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Correct as of 15 August 2008.

Summary

Adults

In Louisiana, an adult who is not mentally ill or otherwise incompetent has sole right to consent to his or her care. Even if you are married, you make your own health care decisions and your spouse does not have a right to change them. Physicians and other health care providers must respect your privacy and cannot talk to others about your care without your permission, unless you are unable to consent or they are required to make a legal report of your condition. If you tell your doctor that you do not want your spouse to know about your medical care, then the doctor or hospital cannot talk to your spouse about your care.

If you are mentally ill or otherwise permanently incompetent, the court will appoint a person to make decisions for you. In many cases this will be your spouse.

If you are unable to consent to medical care because of an accident or a illness, Louisiana allows the court to appoint someone to consent for you. If the court has not appointed someone to consent for you, and you have not appointed someone yourself, then your spouse may consent to care for you. Your spouse may not consent for you if you are judicially separated. If you are not married or your spouse is not available, then your adult children, your parents, or other relatives may consent to care for you.

If there is a medical emergency and there is no one available who can consent to care, the doctors can take care of you without getting consent. This is called implied consent because the law assumes you would want to be treated.

Minors

Louisiana allows minors to consent to their own medical care without telling their parents. This includes care for pregnancy and childbirth, and sexually transmitted infections. (There are special rules about abortion and sterilization.) The statute does not set a lower limit on the age of minor who may consent, and there is no case law that sets a minimum age of consent. Physicians are protected from liability for relying on the consent of a minor.

If you are a minor, the doctor is not required to tell your parents or guardian about your care, but may tell them if this is in your best interest, even if you do not want them told. If your parents disagree with you about your care, their decision is final.

Parents can consent to the care of their minor children, even if the parent is a minor.

Consent for Minors

RS 40:§1095. Medical treatment (for minors)
RS 40:§1096. Treatment for drug abuse
RS 40:§1097. Donation of blood
La. R.S. § 40:1065.1. Minor's consent for treatment of venereal diseases

Part XXIV. Louisiana Medical Consent Law
All Cites are LA RS 40:XXXX

Table of Contents

§1299.50. Short title
§ 1299.51. Part not applicable to abortion and sterilization
§ 1299.52. Part not applicable to care and treatment of mentally ill; exception
§ 1299.53. Persons who may consent to surgical or medical treatment
§ 1299.54. Emergencies
§ 1299.55. Construction of part
§ 1299.56. Right of adult to refuse treatment as to his own person not abridged
§ 1299.57. Consent to medical arbitration agreements
§ 1299.58. Consent to surgical or medical treatment for mentally retarded or developmentally disabled persons and residents of state-operated nursing homes
Medical Directive Act - §1299.58.1. Legislative purpose, findings and intent
§ 1299.58.2. Definitions
§ 1299.58.3. Making of declaration; notification; illustrative form; registry; issuance of do-not-resuscitate identification bracelets
§ 1299.58.4. Revocation of declaration
§ 1299.58.5. Procedure for making a declaration for a qualified patient who has not previously made a declaration
§ 1299.58.6. Making a declaration for the benefit of a terminally ill minor
§ 1299.58.7. Physician, health care provider, certified emergency technician, and certified first responder responsibility
1299.58.8. Immunity from liability
§ 1299.58.9. Penalties
§ 1299.58.10. General application
PART XXIV-B. LOUISIANA MILITARY ADVANCE
MEDICAL DIRECTIVE ACT
§ 1299.60. Application; military personnel
1299.61. Illustrative form; military advance medical directives
§1299.62. Requirements for legally sufficient military advance medical directive
§ 1299.64. Short title

 

RS 40:§1095. Medical treatment (for minors) - [top]

A. (1) Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself to be afflicted with an illness or disease, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority.

(2) A minor may consent to medical care or the administration of medication by a hospital licensed to provide hospital services or by a physician licensed to practice medicine in this state for the purpose of alleviating or reducing pain, discomfort, or distress of and during labor and childbirth. The manner of administration of medications includes but is not limited to intravenous, intramuscular, epidural, and spinal. This consent shall be valid and binding as if the minor had achieved her majority, and it shall not be subject to a later disaffirmance by reason of her minority.

B. The consent of a spouse, parent, guardian, or any other person standing in a fiduciary capacity to the minor shall not be necessary in order to authorize such hospital care or services or medical or surgical care or services, or administration of drugs to be provided by a physician licensed to practice medicine to such a minor.

