MISSOURI STATUTES ON ENDING CARE AND ASSISTED SUICIDE

Updated August 1, 1995

James S. Cole

General Counsel

This is a summary of the statutes listed below. The terms are not quoted verbatim, but are paraphrased. Analysis follows certain statutes.

Ch. 404: Durable Powers of Attorney for Health Care

404.703 Definitions--

(1) "Attorney in fact": The person appointed to act as agent of a principal in a written power of attorney.

(4) "Durable power of attorney": A power of attorney which does not terminate in the event the principal becomes disabled or incapacitated. [Note: under the law, an ordinary power of attorney does terminate in that event.]

404.710 Powers of attorney in fact

.5 An attorney in fact shall exercise the powers conferred according to the principal's instructions, in the principal's best interest, in good faith, prudently, and in accordance with certain listed sections of the law.

404.714 Duties of attorney in fact

.1 Attorney in fact is under a duty to act in the interest of the principal and to avoid conflicts of interest. He or she shll exercise the authority to act with that degree of care that would be observed by a prudent person dealing with the property and conducting the affairs of another.

.4 If the principal becomes disabled or incapacitated, the attorney in fact may consult with the principal's spouse, any member of the family, or any other person in regard to the matters to be undertaken for the principal.

404.800 Additional definitions--

(2) "Incapacitated": Unable "by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that [the patient] lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur."

404.815 No one may be the "attorney in fact" if he or she is the attending physician of a patient, or an owner, operator or employee of a health care facility in which the patient is a resident, with the following exceptions: (1) the patient and the attorney in fact are related within the second degree (i.e., grandparent, parent, sibling, nephew/niece, uncle/aunt), or (2) the patient and the attorney in fact are members of the same religious community, bound by vows and regularly engaged in religious, charitable, educational, or health care services.

404.820 .1 Any authority for attorney in fact to deny artificial nutrition or hydration to patient must be written specifically in the durable power of attorney.

.2 Nevertheless, no attorney in fact may, with the intent of causing death, authorize withdrawal of nutrition/hydration ingested through natural means.

.4 Before withdrawing artificial nutrition/ hydration, a physician must-- (1) attempt to explain to the patient the intent to do so and provide the opportunity for the patient to refuse the withdrawal; or (2) certify that the patient is comatose or it is impossible for the patient to understand the intent to withdraw and the consequences.

404.822 In making medical decisions, the attorney in fact shall seek and consider information on the patient's medical diagnosis, prognosis, and the benefits and burdens of the treatment to the patient.

404.825 Unless otherwise provided in the power of attorney, the power of the attorney in fact to make health care decisions requires a certification by two physicians upon an examination that the patient is incapacitated and will remain so when treatment decisions are required.

404.830 .1 No individual health care provider or employee of health care facility shall be required to honor a health care decision of an attorney in fact if it is contrary to his or her religious beliefs or sincerely held moral convictions.

.2 No health care facility shall be required to honor a health care decision of an attorney in fact if it is contrary to its institutional policy based on religious beliefs or sincerely held moral convictions, unless the facility received a copy of the durable power of attorney prior to commencing the current series of treatments or current confinement.

.3 Upon a refusal, the individual or facility shall not impede the attorney in fact from transferring the patient elsewhere.

404.835 No one shall make execution of a durable power of attorney for health care as a condition of care, admission to a facility, or coverage by insurance.

404.840 An attorney in fact has the same access to medical records as the patient without waiving any privilege (e.g., physician-patient privilege).

404.845 Death resulting from following the directions of an attorney in fact pursuant to a durable power of attorney for health care does not constitute homicide or suicide, and does not impair life insurance coverage.

404.850 A durable power of attorney for health care may be revoked at any time by any manner in which the patient may communicate. The revocation shall be made a part of the patient's medical record.

404.865 No attorney in fact may delegate the power to make health care decisions unless the durable power of attorney for health care explicitly authorizes such delegation.

404.870 Nothing in secs. 404.710-404.865 shall authorize, approve or condone discrimination against the handicapped or disabled in the exercise of the authority of a durable power of attorney for health care.

404.872 "No physician, nurse, or other individual who is a health care provider or an employee of a health care facility shall be discharged or otherwise discriminated against in his employment or employment application for refusing to honor a health care decision withholding or withdrawing life-sustaining treatment if such refusal is based upon the individual's religious beliefs, or sincerely held moral convictions."

Ch. 431: Provisions Relating to Consent to Medical Procedures

431.061 Consent to surgical or medical treatment

.1 In addition to other who may be authorized by other law to give consent, the following persons (if legally competent themselves) may give consent to any surgical, medical, or other treatment: (1) An adult (age 18+) for himself/herself;

NOTE: Under the decision of the Missouri Supreme Court in Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), the ability to consent necessarily includes the ability to withhold or withdraw consent, except for guardians (See ch. 475 below). Id. at 417. However, an individual's common law (i.e., non-statutory) right to refuse treatment is not unfettered; it is to be weighed against the state's interests, including that of protecting human life. Id. at 421. And someone claiming to exercise the decision-making power for an incapacitated patient cannot order the termination of treatment unless such represents the patient's own wishes, demonstrated by clear and convincing evidence. Id. at 424, 425.

