WV Legislature considering bill to permit physicians to refuse to provide medical treatment in certain cases

The Terri Schiavo case has brought the bioethical considerations of medical decisionmaking for incapacitated people out into public discussion. For this reason, perhaps more than just aging and disability advocates will be interested in SB 399 currently under consideration in the West Virginia Legislature.

SB 399 adds medical futility concepts to West Virginia's Healthcare Decisions Act. See the text of the bill here [Please note that as the bill moves through the legislature and changes are made, this link will not necessarily lead to the most current version of the bill. See the legislature's main page for information on how to get the most current version of a bill.] As is noted at the bottom of the text of this bill, "The purpose of this bill is to provide that a physician, in certain circumstances, may refuse medical treatment where within a degree of medical certainty the treatment would be ineffective."

In addition to amending the language of the current Healthcare Decisions Act language, this bill would add an entirely new section:

§16-30-26. Medically ineffective treatment.
(a) Once the attending physician has determined that a person's expressed directive or health care decision made by a person's appropriate decisionmaker requests treatment that is medically ineffective or that is contrary to accepted health care guidelines, the attending physician, other health care provider, or health care facility may decline to comply with the person's expressed directive or health care decision made by a person's appropriate decisionmaker: Provided, That a second licensed physician who has examined the person concurs with the determination of the attending physician and documents this finding in the person's medical record.
(b) An attending physician, other health care provider, or health care facility that declines to comply with a person's expressed directive or health care decision pursuant to subsection (a) shall:

(1) Promptly so inform the person, if possible, and the appropriate decisionmaker, explain other options for treatment of the person's condition and record an entry in the person's medical record indicating the basis for the determination that the requested medical treatment will be medically ineffective or health care contrary to accepted guidelines and their unwillingness to comply. If transfer of the person to another attending physician is desired, the person or the person's appropriate decisionmaker shall have responsibility for arranging the transfer of the person to another health care provider;
(2) Provide continuing care, including continuing life- prolonging intervention, to the person until a transfer can be effected, if desired and feasible, except as provided in subsection (c) of this section; and
(3) Cooperate with and not impede the transfer of the person to another health care provider and health care facility identified by the person, or the person's appropriate decisionmaker; a transfer under these circumstances shall not constitute abandonment.
(c) If the person or the person's appropriate decisionmaker requests a transfer pursuant to subsection (b) of this section, but after a period of seven days from the date of the health care provider's entry in the person's medical record described in subdivision (1), subsection (b) of this section no health care provider and health care facility can be found who is willing to comply with the request for medically ineffective treatment or treatment contrary to accepted health care guidelines, then the health care provider and health care facility shall no longer be obligated to provide the life-prolonging intervention.
(d) If the attending physician and health care facility decide to withhold or withdraw the requested treatment after a willing health care provider and health care facility has not been found pursuant to subsection (c) of this section, then the attending physician and health care facility shall so inform the person, if possible, and any person then authorized to make health care decisions for the person and withhold or withdraw the treatment following a period of not less than seventy-two hours.
(e) Nothing in this section is intended to interfere with the authority of a person, or the person's appropriate decisionmaker as appropriate, to decline or withdraw consent for any unwanted medical treatment or procedure.

Some advocates are concerned that "degree of medical certainty" can never be defined clearly enough to avoid significant discretion in the hands of physicians. And significant discretion usually means the least powerful among us get the short end of the stick, which may mean no longer keeping you alive.

Under current West Virginia law, there appears to be no requirement that physicians provide treatment that they believe to be medically futile. This bill includes affirmative protection from liability to physicians who refuse to provide such treatment.

Proponents of the bill cite, among other things, that the changes would address the most common reason for ethics consultations in West Virginia hospitals, preserves health care provider and health care facility integrity, and reduces medically inappropriate health care costs (see rationale from WVU's Center for Health Ethics and Law).

Current status of the bill: The measure has passed the full Senate and is currently in the House Judiciary committee.

This bill seems to be passing through the legislature largely below the radar of various interested groups. Because all pending legislation is likely to start moving quickly as the regular session nears its end, interested individuals and groups have little time left to have an impact on their legislators.