C. Upon the advice and direction of a treating physician, or, in the case of a medical staff, any one of them, a physician or member of a medical staff may, but shall not be obligated to, inform the spouse, parent or guardian of any such minor as to the treatment given or needed, and such information may be given to, or withheld from the spouse, parent or guardian without the consent and over the express objection of the minor.

D. No hospital and no physician licensed to practice medicine in this state shall incur civil or criminal liability in connection with any examination, diagnosis and treatment authorized by this section except for negligence.

RS 40:§1096. Treatment for drug abuse - [top]

A. Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself to be addicted to a narcotic or other drug, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority.

B. The consent of a spouse, parent, guardian or any other person standing in a fiduciary capacity to the minor shall not be necessary in order to authorize such hospital care or services or medical or surgical care or services to be provided by a physician licensed to practice medicine to such a minor.

C. Upon the advice and direction of a treating physician, or, in the case of a medical staff, any one of them, a physician or member of a medical staff may, but shall not be obligated to, inform the spouse, parent or guardian of any such minor as to the treatment given or needed, and such information may be given to, or withheld from the spouse, parent or guardian without the consent and over the express objection of the minor.

D. No hospital and no physician licensed to practice medicine in this state shall incur civil or criminal liability in connection with any examination, diagnosis and treatment authorized by this section except for negligence.

RS 40:§1097. Donation of blood - [top]

Notwithstanding any other provision of the laws of the state of Louisiana, a minor who has reached the age of seventeen years may give consent to the donation of his or her blood and to the penetration of tissue necessary to accomplish such donation, but such minor shall not be compensated therefor. Such consent shall not be subject to deferments because of minority, and the consent of the parents or guardian of such a minor shall not be required in order to authorize such donation and penetration of tissue.

La. R.S. § 40:1065.1. Minor's consent for treatment of venereal diseases - [top]

A. Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself to be afflicted with a venereal disease, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority.

B. The consent of a spouse, parent, guardian or any other person standing in a fiduciary capacity to the minor shall not be necessary in order to authorize such hospital care or services or medical or surgical care or services to be provided by a physician licensed to practice medicine to such a minor.

C. Upon the advice and direction of a treating physician, or, in the case of a medical staff, any one of them, a physician or member of a medical staff may, but shall not be obligated to, inform the spouse, parent or guardian of any such minor as to the treatment given or needed, and such information may be given to, or withheld from the spouse, parent or guardian without the consent and over the express objection of the minor.

D. No physician licensed to practice medicine in this state shall incur civil or criminal liability in connection with any examination, diagnosis and treatment authorized by this section except for negligence.

Added by Acts 1970, No. 41, §1.

1299.50. Short title - [top]

This Part shall be known as and may be cited as the "Louisiana Medical Consent Law."

Added by Acts 1975, No. 798, 1.

1299.51. Part not applicable to abortion and sterilization - [top]

The provisions of this Part shall not apply in any manner whatsoever to the subjects of abortion and sterilization, which subjects shall continue to be governed by existing law independently of the terms and provisions of this Part.

Added by Acts 1975, No. 798, 1.

1299.52. Part not applicable to care and treatment of mentally ill; exception - [top]

Except as provided in R.S. 40:1299.58, the provisions of this Part shall not apply to the care and treatment of the mentally ill, which subject shall continue to be governed by existing law independently of the terms and provisions of this Part.

Added by Acts 1975, No. 798, 1. Amended by Acts 1978, No. 607, 1.

1299.53. Persons who may consent to surgical or medical treatment - [top]

A. In addition to such other persons as may be authorized and empowered, any one of the following persons in the following order of priority, if there is no person in a prior class who is reasonably available, willing, and competent to act, is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures including autopsy not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician:

(1) Any adult, for himself.

(2) The judicially appointed tutor or curator of the patient, if one has been appointed.

(3) An agent acting pursuant to a valid mandate, specifically authorizing the agent to make health care decisions.

(4) The patient's spouse not judicially separated.

(5) An adult child of the patient.

(6) Any parent, whether adult or minor, for his minor child.

(7) The patient's sibling.

(8) The patient's other ascendants or descendants.

(9) Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care and any guardian for his ward.

B. If there is more than one person within the above named class in Paragraphs (A)(1) through (9), the consent for surgical or medical treatment shall be given by a majority of those members of the class available for consultation.

Added by Acts 1975, No. 798, 1; Acts 1990, No. 484, 1.

1299.54. Emergencies - [top]

A. In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures suggested, recommended, prescribed, or directed by a duly licensed physician will be implied where an emergency exists. For the purposes hereof, an emergency is defined as a situation wherein: (1) in competent medical judgment, the proposed surgical or medical treatment or procedures are reasonably necessary; and (2) a person authorized to consent under Section 1299.53 is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected, or could reasonably result in disfigurement or impair faculties.

