ORS sections in this chapter were amended, repealed or “added to” by the Legislative Assembly during its 2020 first and second special sessions. See the tables of ORS sections amended, repealed or “added to” during the 2020 special sessions:  2020SS A&R Tables

 

Chapter 127 — Powers of Attorney; Advance Directives for Health Care; Physician Orders for    Life-Sustaining Treatment Registry; Declarations for Mental Health            Treatment; Death with Dignity

 

 

2019 EDITION

 

 

POWERS OF ATTORNEY; HEALTH CARE DIRECTIVES

 

PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

POWERS OF ATTORNEY

 

127.002     Definitions for ORS 127.005 to 127.045

 

127.005     When power of attorney in effect; accounting to conservator

 

127.015     Power of attorney not revoked until death or other event known

 

127.025     Authority under power of attorney recognizable regardless of date of execution

 

127.035     Limitations on liability of person reasonably relying on power of attorney

 

127.045     Duty of agent under power of attorney

 

ADVANCE DIRECTIVES FOR HEALTH CARE

 

(Definitions)

 

127.505     Definitions for ORS 127.505 to 127.660

 

(Health Care Decisions Generally)

 

127.507     Capable adults may make own health care decisions

 

(Formalities of Executing Advance Directive)

 

127.510     Appointment of health care representative and alternate health care representative; duration

 

127.515     Execution; witnesses; out-of-state execution

 

127.520     Persons not eligible to serve as health care representative; manner of disqualifying persons for service

 

127.525     Acceptance of appointment; withdrawal

 

(Form for Appointing Health Care Representative)

 

127.527     Form for appointing health care representative

 

Note          Temporary form of advance directive--2018 c.36 §§1,6

 

(Advance Directive Adoption Committee)

 

127.532     Appointment; term of office; rules

 

127.533     Duties; advance directive elements

 

127.534     Ratification of advance directive form by Legislative Assembly

 

(Effect of Executing Advance Directive)

 

127.535     Authority of health care representative; duties; objection by principal

 

127.540     Limitations on authority of health care representative

 

(Provisions Generally Applicable to Advance Directives and Health Care Decisions)

 

127.545     Revocation of advance directive or health care decision; when revocation effective; effect of executing form appointing health care representative

 

127.550     Petition for judicial review of advance directives; scope of review; authority to file petition

 

127.555     Designation of attending physician or health care provider; liability of health care representative and health care provider

 

127.560     Provisions not exclusive; effect of provisions on civil and criminal liability of health care representative and provider

 

127.565     Independent medical judgment of provider; effect of advance directive on insurance

 

127.570     Mercy killing; suicide

 

127.575     Instrument presumed valid

 

127.580     Presumption of consent to artificially administered nutrition and hydration; exceptions

 

127.625     Providers under no duty to participate in withdrawal or withholding of certain health care; duty of provider who is unwilling to participate

 

127.635     Withdrawal of life-sustaining procedures; conditions; selection of health care representative in certain cases; required consultation

 

127.640     Physician to determine that conditions met before withdrawing or withholding certain health care

 

127.642     Principal to be provided with certain care to insure comfort and cleanliness

 

(Requirements Imposed on Health Care Organizations Relating to Rights of Individuals to Make Health Care Decisions)

 

127.646     Definitions for ORS 127.646 to 127.654

 

127.649     Health care organizations required to have written policies and procedures on providing information on patient’s right to make health care decisions

 

127.652     Time of providing information

 

127.654     Scope of requirement; limitation on liability for failure to comply

 

(Previously Executed Advance Directives)

 

127.658     Effect of ORS 127.505 to 127.660 on previously executed advance directives

 

(Short Title)

 

127.660     Short title

 

PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT REGISTRY

 

127.663     Definitions for ORS 127.663 to 127.684

 

127.666     Establishment of registry; rules

 

127.669     Oregon Health Authority not required to perform certain acts

 

127.672     POLST not required; revocation

 

127.678     Confidentiality

 

127.681     Immunity from liability

 

127.684     Short title

 

DECLARATIONS FOR MENTAL HEALTH TREATMENT

 

127.700     Definitions for ORS 127.700 to 127.737

 

127.702     Persons who may make declaration for mental health treatment; period of validity

 

127.703     Required policies regarding mental health treatment rights information; declarations for mental health treatment

127.705     Designation of attorney-in-fact for decisions about mental health treatment

 

127.707     Execution of declaration; witnesses

 

127.710     Operation of declaration; physician or provider to act in accordance with declaration

 

127.712     Scope of authority of attorney-in-fact; powers and duties; limitation on liability

 

127.715     Prohibitions against requiring person to execute or refrain from executing declaration

 

127.717     Declaration to be made part of medical record; physician or provider to comply with declaration; withdrawal of physician or provider

 

127.720     Circumstances in which physician or provider may disregard declaration

 

127.722     Revocation of declaration

 

127.725     Limitations on liability of physician or provider

 

127.727     Persons prohibited from serving as attorney-in-fact

 

127.730     Persons prohibited from serving as witnesses to declaration

 

127.732     Withdrawal of attorney-in-fact; rescission of withdrawal

 

127.736     Form of declaration

 

127.737     Certain other laws applicable to declaration

 

CONSENT TO HEALTH CARE SERVICES BY PERSON OTHER THAN HEALTH CARE REPRESENTATIVE

 

127.760     Consent to health care services by person appointed by hospital; exceptions

 

127.765     Health care advocate; appointment; powers; limitations; term; approval of certain decisions; protest; training; rules

 

THE OREGON DEATH WITH DIGNITY ACT

 

(General Provisions)

 

127.800     Definitions

 

(Written Request for Medication to End One’s Life in a Humane and Dignified Manner)

 

127.805     Who may initiate a written request for medication

 

127.810     Form of the written request

 

(Safeguards)

 

127.815     Attending physician responsibilities

 

127.820     Consulting physician confirmation

 

127.825     Counseling referral

 

127.830     Informed decision

 

127.835     Family notification

 

127.840     Written and oral requests

 

127.845     Right to rescind request

 

127.850     Waiting periods

 

127.855     Medical record documentation requirements

 

127.860     Residency requirement

 

127.865     Reporting requirements

 

127.870     Effect on construction of wills, contracts and statutes

 

127.875     Insurance or annuity policies

 

127.880     Construction of Act

 

(Immunities and Liabilities)

 

127.885     Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions

 

127.890     Liabilities

 

127.892     Claims by governmental entity for costs incurred

 

(Severability)

 

127.895     Severability

 

(Form of the Request)

 

127.897     Form of the request

 

OREGON’S RIGHT TO TRY LAW

 

(Temporary provisions relating to use of investigational products by terminal patients are compiled as notes following ORS 127.897)

 

PENALTIES

 

127.995     Penalties

 

POWERS OF ATTORNEY

 

      127.002 Definitions for ORS 127.005 to 127.045. For the purposes of ORS 127.005 to 127.045:

      (1) “Agent” includes an attorney-in-fact; and

      (2) “Financially incapable” has the meaning given that term in ORS 125.005. [2009 c.46 §1]

 

      127.005 When power of attorney in effect; accounting to conservator. (1) When a principal designates another person as an agent by a power of attorney in writing, and the power of attorney does not contain words that otherwise delay or limit the period of time of its effectiveness:

      (a) The power of attorney becomes effective when executed and remains in effect until the power is revoked by the principal;

      (b) The powers of the agent are unaffected by the passage of time; and

      (c) The powers of the agent are exercisable by the agent on behalf of the principal even though the principal becomes financially incapable.

      (2) The terms of a power of attorney may provide that the power of attorney will become effective at a specified future time, or will become effective upon the occurrence of a specified future event or contingency such as the principal becoming financially incapable. If a power of attorney becomes effective upon the occurrence of a specified future event or contingency, the power of attorney may designate a person or persons to determine whether the specified event or contingency has occurred, and the manner in which the determination must be made. A person designated by a power of attorney to determine whether the principal is financially incapable is the principal’s personal representative for the purposes of ORS 192.553 to 192.581 and the federal Health Insurance Portability and Accountability Act privacy regulations, 45 C.F.R. parts 160 and 164.

      (3) If a power of attorney becomes effective upon the principal becoming financially incapable and either the power of attorney does not designate a person or persons to make the determination as to whether the principal is financially incapable or none of the designated persons is willing or able to make the determination, a determination that the principal is financially incapable may be made by any physician. The physician’s determination must be made in writing.

      (4) All acts done by an agent under a power of attorney during a period in which the principal is financially incapable have the same effect, and inure to the benefit of and bind the principal, as though the principal were not financially incapable.

      (5) If a conservator is appointed for a principal, the agent shall account to the conservator, rather than to the principal, for so long as the conservatorship lasts. The conservator has the same power that the principal would have to revoke, suspend or terminate all or any part of the power of attorney.

      (6) This section does not apply to ORS 127.505 to 127.660. [Formerly 126.407; 1993 c.767 §25; 2001 c.395 §4; 2009 c.46 §2; 2018 c.36 §10]

 

      127.010 [Repealed by 1969 c.591 §305]

 

      127.015 Power of attorney not revoked until death or other event known. (1) The death of a principal who has executed a power of attorney in writing, or the occurrence of any other event that would otherwise terminate the authority of the agent, does not revoke or terminate the authority of an agent who, without actual knowledge of the death of the principal or other event, acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and heirs, devisees and personal representatives of the principal.

      (2) An affidavit executed by an agent that states that the agent did not have, at the time of doing an act under the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death or other event, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument that is recordable, the affidavit may also be recorded.

      (3) This section does not alter or affect any provision for revocation or termination contained in the power of attorney. [Formerly 126.413; 2009 c.46 §3]

 

      127.020 [Repealed by 1969 c.591 §305]

 

      127.025 Authority under power of attorney recognizable regardless of date of execution. A person may not refuse to recognize the authority of an agent under a power of attorney based solely on the passage of time since the power of attorney was executed. [2001 c.395 §1; 2009 c.46 §4]

 

      127.030 [Repealed by 1969 c.591 §305]

 

      127.035 Limitations on liability of person reasonably relying on power of attorney. Any person who reasonably relies in good faith on the authority of an agent under a power of attorney is not liable to any other person based on that reliance, and is not required to ensure that assets of the principal that are paid or delivered to the agent are properly applied. Any person who has not received actual notice of revocation of a power of attorney is not liable to any other person by reason of relying on a power of attorney that has been revoked. [2001 c.395 §2; 2009 c.46 §5]

 

      127.040 [Repealed by 1969 c.591 §305]

 

      127.045 Duty of agent under power of attorney. Unless otherwise provided in the power of attorney document, an agent must use the property of the principal for the benefit of the principal. [2001 c.395 §3; 2009 c.46 §6]

 

      127.050 [Repealed by 1969 c.591 §305]

 

      127.060 [Repealed by 1969 c.591 §305]

 

      127.070 [Repealed by 1969 c.591 §305]

 

      127.080 [Repealed by 1969 c.591 §305]

 

      127.090 [Repealed by 1969 c.591 §305]

 

      127.100 [Repealed by 1969 c.591 §305]

 

      127.110 [Repealed by 1969 c.591 §305]

 

      127.120 [Repealed by 1969 c.591 §305]

 

      127.130 [Repealed by 1969 c.591 §305]

 

      127.140 [Repealed by 1969 c.591 §305]

 

      127.150 [Repealed by 1969 c.591 §305]

 

      127.160 [Repealed by 1969 c.591 §305]

 

      127.170 [Repealed by 1969 c.591 §305]

 

      127.180 [Repealed by 1969 c.591 §305]

 

      127.190 [Repealed by 1969 c.591 §305]

 

      127.310 [Repealed by 1969 c.591 §305]

 

      127.320 [Repealed by 1969 c.591 §305]

 

      127.330 [Repealed by 1969 c.591 §305]

 

      127.340 [Repealed by 1969 c.591 §305]

 

      127.350 [Repealed by 1969 c.591 §305]

 

ADVANCE DIRECTIVES FOR HEALTH CARE

 

(Definitions)

 

      127.505 Definitions for ORS 127.505 to 127.660. As used in ORS 127.505 to 127.660 and 127.995:

      (1) “Adult” means an individual who:

      (a) Is 18 years of age or older; or

      (b) Has been adjudicated an emancipated minor, or is a minor who is married.

      (2)(a) “Advance directive” means a document executed by a principal that contains:

      (A) A form appointing a health care representative; and

      (B) Instructions to the health care representative.

      (b) “Advance directive” includes any supplementary document or writing attached by the principal to the document described in paragraph (a) of this subsection.

      (3) “Appointment” means a form appointing a health care representative, letters of guardianship or a court order appointing a health care representative.

      (4)(a) “Artificially administered nutrition and hydration” means a medical intervention to provide food and water by tube, mechanical device or other medically assisted method.

      (b) “Artificially administered nutrition and hydration” does not include the usual and typical provision of nutrition and hydration, such as the provision of nutrition and hydration by cup, hand, bottle, drinking straw or eating utensil.

      (5) “Attending health care provider” means the health care provider who has primary responsibility for the care and treatment of the principal, provided that the powers and duties conferred on the health care provider by ORS 127.505 to 127.660 are within the health care provider’s scope of practice.

      (6) “Attending physician” means the physician who has primary responsibility for the care and treatment of the principal.

      (7) “Capable” means not incapable.

      (8) “Form appointing a health care representative” means:

      (a) The portion of the form adopted under ORS 127.533 used to appoint a health care representative or an alternate health care representative;

      (b) The portion of the form set forth in section 6, chapter 36, Oregon Laws 2018, used to appoint a health care representative or an alternate health care representative; or

      (c) The form set forth in ORS 127.527.

      (9) “Health care” means diagnosis, treatment or care of disease, injury and congenital or degenerative conditions, including the use, maintenance, withdrawal or withholding of life-sustaining procedures and the use, maintenance, withdrawal or withholding of artificially administered nutrition and hydration.

      (10) “Health care decision” means consent, refusal of consent or withholding or withdrawal of consent to health care, and includes decisions relating to admission to or discharge from a health care facility.

      (11) “Health care facility” means a health care facility as defined in ORS 442.015, a domiciliary care facility as defined in ORS 443.205, a residential facility as defined in ORS 443.400, an adult foster home as defined in ORS 443.705 or a hospice program as defined in ORS 443.850.

      (12)(a) “Health care provider” means a person licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession.

      (b) “Health care provider” includes a health care facility.

      (13) “Health care representative” means:

      (a) A competent adult appointed to be a health care representative or an alternate health care representative under ORS 127.510.

      (b) A person who has authority to make health care decisions for a principal under the provisions of ORS 127.635 (2) or (3).

      (c) A guardian or other person, appointed by a court to make health care decisions for a principal.

      (14) “Incapable” means that in the opinion of the court in a proceeding to appoint or confirm authority of a health care representative, or in the opinion of the principal’s attending physician or attending health care provider, a principal lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the principal’s manner of communicating if those persons are available.

      (15) “Instrument” means an advance directive, form appointing a health care representative, disqualification, withdrawal, court order, court appointment or other document governing health care decisions.

      (16)(a) “Life-sustaining procedure” means any medical procedure, pharmaceutical, medical device or medical intervention that maintains life by sustaining, restoring or supplanting a vital function.

      (b) “Life-sustaining procedure” does not include routine care necessary to sustain patient cleanliness and comfort.

      (17) “Medically confirmed” means the medical opinion of the attending physician or attending health care provider has been confirmed by a second physician or second health care provider who has examined the patient and who has clinical privileges or expertise with respect to the condition to be confirmed.

      (18) “Permanently unconscious” means completely lacking an awareness of self and external environment, with no reasonable possibility of a return to a conscious state, and that condition has been medically confirmed by a neurological specialist who is an expert in the examination of unresponsive individuals.

      (19) “Physician” means an individual licensed to practice medicine by the Oregon Medical Board or a naturopathic physician licensed to practice naturopathic medicine by the Oregon Board of Naturopathic Medicine.

      (20) “Principal” means:

      (a) An adult who has executed an advance directive;

      (b) A person of any age who has a health care representative;

      (c) A person for whom a health care representative is sought; or

      (d) A person being evaluated for capability to whom a health care representative will be assigned if the person is determined to be incapable.

