State of South Dakota  
EIGHTY-SECOND SESSION
LEGISLATIVE ASSEMBLY,  2007
 

409N0183  
SENATE JUDICIARY COMMITTEE ENGROSSED   NO. SB 75   -   01/22/2007  

Introduced by:     Senators Hunhoff, Heidepriem, Knudson, Koetzle, and Turbak and Representatives Feinstein, Cutler, Gillespie, and Moore  


         FOR AN ACT ENTITLED, An Act to  revise certain provisions regarding living wills.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
     Section  1.  That § 34-12D-1 be amended to read as follows:
     34-12D-1.   Terms used in this chapter mean:
             (1)      "Attending physician," the physician who has primary responsibility for the treatment and care of the patient;
             (2)      "Declaration," a writing executed in accordance with the requirements of § 34-12D-2;
             (3)      " Health-care Health care provider," any person who is licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession, including any person employed by or acting for any such authorized person licensed health care facility or any person, corporation, or organization licensed, certified, or otherwise authorized or permitted by law to administer health care ;
             (4)      "Life-sustaining treatment," any medical procedure or intervention that, when administered to a qualified patient, will serve only to postpone the moment of death

or to maintain the patient in a condition of permanent unconsciousness. The term does not include the provision of appropriate care to maintain comfort, hygiene and human dignity, the oral administration of food and water, or the administration of any medication or other medical procedure deemed necessary to alleviate pain;

             (5)      "Person," an individual, corporation, business trust, estate, trust, limited liability company, partnership, association, joint venture, government, governmental subdivision, or agency, or any other legal or commercial entity;
             (6)      "Physician," an individual licensed to practice medicine in this state;
             (7)      "Qualified patient," an adult individual who has executed a declaration and who has been determined by the attending physician and one other physician to be in a terminal condition;
             (8)      "Terminal condition," an incurable and irreversible condition such that, in accordance with accepted medical standards, will cause death within a relatively short time death is imminent if life-sustaining treatment is not administered, or a coma or other condition of permanent unconsciousness that, in accordance with accepted medical standards, will last indefinitely without significant improvement and in which the individual is unable to communicate verbally or nonverbally, demonstrates no purposeful movement or motor ability, and is unable to interact purposefully with environmental stimulation.
     Section  2.  That § 34-12D-3 be amended to read as follows:
     34-12D-3.   A declaration may, but need not, be in the following form:
LIVING WILL DECLARATION
     This is an important legal document. This document A living will directs the medical treatment you are to receive in the event you are in a terminal condition and are unable to

participate in your own medical decisions and you are in a terminal condition . This document living will may state what kind of treatment you want or do not want to receive.

     This document can control whether you live or die. Prepare this document living will carefully. If you use this form, read it completely. You may want to seek professional help to make sure the form does what you intend and is completed without mistakes.
     This document will remain living will remains valid and in effect until and unless you revoke it. Review this document living will periodically to make sure it continues to reflect your wishes. You may amend or revoke this document living will at any time by notifying your physician and other health-care health care providers. You should give copies of this document living will to your physician and your family , your physician, and your health care facility . This form is entirely optional. If you choose to use this form, please note that the form provides signature lines for you, the two witnesses whom you have selected , and a notary public.
TO MY FAMILY, PHYSICIANS HEALTH CARE PROVIDER , AND ALL THOSE CONCERNED WITH MY CARE:
     I, ____ willfully and voluntarily make this declaration as a directive to be followed if I am in a terminal condition and become unable to participate in decisions regarding my medical care direct you to follow my wishes for care if I am in a terminal condition, my death is imminent, and I am unable to communicate my decisions about my medical care .
     With respect to any life-sustaining treatment, I direct the following:
     (Initial only one of the following optional directives if you agree options . If you do not agree with any either of the following directives options , space is provided below for you to write your own directives instructions. ) .
     _ NO LIFE-SUSTAINING TREATMENT. I direct that no life-sustaining treatment be provided. If life-sustaining treatment is begun, terminate it.
     _ TREATMENT FOR RESTORATION. Provide life-sustaining treatment only if and for so long as you believe treatment offers a reasonable possibility of restoring to me the ability to think and act for myself.
     _ TREAT UNLESS PERMANENTLY UNCONSCIOUS. If you believe that I am permanently unconscious and are satisfied that this condition is irreversible, then do not provide me with life-sustaining treatment, and if life-sustaining treatment is being provided to me, terminate it. If and so long as you believe that treatment has a reasonable possibility of restoring consciousness to me, then provide life-sustaining treatment.
     _ MAXIMUM TREATMENT. Preserve my life as long as possible, but do not provide treatment that is not in accordance with accepted medical standards as then in effect.
     (Artificial nutrition and hydration is food and water provided by means of a nasogastric tube or tubes inserted into the stomach, intestines, or veins. If you do not wish to receive this form of treatment, you must initial the statement below which reads: "I intend to include this treatment, among the 'life-sustaining treatment' that may be withheld or withdrawn.")
     _ If my death is imminent or I am permanently unconscious, I choose not to prolong my life. If life sustaining treatment has been started, stop it, but keep me comfortable and control my pain.
     _ Even if my death is imminent or I am permanently unconscious, I choose to prolong my life.
     _ I choose neither of the above options, and here are my instructions should I become terminally ill and my death is imminent or I am permanently unconscious:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
     Artificial Nutrition and Hydration: food and water provided by means of a tube inserted into the stomach or intestine or needle into a vein.
     With respect to artificial nutrition and hydration, I wish to make clear that direct the following:
     (Initial only one)
     _ I intend to include this treatment among the "life-sustaining treatment" that may be withheld or withdrawn.
     _ I do not intend to include this treatment among the "life-sustaining treatment" that may be withheld or withdrawn.
     (If you do not agree with any of the printed directives and want to write your own, or if you want to write directives in addition to the printed provisions, or if you want to express some of your other thoughts, you can do so here).
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
     _ If my death is imminent or I am permanently unconscious, I do not want artificial nutrition and hydration. If it has been started, stop it.
     _ Even if my death is imminent or I am permanently unconscious, I want artificial nutrition and hydration.
Date: __________________    _______________________________________
        (your signature)
____________________________    _______________________________________
(your address)    (type or print your signature)

