MISSISSIPPI LEGISLATURE
2007 Regular Session
To: Judiciary, Division B
By: Senator(s) Nunnelee
AN ACT RELATING TO THE WITHHOLDING OR WITHDRAWAL OF NUTRITION OR HYDRATION FROM INCOMPETENT PERSONS; TO CODIFY SECTION 41-41-301, MISSISSIPPI CODE OF 1972, TO BE CITED AS THE "STARVATION AND DEHYDRATION OF PERSONS WITH DISABILITIES PREVENTION ACT"; TO PROVIDE THAT AN INCOMPETENT PERSON IS PRESUMED TO HAVE DIRECTED HEALTH CARE PROVIDERS TO PROVIDE THE NECESSARY NUTRITION AND HYDRATION TO SUSTAIN LIFE; TO PROHIBIT A COURT, PROXY OR SURROGATE FROM WITHHOLDING OR WITHDRAWING NUTRITION OR HYDRATION EXCEPT UNDER SPECIFIED CIRCUMSTANCES; TO PROVIDE THAT SAID PRESUMPTION IS INAPPLICABLE UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTIONS 41-41-205, 41-41-209, 41-39-15, 41-41-3 AND 41-41-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following provision shall be codified as Section 41-41-301, Mississippi Code of 1972:
41-41-301. (1) This section shall be known and may be cited as the "Starvation and Dehydration of Persons with Disabilities Prevention Act."
(2) As used in this section, the term:
(a) "Express and informed consent" means consent voluntarily given with sufficient knowledge of the subject matter involved to enable the person giving consent to make a knowing and understanding decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion. Sufficient knowledge of the subject matter involved includes a general understanding of:
(i) The proposed treatment or procedure for which consent is sought;
(ii) The medical condition of the person for whom consent for the proposed treatment or procedure is sought;
(iii) Any medically acceptable alternative treatment or procedure; and
(iv) The substantial risks and hazards inherent if the proposed treatment or procedure is carried out and if the proposed treatment or procedure is not carried out.
(b) "Nutrition" means sustenance administered by way of the gastrointestinal tract.
(c) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(3) Each incompetent person shall be presumed to have directed his or her health care providers to supply him or her with the nutrition and hydration necessary to sustain life.
(4) A family member, proxy, surrogate or court may not decide on behalf of an incompetent person to withhold or withdraw hydration or nutrition from that person except in the circumstances and under the conditions specifically provided in subsection (5).
(5) The presumption in subsection (4) does not apply if:
(a) In reasonable medical judgment:
(i) The provision of nutrition or hydration is not medically possible;
(ii) The provision of nutrition or hydration would hasten death; or
(iii) The medical condition of the incompetent person is such that provision of nutrition or hydration would not contribute to sustaining the incompetent person's life or provide comfort to the incompetent person;
(b) The incompetent person has executed a written living will or advance directive executed in this or another state in accordance with Section 44-41-201 et seq., any of which specifically authorizes the withholding or withdrawal of nutrition or hydration, to the extent that the authorization applies; or
(c) There is clear and convincing evidence that the incompetent person, when competent, gave express and informed consent to withdrawing or withholding nutrition or hydration in the applicable circumstances.
(6) The provisions of this section are cumulative to the existing law regarding an individual's right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor, competent or incompetent person, or a patient's family may have under the common law, federal constitution, state constitution or statutes of this state; however, this subsection (6) may not be construed to authorize a violation of Section 41-41-301.
(7) This section shall not be construed to repeal by implication any provision of the Mississippi Medical Consent Law, Sections 41-41-3, 41-41-7 or the Uniform Health Care Decisions Act, Section 41-41-201 et seq., and said provisions shall be considered an alternative to provisions of this Section 41-41-301; however, this section may not be construed to authorize a violation of Section 41-41-301.
SECTION 2. Section 41-41-205, Mississippi Code of 1972, is amended as follows:
41-41-205. (1) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
(2) An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of a residential long-term health care institution at which the principal is receiving care. The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one (1) of the following methods:
(a) Be signed by at least two (2) individuals each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgement of the signature or of the instrument, each witness making the following declaration in substance: "I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility." In addition, the declaration of at least one (1) of the witnesses must include the following: "I am not related to the principal by blood, marriage or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law."
(b) Be acknowledged before a notary public at any place within this state, the notary public certifying to the substance of the following:
"State of __________________
County of _________________
On this _______ day of __________, in the year ____, before me, _______________ (insert name of notary public) appeared _______________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under the penalty of perjury that the person whose name is subscribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
Notary Seal
_____________________________
(Signature of Notary Public)"
(3) None of the following may be used as witness for a power of attorney for health care:
(a) A health care provider;
(b) An employee of a health care provider or facility; or
(c) The agent.