      (21) “Terminal condition” means a health condition in which death is imminent irrespective of treatment, and where the application of life-sustaining procedures or the artificial administration of nutrition and hydration serves only to postpone the moment of death of the principal. [1989 c.914 §1; 1991 c.470 §11; 1993 c.767 §1; 2009 c.381 §1; 2017 c.356 §12; 2018 c.36 §9]

 

(Health Care Decisions Generally)

 

      127.507 Capable adults may make own health care decisions. Capable adults may make their own health care decisions. [1993 c.767 §2]

 

(Formalities of Executing Advance Directive)

 

      127.510 Appointment of health care representative and alternate health care representative; duration. (1) A capable adult may execute an advance directive. The advance directive is effective when it is signed by the principal and witnessed or notarized as required by ORS 127.505 to 127.660.

      (2)(a) A capable adult may use an advance directive or the form set forth in ORS 127.527 to appoint a competent adult to serve as the health care representative for the capable adult. A health care representative appointed under this paragraph shall make health care decisions for the principal if the principal becomes incapable.

      (b) A capable adult may use an advance directive or the form set forth in ORS 127.527 to appoint one or more competent adults to serve as alternate health care representatives for the capable adult. For purposes of ORS 127.505 to 127.660, an alternate health care representative has the rights and privileges of a health care representative appointed under paragraph (a) of this subsection, including the rights described in ORS 127.535. An alternate health care representative appointed under this paragraph shall make health care decisions for the principal if:

      (A) The principal becomes incapable; and

      (B) The health care representative appointed under paragraph (a) of this subsection is unable, unwilling or unavailable to make timely health care decisions for the principal.

      (c) For purposes of paragraph (b) of this subsection, the health care representative appointed under paragraph (a) of this subsection is unavailable to make timely health care decisions for the principal if the health care representative is not available to answer questions for the health care provider in person, by telephone or by another means of direct communication.

      (d) An appointment made under this section is effective when it is accepted by the health care representative.

      (3) Unless the period of time that an advance directive or a form appointing a health care representative is effective is limited by the terms of the advance directive or the form appointing a health care representative, the advance directive or the form appointing a health care representative continues in effect until:

      (a) The principal dies; or

      (b) The advance directive or the form appointing a health care representative is revoked, suspended or superseded pursuant to ORS 127.545.

      (4) Notwithstanding subsection (3) of this section, if the principal is incapable at the expiration of the term of the advance directive or the form appointing a health care representative, the advance directive or the form appointing a health care representative continues in effect until:

      (a) The principal is no longer incapable;

      (b) The principal dies; or

      (c) The advance directive or the form appointing a health care representative is revoked, suspended or superseded pursuant to the provisions of ORS 127.545.

      (5) A health care provider shall make a copy of an advance directive, a copy of a form appointing a health care representative and a copy of any other instrument a part of the principal’s medical record when a copy of the advance directive, form appointing a health care representative or instrument is provided to the principal’s health care provider.

      (6) Notwithstanding subsections (3)(a) and (4)(b) of this section, an advance directive remains in effect with respect to an anatomical gift, as defined in ORS 97.953, after the principal dies. [1989 c.914 §2; 1993 c.767 §3; 1995 c.717 §13; 2007 c.681 §28; 2018 c.36 §7]

 

      127.515 Execution; witnesses; out-of-state execution. (1) An advance directive or a form appointing a health care representative may be executed by a resident or nonresident adult of this state in the manner provided by ORS 127.505 to 127.660.

      (2) An advance directive or a form appointing a health care representative must reflect the date of the principal’s signature or other method of accepting the advance directive or the form appointing a health care representative. To be valid, an advance directive or a form appointing a health care representative must be:

      (a) Witnessed and signed by at least two adults; or

      (b) Notarized by a notary public.

      (3) If an advance directive or a form appointing a health care representative is validated under subsection (2)(a) of this section, each witness must witness:

      (a) The principal signing the advance directive or the form appointing a health care representative; or

      (b) The principal acknowledging the signature of the principal on the advance directive or the form appointing a health care representative, or the principal acknowledging any other method by which the principal accepted the advance directive or the form appointing a health care representative.

      (4) For an advance directive or a form appointing a health care representative to be valid under subsection (2)(a) of this section, the witnesses may not, on the date the advance directive or the form appointing a health care representative is signed or acknowledged:

      (a) Be the principal’s attending physician or attending health care provider.

      (b) Be the principal’s health care representative or alternate health care representative appointed under ORS 127.510.

      (5) If an advance directive or a form appointing a health care representative is validated under subsection (2)(a) of this section, and if the principal is a patient in a long term care facility at the time the advance directive or the form appointing a health care representative is executed, one of the witnesses must be an individual who is designated by the facility and qualified as specified by the Department of Human Services by rule.

      (6) Notwithstanding subsection (2) of this section, an advance directive or a form appointing a health care representative that is executed by an adult who resides in another state at the time of execution, and that is executed in compliance with the laws of that state, the laws of the state where the principal is located at the time of the execution or the laws of this state, is validly executed for the purposes of ORS 127.505 to 127.660. [1989 c.914 §3; 1993 c.767 §4; 2018 c.36 §8]

 

      127.520 Persons not eligible to serve as health care representative; manner of disqualifying persons for service. (1) Except as provided in ORS 127.635 or as may be allowed by court order, the following persons may not serve as health care representatives:

      (a) If unrelated to the principal by blood, marriage or adoption:

      (A) The attending physician or attending health care provider of the principal, or an employee of the attending physician or attending health care provider of the principal; or

      (B) An owner, operator or employee of a health care facility in which the principal is a patient or resident, unless the health care representative was appointed before the principal’s admission to the facility; or

      (b) A person who is the principal’s parent or former guardian if:

      (A) At any time while the principal was under the care, custody or control of the person, a court entered an order:

      (i) Taking the principal into protective custody under ORS 419B.150; or

      (ii) Committing the principal to the legal custody of the Department of Human Services for care, placement and supervision under ORS 419B.337; and

      (B) The court entered a subsequent order that:

      (i) The principal should be permanently removed from the person’s home, or continued in substitute care, because it was not safe for the principal to be returned to the person’s home, and no subsequent order of the court was entered that permitted the principal to return to the person’s home before the principal’s wardship was terminated under ORS 419B.328; or

      (ii) Terminated the person’s parental rights under ORS 419B.500 and 419B.502 to 419B.524.

      (2) A principal, while not incapable, may petition the court to remove a prohibition described in subsection (1)(b) of this section.

      (3) A capable adult may disqualify any other person from making health care decisions for the capable adult. The disqualification must be in writing and signed by the capable adult. The disqualification must specifically designate those persons who are disqualified.

      (4) A health care representative whose authority has been revoked by a court is disqualified.

      (5) A health care provider who has actual knowledge of a disqualification may not accept a health care decision from the disqualified person.

      (6) A person who has been disqualified from making health care decisions for a principal, and who is aware of that disqualification, may not make health care decisions for the principal. [1989 c.914 §4; 1993 c.767 §5; 2011 c.194 §2; 2018 c.36 §11]

 

      127.525 Acceptance of appointment; withdrawal. For an appointment of a health care representative or an alternate health care representative in a form appointing a health care representative to be effective, the health care representative or the alternate health care representative must accept the appointment as described in ORS 127.510. Subject to the right of the health care representative or the alternate health care representative to withdraw, the acceptance imposes a duty on the health care representative or the alternate health care representative to make health care decisions on behalf of the principal as described in ORS 127.510. Until the principal becomes incapable, the health care representative or the alternate health care representative may withdraw by giving notice to the principal. After the principal becomes incapable, the health care representative or the alternate health care representative may withdraw by giving notice to the health care provider. [1989 c.914 §5; 1993 c.767 §6; 2018 c.36 §12]

 

(Form for Appointing Health Care Representative)

 

      127.527 Form for appointing health care representative. A form for appointing a health care representative and an alternate health care representative must be written in substantially the following form:

______________________________________________________________________________

FORM FOR APPOINTING

HEALTH CARE REPRESENTATIVE AND

ALTERNATE HEALTH CARE

REPRESENTATIVE

 

      This form may be used in Oregon to choose a person to make health care decisions for you if you become too sick to speak for yourself. The person is called a health care representative.

      •If you have completed a form appointing a health care representative in the past, this new form will replace any older form.

      •You must sign this form for it to be effective. You must also have it witnessed by two witnesses or a notary. Your appointment of a health care representative is not effective until the health care representative accepts the appointment.

      •If you become too sick to speak for yourself and do not have an effective health care representative appointment, a health care representative will be appointed for you in the order of priority set forth in ORS 127.635 (2).

 

      1. ABOUT ME.

 

      Name: _______________

      Date of Birth: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      2. MY HEALTH CARE REPRESENTATIVE.

 

      I choose the following person as my health care representative to make health care decisions for me if I can’t speak for myself.

 

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      I choose the following people to be my alternate health care representatives if my first choice is not available to make health care decisions for me or if I cancel the first health care representative’s appointment.

 

      First alternate health care representative:

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      Second alternate health care representative:

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      3. MY SIGNATURE.

 

      My signature: _______________

      Date: _________

 

      4. WITNESS.

 

      COMPLETE EITHER A OR B WHEN YOU SIGN.

 

      A. NOTARY:

 

      State of ____________

      County of ____________

      Signed or attested before me on_____,

      2___, by_______________.

      ________________________

      Notary Public - State of Oregon

 

      B. WITNESS DECLARATION:

 

      The person completing this form is personally known to me or has provided proof of identity, has signed or acknowledged the person’s signature on the document in my presence and appears to be not under duress and to understand the purpose and effect of this form. In addition, I am not the person’s health care representative or alternate health care representative, and I am not the person’s attending health care provider.

 

      Witness Name (print): ________

      Signature: _______________

      Date: _______________

 

      Witness Name (print): ________

      Signature: _______________

      Date: _______________

 

      5. ACCEPTANCE BY MY HEALTH CARE REPRESENTATIVE.

 

      I accept this appointment and agree to serve as health care representative.

 

      Health care representative:

      Printed name: _______________

      Signature or other verification of acceptance: _______________

      Date: _________

 

      First alternate health care representative:

      Printed name: _______________

      Signature or other verification of acceptance: _______________

      Date: _________

 

      Second alternate health care representative:

      Printed name: _______________

      Signature or other verification of acceptance: _______________

      Date: _________

______________________________________________________________________________ [2018 c.36 §5]

 

      Note: Sections 1 and 6, chapter 36, Oregon Laws 2018, provide:

      Sec. 1. Sections 2 to 6 of this 2018 Act [127.527 to 127.534] are added to and made a part of ORS 127.505 to 127.660. [2018 c.36 §1]

      Sec. 6. Temporary form of advance directive. (1) In lieu of the form of an advance directive adopted by the Advance Directive Adoption Committee under section 3 of this 2018 Act [127.533], on or before January 1, 2022, a principal may execute an advance directive that is in a form that is substantially the same as the form of an advance directive set forth in this section.

      (2) Notwithstanding section 3 (2) of this 2018 Act, the form of an advance directive set forth in this section is a valid form of an advance directive in this state.

      (3) The form of an advance directive executed as described in subsection (1) of this section is as follows:

______________________________________________________________________________

ADVANCE DIRECTIVE (STATE OF OREGON)

 

      This form may be used in Oregon to choose a person to make health care decisions for you if you become too sick to speak for yourself. The person is called a health care representative. If you do not have an effective health care representative appointment and become too sick to speak for yourself, a health care representative will be appointed for you in the order of priority set forth in ORS 127.635 (2).

      This form also allows you to express your values and beliefs with respect to health care decisions and your preferences for health care.

      • If you have completed an advance directive in the past, this new advance directive will replace any older directive.

      • You must sign this form for it to be effective. You must also have it witnessed by two witnesses or a notary. Your appointment of a health care representative is not effective until the health care representative accepts the appointment.

      • If your advance directive includes directions regarding the withdrawal of life support or tube feeding, you may revoke your advance directive at any time and in any manner that expresses your desire to revoke it.

      • In all other cases, you may revoke your advance directive at any time and in any manner as long as you are capable of making medical decisions.

 

      1. ABOUT ME.

 

      Name: _______________

      Date of Birth: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      2. MY HEALTH CARE REPRESENTATIVE.

 

      I choose the following person as my health care representative to make health care decisions for me if I can’t speak for myself.

 

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      I choose the following people to be my alternate health care representatives if my first choice is not available to make health care decisions for me or if I cancel the first health care representative’s appointment.

 

      First alternate health care representative:

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      Second alternate health care representative:

      Name: _______________

      Relationship: _________

      Telephone numbers: (Home)_____

      (Work)_____ (Cell)_____

      Address: __________________

      E-mail: _______________

 

      3. INSTRUCTIONS TO MY HEALTH CARE REPRESENTATIVE.

 

      If you wish to give instructions to your health care representative about your health care decisions, initial one of the following three statements:

 

      ___ To the extent appropriate, my health care representative must follow my instructions.

      ___ My instructions are guidelines for my health care representative to consider when making decisions about my care.

      ___ Other instructions: ____________

 

      4. DIRECTIONS REGARDING MY END OF LIFE CARE.

 

      In filling out these directions, keep the following in mind:

      • The term “as my health care provider recommends” means that you want your health care provider to use life support if your health care provider believes it could be helpful, and that you want your health care provider to discontinue life support if your health care provider believes it is not helping your health condition or symptoms.

      • The term “life support” means any medical treatment that maintains life by sustaining, restoring or replacing a vital function.

      • The term “tube feeding” means artificially administered food and water.

      • If you refuse tube feeding, you should understand that malnutrition, dehydration and death will probably result.

      • You will receive care for your comfort and cleanliness no matter what choices you make.

 

      A. Statement Regarding End of Life Care. You may initial the statement below if you agree with it. If you initial the statement you may, but you do not have to, list one or more conditions for which you do not want to receive life support.

 

      ___ I do not want my life to be prolonged by life support. I also do not want tube feeding as life support. I want my health care provider to allow me to die naturally if my health care provider and another knowledgeable health care provider confirm that I am in any of the medical conditions listed below.

 

      B. Additional Directions Regarding End of Life Care. Here are my desires about my health care if my health care provider and another knowledgeable health care provider confirm that I am in a medical condition described below:

 

      a. Close to Death. If I am close to death and life support would only postpone the moment of my death:

 

      INITIAL ONE:

      ___ I want to receive tube feeding.

      ___ I want tube feeding only as my health care provider recommends.

      ___ I DO NOT WANT tube feeding.

 

      INITIAL ONE:

      ___ I want any other life support that may apply.

      ___ I want life support only as my health care provider recommends.

      ___ I DO NOT WANT life support.

 

      b. Permanently Unconscious. If I am unconscious and it is very unlikely that I will ever become conscious again:

 

      INITIAL ONE:

      ___ I want to receive tube feeding.

      ___ I want tube feeding only as my health care provider recommends.

      ___ I DO NOT WANT tube feeding.

 

      INITIAL ONE:

      ___ I want any other life support that may apply.

      ___ I want life support only as my health care provider recommends.

      ___ I DO NOT WANT life support.

 

      c. Advanced Progressive Illness. If I have a progressive illness that will be fatal and is in an advanced stage, and I am consistently and permanently unable to communicate by any means, swallow food and water safely, care for myself and recognize my family and other people, and it is very unlikely that my condition will substantially improve:

 

      INITIAL ONE:

      ___ I want to receive tube feeding.

      ___ I want tube feeding only as my health care provider recommends.

      ___ I DO NOT WANT tube feeding.

 

      INITIAL ONE:

      ___ I want any other life support that may apply.

      ___ I want life support only as my health care provider recommends.

      ___ I DO NOT WANT life support.

 

      d. Extraordinary Suffering. If life support would not help my medical condition and would make me suffer permanent and severe pain:

 

      INITIAL ONE:

      ___ I want to receive tube feeding.

      ___ I want tube feeding only as my health care provider recommends.

      ___ I DO NOT WANT tube feeding.

 

      INITIAL ONE:

      ___ I want any other life support that may apply.

      ___ I want life support only as my health care provider recommends.

      ___ I DO NOT WANT life support.

 

      C. Additional Instruction. You may attach to this document any writing or recording of your values and beliefs related to health care decisions. These attachments will serve as guidelines for health care providers. Attachments may include a description of what you would like to happen if you are close to death, if you are permanently unconscious, if you have an advanced progressive illness or if you are suffering permanent and severe pain.