B. For purposes of this Section, an emergency is also defined as a situation wherein: (1) a person transported to a hospital from a licensed health care facility is not in a condition to give consent; (2) a person authorized to give consent under 1299.53 is not readily available; and (3) any delay would be injurious to the health and well being of such person.

Added by Acts 1975, No. 798, 1. Amended by Acts 1982, No. 449, 1.

1299.55. Construction of part - [top]

The provisions of this Part shall be liberally construed, and all relationships set forth herein shall include the marital, adoptive, foster and step-relations as well as the natural whole blood. A consent by one person so authorized and empowered shall be sufficient. Any person acting in good faith shall be justified in relying on the representations of any person purporting to give such a consent, including, but not limited to, his identity, his age, his marital status, his emancipation, and his relationship to any other person for whom the consent is purportedly given.

Added by Acts 1975, No. 798, 1.

1299.56. Right of adult to refuse treatment as to his own person not abridged - [top]

Nothing contained herein shall be construed to abridge any right of a person eighteen years of age or over to refuse to consent to medical or surgical treatment as to his own person.

Added by Acts 1975, No. 798, 1.

1299.57. Consent to medical arbitration agreements - [top]

The persons authorized and empowered in R.S. 40:1299.53(a) and (b) to consent to surgical or medical treatment or procedures for others as provided therein are also authorized and empowered, for and on behalf of such others, and without court approval, to enter into binding medical arbitration agreements.

Added by Acts 1976, No. 269, 1.

1299.58. Consent to surgical or medical treatment for mentally retarded or developmentally disabled persons and residents of state-operated nursing homes - [top]

A. Upon the written recommendation of the treating physician, the following persons may consent to any surgical or medical treatment on behalf of any mentally retarded or developmentally disabled person who is a recipient of service from a state-operated supported living or supervised independent living program, or personal care attendant program for the mentally retarded or developmentally disabled, or who is a resident of a state school or community home for the mentally retarded or developmentally disabled, state- supervised extended family living program, or a nonstate-operated residential facility, community, or group home for the mentally retarded or developmentally disabled or who is a resident of a state-operated nursing home:

(1) For a resident of a state school or a state-operated community home for the mentally retarded, the superintendent of the state school.

(2) For a resident of a state-supervised extended family living program, or a recipient of service from a state-operated supported living or supervised independent living program, or personal care attendant program for the mentally retarded or developmentally disabled, the office for citizens with developmental disabilities administrator or manager with administrative authority over the extended family living program, supported living or supervised independent living program, or personal care attendant program for the region where the home is located or the program is being provided.

(3) For a resident of a nonstate-operated residential facility, community, or group home for the mentally retarded, the chief executive officer of the provider organization which administers or operates the facility or home.

(4) For a resident of a state-operated nursing home, the administrator of the home or facility.

B. Consent for any surgical or medical treatment on behalf of a mentally retarded person or a resident in a facility, home, or program as described in R.S. 40:1299.58(A) is authorized under the following circumstances:

(1) When all reasonable efforts to contact the parent, family, or guardian of the resident have failed or

(2) When the resident's record does not contain the name of the parent, family member, or guardian.

C. Consent given pursuant to this Section shall be in writing and shall comply with the provisions of R.S. 40:1299.40(A). A copy of the signed written consent form and of the physician's written recommendation shall be placed in the resident's permanent record.

D. Nothing contained in this Section shall be construed to authorize consent to surgical or medical treatment for a resident if the parent, family member, or guardian of the resident has been contacted and has refused to consent to medical treatment for the resident.

E. Consent to surgical or medical treatment for residents will be implied where an emergency, as defined in R.S. 40:1299.54, exists.

F. As used in this Section, mentally retarded includes the developmentally disabled.

Added by Acts 1978, No. 607, 2; Acts 1990, No. 177, 1; Acts 2001, No. 519, 1.

Medical Directive Act - 1299.58.1. Legislative purpose, findings and intent - [top]

A. Purpose and findings.

(1) The legislature finds that all persons have the fundamental right to control the decisions relating to their own medical ca` including the decision to have life-sustaining procedures withheld or withdrawn in instances where such persons are diagnosed as having a terminal and irreversible condition.

