If my desires are not expressed and are not otherwise known by my
representative, my representative is to act in what he or she believes to be my
best interests. My representative is also authorized to receive information
regarding proposed mental health treatment and to receive, review and consent
to disclosure of medical records relating to that treatment.
______________________________________________________________________________
DIRECTIONS FOR MENTAL HEALTH
TREATMENT
This declaration permits me to state my
wishes regarding mental health treatments including psychoactive medications,
admission to and retention in a health care facility for mental health
treatment for a period not to exceed 17 days, convulsive treatment and
outpatient services.
If I become incapable of giving or
withholding informed consent for mental health treatment, my wishes are: I
CONSENT TO THE FOLLOWING MENTAL HEALTH TREATMENTS: (May include types and
dosage of medications, short-term inpatient treatment, a preferred provider or
facility, transport to a provider or facility, convulsive treatment or
alternative outpatient treatments.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
I
DO NOT CONSENT TO THE FOLLOWING MENTAL HEALTH TREATMENT: (Consider including
your reasons, such as past adverse reaction, allergies or misdiagnosis. Be
aware that a person may be treated without consent if the person is held pursuant
to civil commitment law.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
ADDITIONAL
INFORMATION ABOUT MY MENTAL HEALTH TREATMENT NEEDS: (Consider including mental
or physical health history, dietary requirements, religious concerns, people to
notify and other matters of importance.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
YOU
MUST SIGN HERE FOR THIS DECLARATION TO BE EFFECTIVE:
______________________
(Signature/Date)
AFFIRMATION
OF WITNESSES
I affirm that the person signing this
declaration:
(a) Is personally known to me;
(b) Signed or acknowledged his or her
signature on this declaration in my presence;
(c) Appears to be of sound mind and not
under duress, fraud or undue influence;
(d) Is not related to me by blood,
marriage or adoption;
(e) Is not a patient or resident in a
facility that I or my relative owns or operates;
(f) Is not my patient and does not receive
mental health services from me or my relative; and
(g) Has not appointed me as a
representative in this document.
Witnessed by:
_____________ ____________
(Signature of
Witness/ (Printed Name of Witness)
Date)
______________ ____________
(Signature of
Witness/ (Printed Name of Witness)
Date)
ACCEPTANCE OF APPOINTMENT AS
REPRESENTATIVE
I accept this appointment and agree to
serve as representative to make mental health treatment decisions. I understand
that I must act consistently with the desires of the person I represent, as
expressed in this declaration or, if not expressed, as otherwise known by me.
If I do not know the desires of the person I represent, I have a duty to act in
what I believe in good faith to be that person’s best interest. I understand
that this document gives me authority to make decisions about mental health
treatment only while that person has been determined to be incapable of making
those decisions by a court or two physicians. I understand that the person who
appointed me may revoke this declaration in whole or in part by communicating
the revocation to the attending physician or other provider when the person is
not incapable.
______________ ____________
(Signature of (Printed
name)
Representative/Date)
______________ ____________
(Signature of
Alternate (Printed name)
Representative/Date)
NOTICE TO PERSON MAKING A
DECLARATION FOR MENTAL HEALTH TREATMENT
This is an important legal document. It
creates a declaration for mental health treatment. Before signing this
document, you should know these important facts:
This document allows you to make decisions
in advance about certain types of mental health treatment: psychoactive
medication, short-term (not to exceed 17 days) admission to a treatment
facility, convulsive treatment and outpatient services. Outpatient services are
mental health services provided by appointment by licensed professionals and
programs. The instructions that you include in this declaration will be
followed only if a court or two physicians believe that you are incapable of
making treatment decisions. Otherwise, you will be considered capable to give
or withhold consent for the treatments. Your instructions may be overridden if
you are being held pursuant to civil commitment law.
You may also appoint a person as your
representative to make treatment decisions for you if you become incapable. The
person you appoint has a duty to act consistently with your desires as stated
in this document or, if not stated, as otherwise known by the representative.