 

      5. MY SIGNATURE.

 

      My signature: _______________

      Date: _________

 

      6. WITNESS.

 

      COMPLETE EITHER A OR B WHEN YOU SIGN.

 

      A. NOTARY:

 

      State of ____________

      County of ____________

      Signed or attested before me on_____,

      2___, by_______________.

      ________________________

      Notary Public - State of Oregon

 

      B. WITNESS DECLARATION:

 

      The person completing this form is personally known to me or has provided proof of identity, has signed or acknowledged the person’s signature on the document in my presence and appears to be not under duress and to understand the purpose and effect of this form. In addition, I am not the person’s health care representative or alternate health care representative, and I am not the person’s attending health care provider.

 

      Witness Name (print): ________

      Signature: _______________

      Date: _______________

 

      Witness Name (print): ________

      Signature: _______________

      Date: _______________

 

      7. ACCEPTANCE BY MY HEALTH CARE REPRESENTATIVE.

 

      I accept this appointment and agree to serve as health care representative.

 

      Health care representative:

      Printed name: _______________

      Signature or other verification of acceptance:

      _______________

      Date: _________

 

      First alternate health care representative:

      Printed name: _______________

      Signature or other verification of acceptance:

      _______________

      Date: _________

 

      Second alternate health care representative:

      Printed name: _______________

      Signature or other verification of acceptance:

      _______________

      Date: _________

______________________________________________________________________________ [2018 c.36 §6]

 

      127.530 [1989 c.914 §6; repealed by 1993 c.767 §7 (127.531 enacted in lieu of 127.530)]

 

      127.531 [1993 c.767 §8 (enacted in lieu of 127.530); repealed by 2018 c.36 §30]

 

(Advance Directive Adoption Committee)

 

      127.532 Appointment; term of office; rules. (1) The Advance Directive Adoption Committee is established within the division of the Oregon Health Authority that is charged with performing the public health functions of the state.

      (2)(a) The committee consists of 13 members.

      (b) One member shall be the Long Term Care Ombudsman or the designee of the Long Term Care Ombudsman.

      (c) The other 12 members shall be appointed by the Governor as follows:

      (A) One member who represents primary health care providers.

      (B) One member who represents hospitals.

      (C) One member who is a clinical ethicist affiliated with a health care facility located in this state, or affiliated with a health care organization offering health care services in this state.

      (D) Two members who are health care providers with expertise in palliative or hospice care, one of whom is not employed by a hospital or other health care facility, a health care organization or an insurer.

      (E) One member who represents individuals with disabilities.

      (F) One member who represents consumers of health care services.

      (G) One member who represents the long term care community.

      (H) One member with expertise advising or assisting consumers with end-of-life decisions.

      (I) One member from among members proposed by the Oregon State Bar who has extensive experience in elder law and advising individuals on how to execute an advance directive.

      (J) One member from among members proposed by the Oregon State Bar who has extensive experience in estate planning and advising individuals on how to make end-of-life decisions.

      (K) One member from among members proposed by the Oregon State Bar who has extensive experience in health law.

      (3) The term of office of each member of the committee is four years, but a member serves at the pleasure of the appointing authority. Before the expiration of the term of a member, the appointing authority shall appoint a successor whose term begins on January 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the appointing authority shall make an appointment to become immediately effective for the unexpired term.

      (4) A majority of the members of the committee constitutes a quorum for the transaction of business.

      (5) Official action by the committee requires the approval of a majority of the members of the committee.

      (6) The committee shall elect one of its members to serve as chairperson.

      (7) The committee shall meet at times and places specified by the call of the chairperson or of a majority of the members of the committee, provided that the committee meets at least twice a year.

      (8) The committee may adopt rules necessary for the operation of the committee.

      (9) Members of the committee are not entitled to compensation, but may be reimbursed for actual and necessary travel and other expenses incurred by them in the performance of their official duties in the manner and amounts provided for in ORS 292.495. Claims for expenses shall be paid out of funds appropriated to the Oregon Health Authority for purposes of the committee. [2018 c.36 §2]

 

      127.533 Duties; advance directive elements. (1) In accordance with public notice and stakeholder participation requirements prescribed by the Oregon Health Authority and ORS 127.534, the Advance Directive Adoption Committee established under ORS 127.532 shall:

      (a) Adopt the form of an advance directive to be used in this state; and

      (b) Review the form not less than once every four years for the purpose of adopting changes to the form that the committee determines are necessary.

      (2) Except as otherwise provided by ORS 127.505 to 127.660, the form of an advance directive adopted pursuant to this section is the only valid form of an advance directive in this state.

      (3) At a minimum, the form of an advance directive adopted under this section must contain the following elements:

      (a) A statement about the purposes of the advance directive, including:

      (A) A statement about the purpose of the principal’s appointment of a health care representative to make health care decisions for the principal if the principal becomes incapable;

      (B) A statement about the priority of health care representative appointment in ORS 127.635 (2) in the event the principal becomes incapable and does not have a valid health care representative appointment;

      (C) A statement about the purpose of the principal’s expression of the principal’s values and beliefs with respect to health care decisions and the principal’s preferences for health care;

      (D) A statement about the purpose of the principal’s expression of the principal’s preferences with respect to placement in a care home or a mental health facility; and

      (E) A statement that advises the principal that the advance directive allows the principal to document the principal’s preferences, but is not a POLST, as defined in ORS 127.663.

      (b) A statement explaining that to be effective the advance directive must be:

      (A) Accepted by signature or other applicable means; and

      (B) Either witnessed and signed by at least two adults or notarized.

      (c) A statement explaining that to be effective the appointment of a health care representative or an alternate health care representative must be accepted by the health care representative or the alternate health care representative.

      (d) A statement explaining that the advance directive, once executed, supersedes any previously executed advance directive.

      (e) The name, date of birth, address and other contact information of the principal.

      (f) The name, address and other contact information of any health care representative or any alternate health care representative appointed by the principal.

      (g) A section providing the principal with an opportunity to state the principal’s values and beliefs with respect to health care decisions, including the opportunity to describe the principal’s preferences, by completing a checklist, by providing instruction through narrative or other means, or by any combination of methods used to describe the principal’s preferences, regarding:

      (A) When the principal wants all reasonably available health care necessary to preserve life and recover;

      (B) When the principal wants all reasonably available health care necessary to treat chronic conditions;

      (C) When the principal wants to specifically limit health care necessary to preserve life and recover, including artificially administered nutrition and hydration, cardiopulmonary resuscitation and transport to a hospital; and

      (D) When the principal desires comfort care instead of health care necessary to preserve life.

      (h) A section where the principal and the witnesses or notary may accept by signature or other means, including electronic or verbal means, the advance directive.

      (i) A section where any health care representative or any alternate health care representative appointed by the principal may accept the advance directive by signature or other means, including electronic or verbal means.

      (4)(a) In adopting the form of an advance directive under this section, the committee shall use plain language, such as “tube feeding” and “life support.”

      (b) As used in this subsection:

      (A) “Life support” means life-sustaining procedures.

      (B) “Tube feeding” means artificially administered nutrition and hydration.

      (5) In adopting the form of an advance directive under this section, the committee shall use the components of the form for appointing a health care representative or an alternate health care representative set forth in ORS 127.527.

      (6) The principal may attach supplementary material to an advance directive. In addition to the form of an advance directive adopted under this section, supplementary material attached to an advance directive under this subsection is a part of the advance directive.

      (7) The Oregon Health Authority shall post the form of an advance directive adopted under this section on the authority’s website. [2018 c.36 §3]

 

      127.534 Ratification of advance directive form by Legislative Assembly. (1) In addition to the requirements prescribed by the Oregon Health Authority under ORS 127.533 (1), the form of an advance directive adopted pursuant to ORS 127.533 may not take effect until the form has been ratified by the Legislative Assembly during an odd-numbered year regular session of the Legislative Assembly in the manner required for the passage of bills by Article IV, section 25 (1), of the Oregon Constitution, and by the Governor in the manner required for the passage of bills by Article V, section 15b, of the Oregon Constitution.

      (2) For purposes of this section, the Advance Directive Adoption Committee established under ORS 127.532 shall submit the form of an advance directive adopted under ORS 127.533 to an interim committee of the Legislative Assembly related to the judiciary on or before September 1 of an even-numbered year following the date on which the committee adopts the form. Upon receiving the form, the interim committee shall file a proposed legislative measure with the Legislative Counsel requesting a measure by which the Legislative Assembly and the Governor may ratify the form. [2018 c.36 §4]

 

      Note: Section 29, chapter 36, Oregon Laws 2018, provides:

      Sec. 29. Notwithstanding the term of office specified by section 2 of this 2018 Act [127.532], of the members first appointed by the Governor to the Advance Directive Adoption Committee:

      (1) Four shall serve for a term ending January 1, 2021.

      (2) Four shall serve for a term ending January 1, 2022.

      (3) Four shall serve for a term ending January 1, 2023. [2018 c.36 §29]

 

(Effect of Executing Advance Directive)

 

      127.535 Authority of health care representative; duties; objection by principal. (1) A health care representative has the authority over the principal’s health care that the principal would have if the principal were not incapable, subject to the limitations of the appointment and ORS 127.540 and 127.580. A health care representative who is known to a health care provider to be available to make health care decisions has priority over any person other than the principal to act for the principal with respect to health care decisions. A health care representative has authority to make a health care decision for a principal only when the principal is incapable.

      (2) A health care representative is not personally responsible for the cost of health care provided to the principal solely because the health care representative makes health care decisions for the principal.

      (3) Except to the extent that the right is limited by the appointment or by federal law or regulation, a health care representative for an incapable principal has the same right as the principal to receive information regarding the proposed health care, to receive and review medical records and to consent to the disclosure of medical records. The right of the health care representative to receive information as described in this section is not a waiver of any evidentiary privilege or any right to assert confidentiality with respect to others.

      (4) In making health care decisions, a health care representative has a duty to act consistently with the desires of the principal as expressed in the principal’s advance directive, or as otherwise made known by the principal to the health care representative. If the principal’s preferences are unknown, a health care representative has a duty to act in a manner that the health care representative in good faith believes to be in the best interests of the principal.

      (5) ORS 127.505 to 127.660 do not authorize a health care representative or health care provider to withhold or withdraw life-sustaining procedures or artificially administered nutrition and hydration if the principal manifests an objection to the health care decision. If the principal objects to the health care decision, the health care provider shall proceed as though the principal is capable with respect to the health care decision.

      (6) An advance directive or form appointing a health care representative that would be valid except that the advance directive or form appointing a health care representative is expired, is not properly witnessed or otherwise fails to meet the formal requirements of ORS 127.505 to 127.660 shall constitute evidence of the patient’s desires and interests.

      (7) A health care representative is a personal representative for the purposes of ORS 192.553 to 192.581 and the federal Health Insurance Portability and Accountability Act privacy regulations, 45 C.F.R. parts 160 and 164. [1989 c.914 §7; 1993 c.767 §9; 2005 c.53 §1; 2009 c.381 §§2,3; 2018 c.36 §13]

 

      127.540 Limitations on authority of health care representative. ORS 127.505 to 127.660 do not authorize an appointed health care representative to make a health care decision with respect to any of the following on behalf of the principal:

      (1) Convulsive treatment.

      (2) Psychosurgery.

      (3) Sterilization.

      (4) Abortion.

      (5) Withholding or withdrawing of a life-sustaining procedure unless:

      (a) The appointed health care representative has been given authority to make decisions on withholding or withdrawing life-sustaining procedures; or

      (b) The principal has been medically confirmed to be in one of the following conditions:

      (A) A terminal condition.

      (B) Permanently unconscious.

      (C) A condition in which administration of life-sustaining procedures would not benefit the principal’s medical condition and would cause permanent and severe pain.

      (D) A progressive, debilitating illness that will be fatal and is in its advanced stages, and the principal is consistently and permanently unable to communicate, swallow food and water safely, care for the principal, and recognize the principal’s family and other people, and there is no reasonable chance that the principal’s underlying condition will improve.

      (6) Withholding or withdrawing artificially administered nutrition and hydration, other than hyperalimentation, necessary to sustain life except as provided in ORS 127.580. [1989 c.914 §8; 1993 c.442 §18; 1993 c.767 §10; 2011 c.149 §1]

 

(Provisions Generally Applicable

to Advance Directives and

Health Care Decisions)

 

      127.545 Revocation of advance directive or health care decision; when revocation effective; effect of executing form appointing health care representative. (1) An advance directive or a health care decision by a health care representative may be revoked:

      (a) If the advance directive or health care decision involves the decision to withhold or withdraw life-sustaining procedures or artificially administered nutrition and hydration, at any time and in any manner by which the principal is able to communicate the intent to revoke; or

      (b) At any time and in any manner by a capable principal.

      (2) Revocation is effective upon communication by the principal to the principal’s attending physician, attending health care provider or health care representative. If the revocation is communicated by the principal to the principal’s health care representative, and the principal is incapable and is under the care of a health care provider known to the health care representative, the health care representative must promptly inform the principal’s attending physician or attending health care provider of the revocation.

      (3) Upon learning about a revocation of a health care decision, an attending physician or attending health care provider must cause the revocation to be made a part of the principal’s medical records.

      (4) Unless the advance directive provides otherwise:

      (a) Execution of an advance directive revokes any prior advance directive; and

      (b) The directions with respect to health care decisions in an advance directive supersede:

      (A) Any directions contained in a previous court appointment or advance directive; and

      (B) Any prior inconsistent expression of preferences with respect to health care decisions.

      (5) Unless the form appointing a health care representative provides otherwise:

      (a) Execution of a form appointing a health care representative revokes any prior form appointing a health care representative;

      (b) Valid appointment of a health care representative or an alternate health care representative under ORS 127.510 supersedes:

      (A) Any power of a guardian or other person appointed by a court to make health care decisions for the protected person; and

      (B) Any other prior appointment or designation of a health care representative; and

      (c) A form appointing a health care representative is suspended:

      (A) If the appointed health care representative and all appointed alternate health care representatives have withdrawn; or

      (B) If the form appointing a health care representative names the principal’s spouse as the health care representative or an alternate health care representative, a petition for dissolution or annulment of marriage is filed and the principal does not reaffirm the appointment after the filing of the petition.

      (6)(a) If the principal has both a valid advance directive and a valid form appointing a health care representative, and if the directions reflected in those documents are inconsistent, the document last executed governs to the extent of the inconsistency.

      (b) If the principal has both a valid advance directive, or a valid form appointing a health care representative, and a declaration for mental health treatment made in accordance with ORS 127.700 to 127.737, and if the directions reflected in those documents are inconsistent, the declaration for mental health treatment governs to the extent of the inconsistency.

      (7) Any reinstatement of an advance directive or a form appointing a health care representative must be in writing. [1989 c.914 §9; 1993 c.571 §26a; 1993 c.767 §12; 2015 c.82 §1; 2018 c.36 §14]

 

      127.550 Petition for judicial review of advance directives; scope of review; authority to file petition. (1) A health care decision made by a person who is authorized to make the decision under ORS 127.505 to 127.660 is effective immediately and does not require judicial approval.

      (2) A petition may be filed under ORS 127.505 to 127.660 for one or more of the following purposes:

      (a) Determining whether a principal is incapable.

      (b) Determining whether an appointment of a health care representative or the execution of an advance directive is valid or has been suspended, reinstated, revoked or terminated.

      (c) Determining whether the acts or proposed acts of a health care representative breach any duty of the health care representative and whether those acts should be enjoined.

      (d) Declaring that a person is authorized to act as a health care representative.

      (e) Disqualifying a health care representative upon a determination of the court that the health care representative has violated, has failed to perform or is unable to perform the duties under ORS 127.535 (4).

      (f) Approving any health care decision that by law requires court approval.

