SB 628 : House Judiciary Cte Review

In a previous posting on October 19, 2006, found here, I noted the passage, by the Pennsylvania Senate, of Senate Bill 628, Printers No. 2117, of the 2005-2006 Legislative Session. Since then, I identified further resources that support the consensus built during 2006 into the present form of amended SB 628 in this Session, from the former final version of Senate Bill 492 of the 2003-2004 Legislative Session, which was vetoed by the Governor on November 30, 2004.

State Senator Stewart J. Greenleaf, of Montgomery County, the Majority (Republican) Chairman of the Senate Judiciary Commitee, in a Press Release, dated May 11, 2005, entitled "Greenleaf Living Will Bill Approved by Senate Judiciary Committee", found here, announced that the Senate Judiciary Committee had approved a form of SB 628 and reported it to the full Senate for consideration. His Press Release stated:

Legislation offered by Sen. Stewart J. Greenleaf to provide a clear statutory means for competent adults to provide direction for their health care through instructions written in advance of treatment or through designation of a health care agent was approved by the Senate Judiciary Committee and now awaits consideration by the full Senate.

Senate Bill 628, which is based on the recommendations of the Advisory Committee on Decedents' Estates Laws, would provide for comprehensive health care powers of attorney and a framework for their operation. The measure would permit a living will and health care power of attorney to be combined into a single document. It would also establish an order of relatives and companions that a health care provider may call upon to act as a health care representative if a patient is incapable of making health care decisions and has not executed a living will or health care power of attorney.

A similar bill sponsored by Greenleaf last session was approved by the Legislature, but vetoed by the Governor. Discussions are ongoing to resolve the issues raised by the Governor as the measure moves through the legislative process this session.

At the same time, State Senator Jay Costa, of Allegheny County, the Minority (Democratic) Chairman of the Senate Judiciary Committee, in a newletter, dated May, 2005, found here, also announced the Senate Judiciary Committee's reporting of SB 628, then in the form of Printer's Number 693, and further described it, as follows:

Senate Bill 628, Printer’s No. 693 -- This bill incorporates changes recommended by the Joint State Government Commission’s Task Force and Advisory Committee on Decedents’ Estates Laws. Provisions relating to advanced directives for health care (living wills) and provisions creating comprehensive health care powers of attorney are added.

Chapter 54 of Title 20 is reorganized into five separate subchapters:

• Subchapter A (General Provisions) —This chapter contains definitions, and also contains sections dealing with legislative findings and intent, compliance, conflicting advance health care directives, life insurance, health care instruments optional, pregnancy, and the effect of divorce.
• Subchapter B (Living Wills) — This chapter shall be known as the Living Will Act. This section outlines the execution, revocation, and validity of a living will. The subchapter also includes a section regarding the content of the form.
• Subchapter C (Heath Care Agents and Representatives) — This chapter provides for comprehensive health care power of attorney. With a health care power of attorney, an individual (principal) identifies and appoints a health care agent to make health care decisions on behalf of the principal. The power of attorney would become effective upon presentation to the attending physician and a determination by the attending physician that the person is unable to make or communicate health care decisions. The methods for executing, amending, countermanding and revoking the powers of attorney are similar to those for living wills. The health care agent would be granted the same powers to make health care decisions that the principal could have made and exercised. The agent also has the same right to health care information as the principal. The agent, after consultation with health care providers, shall make health care decisions in accordance with the understanding and interpretation of any instructions given by the principal. In the absence of instructions, the agent shall make health care decisions in conformity with the agent’s assessment of the principal’s preferences and values, including religious and moral beliefs. The agent shall act in accordance with his assessment of the principal’s best interests.
• Subchapter D (Combined Form) —This chapter contains a sample of a document that combines a living will and the health care power of attorney.
• Subchapter E (Out-of-Hospital Nonresuscitation) — This chapter was added to address out-of-hospital do-not-resuscitate orders in conformity with Act No. 59 of 2002. In addition the legislation clarifies provisions of the Probate Code relating to do not resuscitate orders that were added by Act No. 59.

But in May, 2005, the Pennsylvania Medical Society, in its member update found online here, indicated as follows:

Prior to the legislature's election day and Memorial Day breaks, Senate Bill 628 — End of Life legislation — was unanimously reported as committed from the Senate Judiciary Committee.

Committee chair Greenleaf stated that there is still a minor dispute between DPW and the medical community over the bill, but the governor has established a task force to work through this issue. All sources indicate that there is a great deal of support for this bill from last year and that moving the legislation is an effort to apply pressure on the parties involved to bring forth a compromise.

Then, in July, 2005, in another member update found online here, the PA Medical Society further indicated:

In early May, the Senate Judiciary Committee approved Senate Bill 628, legislation dealing with end of life issues. The bill is currently in the Senate Appropriations Committee.

The Society continues to have serious concerns about SB 628 and is working with the Rendell administration to address mutual issues of concern that led the governor to veto an identical bill last legislative session.

Those issues of the PMS apparently were addressed adequately in 2006, as integrated into the current version of SB 628, as evidenced by a recent member advisory found on the website of the Berks County Medical Society, entitled "Legislative Update October 5, 2006":

Both the House and the Senate of the State General Assembly are on a short break for the Columbus Day holiday. They will return for session the week of October 16th. The potential for legislative session days after that week, including the time period after the election, is unknown. * * *

End of Life -- Senate Bill 628 has reached a point of consensus among stakeholders. However, it has not yet been passed by the Senate and must still be considered by the House. If there is a Lame Duck session in Harrisburg this bill could be approved and sent to the Governor. Here is an excerpt of language from our letter to the Senate on the bill:

We believe that it is critically important that incompetent patients without advance directives be able to speak through close family members. Close family are usually the most knowledgeable about the patient's preferences, goals, and values; they have an understanding of the nuances of the patient’s personality and have a unique bond with the patient. Close family members almost always can be trusted to protect the interests of the patient and should not be forced to endure the expense, time, and emotional anguish of obtaining court approval to implement their family members’ wishes.

SB 628 is a significant improvement over a predecessor bill — SB 492 — that had been adopted in the 2003-2004 legislative session, but was vetoed by Governor Rendell at the urging of the Medical Society. In particular, SB 628 largely addresses problems in the prior bill that interfered with the right of incompetent patients to refuse life-sustaining medical treatment via their close family speaking for them.

Another interested organization, the ARC of Pennsylvania, now urges its members to contact House representatives immediately seeking approval of SB 628, by use of the following supportive letter, found online here:

Suggested Email Letter for ARC members -- I am an advocate for people with disabilities. Senate Bill 628 is under consideration by the General Assembly. The bill deals with advance directives and protecting people with disabilities. My understanding is that significant discussion, dialogue, and compromise have occurred on this bill amongst several organizations representing medical, legal, disability, and faith organizations. In addition, legislative staff and staff in the Governor’s Office have also been at the table during these discussions. The result of the negotiations is that a very good and strong bill is now before the legislature with broad support. This is why I'm asking you to support it and pass the bill this session.

According to the House Committee Schedule found online here, the House Judiciary Committee will meet in Room G50, of the Irvis Office Building, on Monday, October 23, 2006, for the purpose of considering SB 628.

Anyone who is interested in the outcome may wish to send an email message to their State Representative, or even to all Representatives (as I did over the weekend).