(2) The legislature further finds that the artificial prolongation of life for a person diagnosed as having a terminal and irreversible condition may cause loss of individual and personal dignity and secure only a precarious and burdensome existence while providing nothing medically necessary or beneficial to the person. (3) In order that the rights of such persons may be respected even after they are no longer able to participate actively in decisions concerning themselves, the legislature hereby declares that the laws of the state of Louisiana shall recognize:

(a) The right of such a person to make a declaration instructing his physician to withhold or withdraw life-sustaining procedures or designating another to make the treatment decision and make such a declaration for him, in ` event he is diagnosed as having a terminal and irreversible condition; and

(b) The right of certain individuals to make a declaration pursuant to which life-sustaining procedures may be withheld or withdrawn from an adult patient who is comatose, incompetent, or otherwise physically or mentally incapable of communication, or from a minor, in the event such adult patient or minor is diagnosed and certified as having a terminal and irreversible conditions,

(4) In furtherance of the rights of such persons, the legislature finds and declares that nothing in this Part shall be construed to be the exclusive m` by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the application of medically inappropriate treatme` or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures.

B. Intent.

(1) The legislature intends that the provisions of this Part are permissive and voluntary. The legislature further intends that the making ` a declaration pursuant to this Part merely illustrates a means of documenting a patient's decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures.

(2) It is the intent of the legislature that nothing in this Part shall be construed to require the making of a declaration pursuant to this Part.

(3) It is the intent of the legislature that nothing in this Part shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the applicat` of medically inappropriate treatment or life-sustaining procedures to any patie` or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985.

1299.58.2. Definitions - [top]

As used in this Part, the following words shall have the meanings ascribed to them unless the context clearly states otherwise:

(1) "Attending physician" means the physician who has primary responsibility for the treatment and care of the patient.

(2) "Cardiopulmonary resuscitation" means those measures used to restore or support cardiac or respiratory function in the event of a cardiac or respiratory arrest.

(3) "Certified emergency medical technician" means a certified emergency medical technician as defined in R.S. 40:1231.

(4) "Certified first responder" means any person who has successfully completed a training course developed and promulgated by the United States Department of Transportation and adopted by the bureau of emergency medical services of the Department of Health and Hospitals and who is certified by the bureau.

(5) "Declaration" means a witnessed document, statement, or expression voluntarily made by the declarant, authorizing the withholding or withdrawal of life-sustaining procedures, in accordance with the requirements of this Part. A declaration may be made in writing, orally, or by other means of nonverbal communication.

(6) "Declarant" means a person who has executed a declaration as defined herein.

(7) "Do-not-resuscitate identification bracelet" means a standardized bracelet as described in R.S. 40:1299.58.3(D)(1)(b).

(8) "Health care provider" means any health maintenance organization, home health agency, hospice, hospital, or nursing facility.

(9) "Life-sustaining procedure" means any medical procedure or intervention which, within reasonable medical judgment, would serve only to prolong the dying process for a person diagnosed as having a terminal and irreversible condition, including such procedures as the invasive administration of nutrition and hydration and the administration of cardiopulmonary resuscitation. A "life-sustaining procedure" shall not include any measure deemed necessary to provide comfort care.

(10) "Minor" means a person under eighteen years of age.

(11) "Physician" means a physician or surgeon licensed by the Louisiana State Board of Medical Examiners or by the official licensing authority of another state.

(12) "Qualified patient" means a patient diagnosed and certified in writing as having a terminal and irreversible condition by two physicians who have personally examined the patient, one of whom shall be the attending physician.

(13) "Registry" means a registry for declarations established and maintained by the secretary of state pursuant to this Part.

(14) "Terminal and irreversible condition" means a continual profound comatose state with no reasonable chance of recovery or a condition caused by injury, disease, or illness which, within reasonable medical judgment, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.

(15) "Witness" means a competent adult who is not related to the declarant or qualified patient, whichever is applicable, by blood or marriage and who would not be entitled to any portion of the estate of the person from whom life-sustaining procedures are to be withheld or withdrawn upon his decease.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985; Acts 1990, No. 522, 1; Acts 1990, No. 749, 1; Acts 1991, No. 194, 1; Acts 1991, No. 320, 1; Acts 1991, No. 321, 1, eff. Jan. 1, 1992; Acts 1999, No. 641, 1, eff. July 1, 1999.

§1299.58.3. Making of declaration; notification; illustrative form; registry; issuance of do-not-resuscitate identification bracelets - [top]

A.(1) Any adult person may, at any time, make a written declaration directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition.

(2) A written declaration shall be signed by the declarant in the presence of two witnesses.