      (g) Determining whether the acts or proposed acts of a health care representative are clearly inconsistent with the preferences of the principal as made known to the health care representative, or where the preferences of the principal are unknown or unclear, whether the acts or proposed acts of the health care representative are clearly contrary to the best interests of the principal.

      (h) Declaring that a form appointing a health care representative is suspended or revoked upon a determination by the court that the appointed health care representative has made a health care decision for the principal that authorized anything illegal. A suspension or revocation of a form appointing a health care representative under this paragraph shall be in the discretion of the court.

      (i) Considering any other matter that the court determines needs to be decided for the protection of the principal.

      (3) A petition may be filed by any of the following:

      (a) The principal.

      (b) A health care representative.

      (c) The spouse, parent, sibling or adult child of the principal.

      (d) An adult relative or adult friend of the principal who is familiar with the desires of the principal.

      (e) The guardian of the principal.

      (f) The conservator of the principal.

      (g) The attending physician or attending health care provider of the principal.

      (4) A petition under this section shall be filed in the circuit court in the county in which the principal resides or is located.

      (5) A determination described in this section may be made by the court as a part of a protective proceeding under ORS chapter 125 if a guardian or temporary guardian has been appointed for the principal, or if the petition seeks the appointment of a guardian or a temporary guardian for the principal. [1989 c.914 §9a; 1993 c.767 §13; 2001 c.396 §2; 2018 c.36 §15]

 

      127.555 Designation of attending physician or health care provider; liability of health care representative and health care provider. (1) If there is more than one physician or health care provider caring for a principal, the principal shall designate one physician or one health care provider as the attending physician or the attending health care provider. If the principal is incapable, the health care representative for the principal shall designate the attending physician or the attending health care provider.

      (2) Health care representatives, and persons who are acting under a reasonable belief that they are health care representatives, are not guilty of any criminal offense, or subject to civil liability, or in violation of any professional oath, affirmation or standard of care for any action taken in good faith as a health care representative.

      (3) A health care provider acting or declining to act in reliance on the health care decision made in an advance directive or in a document that the health care provider reasonably believes to be an advance directive, made by an attending physician or attending health care provider under ORS 127.635 (3), or made by a person who the health care provider believes is the health care representative for an incapable principal, is not subject to criminal prosecution, civil liability or professional disciplinary action on grounds that the health care decision is unauthorized unless the health care provider:

      (a) Fails to satisfy a duty that ORS 127.505 to 127.660 place on the health care provider;

      (b) Acts without medical confirmation as required under ORS 127.505 to 127.660;

      (c) Knows or has reason to know that the requirements of ORS 127.505 to 127.660 have not been satisfied; or

      (d) Acts after receiving notice that:

      (A) The authority or decision on which the health care provider relied is revoked, suspended, superseded or subject to other legal infirmity;

      (B) A court challenge to the health care decision or the authority relied on in making the health care decision is pending; or

      (C) The health care representative has withdrawn or has been disqualified.

      (4) The immunities provided by this section do not apply to:

      (a) The manner of administering health care pursuant to a health care decision made by the health care representative or by an advance directive; or

      (b) The manner of determining the health condition or incapacity of the principal.

      (5) A health care provider who determines that a principal is incapable is not subject to criminal prosecution, civil liability or professional disciplinary action for failing to follow that principal’s direction except for a failure to follow a principal’s manifestation of an objection to a health care decision under ORS 127.535 (5). [1989 c.914 §10; 1993 c.767 §14; 2018 c.36 §16]

 

      127.560 Provisions not exclusive; effect of provisions on civil and criminal liability of health care representative and provider. (1) Except as otherwise specifically provided, ORS 127.505 to 127.660 and 127.995 do not impair or supersede the laws of this state relating to:

      (a) Any requirement of notice to others of proposed health care;

      (b) The standard of care required of a health care provider in the administration of health care;

      (c) Whether consent is required for health care;

      (d) The elements of informed consent for health care under ORS 677.097 or other law;

      (e) The provision of health care in an emergency;

      (f) Any right a capable person may have to consent or withhold consent to health care administered in good faith pursuant to religious tenets of the individual requiring health care;

      (g) Delegation of authority by a health care representative;

      (h) Any legal right or responsibility any person may have to effect the withholding or withdrawal of life-sustaining procedures including artificially administered nutrition and hydration in any lawful manner;

      (i) Guardianship or conservatorship proceedings; or

      (j) Any right persons may otherwise have to make their own health care decisions, or to make health care decisions for another.

      (2) The provisions of ORS 127.505 to 127.660 and 127.995 do not in themselves impose civil or criminal liability on a health care representative or health care provider who withholds or withdraws or directs the withholding or withdrawal of life-sustaining procedures or artificially administered nutrition and hydration when a principal is in a health condition other than those conditions described in ORS 127.540 (5)(b), 127.580 or 127.635 (1). The provisions of ORS 127.505 to 127.660 and 127.995 do not abolish or limit the civil or criminal liability of a health care representative under other statutory or common law if the health care representative withholds or withdraws or directs the withholding or withdrawal of life-sustaining procedures or artificially administered nutrition and hydration when a principal is in a health condition other than those conditions described in ORS 127.540 (5)(b), 127.580 or 127.635 (1). [1989 c.914 §11; 1993 c.767 §15; 2011 c.149 §2]

 

      127.565 Independent medical judgment of provider; effect of advance directive on insurance. (1) In following an advance directive or the decision of a health care representative, a health care provider shall exercise the same independent medical judgment that the health care provider would exercise in following the decisions of the principal if the principal were capable.

      (2) A person may not be required to execute or to refrain from executing an advance directive or to appoint or to refrain from appointing a health care representative as a condition for insurance. A health care provider may not condition the provision of health care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive or has appointed a health care representative.

      (3) No existing or future policy of insurance is legally impaired or invalidated in any manner by actions taken under ORS 127.505 to 127.660. A person may not be discriminated against in premium or contract rates because of the existence or absence of an advance directive or appointment of a health care representative.

      (4) Nothing in ORS 127.505 to 127.660 is intended to impair or supersede any conflicting federal statute. [1989 c.914 §12; 1993 c.767 §16; 2018 c.36 §17]

 

      127.570 Mercy killing; suicide. (1) Nothing in ORS 127.505 to 127.660 and 127.995 is intended to condone, authorize or approve mercy killing, or to permit an affirmative or deliberate act or omission to end life, other than to allow the natural process of dying. In making a health care decision, a health care representative may not consider an attempted suicide by the principal as any indication of the principal’s wishes with regard to health care.

      (2) The withholding or withdrawing of a life-sustaining procedure or of artificially administered nutrition and hydration in accordance with the provisions of ORS 127.505 to 127.660 and 127.995 does not, for any purpose, constitute a suicide, assisting a suicide, mercy killing or assisted homicide. [1989 c.914 §14; 1993 c.767 §17]

 

      127.575 Instrument presumed valid. A health care provider has no duty to give effect to any instrument unless the provider has received a copy of the instrument. Health care providers are entitled to assume the validity and enforceability of an advance directive if the directive on its face is in compliance with ORS 127.505 to 127.660 and 127.995, and the provider has not been given notice of a suspension, reinstatement, revocation, superseding document, disqualification, withdrawal, dispute or other legal infirmity raising a question as to the validity or enforceability of the directive. Health care providers are entitled to assume the validity and enforceability of any other instrument if the provider has not been given notice of a suspension, reinstatement, revocation, superseding document, disqualification, withdrawal, dispute or other legal infirmity raising a question as to the validity or enforceability of the instrument. [1989 c.914 §15; 1993 c.767 §18]

 

      127.580 Presumption of consent to artificially administered nutrition and hydration; exceptions. (1) It shall be presumed that every person who is temporarily or permanently incapable has consented to artificially administered nutrition and hydration, other than hyperalimentation, that are necessary to sustain life except in one or more of the following circumstances:

      (a) The person while a capable adult clearly and specifically stated that the person would have refused artificially administered nutrition and hydration.

      (b) Administration of such nutrition and hydration is not medically feasible or would itself cause severe, intractable or long-lasting pain.

      (c) The person has an appointed health care representative who has been given authority to make decisions on the use, maintenance, withholding or withdrawing of artificially administered nutrition and hydration.

      (d) The person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, and the person is permanently unconscious.

      (e) The person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, the person is incapable, and the person has a terminal condition.

      (f) The person has a progressive illness that will be fatal and is in an advanced stage, the person is consistently and permanently unable to communicate by any means, swallow food and water safely, care for the person’s self and recognize the person’s family and other people, and it is very unlikely that the person’s condition will substantially improve.

      (2) If a person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, but the presumption established by this section has been overcome under the provisions of subsection (1)(a), (b), (d), (e) or (f) of this section, artificially administered nutrition and hydration may be withheld or withdrawn under the provisions of ORS 127.635 (2), (3) and (4).

      (3) The medical conditions specified in subsection (1)(b), (d), (e) and (f) of this section must be medically confirmed to overcome the presumption established by subsection (1) of this section. [1989 c.914 §16; 1993 c.767 §18a]

 

      127.585 [1989 c.914 §13; 1993 c.767 §19; renumbered 127.995 in 1993]

 

      127.605 [Formerly 97.050; 1991 c.470 §12; repealed by 1993 c.767 §29]

 

      127.610 [Formerly 97.055; repealed by 1993 c.767 §29]

 

      127.615 [Formerly 97.060; repealed by 1993 c.767 §29]

 

      127.620 [Formerly 97.065; repealed by 1993 c.767 §29]

 

      127.625 Providers under no duty to participate in withdrawal or withholding of certain health care; duty of provider who is unwilling to participate. (1) A health care provider is not under any duty, whether by contract, statute or other legal requirement, to participate in the withdrawal or withholding of life-sustaining procedures or of artificially administered nutrition or hydration.

      (2) If a health care provider is unable or unwilling to carry out an advance directive or the decisions of the health care representative, the following provisions apply:

      (a) The health care provider shall promptly notify the health care representative, if the principal has appointed a health care representative;

      (b) If the authority or decision of the health care representative is in dispute, the health care representative or health care provider may seek the guidance of the court in the manner provided in ORS 127.550;

      (c) If the health care representative’s authority or decision is not in dispute, the health care representative shall make a reasonable effort to transfer the principal to the care of another physician or health care provider; and

      (d) If there is no health care representative for an incapable patient, and the health care decisions are not in dispute, the health care provider shall, without abandoning the patient, either discharge the patient or make a reasonable effort to locate a different physician or health care provider and authorize the transfer of the patient to that physician or health care provider. [Formerly 97.070; 1993 c.767 §20; 2018 c.36 §18]

 

      127.630 [Formerly 97.080; repealed by 1993 c.767 §29]

 

      127.635 Withdrawal of life-sustaining procedures; conditions; selection of health care representative in certain cases; required consultation. (1) Life-sustaining procedures that would otherwise be applied to a principal who is incapable and who does not have an appointed health care representative or applicable valid advance directive may be withheld or withdrawn in accordance with subsections (2) and (3) of this section if the principal has been medically confirmed to be in one of the following conditions:

      (a) A terminal condition;

      (b) Permanently unconscious;

      (c) A condition in which administration of life-sustaining procedures would not benefit the principal’s medical condition and would cause permanent and severe pain; or

      (d) An advanced stage of a progressive illness that will be fatal, and the principal is consistently and permanently unable to communicate by any means, to swallow food and water safely, to care for the principal’s self and to recognize the principal’s family and other people, and it is very unlikely that the principal’s condition will substantially improve.

      (2) If a principal’s condition has been determined to meet one of the conditions set forth in subsection (1) of this section, and the principal does not have an appointed health care representative or applicable valid advance directive, the principal’s health care representative shall be the first of the following, in the following order, who can be located upon reasonable effort by the health care facility and who is willing to serve as the health care representative:

      (a) A guardian of the principal who is authorized to make health care decisions, if any;

      (b) The principal’s spouse;

      (c) An adult designated by the others listed in this subsection who can be so located, if no person listed in this subsection objects to the designation;

      (d) A majority of the adult children of the principal who can be so located;

      (e) Either parent of the principal;

      (f) A majority of the adult siblings of the principal who can be located with reasonable effort; or

      (g) Any adult relative or adult friend.

      (3) If none of the persons described in subsection (2) of this section is available, then life-sustaining procedures may be withheld or withdrawn upon the direction and under the supervision of the attending physician or attending health care provider.

      (4)(a) Life-sustaining procedures may be withheld or withdrawn, including an election for hospice treatment, upon the direction and under the supervision of the attending physician or attending health care provider at the request of a person designated the health care representative under subsections (2) and (3) of this section only after the person has consulted with concerned family and close friends and, if the principal has a case manager, as defined by rules adopted by the Department of Human Services, after giving notice to the principal’s case manager.

      (b) A case manager who receives notice under paragraph (a) of this subsection shall provide the person giving the case manager notice with any information in the case manager’s possession that is related to the principal’s values, beliefs and preferences with respect to the withholding or withdrawing of life-sustaining procedures.

      (c) As used in this subsection, “hospice treatment” means treatment that focuses on palliative care, including care for acute pain and symptom management, rather than curative treatment, provided to a principal with a terminal condition.

      (5) Notwithstanding subsection (2) of this section, a person who is the principal’s parent or former guardian may not withhold or withdraw life-sustaining procedures under this section if:

      (a) At any time while the principal was under the care, custody or control of the person, a court entered an order:

      (A) Taking the principal into protective custody under ORS 419B.150; or

      (B) Committing the principal to the legal custody of the Department of Human Services for care, placement and supervision under ORS 419B.337; and

      (b) The court entered a subsequent order that:

      (A) The principal should be permanently removed from the person’s home, or continued in substitute care, because it was not safe for the principal to be returned to the person’s home, and no subsequent order of the court was entered that permitted the principal to return to the person’s home before the principal’s wardship was terminated under ORS 419B.328; or

      (B) Terminated the person’s parental rights under ORS 419B.500 and 419B.502 to 419B.524.

      (6) A principal, while not incapable, may petition the court to remove a prohibition contained in subsection (5) of this section. [Formerly 97.083; 1993 c.767 §21; 2011 c.194 §3; 2017 c.135 §1; 2018 c.36 §19; 2019 c.239 §1]

 

      127.640 Physician to determine that conditions met before withdrawing or withholding certain health care. Before withholding or withdrawing life-sustaining procedures or artificially administered nutrition and hydration under the provisions of ORS 127.540, 127.580 or 127.635, the attending physician or attending health care provider shall determine that the conditions of ORS 127.540, 127.580 and 127.635 have been met. [Formerly 97.084; 1993 c.767 §22; 2018 c.36 §20]

 

      127.642 Principal to be provided with certain care to insure comfort and cleanliness. Individuals caring for a principal from whom life-sustaining procedures or artificially administered nutrition and hydration are withheld or withdrawn shall provide care to insure comfort and cleanliness, including but not limited to the following:

      (1) Oral and body hygiene.

      (2) Reasonable efforts to offer food and fluids orally.

      (3) Medication, positioning, warmth, appropriate lighting and other measures to relieve pain and suffering.

      (4) Privacy and respect for the dignity and humanity of the principal. [1993 c.767 §11]

 

      127.645 [Formerly 97.085; repealed by 1993 c.767 §29]

 

(Requirements Imposed on Health Care

Organizations Relating to

Rights of Individuals to

Make Health Care Decisions)

 

      127.646 Definitions for ORS 127.646 to 127.654. As used in ORS 127.646 to 127.654:

      (1) “Health care organization” means a home health agency, hospice program, hospital, long term care facility or health maintenance organization.

      (2) “Health maintenance organization” has the meaning given that term in ORS 750.005, except that “health maintenance organization” includes only those organizations that participate in the federal Medicare or Medicaid programs.

      (3) “Home health agency” has the meaning given that term in ORS 443.014.

      (4) “Hospice program” has the meaning given that term in ORS 443.850.

      (5) “Hospital” has the meaning given that term in ORS 442.015. “Hospital” does not include a special inpatient care facility.