A common law right is not necessarily a Constitutional right. Contrary to some commentary and public opinion, the U. S. Supreme Court, affirming the Missouri Supreme Court in Cruzan, did not hold that an individual has a Constitutional right to refuse treatment. Cruzan v. Director, Mo. Dept. of Health, 110 S.Ct. 2841, 2852 (1990). The U. S. Court merely assumed that such a right existed for the sake of considering what type of limitation a state might impose on the right in the case of an incapacitated patient. Id. The actual decision of the Court was that requiring an incapacitated patient's wishes for termination of treatment to be proved by clear and convincing evidence is an acceptable limitation under the Constitution. Id. at 2854-2855.

431.064 Consent to experimental treatment

.1 When an adult is treated by a teaching hospital of an accredited medical/osteopathic school and is incapable of giving informed consent for an experimental treatment, test or drug, then such may be given upon obtaining consent of a legal guardian, attorney in fact, or family member in the following order of priority: (1) Spouse, unless separated, mentally or physically incapable of giving consent, located overseas, or whose whereabouts are unknown; (2) Adult child; (3) Parent; (4) Brother or sister; (5) Relative by blood or marriage.

.2 Nothing in this section authorizes anyone to consent to treatment in contravention to such incapacitated person's expressed permission regarding such treatment.

Ch. 459: Declarations on Death-Prolonging Procedures ("Living Wills")

459.010 Definitions--

(2) "Death-prolonging procedure": Any procedure or intervention which would only prolong artificially the dying process when death will occur in a short time whether or not such procedure or intervention is used. It does not include medications or procedures necessary to provide comfort, care, or to alleviate pain, or to provide nutrition or hydration.

(6) "Terminal condition": An incurable or irreversible condition which, in the opinion of the attending physician, is such that death will occur in a short time regardless of the application of medical procedures.

459.015 A competent person may sign a written declaration directing the withholding or withdrawal of death-prolonging procedures. (Specific formalities are listed.)

459.020 A declaration may be revoked at any time and in any manner in which the patient is able to communicate.

459.025 Until a patient is unable to make treatment decisions, the patient's decisions supersede the declaration. The declaration becomes operative only when a patient's condition becomes terminal and the patient is not able to make treatment decisions.

459.030 When a physician or health care facility is unwilling to carry out a declaration, either one shall make arrangements for the transfer of the patient.

459.035 Physicians and health care facilities may presume that the patient was competent when a declaration was made.

459.040 Licensed health care professionals and facilities which act pursuant to a declaration made according to chapter 459 are not subject to civil or criminal liability, or to professional discipline.

459.045 Civil penalties for acting contrary to a known declaration and for concealing the revocation of a declaration.

459.050 The making of a declaration does not affect or impair life insurance policies, and no one may induce or require the signing of a declaration for the provision of any service or benefit.

459.055 Chapter 459 shall be interpreted consistent with certain principles, including that nothing in chapter 459 shall impair the patient's right to make medical decisions, and that chapter 459 does not create any presumptions for persons who have not signed declarations on whether or not they want care.

Ch. 475: Guardianship

475.060 Any person may file a petition for the appointment of a guardian for an incapacitated person.

475.075.1 When a petition for a guardian or guardian ad litem is filed, "the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall promptly set the petition for hearing."

475.075.11 If a person has no guardian or conservator, and "an emergency exists which presents a substantial risk that serious physical harm will occur to his person . . . because of his failure or inability to provide for his essential human needs . . .," the court can appoint a guardian ad litem for up to thirty days.

475.120.2 A guardian shall act in the best interest of the ward.

475.120.3 The general powers of a guardian include taking charge of the person of the ward and providing "for the ward's care, treatment, habilitation, education, support and maintenance . . . ." The specific powers include but are not limited to-- (2) Assuring that the ward receives medical care and other services that are needed; (3) Promoting and protecting the care, comfort, safety, health, and welfare of the ward; and (4) Providing required consents on behalf of the ward.

NOTE: Pursuant to the decision of the Missouri Supreme Court in Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), this section does not allow for a guardian, in the capacity of guardian, to order the termination of medical treatment. However, in the capacity of a surrogate exercising the person's own right to autonomy, a person who happens to be a guardian may terminate treatment according to the patient's own wishes, demonstrated by clear and convincing evidence. Id. at 424, 425.

Ch. 565: Criminal Offenses

565.023 Voluntary manslaughter

.1 A person commits voluntary manslaughter if he-- (2) "Knowingly assists another in the commission of self-murder."

.3 Voluntary manslaughter is a class B felony. [Class B felonies are punishable by imprisonment for 5-15 years, sec. 558.011.1(2).]