(4) At least one (1) of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:
(a) A relative of the principal by blood, marriage or adoption; nor
(b) An individual who would be entitled to any portion of the estate of the principal upon his or her death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.
(5) Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
(6) Unless otherwise specified in a written advance health care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the primary physician.
(7) An agent shall make a health care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
(8) A health care decision made by an agent for a principal is effective without judicial approval.
(9) A written advance health care directive may include the individual's nomination of a guardian of the person.
(10) An advance health care directive is valid for purposes of this chapter if it complies with Sections 41-41-201 through 41-41-229, regardless of when or where executed or communicated.
(11) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.
SECTION 3. Section 41-41-209, Mississippi Code of 1972, is amended as follows:
41-41-209. The following form may be used to create an advance health care directive. Sections 41-41-201 through 41-41-207 and 41-41-211 through 41-41-229 govern the effect of this or any other writing used to create an advanced health care directive. An individual may complete or modify all or any part of the following form:
ADVANCE HEALTH CARE DIRECTIVE
Explanation
You have the right to give instructions about your own health care. You also have the right to name someone else to make health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a residential long-term health care institution at which you are receiving care.
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;
(b) Select or discharge health care providers and institutions;
(c) Approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
(d) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.
Part 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.
Part 3 of this form lets you designate a physician to have primary responsibility for your health care.
Part 4 of this form lets you authorize the donation of your organs at your death, and declares that this decision will supersede any decision by a member of your family.
After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
PART 1
POWER OF ATTORNEY FOR HEALTH CARE
(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health care decisions for me:
__________________________________________________________________
(name of individual you choose as agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent:
__________________________________________________________________
(name of individual you choose as first alternate agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health care decision for me, I designate as my second alternate agent:
__________________________________________________________________
(name of individual you choose as second alternate agent)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(home phone) (work phone)
(2) AGENT'S AUTHORITY: My agent is authorized to make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive, except as I state here:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(Add additional sheets if needed.)
(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines that I am unable to make my own health care decisions unless I mark the following box. If I mark this box [ ], my agent's authority to make health care decisions for me takes effect immediately.
(4) AGENT'S OBLIGATION: My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.
(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.
PART 2
INSTRUCTIONS FOR HEALTH CARE
If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.
(6) END-OF-LIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold or withdraw treatment in accordance with the choice I have marked below:
[ ] (a) Choice Not To Prolong Life
I do not want my life to be prolonged if (i) I have an incurable and irreversible condition that will result in my death within a relatively short time, (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (iii) the likely risks and burdens of treatment would outweigh the expected benefits, or
[ ] (b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
(7) ARTIFICIAL NUTRITION AND HYDRATION: Artificial nutrition and hydration must be provided, withheld or withdrawn in accordance with the choice I have made in paragraph (6) unless I mark the following box. If I mark this box [ ], artificial nutrition and hydration must be provided regardless of my condition and regardless of the choice I have made in paragraph (6).
(8) RELIEF FROM PAIN: Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death:
__________________________________________________________________
__________________________________________________________________
(9) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:
__________________________________________________________________
__________________________________________________________________
(Add additional sheets if needed.)
PART 3
PRIMARY PHYSICIAN
(OPTIONAL)
(10) I designate the following physician as my primary physician:
__________________________________________________________________
(name of physician)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(phone)
OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:
__________________________________________________________________
(name of physician)
__________________________________________________________________
(address) (city) (state) (zip code)
__________________________________________________________________
(phone)
(11) EFFECT OF COPY: A copy of this form has the same effect as the original.
(12) SIGNATURES: Sign and date the form here:
_______________________________ ______________________________
(date) (sign your name)
_______________________________ ______________________________
(address) (print your name)
_______________________________
(city) (state)
PART 4
CERTIFICATE OF AUTHORIZATION FOR ORGAN DONATION
(OPTIONAL)
I, the undersigned, this ____________day of ___________, 20__, desire that my ________________ organ(s) be made available after my demise for:
(a) Any licensed hospital, surgeon or physician, for medical education, research, advancement of medical science, therapy or transplantation to individuals;
(b) Any accredited medical school, college or university engaged in medical education or research, for therapy, educational research or medical science purposes or any accredited school of mortuary science;
(c) Any person operating a bank or storage facility for blood, arteries, eyes, pituitaries, or other human parts, for use in medical education, research, therapy or transplantation to individuals;
(d) The donee specified below, for therapy or transplantation needed by him or her, do donate my _________ for that purpose to ______________________________________ (name) at
______________________________________________________ (address).
I authorize a licensed physician or surgeon to remove and preserve for use my ____________________________ for that purpose.