If your representative does not know your desires, he or she must make
decisions in your best interests. For the appointment to be effective, the
person you appoint must accept the appointment in writing. The person also has
the right to withdraw from acting as your representative at any time. A “representative”
is also referred to as an “attorney-in-fact” in state law but this person does
not need to be an attorney at law.
This document will continue in effect for
a period of three years unless you become incapable of participating in mental
health treatment decisions. If this occurs, the directive will continue in
effect until you are no longer incapable.
You have the right to revoke this document
in whole or in part at any time you have not been determined to be incapable.
YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED INCAPABLE BY A
COURT OR TWO PHYSICIANS. A revocation is effective when it is communicated to
your attending physician or other provider.
If there is anything in this document that
you do not understand, you should ask a lawyer to explain it to you. This
declaration will not be valid unless it is signed by two qualified witnesses
who are personally known to you and who are present when you sign or
acknowledge your signature.
NOTICE TO PHYSICIAN OR PROVIDER
Under Oregon law, a person may use this
declaration to provide consent for mental health treatment or to appoint a
representative to make mental health treatment decisions when the person is
incapable of making those decisions. A person is “incapable” when, in the
opinion of a court or two physicians, the person’s ability to receive and
evaluate information effectively or communicate decisions is impaired to such
an extent that the person currently lacks the capacity to make mental health
treatment decisions. This document becomes operative when it is delivered to
the person’s physician or other provider and remains valid until revoked or
expired. Upon being presented with this declaration, a physician or provider
must make it a part of the person’s medical record. When acting under authority
of the declaration, a physician or provider must comply with it to the fullest
extent possible. If the physician or provider is unwilling to comply with the
declaration, the physician or provider may withdraw from providing treatment
consistent with professional judgment and must promptly notify the person and
the person’s representative and document the notification in the person’s
medical record. A physician or provider who administers or does not administer
mental health treatment according to and in good faith reliance upon the
validity of this declaration is not subject to criminal prosecution, civil
liability or professional disciplinary action resulting from a subsequent
finding of the declaration’s invalidity.
______________________________________________________________________________
[1997
c.563 §3 (enacted in lieu of 127.735)]
127.737
Certain other laws applicable to declaration. (1)
ORS 127.525, 127.550, 127.565, 127.570, 127.575 and 127.995 apply to a
declaration for mental health treatment.
(2) For purposes of this section only, a
declaration shall be considered a power of attorney for health care, without
regard to whether the declaration appoints an attorney-in-fact. [1993 c.442 §17]
CONSENT
TO HEALTH CARE SERVICES BY PERSON APPOINTED BY HOSPITAL
127.760
Consent to health care services by person appointed by hospital; exceptions.
(1) As used in this section:
(a) “Health care instruction” means a
document executed by a patient to indicate the patient’s instructions regarding
health care decisions, including an advance directive or power of attorney for
health care executed under ORS 127.505 to 127.660.
(b) “Health care provider” means a person
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) “Hospital” has the meaning given that
term in ORS 442.015.
(d) “Mental health treatment” means
convulsive treatment, treatment of mental illness with psychoactive medication,
psychosurgery, admission to and retention in a health care facility for care or
treatment of mental illness, and related outpatient services.
(2)(a)(A) A hospital may appoint a health
care provider who has received training in health care ethics, including
identification and management of conflicts of interest and acting in the best
interest of the patient, to give informed consent to medically necessary health
care services on behalf of a patient admitted to the hospital in accordance
with subsection (3) of this section.
(B) If a person appointed under
subparagraph (A) of this paragraph is the patient’s attending physician, the
hospital must also appoint another health care provider who meets the
requirements of subparagraph (A) of this paragraph to participate in making
decisions about giving informed consent to health care services on behalf of
the patient.
(b) A hospital may appoint a
multidisciplinary committee with ethics as a core component of the duties of
the committee, or a hospital ethics committee, to participate in making
decisions about giving informed consent to medically necessary health care
services on behalf of a patient admitted to the hospital in accordance with
subsection (3) of this section.