(3) An oral or nonverbal declaration may be made by an adult in the presence of two witnesses by any nonwritten means of communication at any time subsequent to the diagnosis of a terminal and irreversible condition.

B.(1) It shall be the responsibility of the declarant to notify his attending physician that a declaration has been made.

(2) In the event the declarant is comatose, incompetent, or otherwise mentally or physically incapable of communication, any other person may notify the physician of the existence of the declaration. In addition, the attending physician or health care facility may directly contact the registry to determine the existence of any such declaration.

(3) Any attending physician who is so notified, or who determines directly or is advised by the health care facility that a declaration is registered shall promptly make the declaration or a copy of the declaration, if written, or a notation of the existence of a registered declaration, a part of the declaran` medical record.

(4) If the declaration is oral or nonverbal, the physician shall promptly make a recitation of the reasons the declarant could not make a written declaration and make the recitation a part of the patient's medical records.

C.(1) The declaration may, but need not, be in the following illustrative form and may include other specific directions including but not limited to a designation of another person to make the treatment decision for the declarant should he be diagnosed as having a terminal and irreversible condition and be comatose, incompetent, or otherwise mentally or physically incapable of communications:

DECLARATION

Declaration made this _______________ day of __________ (month, year).

I, _______________________, being of sound mind, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below and do hereby declare:

If at any time I should have an incurable injury, disease or illness, or be in a continual profound comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life- sustaining procedure would serve only to prolong artificially the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care.

In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this declaration shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal.

I understand the full import of this declaration and I am emotionally and mentally competent to make this declaration.

Signed ____________________
City, Parish and State of Residence ____________________

The declarant has been personally known to me and I believe him or her to be of sound mind.

Witness ____________________
Witness ____________________

(2) Should any of the other specific directions be held to be invalid, such invalidity shall not affect other directions of the declaration which can ` given effect without the invalid direction, and to this end the directions in t` declaration are severable.

(3) Any declaration executed prior to January 1, 1992, which does not contain directions regarding life sustaining procedures in the event that the declarant is in a continual profound comatose state shall not be invalid for th` reason. Such declaration shall be applicable to any terminal and irreversible condition, as defined in this Part, unless it clearly provides to the contrary.

D.(1)(a) The secretary of state shall establish a declaration registry in which a person, or his attorney, if authorized by the person to do so, may register the original, multiple original, or a certified copy of the declaration.

(b) The secretary of state shall issue a do-not-resuscitate identification bracelet to qualified patients listed in the registry. The do-not-resuscitate identification bracelet must include the patient's name, date of birth, and the phrase "DO NOT RESUSCITATE".

(2) Any attending physician or health care facility may, orally or in writing, request the secretary of state to confirm immediately the existence of a declaration and to disclose the contents thereof for any patient believed to be a resident of Louisiana. A copy of the declaration or a facsimile thereof transmitted from the office of the secretary of state shall be deemed authentic. However, nothing herein requires a physician or health care facility to confirm the existence of such declaration or obtain a copy thereof prior to the withholding or withdrawal of medical treatment or life-sustaining procedures.

(3) The secretary of state may charge a fee of twenty dollars for registering a declaration and issuing a do-not-resuscitate identification brace` and a fee of five dollars for filing a notice of revocation. No charge shall be made for the furnishing of information concerning the existence of a declaration, the disclosure of its contents, or the providing of a copy or facsimile thereof.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985; Acts 1991, No. 194, 1; Acts 1991, No. 321, 1, eff. Jan. 1, 1992; Acts 1999, No. 641, 1, eff. July 1, 1999.

1299.58.4. Revocation of declaration - [top]

A. A declaration may be revoked at any time by the declarant without rega` to his or her mental state or competency by any of the following methods:

(1) By being cancelled, defaced, obliterated, burned, torn, or otherwise destroyed by the declarant or by some person in the presence of and at the direction of the declarant.

(2)(a) By a written revocation of the declarant expressing the intent to revoke, signed and dated by the declarant.

(b) The attending physician shall record in the patient's medical record the time and date when notification of the written revocation was received.

(3)(a) By an oral or nonverbal expression by the declarant of the intent to revoke the declaration.

(b) Such revocation by any method enumerated in this Section shall become effective upon communication to the attending physician.

(c) The attending physician shall record in the patient's medical records the time and date when notification of the revocation was received.

B. A declaration registered with the secretary of state's office may be revoked by the filing of a written notice of revocation in that office. The secretary of state shall indicate on the declaration the date and time the noti` of revocation was received in his office. Until the notation has been indicated on the declaration, any physician or health care facility acting in good faith ` rely upon the validity of the declaration.