      (6) “Long term care facility” has the meaning given that term in ORS 442.015, except that “long term care facility” does not include an intermediate care facility for individuals with intellectual or developmental disabilities. [1991 c.761 §1; 2001 c.104 §38; 2009 c.595 §87; 2009 c.792 §30; 2017 c.707 §8]

 

      127.649 Health care organizations required to have written policies and procedures on providing information on patient’s right to make health care decisions. (1) Subject to the provisions of ORS 127.652 and 127.654, all health care organizations shall maintain written policies and procedures, applicable to each capable adult individual who receives health care by or through the health care organization, that provide for:

      (a) Delivering to the individual the following information and materials, in written form, without recommendation:

      (A) Information on the rights of the individual under the laws of this state to make health care decisions, including the right to accept or refuse medical or surgical treatment and the right to execute an advance directive or a form appointing a health care representative;

      (B) Information on the policies of the health care organization with respect to the implementation of the rights of the individual under the laws of this state to make health care decisions;

      (C) Materials necessary to execute an advance directive or a form appointing a health care representative; and

      (D) The name of a person who can provide additional information concerning advance directives and forms appointing a health care representative.

      (b) Documenting in a prominent place in the individual’s medical record whether the individual has executed an advance directive or a form appointing a health care representative.

      (c) Ensuring compliance by the health care organization with the laws of this state governing advance directives and forms appointing a health care representative.

      (d) Educating the staff and the community on issues relating to advance directives and forms appointing a health care representative.

      (2) A health care organization does not need to deliver materials described in subsection (1)(a)(C) of this section if the health care organization has reason to believe that the individual has received materials described in subsection (1)(a)(C) of this section during the preceding 12-month period or has previously executed an advance directive or a form appointing a health care representative. [1991 c.761 §2; 1993 c.767 §26; 2018 c.36 §21]

 

      127.650 [Formerly 97.090; repealed by 1993 c.767 §29]

 

      127.652 Time of providing information. The written information described in ORS 127.649 (1) shall be provided:

      (1) By hospitals, not later than five days after an individual is admitted as an inpatient, but in any event before discharge;

      (2) By long term care facilities, not later than five days after an individual is admitted as a resident, but in any event before discharge;

      (3) By a home health agency or a hospice program, not later than 15 days after the initial provision of care by the agency or program but in any event before ceasing to provide care; and

      (4) By a health maintenance organization, not later than the time allowed under federal law. [1991 c.761 §3]

 

      127.654 Scope of requirement; limitation on liability for failure to comply. (1) The requirements of ORS 127.646 to 127.654 are in addition to any requirements that may be imposed under federal law, but ORS 127.646 to 127.654 shall be interpreted in a fashion consistent with the Patient Self-Determination Act, enacted by sections 4206 and 4751 of Public Law 101-508. Nothing in ORS 127.646 to 127.654 requires any health care organization, or any employee or agent of a health care organization, to act in a manner inconsistent with federal law or contrary to individual religious or philosophical beliefs.

      (2) No health care organization shall be subject to criminal prosecution or civil liability for failure to comply with ORS 127.646 to 127.654. [1991 c.761 §4]

 

(Previously Executed Advance Directives)

 

      127.658 Effect of ORS 127.505 to 127.660 on previously executed advance directives. (1) ORS 127.505 to 127.660 as enacted, the repeal of any statute that was a part of ORS 127.505 to 127.660 and subsequent amendments to the provisions of ORS 127.505 to 127.660 do not impair or supersede any advance directive, form appointing a health care representative or directive to physicians executed in accordance with:

      (a) The provisions of ORS 127.505 to 127.660; or

      (b) The provisions of ORS 127.505 to 127.660 or any other statute governing an advance directive, a form appointing a health care representative or a directive to physicians that was in effect on the date that the advance directive, the form appointing a health care representative or the directive to physicians was executed.

      (2) An advance directive, a form appointing a health care representative or a directive to physicians executed before, on or after January 1, 2019, shall be governed by the provisions of ORS 127.505 to 127.660 or any other statute that is in effect on the date on which:

      (a) The issue giving rise to adjudication occurs; or

      (b) The advance directive, the form appointing a health care representative or the directive to physicians was executed. [1993 c.767 §23; 2018 c.36 §31]

 

(Short Title)

 

      127.660 Short title. ORS 127.505 to 127.660 and 127.995 may be cited as the Oregon Health Care Decisions Act. [1993 c.767 §24]

 

PHYSICIAN ORDERS FOR LIFE-SUSTAINING

TREATMENT REGISTRY

 

      127.663 Definitions for ORS 127.663 to 127.684. As used in ORS 127.663 to 127.684:

      (1) “Authorized user” means a person authorized by the Oregon Health Authority to provide information to or receive information from the POLST registry.

      (2) “Life-sustaining treatment” means any medical procedure, pharmaceutical, medical device or medical intervention that maintains life by sustaining, restoring or supplanting a vital function. “Life-sustaining treatment” does not include routine care necessary to sustain patient cleanliness and comfort.

      (3) “Naturopathic physician” has the meaning given the term in ORS 685.010.

      (4) “Nurse practitioner” has the meaning given that term in ORS 678.010.

      (5) “Physician” has the meaning given that term in ORS 677.010.

      (6) “Physician assistant” has the meaning given that term in ORS 677.495.

      (7) “POLST” means a physician order for life-sustaining treatment signed by a physician, naturopathic physician, nurse practitioner or physician assistant.

      (8) “POLST registry” means the registry established in ORS 127.666. [2009 c.595 §1182; 2017 c.356 §13]

 

      127.666 Establishment of registry; rules. (1) The Oregon Health Authority shall establish and operate a statewide registry for the collection and dissemination of physician orders for life-sustaining treatment to help ensure that medical treatment preferences for an individual nearing the end of the individual’s life are honored.

      (2) The authority shall adopt rules for the registry, including but not limited to rules that:

      (a) Require submission of the following documents to the registry, unless the patient has requested to opt out of the registry:

      (A) A copy of each POLST;

      (B) A copy of a revised POLST; and

      (C) Notice of any known revocation of a POLST;

      (b) Prescribe the manner for submitting information described in paragraph (a) of this subsection;

      (c) Require the release of registry information to authorized users for treatment purposes;

      (d) Authorize notification by the registry to specified persons of the receipt, revision or revocation of a POLST; and

      (e) Establish procedures to protect the accuracy and confidentiality of information submitted to the registry.

      (3) The authority may permit qualified researchers to access registry data. If the authority permits qualified researchers to have access to registry data, the authority shall adopt rules governing the access to data that shall include but need not be limited to:

      (a) The process for a qualified researcher to request access to registry data;

      (b) The types of data that a qualified researcher may be provided from the registry; and

      (c) The manner by which a researcher must protect registry data obtained under this subsection.

      (4) The authority may contract with a private or public entity to establish or maintain the registry, and such contract is exempt from the requirements of ORS chapters 279A, 279B and 279C. [2009 c.595 §1184]

 

      127.669 Oregon Health Authority not required to perform certain acts. Nothing in ORS 127.663 to 127.684 requires the Oregon Health Authority to:

      (1) Prescribe the form or content of a POLST;

      (2) Disseminate forms to be used for a POLST;

      (3) Educate the public about POLSTs, generally; or

      (4) Train health care providers about POLSTs. [2009 c.595 §1185]

 

      127.672 POLST not required; revocation. Nothing in ORS 127.663 to 127.684 is intended to require an individual to have a POLST or to require a health professional to authorize or execute a POLST. A POLST may be revoked at any time. [2009 c.595 §1183]

 

      127.675 [2009 c.595 §1186; 2011 c.703 §24; repealed by 2017 c.101 §49]

 

      127.678 Confidentiality. Except as provided in ORS 127.666, all information collected or developed by the POLST registry that identifies or could be used to identify a patient, health care provider or facility is confidential and is not subject to civil or administrative subpoena or to discovery in a civil action, including but not limited to a judicial, administrative, arbitration or mediation proceeding. [2009 c.595 §1188]

 

      127.681 Immunity from liability. Any person reporting information to the POLST registry or acting on information obtained from the POLST registry in good faith is immune from any civil or criminal liability that might otherwise be incurred or imposed with respect to the reporting of information to the POLST registry or acting on information obtained from the POLST registry. [2009 c.595 §1189]

 

      127.684 Short title. ORS 127.663 to 127.684 shall be known and may be cited as the Oregon POLST Registry Act. [2009 c.595 §1181]

 

DECLARATIONS FOR MENTAL HEALTH TREATMENT

 

      127.700 Definitions for ORS 127.700 to 127.737. As used in ORS 127.700 to 127.737:

      (1) “Attending physician” shall have the same meaning as provided in ORS 127.505.

      (2) “Attorney-in-fact” means an adult validly appointed under ORS 127.540, 127.700 to 127.737 and 426.385 to make mental health treatment decisions for a principal under a declaration for mental health treatment and also means an alternative attorney-in-fact.

      (3) “Declaration” means a document making a declaration of preferences or instructions regarding mental health treatment.

      (4) “Health care facility” shall have the same meaning as provided in ORS 127.505.

      (5) “Incapable” means that, in the opinion of the court in a protective proceeding under ORS chapter 125, or the opinion of two physicians, a person’s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the capacity to make mental health treatment decisions.

      (6) “Mental health treatment” means convulsive treatment, treatment of mental illness with psychoactive medication, admission to and retention in a health care facility for a period not to exceed 17 days for care or treatment of mental illness, and outpatient services.

      (7) “Outpatient services” means treatment for a mental or emotional disorder that is obtained by appointment and is provided by an outpatient service as defined in ORS 430.010.

      (8) “Provider” means a mental health treatment provider, a physician assistant licensed under ORS 677.505 to 677.525 or a nurse practitioner licensed under ORS 678.375 to 678.390.

      (9) “Representative” means “attorney-in-fact” as defined in this section. [1993 c.442 §1; 1995 c.664 §88; 1997 c.563 §1; 1999 c.83 §1; 2001 c.104 §39; 2014 c.45 §16]

 

      127.702 Persons who may make declaration for mental health treatment; period of validity. (1) An adult of sound mind may make a declaration of preferences or instructions regarding mental health treatment. The preferences or instructions may include consent to or refusal of mental health treatment.

      (2) A declaration for mental health treatment continues in effect for a period of three years or until revoked. The authority of a named attorney-in-fact and any alternative attorney-in-fact named in the declaration continues in effect as long as the declaration appointing the attorney-in-fact is in effect or until the attorney-in-fact has withdrawn. If a declaration for mental health treatment has been invoked and is in effect at the expiration of three years after its execution, the declaration remains effective until the principal is no longer incapable. [1993 c.442 §2]

 

      127.703 Required policies regarding mental health treatment rights information; declarations for mental health treatment. (1) All health care and mental health care organizations shall maintain written policies and procedures, applicable to all capable adults who are receiving mental health treatment by or through the organization, that provide for:

      (a) Delivering to those individuals the following information and materials, in written form, without recommendation:

      (A) Information on the rights of the individual under Oregon law to make mental health treatment decisions, including the right to accept or refuse mental health treatment and the right to execute declarations for mental health treatment;

      (B) Information on the policies of the organization with respect to implementation of the rights of the individual under Oregon law to make mental health treatment decisions;

      (C) A copy of the declaration for mental health treatment set forth in ORS 127.736; and

      (D) The name of a person who can provide additional information concerning the forms for declarations for mental health treatment.

      (b) Documenting in a prominent place in the individual’s medical record whether the individual has executed a declaration for mental health treatment.

      (c) Ensuring compliance by the organization with Oregon law relating to declarations for mental health treatment.

      (d) Educating the staff and the community on issues relating to declarations for mental health treatment.

      (2) An organization need not furnish a copy of a declaration for mental health treatment to an individual if the organization has reason to believe that the individual has received a copy of a declaration in the form set forth in ORS 127.736 within the preceding 12-month period or has a validly executed declaration.

      (3) The requirements of this section are in addition to any requirements that may be imposed under federal law and shall be interpreted in a manner consistent with federal law. Nothing in this section requires any health care or mental health care organization, or any employee or agent of an organization, to act in a manner inconsistent with federal law or contrary to individual religious or philosophical beliefs.

      (4) No health care or mental health care organization shall be subject to criminal prosecution or civil liability for failure to comply with this section.

      (5) For purposes of this section, “health care or mental health care organization” means a health care organization as defined in ORS 127.646 or a community mental health program or facility that provides mental health services. [1997 c.563 §5]

 

      127.705 Designation of attorney-in-fact for decisions about mental health treatment. A declaration may designate a competent adult to act as attorney-in-fact to make decisions about mental health treatment. An alternative attorney-in-fact may also be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time. An attorney-in-fact who has accepted the appointment in writing may make decisions about mental health treatment on behalf of the principal only when the principal is incapable. The decisions must be consistent with any desires the principal has expressed in the declaration. [1993 c.442 §3]

 

      127.707 Execution of declaration; witnesses. A declaration is effective only if it is signed by the principal and two competent adult witnesses. The witnesses must attest that the principal is known to them, signed the declaration in their presence and appears to be of sound mind and not under duress, fraud or undue influence. Persons specified in ORS 127.730 may not act as witnesses. [1993 c.442 §4]

 

      127.710 Operation of declaration; physician or provider to act in accordance with declaration. A declaration becomes operative when it is delivered to the principal’s physician or other provider and remains valid until revoked or expired. The physician or provider shall act in accordance with an operative declaration when the principal has been found to be incapable. The physician or provider shall continue to obtain the principal’s informed consent to all mental health treatment decisions if the principal is capable of providing informed consent or refusal. [1993 c.442 §5; 2014 c.45 §17]

 

      127.712 Scope of authority of attorney-in-fact; powers and duties; limitation on liability. (1) The attorney-in-fact does not have authority to make mental health treatment decisions unless the principal is incapable.

      (2) The attorney-in-fact is not, as a result of acting in that capacity, personally liable for the cost of treatment provided to the principal.

      (3) Except to the extent the right is limited by the declaration or any federal law, an attorney-in-fact has the same right as the principal to receive information regarding the proposed mental health treatment and to receive, review and consent to disclosure of medical records relating to that treatment. This right of access does not waive any evidentiary privilege.

      (4) In exercising authority under the declaration, the attorney-in-fact has a duty to act consistently with the desires of the principal as expressed in the declaration. If the principal’s desires are not expressed in the declaration and not otherwise known by the attorney-in-fact, the attorney-in-fact has a duty to act in what the attorney-in-fact in good faith believes to be the best interests of the principal.

      (5) An attorney-in-fact is not subject to criminal prosecution, civil liability or professional disciplinary action for any action taken in good faith pursuant to a declaration for mental health treatment. [1993 c.442 §6]

 

      127.715 Prohibitions against requiring person to execute or refrain from executing declaration. A person shall not be required to execute or to refrain from executing a declaration as a criterion for insurance, as a condition for receiving mental or physical health services or as a condition of discharge from a health care facility. [1993 c.442 §7]

 

      127.717 Declaration to be made part of medical record; physician or provider to comply with declaration; withdrawal of physician or provider. Upon being presented with a declaration, a physician or other provider shall make the declaration a part of the principal’s medical record. When acting under authority of a declaration, a physician or provider must comply with it to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested and applicable law. If the physician or other provider is unable or unwilling at any time to carry out preferences or instructions contained in a declaration or the decisions of the attorney-in-fact, the physician or provider may withdraw from providing treatment if withdrawal is consistent with the exercise of independent medical judgment that is in the best interest of the principal. Upon withdrawing, a physician or provider shall promptly notify the principal and the attorney-in-fact and document the notification in the principal’s medical record. [1993 c.442 §8; 1999 c.83 §2]

 

      127.720 Circumstances in which physician or provider may disregard declaration. (1) The physician or provider may subject the principal to mental health treatment in a manner contrary to the principal’s wishes as expressed in a declaration for mental health treatment only:

      (a) If the principal is committed to the Oregon Health Authority pursuant to ORS 426.005 to 426.390 and treatment is authorized in compliance with ORS 426.385 (3) and administrative rule.

      (b) If treatment is authorized in compliance with administrative rule and:

      (A) The principal is committed to a state hospital or secure intensive community inpatient facility:

      (i) As a result of being found guilty except for insanity under ORS 161.295 or responsible except for insanity under ORS 419C.411;

      (ii) Under ORS 161.365; or

      (iii) Under ORS 161.370; or

      (B) The principal is transferred to a state hospital or other facility under ORS 179.473 or 419C.530.