(3) A person appointed by a hospital under
subsection (2) of this section may give informed consent to medically necessary
health care services on behalf of and in the best interest of a patient
admitted to the hospital if:
(a) In the medical opinion of the
attending physician, the patient lacks the ability to make and communicate
health care decisions to health care providers;
(b) The hospital has performed a
reasonable search, in accordance with the hospital’s policy for locating
relatives and friends of a patient, for a health care representative appointed
under ORS 127.505 to 127.660 or an adult relative or adult friend of the
patient who is capable of making health care decisions for the patient,
including contacting social service agencies of the Oregon Health Authority or
the Department of Human Services if the hospital has reason to believe that the
patient has a case manager with the authority or the department, and has been
unable to locate any person who is capable of making health care decisions for
the patient; and
(c) The hospital has performed a
reasonable search for and is unable to locate any health care instruction
executed by the patient.
(4) Notwithstanding subsection (3) of this
section, if a patient’s wishes regarding health care services were made known
during a period when the patient was capable of making and communicating health
care decisions, the hospital and the person appointed under subsection (2) of
this section shall comply with those wishes.
(5) A person appointed under subsection
(2) of this section may not consent on a patient’s behalf to:
(a) Mental health treatment;
(b) Sterilization;
(c) Abortion;
(d) Except as provided in ORS 127.635 (3),
the withholding or withdrawal of life-sustaining procedures as defined in ORS
127.505; or
(e) Except as provided in ORS 127.580 (2),
the withholding or withdrawal of artificially administered nutrition and
hydration, as defined in ORS 127.505, other than hyperalimentation, necessary
to sustain life.
(6) If the person appointed under
subsection (2) of this section knows the patient’s religious preference, the
person shall make reasonable efforts to confer with a member of the clergy of
the patient’s religious tradition before giving informed consent to health care
services on behalf of the patient.
(7) A person appointed under subsection
(2) of this section is not a health care representative as defined in ORS
127.505. [2011 c.512 §1]
THE
OREGON DEATH WITH DIGNITY ACT
(General
Provisions)
(Section
1)
Note:
The division headings, subdivision headings and leadlines for 127.800 to
127.890, 127.895 and 127.897 were enacted as part of Ballot Measure 16 (1994)
and were not provided by Legislative Counsel.
127.800
§1.01. Definitions. The following words and phrases,
whenever used in ORS 127.800 to 127.897, have the following meanings:
(1) “Adult” means an individual who is 18
years of age or older.
(2) “Attending physician” means the
physician who has primary responsibility for the care of the patient and
treatment of the patient’s terminal disease.
(3) “Capable” means that in the opinion of
a court or in the opinion of the patient’s attending physician or consulting
physician, psychiatrist or psychologist, a patient has the ability to make and
communicate health care decisions to health care providers, including
communication through persons familiar with the patient’s manner of communicating
if those persons are available.
(4) “Consulting physician” means a
physician who is qualified by specialty or experience to make a professional
diagnosis and prognosis regarding the patient’s disease.
(5) “Counseling” means one or more
consultations as necessary between a state licensed psychiatrist or
psychologist and a patient for the purpose of determining that the patient is
capable and not suffering from a psychiatric or psychological disorder or
depression causing impaired judgment.
(6) “Health care provider” means a person
licensed, certified or otherwise authorized or permitted by the law of this
state to administer health care or dispense medication in the ordinary course
of business or practice of a profession, and includes a health care facility.
(7) “Informed decision” means a decision
by a qualified patient, to request and obtain a prescription to end his or her
life in a humane and dignified manner, that is based on an appreciation of the
relevant facts and after being fully informed by the attending physician of:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with
taking the medication to be prescribed;
(d) The probable result of taking the
medication to be prescribed; and
(e) The feasible alternatives, including,
but not limited to, comfort care, hospice care and pain control.
(8) “Medically confirmed” means the
medical opinion of the attending physician has been confirmed by a consulting
physician who has examined the patient and the patient’s relevant medical
records.
(9) “Patient” means a person who is under
the care of a physician.