Acts 1991, No. 194, 1.

1299.58.5. Procedure for making a declaration for a qualified patient who has not previously made a declaration - [top]

A.(1) Nothing in this Part shall be construed in any manner to prevent the withholding or the withdrawal of life-sustaining procedures from a qualified patient with a terminal and irreversible condition who is comatose, incompetent, or otherwise physically or mentally incapable of communication and has not made a prior declaration in accordance with this Part.

(2) When a comatose or incompetent person or a person who is physically or mentally incapable of communication has been certified as a qualified patient a` has not previously made a declaration, any of the following individuals in the following order of priority, if there is no individual in a prior class who is reasonably available, willing, and competent to act, may make a declaration on ` qualified patient's behalf:

(a) Any person or persons previously designated by the patient, while an adult, by written instrument signed by the patient in the presence of at least ` witnesses, to have the authority to make a declaration for the patient in the e` of the patient's inability to do so. If the instrument so authorizes more than` person, it may include the order in which the persons designated shall have authority to make the declaration.

(b) The judicially appointed tutor or curator of the patient if one has been appointed. This Subparagraph shall not be construed to require such appointment in order that a declaration can be made under this Section.

(c) The patient's spouse not judicially separated.

(d) An adult child of the patient.

(e) The parents of the patient.

(f) The patient's sibling.

(g) The patient's other ascendants or descendants.

(3) If there is more than one person within the above named class in Subparagraphs (d) through (g), then the declaration shall be made by all of that class available for consultation upon good faith efforts to secure participation of all of that class.

B. In any case where the declaration is made by a person specified in Subparagraphs (A)(2)(b), (c), (d), (e), or (f), there shall be at least two witnesses present at the time the declaration is made.

C. The absence of a declaration by an adult patient shall not give rise to any presumption as to the intent to consent to or to refuse life-sustaining procedures.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985; Acts 1991, No. 323, 1.

1299.58.6. Making a declaration for the benefit of a terminally ill minor - [top]

A. If a minor has been certified as a qualified patient, the following individuals may voluntarily make a declaration to document the decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures on a minor's behalf:

(1) The spouse if he has reached the age of majority; or

(2) If there is no spouse, or if the spouse is not available, or is a min` or is otherwise unable to act, then either the parent or guardian of the minor.

B. An individual named in Subsection A of this Section may not make a declaration:

(1) If he has actual notice of contrary indications by the minor who is terminally ill; or

(2) If, as a parent or guardian, he has actual notice of opposition by either another parent, or guardian, or a spouse who has attained the age of majority.

C. Nothing in this Section shall be construed to require the making of a declaration for a terminally ill minor. The legislature intends that the provisions of this Part are permissive and voluntary. The legislature further intends that the making of a declaration pursuant to this Part merely illustrat` a means of documenting the decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures on behalf of a minor.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985.

1299.58.7. Physician, health care provider, certified emergency technician, and certified first responder responsibility - [top]

A. Any attending physician who has been notified of the existence of a declaration made under this Part or at the request of the proper person as provided in R.S. 40:1299.58.5 or R.S. 40:1299.58.6 upon diagnosis of a terminal and irreversible condition of the patient, or who on his own determines the existence of a declaration on file in the registry, shall take necessary steps to provide for written certification of the patient's terminal ` irreversible condition, so that the patient may be deemed to be a qualified patient as defined in R.S. 40:1299.58.2.

B. Any attending physician who refuses to comply with the declaration of a qualified patient or declaration otherwise made pursuant to this Part shall make a reasonable effort to transfer the patient to another physician.

C. No provision of this Part imposes a duty upon the physician or health care facility to make a search of the registry for the existence of a declaration.

D. If the policies of a health care provider preclude compliance with the declaration of a qualified patient under this Part or preclude compliance with the provisions pertaining to a representative acting on behalf of a qualified patient, then the provider shall take all reasonable steps to transfer the patient to a provider with which the provisions of this Part can be effectuated.

E. Certified emergency medical technicians and certified first responders shall make a reasonable effort to detect the presence of a do-not- resuscitate identification bracelet on the patient.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985; Acts 1991, No. 194, 1; Acts 1991, No. 320, 1; Acts 1999, No. 641, 1, eff. July 1, 1999.

1299.58.8. Immunity from liability - [top]

A.(1) Any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or the withdrawal of life-sustaining procedures from a qualified patient who has made a declaration or is wearing a do-not-resuscitate identification bracelet in accordance with the provisions of this Part.