      (c) In cases of emergency endangering life or health.

      (2) A declaration does not limit any authority provided in ORS 426.005 to 426.390 either to take a person into custody, or to admit, retain or treat a person in a health care facility. [1993 c.442 §9; 1995 c.141 §2; 2009 c.595 §88; 2011 c.279 §1]

 

      127.722 Revocation of declaration. A declaration may be revoked in whole or in part at any time by the principal if the principal is not incapable. A revocation is effective when a capable principal communicates the revocation to the attending physician or other provider. The attending physician or other provider shall note the revocation as part of the principal’s medical record. [1993 c.442 §10; 2014 c.45 §18]

 

      127.725 Limitations on liability of physician or provider. A physician or provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of a declaration is not subject to criminal prosecution, civil liability or professional disciplinary action resulting from a subsequent finding of a declaration’s invalidity. [1993 c.442 §11]

 

      127.727 Persons prohibited from serving as attorney-in-fact. (1) None of the following may serve as attorney-in-fact:

      (a) The attending physician or provider or an employee of the physician or provider, if the physician, provider or employee is unrelated to the principal by blood, marriage or adoption.

      (b) An owner, operator or employee of a health care facility in which the principal is a patient or resident, if the owner, operator or employee is unrelated to the principal by blood, marriage or adoption.

      (c) A person who is the principal’s parent, guardian or former guardian if:

      (A) At any time while the principal was under the care, custody or control of the person, a court entered an order:

      (i) Taking the principal into protective custody under ORS 419B.150; or

      (ii) Committing the principal to the legal custody of the Department of Human Services for care, placement and supervision under ORS 419B.337; and

      (B) The court entered a subsequent order that:

      (i) The principal should be permanently removed from the person’s home, or continued in substitute care, because it was not safe for the principal to be returned to the person’s home, and no subsequent order of the court was entered that permitted the principal to return to the person’s home before the principal’s wardship was terminated under ORS 419B.328; or

      (ii) Terminated the person’s parental rights under ORS 419B.500 and 419B.502 to 419B.524.

      (4) A principal, while not incapable, may petition the court to remove a prohibition contained in subsection (1)(c) of this section. [1993 c.442 §12; 2011 c.194 §4; 2014 c.45 §19]

 

      127.730 Persons prohibited from serving as witnesses to declaration. None of the following may serve as a witness to the signing of a declaration:

      (1) The attending physician or provider or a relative of the physician or provider;

      (2) An owner, operator or relative of an owner or operator of a health care facility in which the principal is a patient or resident; or

      (3) A person related to the principal by blood, marriage or adoption. [1993 c.442 §13; 2014 c.45 §20]

 

      127.732 Withdrawal of attorney-in-fact; rescission of withdrawal. (1) An attorney-in-fact may withdraw by giving notice to the principal. If a principal is incapable, the attorney-in-fact may withdraw by giving notice to the attending physician or provider. The attending physician or provider shall note the withdrawal as part of the principal’s medical record.

      (2) A person who has withdrawn under the provisions of subsection (1) of this section may rescind the withdrawal by executing an acceptance after the date of the withdrawal. The acceptance must be in the same form as provided by ORS 127.736 for accepting an appointment. A person who rescinds a withdrawal must give notice to the principal if the principal is capable or to the principal’s health care provider if the principal is incapable. [1993 c.442 §14]

 

      127.735 [1993 c.442 §15; repealed by 1997 c.563 §2 (127.736 enacted in lieu of 127.735)]

 

      127.736 Form of declaration. A declaration for mental health treatment shall be in substantially the following form:

______________________________________________________________________________

DECLARATION FOR MENTAL HEALTH TREATMENT

      I, ___________________, being an adult of sound mind, willfully and voluntarily make this declaration for mental health treatment. I want this declaration to be followed if a court or two physicians determine that I am unable to make decisions for myself because my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment. “Mental health treatment” means treatment of mental illness with psychoactive medication, admission to and retention in a health care facility for a period up to 17 days, convulsive treatment and outpatient services that are specified in this declaration.

______________________________________________________________________________

CHOICE OF DECISION MAKER

      If I become incapable of giving or withholding informed consent for mental health treatment, I want these decisions to be made by: (INITIAL ONLY ONE)

      __  My appointed representative consistent with my desires, or, if my desires are unknown by my representative, in what my representative believes to be my best interests.

      __  By the mental health treatment provider who requires my consent in order to treat me, but only as specifically authorized in this declaration.

APPOINTED REPRESENTATIVE

      If I have chosen to appoint a representative to make mental health treatment decisions for me when I am incapable, I am naming that person here. I may also name an alternate representative to serve. Each person I appoint must accept my appointment in order to serve. I understand that I am not required to appoint a representative in order to complete this declaration.

      I hereby appoint:

      NAME _________

      ADDRESS _________

      TELEPHONE # _________

to act as my representative to make decisions regarding my mental health treatment if I become incapable of giving or withholding informed consent for that treatment.

(OPTIONAL)

      If the person named above refuses or is unable to act on my behalf, or if I revoke that person’s authority to act as my representative, I authorize the following person to act as my representative:

      NAME _________

      ADDRESS _________

      TELEPHONE # _________

      My representative is authorized to make decisions that are consistent with the wishes I have expressed in this declaration or, if not expressed, as are otherwise known to my representative. If my desires are not expressed and are not otherwise known by my representative, my representative is to act in what he or she believes to be my best interests. My representative is also authorized to receive information regarding proposed mental health treatment and to receive, review and consent to disclosure of medical records relating to that treatment.

______________________________________________________________________________

DIRECTIONS FOR

MENTAL HEALTH TREATMENT

      This declaration permits me to state my wishes regarding mental health treatments including psychoactive medications, admission to and retention in a health care facility for mental health treatment for a period not to exceed 17 days, convulsive treatment and outpatient services.

      If I become incapable of giving or withholding informed consent for mental health treatment, my wishes are: I CONSENT TO THE FOLLOWING MENTAL HEALTH TREATMENTS: (May include types and dosage of medications, short-term inpatient treatment, a preferred provider or facility, transport to a provider or facility, convulsive treatment or alternative outpatient treatments.)

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

 

I DO NOT CONSENT TO THE FOLLOWING MENTAL HEALTH TREATMENT: (Consider including your reasons, such as past adverse reaction, allergies or misdiagnosis. Be aware that a person may be treated without consent if the person is held pursuant to civil commitment law.)

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

 

 

ADDITIONAL INFORMATION ABOUT MY MENTAL HEALTH TREATMENT NEEDS: (Consider including mental or physical health history, dietary requirements, religious concerns, people to notify and other matters of importance.)

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

 

 

YOU MUST SIGN HERE FOR THIS DECLARATION TO BE EFFECTIVE:

            ______________________

 

            (Signature/Date)

 

AFFIRMATION OF WITNESSES

      I affirm that the person signing this declaration:

      (a) Is personally known to me;

      (b) Signed or acknowledged his or her signature on this declaration in my presence;

      (c) Appears to be of sound mind and not under duress, fraud or undue influence;

      (d) Is not related to me by blood, marriage or adoption;

      (e) Is not a patient or resident in a facility that I or my relative owns or operates;

      (f) Is not my patient and does not receive mental health services from me or my relative; and

      (g) Has not appointed me as a representative in this document.

 

 

Witnessed by:

______________                    ____________

(Signature of Witness/                        (Printed Name of Witness)

Date)

______________                    ____________

(Signature of Witness/                        (Printed Name of Witness)

Date)

 

 

ACCEPTANCE OF APPOINTMENT

AS REPRESENTATIVE

      I accept this appointment and agree to serve as representative to make mental health treatment decisions. I understand that I must act consistently with the desires of the person I represent, as expressed in this declaration or, if not expressed, as otherwise known by me. If I do not know the desires of the person I represent, I have a duty to act in what I believe in good faith to be that person’s best interest. I understand that this document gives me authority to make decisions about mental health treatment only while that person has been determined to be incapable of making those decisions by a court or two physicians. I understand that the person who appointed me may revoke this declaration in whole or in part by communicating the revocation to the attending physician or other provider when the person is not incapable.

 

______________                    ____________

(Signature of                           (Printed name)

Representative/Date)

______________                    ____________

(Signature of Alternate           (Printed name)

Representative/Date)

 

 

NOTICE TO PERSON

MAKING A DECLARATION FOR

MENTAL HEALTH TREATMENT

      This is an important legal document. It creates a declaration for mental health treatment. Before signing this document, you should know these important facts:

      This document allows you to make decisions in advance about certain types of mental health treatment: psychoactive medication, short-term (not to exceed 17 days) admission to a treatment facility, convulsive treatment and outpatient services. Outpatient services are mental health services provided by appointment by licensed professionals and programs. The instructions that you include in this declaration will be followed only if a court or two physicians believe that you are incapable of making treatment decisions. Otherwise, you will be considered capable to give or withhold consent for the treatments. Your instructions may be overridden if you are being held pursuant to civil commitment law.

      You may also appoint a person as your representative to make treatment decisions for you if you become incapable. The person you appoint has a duty to act consistently with your desires as stated in this document or, if not stated, as otherwise known by the representative. If your representative does not know your desires, he or she must make decisions in your best interests. For the appointment to be effective, the person you appoint must accept the appointment in writing. The person also has the right to withdraw from acting as your representative at any time. A “representative” is also referred to as an “attorney-in-fact” in state law but this person does not need to be an attorney at law.

      This document will continue in effect for a period of three years unless you become incapable of participating in mental health treatment decisions. If this occurs, the directive will continue in effect until you are no longer incapable.

      You have the right to revoke this document in whole or in part at any time you have not been determined to be incapable. YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED INCAPABLE BY A COURT OR TWO PHYSICIANS. A revocation is effective when it is communicated to your attending physician or other provider.

      If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you. This declaration will not be valid unless it is signed by two qualified witnesses who are personally known to you and who are present when you sign or acknowledge your signature.

NOTICE TO PHYSICIAN OR PROVIDER

      Under Oregon law, a person may use this declaration to provide consent for mental health treatment or to appoint a representative to make mental health treatment decisions when the person is incapable of making those decisions. A person is “incapable” when, in the opinion of a court or two physicians, the person’s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the capacity to make mental health treatment decisions. This document becomes operative when it is delivered to the person’s physician or other provider and remains valid until revoked or expired. Upon being presented with this declaration, a physician or provider must make it a part of the person’s medical record. When acting under authority of the declaration, a physician or provider must comply with it to the fullest extent possible. If the physician or provider is unwilling to comply with the declaration, the physician or provider may withdraw from providing treatment consistent with professional judgment and must promptly notify the person and the person’s representative and document the notification in the person’s medical record. A physician or provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of this declaration is not subject to criminal prosecution, civil liability or professional disciplinary action resulting from a subsequent finding of the declaration’s invalidity.

______________________________________________________________________________ [1997 c.563 §3 (enacted in lieu of 127.735)]

 

      127.737 Certain other laws applicable to declaration. ORS 127.525, 127.550, 127.565, 127.570, 127.575 and 127.995 apply to a declaration for mental health treatment. [1993 c.442 §17; 2018 c.36 §22]

 

CONSENT TO HEALTH CARE

SERVICES BY PERSON OTHER

THAN HEALTH CARE REPRESENTATIVE

 

      127.760 Consent to health care services by person appointed by hospital; exceptions. (1) As used in this section:

      (a) “Health care instruction” means a document executed by a patient to indicate the patient’s instructions regarding health care decisions.

      (b) “Health care provider” means a person licensed, certified or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.

      (c) “Hospital” has the meaning given that term in ORS 442.015.

      (d) “Mental health treatment” means convulsive treatment, treatment of mental illness with psychoactive medication, psychosurgery, admission to and retention in a health care facility for care or treatment of mental illness, and related outpatient services.

      (2)(a)(A) A hospital may appoint a health care provider who has received training in health care ethics, including identification and management of conflicts of interest and acting in the best interest of the patient, to give informed consent to medically necessary health care services on behalf of a patient admitted to the hospital in accordance with subsection (3) of this section.

      (B) If a person appointed under subparagraph (A) of this paragraph is the patient’s attending physician or naturopathic physician licensed under ORS chapter 685, the hospital must also appoint another health care provider who meets the requirements of subparagraph (A) of this paragraph to participate in making decisions about giving informed consent to health care services on behalf of the patient.

      (b) A hospital may appoint a multidisciplinary committee with ethics as a core component of the duties of the committee, or a hospital ethics committee, to participate in making decisions about giving informed consent to medically necessary health care services on behalf of a patient admitted to the hospital in accordance with subsection (3) of this section.

      (3) A person appointed by a hospital under subsection (2) of this section may give informed consent to medically necessary health care services on behalf of and in the best interest of a patient admitted to the hospital if:

      (a) In the medical opinion of the attending physician or naturopathic physician, the patient lacks the ability to make and communicate health care decisions to health care providers;

      (b) The hospital has performed a reasonable search, in accordance with the hospital’s policy for locating relatives and friends of a patient, for a health care representative appointed under ORS 127.505 to 127.660 or an adult relative or adult friend of the patient who is capable of making health care decisions for the patient, including contacting social service agencies of the Oregon Health Authority or the Department of Human Services if the hospital has reason to believe that the patient has a case manager with the authority or the department, and has been unable to locate any person who is capable of making health care decisions for the patient; and

      (c) The hospital has performed a reasonable search for and is unable to locate any health care instruction executed by the patient.

      (4) Notwithstanding subsection (3) of this section, if a patient’s wishes regarding health care services were made known during a period when the patient was capable of making and communicating health care decisions, the hospital and the person appointed under subsection (2) of this section shall comply with those wishes.

      (5) A person appointed under subsection (2) of this section may not consent on a patient’s behalf to:

      (a) Mental health treatment;

      (b) Sterilization;

      (c) Abortion;

      (d) Except as provided in ORS 127.635 (3), the withholding or withdrawal of life-sustaining procedures as defined in ORS 127.505; or

      (e) Except as provided in ORS 127.580 (2), the withholding or withdrawal of artificially administered nutrition and hydration, as defined in ORS 127.505, other than hyperalimentation, necessary to sustain life.

      (6) If the person appointed under subsection (2) of this section knows the patient’s religious preference, the person shall make reasonable efforts to confer with a member of the clergy of the patient’s religious tradition before giving informed consent to health care services on behalf of the patient.

      (7) A person appointed under subsection (2) of this section is not a health care representative as defined in ORS 127.505. [2011 c.512 §1; 2017 c.356 §14; 2018 c.36 §23]

 

      127.765 Health care advocate; appointment; powers; limitations; term; approval of certain decisions; protest; training; rules. (1) As used in this section:

      (a) “Attending physician” has the meaning given that term in ORS 127.505.

      (b) “Developmental disability” has the meaning given that term in ORS 427.005.

      (c) “Emergency treatment” means a procedure or treatment that, if delayed, is likely to:

      (A) Place the health of the individual in serious jeopardy;

      (B) Result in serious impairment to bodily functions; or

      (C) Result in serious dysfunction of any bodily organ.

      (d) “Health care advocate” means a person who is authorized to make health care decisions on behalf of an individual if the individual does not have a guardian or a health care representative.

      (e) “Health care decision” has the meaning given that term in ORS 127.505.

      (f) “Health care representative” has the meaning given that term in ORS 127.505.

      (g) “Individual” means an individual with an intellectual or developmental disability who receives services pursuant to an individualized written service plan.

      (h) “Individualized written service plan” has the meaning given that term in ORS 427.101.

      (i) “Individualized written service plan team” means a group consisting of:

      (A) The individual;

      (B) The individual’s legal or designated representative;

      (C) The individual’s case manager; and

      (D) Other individuals who may be chosen by the individual, such as care providers or family members.

      (j) “Significant medical procedure” means any medical procedure that requires a hospital admission or the administration of general anesthesia in an outpatient setting.

      (k) “Treating physician” means a physician who has primary responsibility for the care and treatment of an individual.

      (2) An individualized written service plan team may appoint a health care advocate for an individual whom a court or a treating physician has determined to be incapable of making health care decisions.