(10) “Physician” means a doctor of
medicine or osteopathy licensed to practice medicine by the Oregon Medical
Board.
(11) “Qualified patient” means a capable
adult who is a resident of Oregon and has satisfied the requirements of ORS
127.800 to 127.897 in order to obtain a prescription for medication to end his
or her life in a humane and dignified manner.
(12) “Terminal disease” means an incurable
and irreversible disease that has been medically confirmed and will, within
reasonable medical judgment, produce death within six months. [1995 c.3 §1.01;
1999 c.423 §1]
(Written
Request for Medication to End One’s Life in a Humane and Dignified Manner)
(Section
2)
127.805
§2.01. Who may initiate a written request for medication.
(1) An adult who is capable, is a resident of Oregon, and has been determined
by the attending physician and consulting physician to be suffering from a
terminal disease, and who has voluntarily expressed his or her wish to die, may
make a written request for medication for the purpose of ending his or her life
in a humane and dignified manner in accordance with ORS 127.800 to 127.897.
(2) No person shall qualify under the provisions
of ORS 127.800 to 127.897 solely because of age or disability. [1995 c.3 §2.01;
1999 c.423 §2]
127.810
§2.02. Form of the written request. (1) A valid
request for medication under ORS 127.800 to 127.897 shall be in substantially
the form described in ORS 127.897, signed and dated by the patient and
witnessed by at least two individuals who, in the presence of the patient,
attest that to the best of their knowledge and belief the patient is capable,
acting voluntarily, and is not being coerced to sign the request.
(2) One of the witnesses shall be a person
who is not:
(a) A relative of the patient by blood,
marriage or adoption;
(b) A person who at the time the request
is signed would be entitled to any portion of the estate of the qualified patient
upon death under any will or by operation of law; or
(c) An owner, operator or employee of a
health care facility where the qualified patient is receiving medical treatment
or is a resident.
(3) The patient’s attending physician at
the time the request is signed shall not be a witness.
(4) If the patient is a patient in a long
term care facility at the time the written request is made, one of the
witnesses shall be an individual designated by the facility and having the
qualifications specified by the Department of Human Services by rule. [1995 c.3
§2.02]
(Safeguards)
(Section
3)
127.815
§3.01. Attending physician responsibilities. (1)
The attending physician shall:
(a) Make the initial determination of
whether a patient has a terminal disease, is capable, and has made the request
voluntarily;
(b) Request that the patient demonstrate
Oregon residency pursuant to ORS 127.860;
(c) To ensure that the patient is making
an informed decision, inform the patient of:
(A) His or her medical diagnosis;
(B) His or her prognosis;
(C) The potential risks associated with
taking the medication to be prescribed;
(D) The probable result of taking the
medication to be prescribed; and
(E) The feasible alternatives, including,
but not limited to, comfort care, hospice care and pain control;
(d) Refer the patient to a consulting
physician for medical confirmation of the diagnosis, and for a determination
that the patient is capable and acting voluntarily;
(e) Refer the patient for counseling if
appropriate pursuant to ORS 127.825;
(f) Recommend that the patient notify next
of kin;
(g) Counsel the patient about the
importance of having another person present when the patient takes the
medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the
medication in a public place;
(h) Inform the patient that he or she has
an opportunity to rescind the request at any time and in any manner, and offer
the patient an opportunity to rescind at the end of the 15 day waiting period
pursuant to ORS 127.840;
(i) Verify, immediately prior to writing
the prescription for medication under ORS 127.800 to 127.897, that the patient
is making an informed decision;
(j) Fulfill the medical record
documentation requirements of ORS 127.855;
(k) Ensure that all appropriate steps are
carried out in accordance with ORS 127.800 to 127.897 prior to writing a
prescription for medication to enable a qualified patient to end his or her
life in a humane and dignified manner; and
(L)(A) Dispense medications directly,
including ancillary medications intended to facilitate the desired effect to
minimize the patient’s discomfort, provided the attending physician is
registered as a dispensing physician with the Oregon Medical Board, has a
current Drug Enforcement Administration certificate and complies with any
applicable administrative rule; or
(B) With the patient’s written consent:
(i) Contact a pharmacist and inform the
pharmacist of the prescription; and
(ii) Deliver the written prescription
personally or by mail to the pharmacist, who will dispense the medications to
either the patient, the attending physician or an expressly identified agent of
the patient.