I specifically provide that this declaration shall supersede and take precedence over any decision by my family to the contrary.
Witnessed this ________ day of _______________________, 20__.
__________________________________________________________________
(donor)
__________________________________________________________________
(address)
__________________________________________________________________
(telephone)
__________________________________________________________________
(witness)
__________________________________________________________________
(witness)
(13) WITNESSES: This power of attorney will not be valid for making health care decisions unless it is either (a) signed by two (2) qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the state.
ALTERNATIVE NO. 1
Witness
I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.
______________________________ ______________________________
(date) (signature of witness)
______________________________ ______________________________
(address) (printed name of witness)
______________________________
(city) (state)
Witness
I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility.
_____________________________ _____________________________
(date) (signature of witness)
_____________________________ _____________________________
(address) (printed name of witness)
_____________________________
(city) (state)
ALTERNATIVE NO. 2
State of __________________
County of _________________
On this _______ day of __________, in the year ____, before me, _______________ (insert name of notary public) appeared _______________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under the penalty of perjury that the person whose name is subscribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
Notary Seal
____________________________
(Signature of Notary Public)
Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301, Mississippi Code of 1972.
SECTION 4. Section 41-39-15, Mississippi Code of 1972, is amended as follows:
41-39-15. (1) For the purposes of this section:
(a) "Potential organ donor" means a patient with a severe neurological insult who exhibits loss of cranial nerve response or who has a Glasgow Coma Scale score of five (5) or less.
(b) "Potential tissue donor" means any patient who dies due to cardiac arrest.
(c) "Organ procurement organization" means the federally designated agency charged with coordinating the procurement of human organs in the State of Mississippi for the purpose of transplantation and research.
(d) "Tissue bank" or "tissue procurement organization" means a not-for-profit agency certified by the Mississippi State Department of Health to procure tissues, other than solid organs, in the State of Mississippi.
(2) Before November 1, 1998, each licensed acute care hospital in the state shall develop, with the concurrence of the hospital medical staff and the organ procurement organization, a protocol for identifying all potential organ and tissue donors. The protocol shall include a procedure for family consultation. This protocol shall not be applicable in cases where a declaration by the organ donor (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under the Anatomical Gift Law under Section 41-39-39, has been provided to the attending physician.
(3) The protocol shall require each hospital to contact the organ procurement organization by telephone when a patient in the hospital becomes either a potential organ donor or potential tissue donor as defined in this section. The organ procurement organization shall determine the suitability of the patient for organ or tissue donation after a review of the patient's medical history and present condition. The organ procurement organization representative shall notify the attending physician or designee of its assessment. The hospital shall note in the patient's chart the organ procurement organization's assessment of suitability for donation. The organ procurement organization representative shall provide information about donation options to the family or persons specified in Section 41-39-35 when consent for donation is requested.
(4) If the patient becomes brain dead and is still suitable as a potential donor, the organ procurement organization representative shall approach the deceased patient's legal next of kin or persons specified in Section 41-39-35 for consent to donate the patient's organs. The organ procurement organization representative shall initiate the consent process with reasonable discretion and sensitivity to the family's circumstances, values and beliefs.
To discourage multiple requests for donation consent, the organ procurement organization representative shall make a request for tissue donation during the organ donation consent process. When the possibility of tissue donation alone exists, a tissue bank representative or their designee may request the donation.
(5) The option of organ and/or tissue donation shall be made to the deceased patient's family upon the occurrence of brain death and while mechanical ventilation of the patient is in progress.
The protocol shall require that the decision to donate be noted in the patient's medical record. The organ procurement organization shall provide a form to the hospital for the documentation. The form shall be signed by the patient's family pursuant to Sections 41-39-31 through 41-39-51. The form shall be placed in each deceased patient's chart documenting the family's decision regarding donation of organs or tissues from the patient.
(6) (a) If the deceased patient is medically suitable to be an organ and/or tissue donor, as determined by the protocol in this section, and the donor and/or family has authorized the donation and transplantation, the donor's organs and/or tissues shall be removed for the purpose of donation and transplantation by the organ procurement organization, in accordance with paragraph (b) of this subsection.