(2) Any person, health care facility, physician, or other person acting under the direction of a physician who authorizes the withholding or withdrawal of life-sustaining procedures in accordance with a qualified patient's declaration or do-not-resuscitate identification bracelet, or as otherwise provided in this Part shall not be subject to criminal prosecution or civil liability for such action.

B. In instances where a patient diagnosed as having a terminal and irreversible condition or his representative utilized means other than those in accordance with the provisions of this Part to document or manifest the patient's intention and desire that medical treatment or life-sustaining procedures be withheld or withdrawn, any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or withdrawal of life- sustaining procedures when the health care facility, physician, or other person acting under the direction of a physician has acted in good faith reliance on the patient's or his representative's manifestations that medical treatment or life- sustaining procedures be withheld or withdrawn and the continued utilization of life-sustaining procedures would, within reasonable medical judgment, serve only to prolong the dying process.

C.(1) Inasmuch as the provisions of this Part are declared by the legislature to provide an alternative nonexclusive means by which life- sustaining procedures may be withheld or withdrawn, the provisions of this Section shall apply to any case in which life-sustaining procedures are withheld or withdrawn unless it is shown by a preponderance of the evidence that the person authorizing or effectuating the withholding or withdrawal of life-sustaining procedures did not, in good faith, comply with the provisions of this Part or did not act in good faith compliance with the intention of the terminal and irreversible patient that medical treatment or life-sustaining procedures be withheld or withdrawn.

(2) A declaration made in accordance with this Part shall be presumed to have been made voluntarily.

D.(1) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for withholding life-sustaining procedures from a qualified patient who is wearing a do-not-resuscitate identification bracelet.

(2) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for administering life-sustaining procedures to a qualified patient who is not wearing the do-not-resuscitate identification bracelet.

Acts 1984, No. 382, 1; Acts 1985, No. 187, 1, eff. July 6, 1985; Acts 1999, No. 641, 1, eff. July 1, 1999.

1299.58.9. Penalties - [top]

A. Any person who willfully conceals, cancels, defaces, obliterates, or damages the declaration of another, including the removal of a do-not- resuscitate identification bracelet, without such declarant's consent or who falsifies or forges a revocation or the declaration of another shall be civilly liable.

B. Any person who falsifies or forges the declaration of another or willfully conceals or withholds personal knowledge of a revocation of a declaration with the intent to cause the withholding or withdrawal of life- sustaining procedures contrary to the wishes of the declarant, and thereby because of such act directly causes life-sustaining procedures to be withheld or withdrawn and death thereby to be hastened may be subject to prosecution under Title 14 of the Louisiana Revised Statutes of 1950.

Acts 1984, No. 382, 1; Acts 1999, No. 641, 1, eff. July 1, 1999.

1299.58.10. General application - [top]

A. Nothing in this Part shall be construed to condone, authorize, or approve mercy killing or euthanasia or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

B.(1) The withholding or withdrawal of life-sustaining procedures from a qualified patient in accordance with the provisions of this Part shall not, for any purpose, constitute a suicide.

(2) Nor shall the making of a declaration pursuant to this Part affect the sale, procurement, or issuance of any life insurance policy, nor shall it be deemed to modify the terms of an existing policy.

(3) No policy shall be legally impaired or invalidated by the withholding or withdrawal of life-sustaining procedures from an insured, qualified patient, notwithstanding any term of the policy to the contrary.

(4) A person shall not be required to make a declaration as a condition for being insured or for receiving health care services.

(5) The removal of life support systems or the failure to administer cardio-pulmonary resuscitation under this Part shall not be deemed the cause of death for purposes of insurance coverage.

C. The provisions of this Part are cumulative with existing law pertaining to an individual's right to consent or refuse to consent to medical ` surgical treatment.

D. A declaration properly executed in and under the laws of another state is deemed to be validly executed for purposes of this Part.

Acts 1984, No. 382, 1; Acts 1990, No. 749, 1; Acts 1999, No. 641, 1, eff. July 1, 1999.

PART XXIV-B. LOUISIANA MILITARY ADVANCE

MEDICAL DIRECTIVE ACT

1299.60. Application; military personnel - [top]

A. A military advance medical directive may be executed by:

(1) Military personnel.

(2) Other persons eligible for legal assistance under the provisions of 10 U.S.C. 1044 or regulations of the Department of Defense.

B. "Military personnel" means members of any of the branches of the armed forces of the United States as defined by 10 U.S.C. 101(a)(4), the reserve components of the armed forces of the United States as defined by 10 U.S.C. 10101, or the Louisiana National Guard.