(2) Notwithstanding any other provision of
law, the attending physician may sign the patient’s death certificate. [1995
c.3 §3.01; 1999 c.423 §3]
127.820
§3.02. Consulting physician confirmation. Before
a patient is qualified under ORS 127.800 to 127.897, a consulting physician
shall examine the patient and his or her relevant medical records and confirm,
in writing, the attending physician’s diagnosis that the patient is suffering
from a terminal disease, and verify that the patient is capable, is acting
voluntarily and has made an informed decision. [1995 c.3 §3.02]
127.825
§3.03. Counseling referral. If in the opinion of the
attending physician or the consulting physician a patient may be suffering from
a psychiatric or psychological disorder or depression causing impaired
judgment, either physician shall refer the patient for counseling. No
medication to end a patient’s life in a humane and dignified manner shall be
prescribed until the person performing the counseling determines that the
patient is not suffering from a psychiatric or psychological disorder or
depression causing impaired judgment. [1995 c.3 §3.03; 1999 c.423 §4]
127.830
§3.04. Informed decision. No person shall receive a
prescription for medication to end his or her life in a humane and dignified
manner unless he or she has made an informed decision as defined in ORS 127.800
(7). Immediately prior to writing a prescription for medication under ORS
127.800 to 127.897, the attending physician shall verify that the patient is
making an informed decision. [1995 c.3 §3.04]
127.835
§3.05. Family notification. The attending physician shall
recommend that the patient notify the next of kin of his or her request for
medication pursuant to ORS 127.800 to 127.897. A patient who declines or is
unable to notify next of kin shall not have his or her request denied for that
reason. [1995 c.3 §3.05; 1999 c.423 §6]
127.840
§3.06. Written and oral requests. In order to
receive a prescription for medication to end his or her life in a humane and
dignified manner, a qualified patient shall have made an oral request and a
written request, and reiterate the oral request to his or her attending
physician no less than fifteen (15) days after making the initial oral request.
At the time the qualified patient makes his or her second oral request, the
attending physician shall offer the patient an opportunity to rescind the
request. [1995 c.3 §3.06]
127.845
§3.07. Right to rescind request. A patient may
rescind his or her request at any time and in any manner without regard to his
or her mental state. No prescription for medication under ORS 127.800 to
127.897 may be written without the attending physician offering the qualified
patient an opportunity to rescind the request. [1995 c.3 §3.07]
127.850
§3.08. Waiting periods. No less than fifteen (15) days
shall elapse between the patient’s initial oral request and the writing of a
prescription under ORS 127.800 to 127.897. No less than 48 hours shall elapse
between the patient’s written request and the writing of a prescription under
ORS 127.800 to 127.897. [1995 c.3 §3.08]
127.855
§3.09. Medical record documentation requirements.
The following shall be documented or filed in the patient’s medical record:
(1) All oral requests by a patient for
medication to end his or her life in a humane and dignified manner;
(2) All written requests by a patient for
medication to end his or her life in a humane and dignified manner;
(3) The attending physician’s diagnosis
and prognosis, determination that the patient is capable, acting voluntarily
and has made an informed decision;
(4) The consulting physician’s diagnosis
and prognosis, and verification that the patient is capable, acting voluntarily
and has made an informed decision;
(5) A report of the outcome and
determinations made during counseling, if performed;
(6) The attending physician’s offer to the
patient to rescind his or her request at the time of the patient’s second oral
request pursuant to ORS 127.840; and
(7) A note by the attending physician
indicating that all requirements under ORS 127.800 to 127.897 have been met and
indicating the steps taken to carry out the request, including a notation of
the medication prescribed. [1995 c.3 §3.09]
127.860
§3.10. Residency requirement. Only requests
made by Oregon residents under ORS 127.800 to 127.897 shall be granted. Factors
demonstrating Oregon residency include but are not limited to:
(1) Possession of an Oregon driver
license;
(2) Registration to vote in Oregon;
(3) Evidence that the person owns or
leases property in Oregon; or
(4) Filing of an Oregon tax return for the
most recent tax year. [1995 c.3 §3.10; 1999 c.423 §8]
127.865
§3.11. Reporting requirements. (1)(a) The
Oregon Health Authority shall annually review a sample of records maintained
pursuant to ORS 127.800 to 127.897.
