Improving West Virginia Advance Directives to Protect Vulnerable Lives in 2022

Health Care Decisions Act Amendment Bill Number is SB 470. 

By Mary H. Tillman, J.D.

This coming legislative session, West Virginians for Life, through its subcommittee the WV Alliance for Ethical Health Care, will again introduce legislation to amend the Health Care Decisions Act found in the WV Code, which currently sets forth three kinds of advance directives:  a Living Will, a Medical Power of Attorney, and a Combined Form. This will be the fourth year we have pursued this legislation. Advance directives are legal documents that tell health care providers what kind of treatments you would or would not like to receive, should you become unable, due to illness or injury, to make those decisions yourself.

The goals for our legislation are three-fold: to ensure patient autonomy; to promote informed consent; and to protect cognitively disabled persons from denial of care.

To promote autonomy and informed consent, new language will be added to make sure persons realize that if they sign a Living Will, they are choosing to be denied not only CPR, breathing machines, and dialysis, but also medically-assisted food and fluids (such as a feeding tube). Currently, the Living Will form does not spell that out clearly, which may lead to the unintended consequence of death by dehydration.

The current Living Will form applies to patients in a “terminal condition,” or patients in a “persistent vegetative state (PVS).” The legislation will take out the patients in a PVS and have the Living Will apply only to terminal patients. The reason for this change is that medical standards regarding the diagnosis and treatment of PVS have changed a great deal since the Health Care Decisions Act was passed, and it appears these patients, formerly understood to be hopeless, are misdiagnosed frequently and may in fact be able to be rehabilitated. These updated standards and guidelines were published by the American Academy of Neurology in 2018; and in July 2021 a study published in JAMA Neurology says that 1 out of 4 PVS patients regained orientation if given 12 months to recover.

Finally, new language will specify that ORAL food and fluids, such as may be taken by spoon or by straw, must be offered as can be safely tolerated. This new language is in response to a growing dangerous trend among various states, and being promoted by the national organization, Compassion & Choices (which pushes for the legalization of physician-assisted suicide and euthanasia) to deny even food and fluids by mouth, especially for patients with dementia.

Disability rights groups and the Catholic Conference also support this legislation. 

To ask your legislators to support this bill, find contact information here.