SB 628 Passes Senate(!) & Goes to House

On October 16, 2006, the Pennsylvania Senate adopted Senate Bill 628 in Printer's No. 2117, described online here. In its caption, SB 628 is declared to amend Title 18 (Crimes and Offenses) and Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes to provide, generally: for offenses of neglect of care-dependent person; for living wills and health care powers of attorney; and for implementation of out-of-hospital non-resuscitation. SB 628 would affect provisions of existing 20 Pa.C.S. Chapters 54 and 54A. This brief statement understates the tremendous importance of SB 628 for Pennsylvanians.

SB 628 is successor legislation to the former Senate Bill 492, which was introduced and adopted during the 2003-04 Legislative Session unanimously by both the Pennsylvania Senate (50-0) and the House (192-0). Unfortunately, SB 492, in its final form found online here, was vetoed by Governor Rendell on November 30, 2004, as explained in his veto message found here:

Senate Bill 492 addresses the difficult issue of end-of-life-care. In making the decision to veto this bill, I carefully considered the letters urging a veto of this bill sent to me by the Pennsylvania Medical Society, the Pennsylvania College of Internal Medicine, the President of Compassionate Choices of Delaware County, and numerous medical professionals who are part of hospital ethics committees or providers of Palliative Care. We all know that end-of-life decisions are best made before the onset of a severe illness or the occurrence of a severe injury. These letters point out, however, that unfortunately most Pennsylvanians do not have living wills and illness or injury is often sudden and unexpected. This leaves incredibly difficult decisions to be made by a patient’s family in consultation with the patient’s physicians. Although Senate Bill 492 would allow greater control for those with living wills or health-care powers of attorney, it could result in doing a tremendous disservice, and may even be harmful, to the overwhelming majority of Pennsylvanians who do not have formal advance directives. * * *

While I believe the intent of this legislation is worthy, I would look forward to working with members of the legislature to craft a bill that is broad enough to encompass the many painful and urgent realities of the family members who are intimately involved with the end of care decisions of their loved ones.

Due to the Session ending, the Legislature did not have an opportunity to override that veto. For the history of Senate Bill 492, see its legislative history here.

On April 13, 2005, SB 628 was introduced in the 2005-06 Legislative Session in a form identical to that of the former SB 492. Between May, 2005, and late June, 2006, SB 628 lay fallow in the Senate Appropriations Committee.

But discussions were occurring in 2006 among interested groups, particularly those that had opposed SB 492. The Governor's Office and the Department of Aging heard from the Pennsylvania Medical Society, the Pennsylvania Bar Association, the Joint State Government Commission, a coalition of disabled persons advocates lead by the ARC of Pennsylvania, and the Pennsylvania Catholic Conference, among others.

SB 628 was "removed from the table" in the full Senate on September 20, 2006, received two quick successive readings (on 09/27/06 & 10/03/06), and then received unanimous approval on October 16th. It was referred to the House for consideration. It may receive House Judiciary Committee review next week.

The ARC of PA, on its website here, predicts that "Senate Bill 628 as amended should pass this session." Given the unanimous approval in the Senate after input from some interested organizations which previously urged veto of SB 492, I would agree (assuming that there will be sufficient session days in October and November to secure House approval).

My good friend from Pittsburgh, Bob Wolf, of the law firm Tener, Van Kirk, Wolf & Moore, P.C., in an email alert sent October 17th, made the following points about SB 628 [Links added]:

1. It provides a full statutory framework for a health care power of attorney. An agent can have all of the power to control medical care as the principal. This is a very good thing.
2. It provides for Health Care Representatives to make decisions for those who do not have a guardian or a health care agent. The choice of representatives is based generally on blood relation like the intestacy law.
3. It gets rid of the old statutory form of living will and puts in its place a combined form of living will and health care power of attorney which is different from, but originated with, our Allegheny County [Bar Association] Form. It is a bit more complicated with more places to check, but much better than the old form.
4. It provides a more full description of the decision making process for health care agents and health care representatives -- it approaches nutrition and hydration on a basis consistent with the preservation of life and its priority and still allows flexibility to family members having to make decisions for a patient in the absence of an advance directive.

If the assessment as to the likely passage of SB 628 by the Legislature and signature by the Governor indeed will ring true, Pennsylvanians will finally be able to rely upon a statute that addresses surrogate health care decisionmaking and end-of-life caretaking.