     The declarant voluntarily signed this document in my presence.
     Witness _________________________
     Address _________________________
     Witness _________________________
     Address _________________________
     On this the ______ day of ________, ______, the declarant, _______________, and witnesses _______________, and ________ personally appeared before the undersigned officer and signed the foregoing instrument in my presence. Dated this ________ day of ________, ______.
______________________________ Notary Public
My commission expires: ____________________.
     Section  3.  That § 34-12D-5 be repealed.
     34-12D-5.   A declaration becomes operative when the declarant is determined by the attending physician and one other physician to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment. If the declaration becomes operative, the attending physician and other health-care providers shall act in accordance with the declaration or comply with the transfer requirements of § 34-12D-11.
     Section  4.  That § 34-12D-8 be amended to read as follows:
     34-12D-8.   A declarant may revoke a declaration at any time and in any manner without regard to the declarant's mental or physical condition. A revocation is effective upon

communication to the attending physician or other health-care health care provider. The attending physician or health-care health care provider shall make the revocation a part of the declarant's medical record.
     Section  5.  That § 34-12D-9 be amended to read as follows:
     34-12D-9.   This chapter does not affect the responsibility of the attending physician or other health-care any health care provider to provide treatment , including orally or artificially administered nutrition and hydration, when necessary to alleviate pain or to provide for the patient's comfort, hygiene, or human dignity.
     Section  6.  That § 34-12D-11 be amended to read as follows:
     34-12D-11.   A physician or other health-care health care provider need not participate in the withdrawal or withholding of life-sustaining treatment. However, a physician or other health-care health care provider electing for any reason not to participate in the withholding or withdrawal of life-sustaining treatment shall make a reasonable effort to locate and to transfer the declarant to a physician or health-care health care provider willing to honor the declaration.
     Section  7.  That § 34-12D-12 be amended to read as follows:
     34-12D-12.   If an individual's declaration contains a directive to provide treatment or artificial nutrition and hydration under any circumstances, any physician or health-care health care provider who has responsibility for the treatment and care of the individual must provide the directed treatment or artificial nutrition and hydration in those circumstances so long as it is technically feasible. A physician or health-care health care provider who objects to providing such treatment may instead transfer the individual to a physician or health-care health care provider willing to honor the declaration, but must continue to provide the treatment or care until the transfer is effectuated.
     Section  8.  That § 34-12D-13 be amended to read as follows:


     34-12D-13.   A physician or other health-care health care provider is not subject to civil or criminal liability or to discipline for unprofessional conduct professional disciplinary action for giving effect to a declaration, absent actual knowledge of its revocation, for determining that a terminal condition does or does not exist or for declining to give effect to a declaration under § 34-12D-11.
     Section  9.  That § 34-12D-14 be amended to read as follows:
     34-12D-14.   Death resulting from the withdrawal or withholding of life-sustaining treatment in accordance with this chapter does not constitute, for any purpose, a suicide on the part of the declarant or a homicide on the part of the attending physician or other health-care health care providers.
     Section  10.  That § 34-12D-19 be amended to read as follows:
     34-12D-19.   This chapter does not require a physician or other health-care health care provider to take action contrary to reasonable accepted medical standards.
     Section  11.  That § 34-12D-21 be amended to read as follows:
     34-12D-21.   In the absence of actual knowledge to the contrary, a physician or other health-care health care provider may assume that a declaration complies with this chapter and is valid.
     Section  12.  That § 34-12D-29 be amended to read as follows:
     34-12D-29.   For the purposes of §§ 34-12D-23 to 34-12D-28, inclusive, the term, licensed health care professional, means any physician, surgeon, podiatrist, osteopath, physician assistant, nurse, certified nurse practitioner, certified nurse midwife, certified nurse specialist, certified registered nurse anesthetist, dentist, or pharmacist licensed pursuant to Title 36.