      (3) A health care advocate must be a capable adult who is willing to serve as a health care advocate and who is approved by at least two-thirds of the individualized written service plan team, including the individual, except that the following persons may not serve as a health care advocate:

      (a) The individual’s attending physician or an employee of the attending physician or any other person providing care to the individual.

      (b) A parent whose parental rights are terminated.

      (c) A guardian if the guardianship is terminated.

      (4) A health care advocate is authorized to access the health records of the individual and consult with the individual’s medical providers for the purpose of making health care decisions on behalf of the individual.

      (5) A health care advocate may not make health care decisions on behalf of an individual with respect to any of the following:

      (a) An action or procedure described in ORS 127.540 (1) to (4).

      (b) Withholding or withdrawing of a life-sustaining procedure.

      (c) Withholding or withdrawing artificially administered nutrition and hydration other than hyperalimentation.

      (d) Testing for HIV, unless testing is necessary for obtaining treatment or care for the individual.

      (e) A request for medication for the purpose of ending the individual’s life pursuant to ORS 127.805 or other form of assisted suicide.

      (f) Euthanasia.

      (g) An experimental procedure, unless the procedure has been approved by an institutional review board and is determined by the treating physician to be in the best interest of the individual.

      (h) An experimental drug that has not been approved for use by the United States Food and Drug Administration, unless the drug is part of an approved clinical trial and the individual’s treating physician has determined that it is in the best interest of the individual.

      (i) The use of seclusion or physical or chemical restraints unless an imminent risk of harm to the individual or others exists but only for as long as the imminent risk continues except in the case of an emergency.

      (6) A health care advocate is appointed for a one-year term and may be reappointed as provided in subsection (3) of this section. The individualized written service plan team may revoke the appointment of a health care advocate by a majority vote.

      (7) A health care advocate may not disclose the contents of, and must maintain the confidentiality of, the individual’s health information, as required by state and federal laws.

      (8) A health care decision by a health care advocate regarding a significant medical procedure or treatment must be approved by a majority of the individualized written service plan team at an in-person meeting of the team at which the team considers and documents its consideration of:

      (a) Alternatives to the procedure or treatment;

      (b) Risks and benefits of the procedure or treatment;

      (c) The anticipated impact of the procedure or treatment on the individual’s well-being;

      (d) Any preferences in favor of or against the procedure or treatment communicated by the individual verbally or nonverbally; and

      (e) Any additional information that is needed before making the decision.

      (9) The individual must participate in the meeting described in subsection (8) of this section unless the individual declines to participate or is unable to participate due to the individual’s medical condition.

      (10) An individualized written service plan team must inform an individual of the team’s decision to seek a health care advocate for the individual prior to the appointment of the advocate.

      (11) A health care advocate must inform an individual of all health care decisions made or considered by the advocate.

      (12) An individual has the right to protest any health care decision made by a health care advocate. If the individual protests a health care decision by a health care advocate:

      (a) The health care decision is revoked;

      (b) The health care advocate’s authority is withdrawn with respect to the health care decision that is revoked under paragraph (a) of this subsection; and

      (c) The individualized written service plan team or the health care advocate shall notify the provider whose recommendation is the subject of the health care decision that is revoked under paragraph (a) of this subsection.

      (13) The Department of Human Services shall ensure that appropriate training is made available to at least two members of the individual’s individualized written service plan team before a health care advocate may be appointed for the individual.

      (14) The department shall adopt rules necessary to carry out the provisions of this section. [2019 c.477 §1]

 

THE OREGON

DEATH WITH DIGNITY ACT

 

(General Provisions)

 

(Section 1)

 

      Note: The division headings, subdivision headings and leadlines for 127.800 to 127.890, 127.895 and 127.897 were enacted as part of Ballot Measure 16 (1994) and were not provided by Legislative Counsel.

 

      127.800 §1.01. Definitions. The following words and phrases, whenever used in ORS 127.800 to 127.897, have the following meanings:

      (1) “Adult” means an individual who is 18 years of age or older.

      (2) “Attending physician” means the physician who has primary responsibility for the care of the patient and treatment of the patient’s terminal disease.

      (3) “Capable” means that in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.

      (4) “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s disease.

      (5) “Counseling” means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

      (6) “Health care provider” means a person licensed, certified or otherwise authorized or permitted by the law of this state to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.

      (7) “Informed decision” means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:

      (a) His or her medical diagnosis;

      (b) His or her prognosis;

      (c) The potential risks associated with taking the medication to be prescribed;

      (d) The probable result of taking the medication to be prescribed; and

      (e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.

      (8) “Medically confirmed” means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient’s relevant medical records.

      (9) “Patient” means a person who is under the care of a physician.

      (10) “Physician” means a doctor licensed to practice medicine under ORS 677.100 to 677.228.

      (11) “Qualified patient” means a capable adult who is a resident of Oregon and has satisfied the requirements of ORS 127.800 to 127.897 in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.

      (12) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. [1995 c.3 §1.01; 1999 c.423 §1; 2017 c.409 §3]

 

(Written Request for Medication to

End One’s Life in a

Humane and Dignified Manner)

 

(Section 2)

 

      127.805 §2.01. Who may initiate a written request for medication. (1) An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with ORS 127.800 to 127.897.

      (2) No person shall qualify under the provisions of ORS 127.800 to 127.897 solely because of age or disability. [1995 c.3 §2.01; 1999 c.423 §2]

 

      127.810 §2.02. Form of the written request. (1) A valid request for medication under ORS 127.800 to 127.897 shall be in substantially the form described in ORS 127.897, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.

      (2) One of the witnesses shall be a person who is not:

      (a) A relative of the patient by blood, marriage or adoption;

      (b) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or

      (c) An owner, operator or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.

      (3) The patient’s attending physician at the time the request is signed shall not be a witness.

      (4) If the patient is a patient in a long term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the Department of Human Services by rule. [1995 c.3 §2.02]

 

(Safeguards)

 

(Section 3)

 

      127.815 §3.01. Attending physician responsibilities. (1) The attending physician shall:

      (a) Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily;

      (b) Request that the patient demonstrate Oregon residency pursuant to ORS 127.860;

      (c) To ensure that the patient is making an informed decision, inform the patient of:

      (A) His or her medical diagnosis;

      (B) His or her prognosis;

      (C) The potential risks associated with taking the medication to be prescribed;

      (D) The probable result of taking the medication to be prescribed; and

      (E) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control;

      (d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;

      (e) Refer the patient for counseling if appropriate pursuant to ORS 127.825;

      (f) Recommend that the patient notify next of kin;

      (g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the medication in a public place;

      (h) Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the time the patient makes the patient’s second oral request pursuant to ORS 127.840;

      (i) Verify, immediately prior to writing the prescription for medication under ORS 127.800 to 127.897, that the patient is making an informed decision;

      (j) Fulfill the medical record documentation requirements of ORS 127.855;

      (k) Ensure that all appropriate steps are carried out in accordance with ORS 127.800 to 127.897 prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and

      (L)(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient’s discomfort, provided the attending physician is registered as a dispensing physician with the Oregon Medical Board, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or

      (B) With the patient’s written consent:

      (i) Contact a pharmacist and inform the pharmacist of the prescription; and

      (ii) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient.

      (2) Notwithstanding any other provision of law, the attending physician may sign the patient’s report of death. [1995 c.3 §3.01; 1999 c.423 §3; 2013 c.366 §62; 2019 c.624 §1]

 

      127.820 §3.02. Consulting physician confirmation. Before a patient is qualified under ORS 127.800 to 127.897, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the attending physician’s diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision. [1995 c.3 §3.02]

 

      127.825 §3.03. Counseling referral. If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient’s life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. [1995 c.3 §3.03; 1999 c.423 §4]

 

      127.830 §3.04. Informed decision. No person shall receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision as defined in ORS 127.800 (7). Immediately prior to writing a prescription for medication under ORS 127.800 to 127.897, the attending physician shall verify that the patient is making an informed decision. [1995 c.3 §3.04]

 

      127.835 §3.05. Family notification. The attending physician shall recommend that the patient notify the next of kin of his or her request for medication pursuant to ORS 127.800 to 127.897. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason. [1995 c.3 §3.05; 1999 c.423 §6]

 

      127.840 §3.06. Written and oral requests. (1) In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than 15 days after making the initial oral request.

      (2) Notwithstanding subsection (1) of this section, if the qualified patient’s attending physician has medically confirmed that the qualified patient will, within reasonable medical judgment, die within 15 days after making the initial oral request under this section, the qualified patient may reiterate the oral request to his or her attending physician at any time after making the initial oral request.

      (3) At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request. [1995 c.3 §3.06; 2019 c.624 §2]

 

      127.845 §3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. No prescription for medication under ORS 127.800 to 127.897 may be written without the attending physician offering the qualified patient an opportunity to rescind the request. [1995 c.3 §3.07]

 

      127.850 §3.08. Waiting periods. (1) No less than 15 days shall elapse between the patient’s initial oral request and the writing of a prescription under ORS 127.800 to 127.897. No less than 48 hours shall elapse between the patient’s written request and the writing of a prescription under ORS 127.800 to 127.897.

      (2) Notwithstanding subsection (1) of this section, if the qualified patient’s attending physician has medically confirmed that the qualified patient will, within reasonable medical judgment, die before the expiration of at least one of the waiting periods described in subsection (1) of this section, the prescription for medication under ORS 127.800 to 127.897 may be written at any time following the later of the qualified patient’s written request or second oral request under ORS 127.840. [1995 c.3 §3.08; 2019 c.624 §3]

 

      127.855 §3.09. Medical record documentation requirements. The following shall be documented or filed in the patient’s medical record:

      (1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner;

      (2) All written requests by a patient for medication to end his or her life in a humane and dignified manner;

      (3) The attending physician’s diagnosis and prognosis, determination that the patient is capable, acting voluntarily and has made an informed decision;

      (4) The consulting physician’s diagnosis and prognosis, and verification that the patient is capable, acting voluntarily and has made an informed decision;

      (5) A report of the outcome and determinations made during counseling, if performed;

      (6) Any medically confirmed certification of the imminence of the patient’s death;

      (7) The attending physician’s offer to the patient to rescind his or her request at the time of the patient’s second oral request pursuant to ORS 127.840; and

      (8) A note by the attending physician indicating that all requirements under ORS 127.800 to 127.897 have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed. [1995 c.3 §3.09; 2019 c.624 §4]

 

      127.860 §3.10. Residency requirement. Only requests made by Oregon residents under ORS 127.800 to 127.897 shall be granted. Factors demonstrating Oregon residency include but are not limited to:

      (1) Possession of an Oregon driver license;

      (2) Registration to vote in Oregon;

      (3) Evidence that the person owns or leases property in Oregon; or

      (4) Filing of an Oregon tax return for the most recent tax year. [1995 c.3 §3.10; 1999 c.423 §8]

 

      127.865 §3.11. Reporting requirements. (1)(a) The Oregon Health Authority shall annually review a sample of records maintained pursuant to ORS 127.800 to 127.897.

      (b) The authority shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the authority.

      (2) The authority shall make rules to facilitate the collection of information regarding compliance with ORS 127.800 to 127.897. Except as otherwise required by law, the information collected shall not be a public record and may not be made available for inspection by the public.

      (3) The authority shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section. [1995 c.3 §3.11; 1999 c.423 §9; 2001 c.104 §40; 2009 c.595 §89]

 

      127.870 §3.12. Effect on construction of wills, contracts and statutes. (1) No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end his or her life in a humane and dignified manner, shall be valid.

      (2) No obligation owing under any currently existing contract shall be conditioned or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner. [1995 c.3 §3.12]

 

      127.875 §3.13. Insurance or annuity policies. The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner. Neither shall a qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy. [1995 c.3 §3.13]

 

      127.880 §3.14. Construction of Act. Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. [1995 c.3 §3.14]

 

(Immunities and Liabilities)

 

(Section 4)

 

      127.885 §4.01. Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions. Except as provided in ORS 127.890:

      (1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with ORS 127.800 to 127.897. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.

      (2) No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with ORS 127.800 to 127.897.

      (3) No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of ORS 127.800 to 127.897 shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

      (4) No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient’s request under ORS 127.800 to 127.897, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient’s relevant medical records to the new health care provider.

      (5)(a) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in ORS 127.800 to 127.897 on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider’s policy regarding participating in ORS 127.800 to 127.897. Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in ORS 127.800 to 127.897.

      (b) Notwithstanding the provisions of subsections (1) to (4) of this section, a health care provider may subject another health care provider to the sanctions stated in this paragraph if the sanctioning health care provider has notified the sanctioned provider prior to participation in ORS 127.800 to 127.897 that it prohibits participation in ORS 127.800 to 127.897:

      (A) Loss of privileges, loss of membership or other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider’s medical staff and participates in ORS 127.800 to 127.897 while on the health care facility premises, as defined in ORS 442.015, of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

      (B) Termination of lease or other property contract or other nonmonetary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in ORS 127.800 to 127.897 while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or

      (C) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in ORS 127.800 to 127.897 while acting in the course and scope of the sanctioned provider’s capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this subparagraph shall be construed to prevent:

      (i) A health care provider from participating in ORS 127.800 to 127.897 while acting outside the course and scope of the provider’s capacity as an employee or independent contractor; or

      (ii) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

      (c) A health care provider that imposes sanctions pursuant to paragraph (b) of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.

      (d) For purposes of this subsection:

      (A) “Notify” means a separate statement in writing to the health care provider specifically informing the health care provider prior to the provider’s participation in ORS 127.800 to 127.897 of the sanctioning health care provider’s policy about participation in activities covered by ORS 127.800 to 127.897.

      (B) “Participate in ORS 127.800 to 127.897” means to perform the duties of an attending physician pursuant to ORS 127.815, the consulting physician function pursuant to ORS 127.820 or the counseling function pursuant to ORS 127.825. “Participate in ORS 127.800 to 127.897” does not include:

      (i) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

      (ii) Providing information about the Oregon Death with Dignity Act to a patient upon the request of the patient;

      (iii) Providing a patient, upon the request of the patient, with a referral to another physician; or

      (iv) A patient contracting with his or her attending physician and consulting physician to act outside of the course and scope of the provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

      (6) Suspension or termination of staff membership or privileges under subsection (5) of this section is not reportable under ORS 441.820. Action taken pursuant to ORS 127.810, 127.815, 127.820 or 127.825 shall not be the sole basis for a report of unprofessional or dishonorable conduct under ORS 677.415 (3), (4), (5) or (6).

      (7) No provision of ORS 127.800 to 127.897 shall be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community. [1995 c.3 §4.01; 1999 c.423 §10; 2003 c.554 §3]

 

      Note: As originally enacted by the people, the leadline to section 4.01 read “Immunities.” The remainder of the leadline was added by editorial action.

 

      127.890 §4.02. Liabilities. (1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient’s death shall be guilty of a Class A felony.

      (2) A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient’s life, or to destroy a rescission of such a request, shall be guilty of a Class A felony.

      (3) Nothing in ORS 127.800 to 127.897 limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

      (4) The penalties in ORS 127.800 to 127.897 do not preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions of ORS 127.800 to 127.897. [1995 c.3 §4.02]

 

      127.892 Claims by governmental entity for costs incurred. Any governmental entity that incurs costs resulting from a person terminating his or her life pursuant to the provisions of ORS 127.800 to 127.897 in a public place shall have a claim against the estate of the person to recover such costs and reasonable attorney fees related to enforcing the claim. [1999 c.423 §5a]

 

(Severability)

 

(Section 5)

 

      127.895 §5.01. Severability. Any section of ORS 127.800 to 127.897 being held invalid as to any person or circumstance shall not affect the application of any other section of ORS 127.800 to 127.897 which can be given full effect without the invalid section or application. [1995 c.3 §5.01]

 

(Form of the Request)

 

(Section 6)

 

      127.897 §6.01. Form of the request. A request for a medication as authorized by ORS 127.800 to 127.897 shall be in substantially the following form:

______________________________________________________________________________

REQUEST FOR MEDICATION

TO END MY LIFE IN A HUMANE

AND DIGNIFIED MANNER

 

      I, ______________________, am an adult of sound mind.