(b) The authority shall require any health
care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to
file a copy of the dispensing record with the authority.
(2) The authority shall make rules to
facilitate the collection of information regarding compliance with ORS 127.800
to 127.897. Except as otherwise required by law, the information collected
shall not be a public record and may not be made available for inspection by
the public.
(3) The authority shall generate and make
available to the public an annual statistical report of information collected
under subsection (2) of this section. [1995 c.3 §3.11; 1999 c.423 §9; 2001
c.104 §40; 2009 c.595 §89]
127.870
§3.12. Effect on construction of wills, contracts and statutes.
(1) No provision in a contract, will or other agreement, whether written or
oral, to the extent the provision would affect whether a person may make or
rescind a request for medication to end his or her life in a humane and
dignified manner, shall be valid.
(2) No obligation owing under any
currently existing contract shall be conditioned or affected by the making or
rescinding of a request, by a person, for medication to end his or her life in
a humane and dignified manner. [1995 c.3 §3.12]
127.875
§3.13. Insurance or annuity policies. The sale,
procurement, or issuance of any life, health, or accident insurance or annuity
policy or the rate charged for any policy shall not be conditioned upon or
affected by the making or rescinding of a request, by a person, for medication
to end his or her life in a humane and dignified manner. Neither shall a
qualified patient’s act of ingesting medication to end his or her life in a
humane and dignified manner have an effect upon a life, health, or accident
insurance or annuity policy. [1995 c.3 §3.13]
127.880
§3.14. Construction of Act. Nothing in ORS 127.800 to
127.897 shall be construed to authorize a physician or any other person to end
a patient’s life by lethal injection, mercy killing or active euthanasia.
Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any
purpose, constitute suicide, assisted suicide, mercy killing or homicide, under
the law. [1995 c.3 §3.14]
(Immunities
and Liabilities)
(Section
4)
127.885
§4.01. Immunities; basis for prohibiting health care provider from
participation; notification; permissible sanctions.
Except as provided in ORS 127.890:
(1) No person shall be subject to civil or
criminal liability or professional disciplinary action for participating in
good faith compliance with ORS 127.800 to 127.897. This includes being present
when a qualified patient takes the prescribed medication to end his or her life
in a humane and dignified manner.
(2) No professional organization or
association, or health care provider, may subject a person to censure,
discipline, suspension, loss of license, loss of privileges, loss of membership
or other penalty for participating or refusing to participate in good faith
compliance with ORS 127.800 to 127.897.
(3) No request by a patient for or
provision by an attending physician of medication in good faith compliance with
the provisions of ORS 127.800 to 127.897 shall constitute neglect for any
purpose of law or provide the sole basis for the appointment of a guardian or
conservator.
(4) No health care provider shall be under
any duty, whether by contract, by statute or by any other legal requirement to
participate in the provision to a qualified patient of medication to end his or
her life in a humane and dignified manner. If a health care provider is unable
or unwilling to carry out a patient’s request under ORS 127.800 to 127.897, and
the patient transfers his or her care to a new health care provider, the prior
health care provider shall transfer, upon request, a copy of the patient’s
relevant medical records to the new health care provider.
(5)(a) Notwithstanding any other provision
of law, a health care provider may prohibit another health care provider from
participating in ORS 127.800 to 127.897 on the premises of the prohibiting
provider if the prohibiting provider has notified the health care provider of
the prohibiting provider’s policy regarding participating in ORS 127.800 to
127.897. Nothing in this paragraph prevents a health care provider from
providing health care services to a patient that do not constitute
participation in ORS 127.800 to 127.897.