Acts 1997, No. 1057, 1; Acts 1999, No. 227, 3.

1299.61. Illustrative form; military advance medical directives - [top]

The following is an illustrative form of a military advance medical directive suggested for use by military personnel or other eligible persons who reside in the state of Louisiana:

LOUISIANA'S MILITARY ADVANCE MEDICAL DIRECTIVE
STATE OF LOUISIANA
PARISH OF ________________

This is a MILITARY ADVANCE MEDICAL DIRECTIVE prepared pursuant to Title 10, United States Code, Section 1044(c). It was prepared by an attorney who was authorized to provide legal assistance for an individual who was eligible to receive legal assistance. Federal law exempts this advance medical directive from any requirement of form, substance, formality, or recording that is provided for advance medical directives under the laws of a State. Federal law specifies that this advance medical directive shall be given the same legal effect as an advance medical directive prepared and executed in accordance with the laws of the State concerned. (This paragraph must be in bold type.)

Additionally, this form is specifically designed for use under Louisiana law. It is suggested for use by any person authorized to receive legal assistance from the military service in accordance with federal or state law, who by these presents represents and warrants that he is so eligible. Any person to whom this form is presented may conclusively rely on the authority purportedly granted hereunder.

BE IT KNOWN on this ___ day of ______, 19__, before me, an attorney authorized to render legal assistance to persons eligible for legal assistance under the provisions of 10 U.S.C. 1044 or the regulations of the Department of Defense, personally came and appeared _________________________, who declared that he is a member of the ________________________, a branch of the military designated in R.S. 40:1299.60, or is otherwise included thereunder, and did execute and sign the following declaration:

I, being of sound mind, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below and do hereby declare:

If at any time I should have an incurable injury, disease or illness, or be in a continual profound comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedures would serve only to prolong artificially the dying process, I direct that such procedures, including hydration and sustenance, be withheld or withdrawn and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care.

[[Optional:] In the absence of my ability to give further directions regarding the use of such life-sustaining procedures, I authorize __________________, caretaker, to make treatment decisions on my behalf and I have discussed my desires concerning terminal care with this person and I trust his/her judgment on my behalf.]

Should my caretaker be an absent person or cease or otherwise fail to act or if a caretaker has not been named in this declaration, it is my intention that this declaration be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal.

I understand the full import of this declaration and I am emotionally and mentally competent to make this advance medical directive.

Signed: ____________________
City, Parish, and State of Residence
____________________

___________________________
(SIGNATURE OF ATTORNEY)

Acts 1997, No. 1057, 1.

1299.62. Requirements for legally sufficient military advance medical directive - [top]

A. In accordance with 10 U.S.C. 1044(c), a military advance medical directive is exempt from any requirement of form, substance, formality, or recording that may be required under the laws of Louisiana or any other state. Any such military advance medical directive shall be given the same legal effect as a declaration concerning life-sustaining procedures prepared and executed in accordance with the laws of the state of Louisiana.

B. For purposes of this Part, a military advance medical directive is any written declaration that:

(1)(a) Sets forth directions regarding the provision, withdrawal, or withholding of life-prolonging procedures, including hydration and sustenance, for the declarant whenever the declarant has a terminal physical condition or is in a persistent vegetative state, or

(b) Authorizes another person to make health care decisions for the declarant, under circumstances stated in the declaration, whenever the declarant is incapable of making informed health care decisions.

(2) Contains a statement that sets forth the contents of the first undesignated paragraph of the form provided in R.S. 40:1299.61.

(3) Is signed in accordance with 10 U.S.C. 1044(a) or other applicable state or federal law.

Acts 1997, No. 1057, 1.

1299.63. Additional form of military advance medical directive; application of this Chapter

A. Nothing in this Part affects or limits the use of:

(1) Any other advance medical directive prepared and executed in accordance with the provisions of 10 U.S.C. 1044(c), regardless of form, substance, formality, or recording.

(2) Any other form for a declaration concerning life-sustaining procedures authorized by Part XXIV-A of this Chapter.

B. This Part provides an illustrative form for making an advance medical directive and, in the event of direct conflict with Part XXIV-A of this Chapter, is governed by the provisions contained herein. However, for purposes of interpretation, application, intent, definitions, direction, voluntary registry, notification, immunity from liability, and penalties, the provisions of Part XXIV-A of this Chapter shall apply.

Acts 1997, No. 1057, 1.

1299.64. Short title - [top]

This Part may be cited as the "Louisiana Military Advance Medical Directive Act".

Acts 1997, No. 1057, 1.

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