2015 Delaware Code
Title 16 - Health and Safety
CHAPTER 25A. DELAWARE MEDICAL ORDERS FOR SCOPE OF TREATMENT ACT [EFFECTIVE UPON FULFILLMENT OF 80 DEL. LAWS, C. 18, § 5]
§ 2506A Powers and duties of the Department of State [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5].

The Secretary of State is authorized to promulgate regulations and develop protocols for the education of all health-care providers under its licensing or certification jurisdiction.

80 Del. Laws, c. 18, § 1.;

§ 2507A Delaware Health Information Network [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

The Delaware Health Information Network (DHIN) is authorized to create an electronic registry to maintain and store executed DMOST forms and make them available to emergency-care providers, health-care providers and health-care institutions.

80 Del. Laws, c. 18, § 1.;

§ 2508A Obligation to treat [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

A health-care practitioner, health-care provider, health-care institution, or emergency-care provider shall treat a patient who has a completed DMOST form in accordance with the directions and options indicated in such DMOST form, except as otherwise provided in this chapter.

80 Del. Laws, c. 18, § 1.;

§ 2509A Mandatory elements of DMOST forms [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

A DMOST form shall be deemed to be completed and therefore valid for the purposes of this chapter if it:

(1) Contains information indicating a patient's health-care preferences;

(2) Has been voluntarily signed by a patient or by another individual subscribing the patient's name in the patient's presence and at the patient's express direction, or, if the patient does not have decision-making capacity, by the patient's authorized representative;

(3) Contains a statement that the DMOST form is being signed after discussion with the patient, or the patient's authorized representative;

(4) Includes the signature of the patient's health-care practitioner and the date of the health-care practitioner's signature;

(5) If the DMOST form is not signed by the heath-care practitioner in the presence of the patient, the DMOST form will be signed by the individual in whose presence the patient or the patient's authorized representative signed the DMOST form;

(6) The DMOST form shall include a statement that the patient or, if the patient does not have decision-making capacity, the patient's authorized representative, has been provided with a plain language statement explaining the DMOST form and the consequences of executing the DMOST form, including whether or not the DMOST form may be changed if the patient lacks decision-making capacity; and

(7) Meets any other requirements established by regulations to implement or administer this chapter.

80 Del. Laws, c. 18, § 1.;

§ 2510A Recognition of medical orders from other states [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

A document executed in another state, which meets the requirements of this chapter for a DMOST form or the requirements of the state where such document was executed or the state where the patient was a resident at the time the document was executed, shall be deemed to be valid for the purposes of this chapter to the same extent as a DMOST form valid under this chapter.

80 Del. Laws, c. 18, § 1.;

§ 2511A Modification or revocation of DMOST forms [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) A patient with decision-making capacity, may, at any time, void his or her completed DMOST form or otherwise request alternative treatment to the treatment that was ordered on the DMOST form.

(b) If the orders in a patient's completed DMOST form regarding the use of any intervention specified therein conflict with the patient's more recent oral or written directive to the patient's health-care practitioner, the health-care practitioner shall honor the more recent directive from the patient in accordance with the provisions of subsection (d) of this section.

(c) The patient's authorized representative may, at any time after the patient loses decision-making capacity and after consultation with the patient's health-care practitioner, request the health-care practitioner to modify or void the completed DMOST form, or otherwise request alternative treatment to the treatment that was ordered on the DMOST form, as the patient's authorized representative deems necessary to reflect the patient's health status or goals of care, unless the patient expressly limits the authorized representative's authority to modify or void the completed DMOST form. The DMOST form shall provide the patient with the option to authorize or not to authorize the patient's authorized representative to void or modify the patient's completed DMOST form if the patient who has a completed DMOST form loses decision-making capacity. If the patient indicates on the DMOST form that the authorized representative is not authorized to void or modify the patient's completed DMOST form, the patient's authorized representative may not do so.

(d) A DMOST form may only be modified in consultation with the patient's health-care practitioner in accordance with the provisions of the applicable regulations.

80 Del. Laws, c. 18, § 1; 70 Del. Laws, c. 186, § 1.;

§ 2512A Resolution of conflicts [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) In the event of a disagreement between the patient's authorized representative and the patient's health-care practitioner concerning the patient's decision-making capacity or the appropriate interpretation and application of the terms of a completed DMOST form regarding the patient's course of treatment, the parties:

(1) May seek to resolve the disagreement by means of procedures and practices established by the health-care institution, including, but not limited to, consultation with an institutional ethics committee, or with an individual designated by the health-care institution for this purpose; or

(2) May seek resolution by a court of competent jurisdiction.

(b) A health-care provider involved in the patient's care or an administrator of a health-care institution may seek to resolve a disagreement concerning the appropriate interpretation and application of the terms of a completed DMOST form to the patient's course of treatment in the same manner as set forth in subsection (a) of this section.

80 Del. Laws, c. 18, § 1.;

§ 2513A Conflicting directives [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) The patient's scope of treatment shall be governed by the latest directive available.

(b) If the treatment directives of a later advance health-care directive conflict with the patient's directives on a DMOST form, a health-care practitioner shall be informed so that the DMOST form can be modified or voided in order to reflect that patient's later directive.