(b) If the deceased patient is the subject of a medical-legal death investigation, the organ procurement organization shall immediately notify the appropriate medical examiner that the deceased patient is medically suitable to be an organ and/or tissue donor. If the medical examiner determines that examination, analysis or autopsy of the organs and/or tissue is necessary for the medical examiner's investigation, the medical examiner may be present while the organs and/or tissues are removed for the purpose of transplantation. The physician, surgeon or technician removing the organs and/or tissues shall file with the medical examiner a report detailing the donation, which shall become part of the medical examiner's report. When requested by the medical examiner, the report shall include a biopsy or medically approved sample, as specified by the medical examiner, from the donated organs and/or tissues.
(c) In a medical-legal death investigation, decisions about organ and/or tissue donation and transplantation shall be made in accordance with a protocol established and agreed upon by majority vote no later than July 1, 2005, by the organ procurement organization, a certified state pathologist who shall be appointed by the Mississippi Commissioner of Public Safety, a representative from the University of Mississippi Medical Center, a representative from the Mississippi Coroners Association, an organ recipient who shall be appointed by the Governor, the Director of the Mississippi Bureau of Investigation of the Mississippi Department of Public Safety, and a representative of the Mississippi Prosecutor's Association appointed by the Attorney General. The protocol shall be established so as to maximize the total number of organs and/or tissues available for donation and transplantation. Organs and/or tissues designated by virtue of this protocol shall be recovered. The protocol shall be reviewed and evaluated on an annual basis.
(d) This subsection (6) shall stand repealed on June 30, 2008.
(7) Performance improvement record reviews of deceased patients' medical records shall be conducted by the organ procurement organization for each hospital having more than ninety-five (95) licensed acute care beds and general surgical capability. These reviews must be performed in the first four (4) months of a calendar year for the previous calendar year. If the organ procurement organization and hospital mutually agree, the performance improvement record reviews may be performed more frequently. Aggregate data concerning these reviews shall be submitted by the organ procurement organization to the State Department of Health by July 1 of each year for the preceding year.
(8) No organ or tissue recovered in the State of Mississippi may be shipped out of the state except through an approved organ sharing network or, at the family's request, to an approved organ transplant program.
(9) Any hospital, administrator, physician, surgeon, nurse, technician, organ procurement organization, tissue procurement organization or donee who acts in good faith to comply with this section shall not be liable in any civil action to a claimant who alleges that his consent for the donation was required.
(10) Nothing in this section shall be construed to supersede or revoke, by implication or otherwise, any valid gift of the entire body to a medical school.
(11) A gift of all or part of the body made (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under an Anatomical Gift Act declaration under Section 41-39-39, shall supersede and have precedence over any decision by the family of the individual making the organ donation.
(12) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301.
SECTION 5. Section 41-41-3, Mississippi Code of 1972, is amended as follows:
41-41-3. (1) It is hereby recognized and established that, in addition to such other persons as may be so authorized and empowered, any one (1) of the following persons who is reasonably available, in descending order of priority, is authorized and empowered to consent on behalf of an unemancipated minor, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:
(a) The minor's guardian or custodian.
(b) The minor's parent.
(c) An adult brother or sister of the minor.
(d) The minor's grandparent.
(2) If none of the individuals eligible to act under subsection (1) is reasonably available, an adult who has exhibited special care and concern for the minor and who is reasonably available may act; the adult shall communicate the assumption of authority as promptly as practicable to the individuals specified in subsection (1) who can be readily contacted.
(3) Any female, regardless of age or marital status, is empowered to give consent for herself in connection with pregnancy or childbirth.
(4) Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301.
SECTION 6. Section 41-41-7, Mississippi Code of 1972, is amended as follows:
41-41-7. In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures, suggested, recommended, prescribed or directed by a duly licensed physician, will be implied where an emergency exists if there has been no protest or refusal of consent by a person authorized and empowered to consent or, if so, there has been a subsequent change in the condition of the person affected that is material and morbid, and there is no one immediately available who is authorized, empowered, willing and capacitated to consent. For the purposes hereof, an emergency is defined as a situation wherein, in competent medical judgment, the proposed surgical or medical treatment or procedures are immediately or imminently necessary and any delay occasioned by an attempt to obtain a consent would reasonably jeopardize the life, health or limb of the person affected, or would reasonably result in disfigurement or impairment of faculties.
Any decision under this section concerning the withholding or withdrawal of nutrition or hydration shall comply with Section 41-41-301.
SECTION 7. This act shall apply prospectively in litigation pending on the effective date of this act and shall supersede any court order issued under the law in effect before the effective date of this act to the extent that the court order conflicts with this act and would otherwise be applied on or after the effective date of this act. This act shall apply with respect to every person living on or after the effective date of this act.
SECTION 8. This act shall take effect and be in force from and after its passage.