(b) Notwithstanding the provisions of
subsections (1) to (4) of this section, a health care provider may subject
another health care provider to the sanctions stated in this paragraph if the
sanctioning health care provider has notified the sanctioned provider prior to
participation in ORS 127.800 to 127.897 that it prohibits participation in ORS
127.800 to 127.897:
(A) Loss of privileges, loss of membership
or other sanction provided pursuant to the medical staff bylaws, policies and
procedures of the sanctioning health care provider if the sanctioned provider
is a member of the sanctioning provider’s medical staff and participates in ORS
127.800 to 127.897 while on the health care facility premises, as defined in
ORS 442.015, of the sanctioning health care provider, but not including the
private medical office of a physician or other provider;
(B) Termination of lease or other property
contract or other nonmonetary remedies provided by lease contract, not
including loss or restriction of medical staff privileges or exclusion from a
provider panel, if the sanctioned provider participates in ORS 127.800 to
127.897 while on the premises of the sanctioning health care provider or on
property that is owned by or under the direct control of the sanctioning health
care provider; or
(C) Termination of contract or other
nonmonetary remedies provided by contract if the sanctioned provider
participates in ORS 127.800 to 127.897 while acting in the course and scope of
the sanctioned provider’s capacity as an employee or independent contractor of
the sanctioning health care provider. Nothing in this subparagraph shall be
construed to prevent:
(i) A health care provider from
participating in ORS 127.800 to 127.897 while acting outside the course and
scope of the provider’s capacity as an employee or independent contractor; or
(ii) A patient from contracting with his
or her attending physician and consulting physician to act outside the course
and scope of the provider’s capacity as an employee or independent contractor
of the sanctioning health care provider.
(c) A health care provider that imposes
sanctions pursuant to paragraph (b) of this subsection must follow all due
process and other procedures the sanctioning health care provider may have that
are related to the imposition of sanctions on another health care provider.
(d) For purposes of this subsection:
(A) “Notify” means a separate statement in
writing to the health care provider specifically informing the health care
provider prior to the provider’s participation in ORS 127.800 to 127.897 of the
sanctioning health care provider’s policy about participation in activities
covered by ORS 127.800 to 127.897.
(B) “Participate in ORS 127.800 to 127.897”
means to perform the duties of an attending physician pursuant to ORS 127.815,
the consulting physician function pursuant to ORS 127.820 or the counseling
function pursuant to ORS 127.825. “Participate in ORS 127.800 to 127.897” does
not include:
(i) Making an initial determination that a
patient has a terminal disease and informing the patient of the medical
prognosis;
(ii) Providing information about the
Oregon Death with Dignity Act to a patient upon the request of the patient;
(iii) Providing a patient, upon the
request of the patient, with a referral to another physician; or
(iv) A patient contracting with his or her
attending physician and consulting physician to act outside of the course and
scope of the provider’s capacity as an employee or independent contractor of
the sanctioning health care provider.
(6) Suspension or termination of staff
membership or privileges under subsection (5) of this section is not reportable
under ORS 441.820. Action taken pursuant to ORS 127.810, 127.815, 127.820 or
127.825 shall not be the sole basis for a report of unprofessional or
dishonorable conduct under ORS 677.415 (3), (4), (5) or (6).
(7) No provision of ORS 127.800 to 127.897
shall be construed to allow a lower standard of care for patients in the
community where the patient is treated or a similar community. [1995 c.3 §4.01;
1999 c.423 §10; 2003 c.554 §3]
Note:
As originally enacted by the people, the leadline to section 4.01 read “Immunities.”
The remainder of the leadline was added by editorial action.
127.890
§4.02. Liabilities. (1) A person who without
authorization of the patient willfully alters or forges a request for
medication or conceals or destroys a rescission of that request with the intent
or effect of causing the patient’s death shall be guilty of a Class A felony.