      I am suffering from_________, which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.

      I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care and pain control.

      I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.

 

      INITIAL ONE:

      ______I have informed my family of my decision and taken their opinions into consideration.

      ______I have decided not to inform my family of my decision.

      ______I have no family to inform of my decision.

      I understand that I have the right to rescind this request at any time.

      I understand the full import of this request and I expect to die when I take the medication to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.

      I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

 

      Signed: _______________

 

      Dated: _______________

 

DECLARATION OF WITNESSES

 

      We declare that the person signing this request:

      (a) Is personally known to us or has provided proof of identity;

      (b) Signed this request in our presence;

      (c) Appears to be of sound mind and not under duress, fraud or undue influence;

      (d) Is not a patient for whom either of us is attending physician.

 

      ______________Witness 1/Date

 

      ______________Witness 2/Date

 

      NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the person signing this request, shall not be entitled to any portion of the person’s estate upon death and shall not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.

______________________________________________________________________________ [1995 c.3 §6.01; 1999 c.423 §11]

 

      127.990 [Formerly part of 97.990; repealed by 1993 c.767 §29]

 

OREGON’S RIGHT TO TRY LAW

 

      Note: Sections 1 to 15, chapter 819, Oregon Laws 2015, provide:

      Sec. 1. Definitions. As used in sections 1 to 14, chapter 819, Oregon Laws 2015:

      (1) “Attending physician” means the physician who has primary responsibility for the care of a patient.

      (2) “Capable” means that, in the opinion of an attending physician, consulting physician or other health care practitioner, a patient has the ability to make and communicate health care decisions to health care practitioners, including the ability to communicate through individuals familiar with the patient’s manner of communicating.

      (3) “Consulting physician” means a physician who is qualified by specialty or experience to diagnose a patient who has a terminal disease and to make a prognosis for that patient.

      (4) “Health care facility” has the meaning given that term in ORS 442.015.

      (5) “Health care practitioner” means an individual who is licensed, certified or otherwise authorized by the laws of this state to provide health care services or to dispense drugs.

      (6) “Investigational product” means a drug, biological product or device that has successfully completed Phase I and is currently in Phase II or a subsequent phase of an approved clinical trial, as defined in ORS 743A.192, assessing the safety of the drug, biological product or device.

      (7) “Physician” means a doctor licensed to practice medicine under ORS 677.100 to 677.228.

      (8) “Qualified” means, with respect to a patient, that the patient is:

      (a) Capable;

      (b) A resident of this state; and

      (c) 18 years of age or older.

      (9) “Terminal disease” means an illness or a medical or surgical condition that in a physician’s reasonable medical judgment will result in the patient’s death within six months. [2015 c.819 §1; 2017 c.409 §4]

      Sec. 2. Referral by attending physician. (1) The attending physician of a patient who has a terminal disease may refer the patient to a health care practitioner who offers treatment as described in section 3 of this 2015 Act if:

      (a) The treatment is being offered only for purposes related to the terminal disease;

      (b) The patient is qualified;

      (c) In the attending physician’s judgment, the patient is acting voluntarily and is not being coerced; and

      (d) The attending physician informs the patient:

      (A) That the patient has a terminal disease;

      (B) Of the attending physician’s prognosis for the patient;

      (C) That the investigational product to be used in treating the patient is not approved by the United States Food and Drug Administration and that the investigational product may not be effective in treating the patient;

      (D) Of each potential risk associated with receiving the treatment that is known to the attending physician;

      (E) That to receive the treatment, the patient may be required to pay the costs of administering the treatment and the costs of, or the costs associated with, manufacturing the investigational product as described in section 3 (1)(b) of this 2015 Act;

      (F) That to receive the treatment, the patient must waive liability as described in section 5 (5) of this 2015 Act;

      (G) That receiving the treatment relieves an insurer of reimbursing costs as described in section 12 of this 2015 Act;

      (H) Of feasible alternatives to receiving the treatment, including palliative care, hospice care and pain control; and

      (I) That expanded access to treating the patient’s terminal disease may be provided pursuant to 21 C.F.R. 312.300 to 312.320 and may be an option for the patient, and, depending on the type of coverage the patient’s insurer provides, that a patient might not be required to pay the costs of administering a treatment provided pursuant to 21 C.F.R. 312.300 to 312.320, or the costs of, or the costs associated with, manufacturing an investigational product used to treat a patient pursuant to 21 C.F.R. 312.300 to 312.320.

      (2) A patient who has a terminal disease may demonstrate the patient’s Oregon residency to the patient’s attending physician by presenting:

      (a) A driver license, driver permit or identification card issued to the patient by the Department of Transportation;

      (b) Evidence that the patient is registered to vote in this state;

      (c) Evidence that the patient owns or leases property in this state; or

      (d) A copy of the patient’s Oregon individual tax return for the immediately preceding tax year.

      (3) If in the opinion of an attending physician a patient is suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the attending physician shall refer the patient for counseling. Treatment may not be provided as described in section 3 of this 2015 Act until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. [2015 c.819 §2]

      Sec. 3. Use of investigational product to treat terminal disease. (1) A health care practitioner may offer to treat a patient who has a terminal disease with an investigational product not approved by the United States Food and Drug Administration only if:

      (a) The health care practitioner is authorized by the laws of this state to provide health care services or to dispense drugs, and the health care practitioner is acting within the scope of that authority;

      (b) The treatment is provided to the patient for no more than the costs of administering the treatment and the costs of, or the costs associated with, manufacturing the investigational product;

      (c) The patient is not compensated for receiving the treatment;

      (d) The treatment is being offered only for purposes related to the terminal disease;

      (e) The patient is qualified;

      (f) The patient was referred to the health care practitioner by the patient’s attending physician under section 2 of this 2015 Act;

      (g) The health care practitioner refers the patient to a consulting physician to confirm the attending physician’s diagnosis and prognosis; and

      (h) In the health care practitioner’s judgment, the patient is acting voluntarily and is not being coerced.

      (2) A patient who has a terminal disease may demonstrate the patient’s Oregon residency to the health care practitioner by presenting:

      (a) A driver license, driver permit or identification card issued to the patient by the Department of Transportation;

      (b) Evidence that the patient is registered to vote in this state;

      (c) Evidence that the patient owns or leases property in this state; or

      (d) A copy of the patient’s Oregon individual tax return for the immediately preceding tax year.

      (3) If in the opinion of the health care practitioner a patient is suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the health care practitioner shall refer the patient for counseling. Treatment may not be provided as described in this section until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

      (4) If a patient accepts an offer for treatment under this section, and if the patient has health insurance, the health care practitioner offering to treat the patient must notify the insurer that the patient is receiving the treatment. [2015 c.819 §3]

      Sec. 4. Confirmation by consulting physician. (1) Before a patient may receive treatment as described in section 3 of this 2015 Act, a consulting physician must examine the patient and confirm, in writing:

      (a) The attending physician’s diagnosis that the patient has a terminal disease;

      (b) The attending physician’s prognosis for the patient;

      (c) That the patient is qualified;

      (d) That in the consulting physician’s judgment the patient is acting voluntarily and is not being coerced; and

      (e) That the patient is informed:

      (A) That the investigational product to be used in treating the patient is not approved by the United States Food and Drug Administration and that the investigational product may not be effective in treating the patient;

      (B) Of each potential risk associated with receiving the treatment known to the consulting physician;

      (C) That to receive the treatment, the patient may be required to pay the costs of administering the treatment and the costs of, or the costs associated with, manufacturing the investigational product as described in section 3 (1)(b) of this 2015 Act;

      (D) That to receive the treatment, the patient must waive liability as described in section 5 (5) of this 2015 Act;

      (E) That receiving the treatment relieves an insurer of reimbursing costs as described in section 12 of this 2015 Act;

      (F) Of feasible alternatives to receiving the treatment, including palliative care, hospice care and pain control; and

      (G) That expanded access to treating the patient’s terminal disease may be provided pursuant to 21 C.F.R. 312.300 to 312.320 and may be an option for the patient, and, depending on the type of coverage the patient’s insurer provides, that a patient might not be required to pay the costs of administering a treatment provided pursuant to 21 C.F.R. 312.300 to 312.320, or the costs of, or the costs associated with, manufacturing an investigational product used to treat a patient pursuant to 21 C.F.R. 312.300 to 312.320.

      (2) A patient who has a terminal disease may demonstrate the patient’s Oregon residency to the consulting physician by presenting:

      (a) A driver license, driver permit or identification card issued to the patient by the Department of Transportation;

      (b) Evidence that the patient is registered to vote in this state;

      (c) Evidence that the patient owns or leases property in this state; or

      (d) A copy of the patient’s Oregon individual tax return for the immediately preceding tax year.

      (3) If in the opinion of the consulting physician a patient is suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the consulting physician shall refer the patient for counseling. Treatment may not be provided as described in section 3 of this 2015 Act until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. [2015 c.819 §4]

      Sec. 5. Election to receive treatment; waiver of liability. Upon receiving an offer for treatment as described in section 3 of this 2015 Act, a patient who has a terminal disease and who is qualified may elect to receive that treatment by signing and dating a form attesting to the election in the presence of two witnesses. A form attesting to an election must include:

      (1) The attending physician’s diagnosis for the patient;

      (2) The attending physician’s prognosis for the patient;

      (3) A statement that the investigational product to be used in treating the patient is not approved by the United States Food and Drug Administration;

      (4) A description of each potential risk that is associated with receiving the treatment;

      (5) A waiver of liability for any act or omission of an act related to administering the treatment or manufacturing or distributing the investigational product that does not constitute gross negligence for:

      (a) Any health care practitioner who participates in administering the treatment, to whom a health care practitioner who participates in administering the treatment refers the patient or with whom a health care practitioner who participates in administering the treatment consults;

      (b) Any health care facility or professional organization or association involved in the administration of the treatment; or

      (c) Any person that participates in manufacturing or distributing the investigational product used to treat the patient;

      (6) A provision authorizing any information obtained during the treatment to be used:

      (a) By the inventor, manufacturer or supplier of any investigational product used in treating the patient for research, analytical or marketing purposes; and

      (b) By any health care practitioner who participates in administering the treatment for research or analytical purposes; and

      (7) A statement signed and dated by both witnesses attesting that the patient, to the best of the witnesses’ knowledge, is capable and acting voluntarily. [2015 c.819 §5]

      Sec. 6. Witness qualifications. (1) Of the witnesses described in section 5 of this 2015 Act, one must be an individual who is not:

      (a) A relative of the patient by blood, marriage or adoption;

      (b) An individual who, at the time the form is signed, would be entitled to any portion of the estate of the patient upon the patient’s death under any will or by operation of law; or

      (c) An owner, operator or employee of a health care facility where the patient resides or receives health care services.

      (2) Neither witness described in section 5 of this 2015 Act may be the attending physician of the patient. [2015 c.819 §6]

      Sec. 7. Waiver of liability requirements. A waiver of liability required by section 5 (5) of this 2015 Act must be written in plain and simple language. [2015 c.819 §7]

      Sec. 8. Exemption from liability for health care practitioners, facilities, professional organizations and associations. (1) Except as provided in subsection (3) of this section, a health care practitioner who participates in administering a treatment as described in section 3 of this 2015 Act, or a health care facility or professional organization or association involved in the administration of the treatment, is not subject to civil or criminal liability for acts or omissions of acts related to administering the treatment if the administration of the treatment complies with sections 1 to 14 of this 2015 Act.

      (2) Except as provided in subsection (3) of this section, a manufacturer or distributor of an investigational product used to treat a patient pursuant to section 3 of this 2015 Act is not subject to civil or criminal liability for acts or omissions of acts related to the administration of the investigational product.

      (3) This section does not apply to acts or omissions of acts that constitute gross negligence. [2015 c.819 §8]

      Sec. 9. Prohibition on disciplining health care practitioners. (1) Except as provided in subsection (2) of this section and sections 10 and 11 of this 2015 Act, a licensing board, health care facility, health care practitioner or professional organization or association may not subject a health care practitioner to discipline, including suspension, loss of license, loss of privileges, loss of membership or any other penalty, for participating in administering a treatment as described in section 3 of this 2015 Act if the administration of the treatment complies with sections 1 to 14 of this 2015 Act.

      (2) This section does not apply to acts or omissions of acts that constitute gross negligence. [2015 c.819 §9]

      Sec. 10. Authority to prohibit administering treatment at health care facility. A health care facility or health care practitioner may prohibit another health care practitioner from participating in administering a treatment as described in section 3 of this 2015 Act at the health care facility or on premises owned or controlled by the prohibiting health care practitioner. [2015 c.819 §10]

      Sec. 11. Repercussions for administering treatment at health care facility where treatment prohibited. If a health care practitioner violates a prohibition authorized by section 10 of this 2015 Act:

      (1) A licensing board, health care facility, health care practitioner or professional organization or association may impose upon the violating health care practitioner any form of discipline referred to in section 9 of this 2015 Act that the licensing board, health care facility, health care practitioner or professional organization or association otherwise may legally impose; and

      (2) The health care facility or prohibiting health care practitioner may:

      (a) Terminate any lease or other property contract entered into with the violating health care practitioner and subject the violating health care practitioner to any other nonmonetary remedies provided by such a contract; or

      (b) Terminate any contract for the provision of services entered into with the violating health care practitioner and subject the violating health care practitioner to any other nonmonetary remedies provided by such a contract. [2015 c.819 §11]

      Sec. 12. Reimbursement of costs associated with treatment. Sections 1 to 14 of this 2015 Act do not require an insurer to reimburse any cost:

      (1) Associated with undergoing a treatment as described in section 3 of this 2015 Act; or

      (2) Demonstrated to be associated with an adverse effect that is a result of undergoing a treatment as described in section 3 of this 2015 Act. [2015 c.819 §12]

      Sec. 13. Hospice care eligibility. Eligibility for hospice care must be determined on the basis of a patient’s overall prognosis and care or treatment goals as determined by the patient’s attending physician or the patient’s naturopathic physician and may not be determined on the basis of whether a patient is undergoing or has undergone a treatment as described in section 3, chapter 819, Oregon Laws 2015. [2015 c.819 §13; 2017 c.356 §103]

      Sec. 14. Review of records by Oregon Health Authority; rules. (1) The Oregon Health Authority shall annually review a sample of records maintained pursuant to sections 1 to 14 of this 2015 Act.

      (2) An attending physician who makes a referral under section 2 of this 2015 Act, a health care practitioner who administers treatment as described in section 3 of this 2015 Act and a consulting physician who provides written confirmation as described in section 4 of this 2015 Act must file with the authority a record, in a form and manner prescribed by the authority, of the findings of the attending physician, health care practitioner or consulting physician.

      (3) At a minimum, the authority shall require that a record filed by a health care practitioner who administers treatment as described in section 3 of this 2015 Act must include:

      (a) The adverse effects of the treatment, if any;

      (b) The positive outcomes of the treatment, if any;

      (c) The cost of the treatment to the patient; and

      (d) The demographics of the patients to whom the treatment is administered.

      (4) The authority shall adopt rules to facilitate the collection of information required to comply with sections 1 to 14 of this 2015 Act, including rules related to the submission of information required by this section. Except as otherwise provided by law, information collected by the authority under this section is not a public record and is not available for inspection by the public.

      (5) The authority shall generate and make available to the public an annual statistical report of information collected by the authority pursuant to this section and of patients who receive treatment provided pursuant to 21 C.F.R. 312.300 to 312.320.

      (6) The authority shall make the annual report generated under subsection (5) of this section available to the Legislative Assembly, in the manner required by ORS 192.245, on or before February 1 of each odd-numbered year. [2015 c.819 §14]

      Sec. 15. Repeal. This 2015 Act is repealed on January 2, 2022. [2015 c.819 §15]

 

PENALTIES

 

      127.995 Penalties. (1) It shall be a Class A felony for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal’s desires and interests, with the intent and effect of causing a withholding or withdrawal of life-sustaining procedures or of artificially administered nutrition and hydration which hastens the death of the principal.

      (2) Except as provided in subsection (1) of this section, it shall be a Class A misdemeanor for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal’s desires and interests with the intent or effect of affecting a health care decision. [Formerly 127.585]

_______________