(c) If there is a conflict between the patient's expressed oral or written directives, the DMOST form, or the decisions of the patient's authorized representative, the patient's last expressed oral or written directives shall be followed and, if necessary, a new DMOST form shall be prepared and executed.

80 Del. Laws, c. 18, § 1.;

§ 2514A Safeguards [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

Any individual or entity may petition the Court of Chancery for appointment of a guardian of the person of a patient if that individual or entity has good reason to believe that the withdrawal or withholding of health care in a particular case:

(1) Is contrary to the most recent expressed wishes of a patient;

(2) Is predicated on an incorrect assessment of the patient's decision-making capacity;

(3) Is being proposed pursuant to a DMOST form that has been falsified, forged, or coerced;

(4) Is being considered without knowledge of a revocation of a completed DMOST form which has been unlawfully concealed, destroyed, altered, or cancelled; or

(5) Is based on a patient's status either as an individual with a preexisting long-term mental or physical disability, or as an individual who is economically disadvantaged.

80 Del. Laws, c. 18, § 1.;

§ 2515A Immunity [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

A health-care institution, health-care practitioner, or health-care provider acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care institution, health-care practitioner, or health-care provider is not subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) Complying with a DMOST form signed by a health-care practitioner apparently having authority to make a DMOST for a patient, including a decision to withhold or withdraw health care;

(2) Declining to comply with a DMOST form based on a belief that the health-care practitioner then lacked authority to sign a DMOST;

(3) Complying with a DMOST form and assuming that the DMOST form was valid when made and has not been modified or voided;

(4) Providing life-sustaining treatment in an emergency situation when the existence of a DMOST form is unknown; or

(5) Declining to comply with a DMOST form because the DMOST form is contrary to the conscience or good faith medical judgment of the health-care practitioner or the written policies of the health-care institution.

80 Del. Laws, c. 18, § 1.;

§ 2516A Assumptions and presumptions [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) Neither the execution of a DMOST form under this chapter nor the fact that health care is withheld or withdrawn from a patient in accordance therewith shall, for any purpose, constitute a suicide.

(b) The completion of a DMOST form pursuant to this chapter shall not be deemed or presumed to modify the terms of an existing insurance policy. No policy of insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of health care from an insured patient, notwithstanding any term of the policy to the contrary.

(c) No health-care institution, health-care provider, health-care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital service plan, or any other type of direct or indirect provider of health-care benefits or services, shall require any individual to execute a DMOST form as a condition to being insured, to receiving care, or to being admitted to a health-care institution in order to receiving health-care services.

80 Del. Laws, c. 18, § 1.;

§ 2517A Penalties [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) A health-care provider who fails to act in accordance with the requirements of this chapter is subject to discipline for professional misconduct.

(b) A health-care institution that intentionally fails to act in accordance with the requirements of this chapter shall be liable for a civil penalty of not more than $1,000 for each offense. For the purposes of this subsection, each violation shall constitute a separate offense.

(c) An emergency-care provider subject to regulation by the Department who intentionally fails to act in accordance with the requirements of this chapter is subject to such disciplinary measures as the Secretary of Department deems necessary and consistent with the Department's statutory authority.

(d) An individual who intentionally or knowingly commits any of the following acts is guilty of a class G felony:

(1) Concealing, canceling, defacing, obliterating, or withholding personal knowledge of a completed DMOST form or a modification or revocation thereof, without the patient's consent, or if the patient lacks decision-making capacity, without the consent of the patient's authorized representative;

(2) Falsifying or forging a completed DMOST form or a modification or revocation thereof; or

(3) Coercing or fraudulently inducing the completion of a DMOST form or a modification or revocation thereof by a patient or, if a patient lacks decision-making capacity, by a patient's authorized representative.

(e) Any organization that is a health-care provider, health-care institution, or "person'' as defined in § 102(1) of Title 18 who intentionally or knowingly requires or prohibits the completion of a DMOST form or a modification or revocation thereof as a condition of coverage under any policy of health or life insurance, or an annuity, or a public benefits program, or as a condition of the provision of health care is guilty of a class A misdemeanor for each and every act or violation, and may be subject to suspension or revocation of such person's authority to do business in Delaware.

(f) The provisions of this section shall not be construed to repeal any sanctions applicable under any other law.

(g) The Superior Court shall have jurisdiction over all civil monetary penalties and offenses under this chapter.

80 Del. Laws, c. 18, § 1.;

§ 2518A Capacity [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

(a) An adult individual is presumed to have capacity to make a health-care decision and to execute, modify or void a DMOST form.

(b) A determination that a patient lacks decision-making capacity must be made by a physician, and if a patient's authorized representative is executing the DMOST form such determination by a physician shall be required.

80 Del. Laws, c. 18, § 1.;

§ 2519A Severability [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

The provisions of this chapter are severable, and if any word, phrase, clause, sentence, section, or provision of this chapter is for any reason held to be unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this chapter. It is hereby declared as the legislative intent that this chapter would have been adopted had such unconstitutional word, phrase, clause, sentence, section or provision thereof not been included herein.

80 Del. Laws, c. 18, § 1.;

§ 2520A Effect of copy [Effective upon fulfillment of 80 Del. Laws, c. 18, § 5]

A copy of a DMOST form or revocation of a DMOST form has the same effect as the original.

80 Del. Laws, c. 18, § 1.;