(2) A person who coerces or exerts undue
influence on a patient to request medication for the purpose of ending the
patient’s life, or to destroy a rescission of such a request, shall be guilty
of a Class A felony.
(3) Nothing in ORS 127.800 to 127.897
limits further liability for civil damages resulting from other negligent
conduct or intentional misconduct by any person.
(4) The penalties in ORS 127.800 to
127.897 do not preclude criminal penalties applicable under other law for
conduct which is inconsistent with the provisions of ORS 127.800 to 127.897. [1995
c.3 §4.02]
127.892
Claims by governmental entity for costs incurred.
Any governmental entity that incurs costs resulting from a person terminating
his or her life pursuant to the provisions of ORS 127.800 to 127.897 in a
public place shall have a claim against the estate of the person to recover
such costs and reasonable attorney fees related to enforcing the claim. [1999
c.423 §5a]
(Severability)
(Section
5)
127.895
§5.01. Severability. Any section of ORS 127.800 to
127.897 being held invalid as to any person or circumstance shall not affect
the application of any other section of ORS 127.800 to 127.897 which can be
given full effect without the invalid section or application. [1995 c.3 §5.01]
(Form
of the Request)
(Section
6)
127.897
§6.01. Form of the request. A request for a medication as
authorized by ORS 127.800 to 127.897 shall be in substantially the following
form:
______________________________________________________________________________
REQUEST FOR MEDICATION TO END MY
LIFE IN A HUMANE AND DIGNIFIED MANNER
I, ______________________, am an adult of
sound mind.
I am suffering from_________, which my
attending physician has determined is a terminal disease and which has been
medically confirmed by a consulting physician.
I have been fully informed of my
diagnosis, prognosis, the nature of medication to be prescribed and potential
associated risks, the expected result, and the feasible alternatives, including
comfort care, hospice care and pain control.
I request that my attending physician
prescribe medication that will end my life in a humane and dignified manner.
INITIAL ONE:
______I have informed my family of my
decision and taken their opinions into consideration.
______I have decided not to inform my family
of my decision.
______I have no family to inform of my
decision.
I understand that I have the right to
rescind this request at any time.
I understand the full import of this
request and I expect to die when I take the medication to be prescribed. I further
understand that although most deaths occur within three hours, my death may
take longer and my physician has counseled me about this possibility.
I make this request voluntarily and
without reservation, and I accept full moral responsibility for my actions.
Signed: _______________
Dated: _______________
DECLARATION
OF WITNESSES
We declare that the person signing this
request:
(a) Is personally known to us or has
provided proof of identity;
(b) Signed this request in our presence;
(c) Appears to be of sound mind and not
under duress, fraud or undue influence;
(d) Is not a patient for whom either of us
is attending physician.
______________Witness 1/Date
______________Witness 2/Date
NOTE: One witness shall not be a relative
(by blood, marriage or adoption) of the person signing this request, shall not
be entitled to any portion of the person’s estate upon death and shall not own,
operate or be employed at a health care facility where the person is a patient
or resident. If the patient is an inpatient at a health care facility, one of
the witnesses shall be an individual designated by the facility.
______________________________________________________________________________
[1995
c.3 §6.01; 1999 c.423 §11]
PENALTIES
127.990
[Formerly part of 97.990; repealed by 1993 c.767 §29]
127.995
Penalties. (1) It shall be a Class A felony for a
person without authorization of the principal to willfully alter, forge,
conceal or destroy an instrument, the reinstatement or revocation of an instrument
or any other evidence or document reflecting the principal’s desires and
interests, with the intent and effect of causing a withholding or withdrawal of
life-sustaining procedures or of artificially administered nutrition and
hydration which hastens the death of the principal.
(2) Except as provided in subsection (1)
of this section, it shall be a Class A misdemeanor for a person without
authorization of the principal to willfully alter, forge, conceal or destroy an
instrument, the reinstatement or revocation of an instrument, or any other
evidence or document reflecting the principal’s desires and interests with the
intent or effect of affecting a health care decision. [Formerly 127.585]
_______________