First Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 15-0019.01 Christy Chase x2008 HOUSE BILL 15-1135 HOUSE SPONSORSHIP Court and Ginal, SENATE SPONSORSHIP Guzman, Merrifield House Committees Senate Committees Public Health Care & Human Services A BILL FOR AN ACT Concerning a terminally ill individual's freedom to make end-of-life decisions. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill enacts the "Colorado Death with Dignity Act" (act), which authorizes an individual with a terminal illness to request, and the individual's attending physician to prescribe to the individual for self-administration by ingestion, life-ending medication intended to hasten the individual's death. The individual must: Be a Colorado resident; Be an adult who is able to make and communicate health care decisions; Have a terminal illness; and Voluntarily request life-ending medication to self-administer by ingestion. The act outlines the manner by which a terminally ill individual must request life-ending medication to self-administer by ingestion, which includes: A requirement to make the request orally on 2 separate occasions and by a written, signed, and witness-verified request; A waiting period between the oral requests, the written request, and the time the attending physician may write the prescription; and The individual's right to rescind the request at any time and in any manner. Any person who participates in the life-ending process, including a physician who prescribes life-ending medication to an individual with a terminal illness, is protected from civil and criminal liability and professional disciplinary action if the physician or other person acts in good-faith compliance with the requirements of the act. The attending physician is required to: Determine that an individual is suffering from a terminal illness, is capable, is making the request voluntarily, and is a Colorado resident; Inform the individual of his or her medical diagnosis and prognosis, the potential risks and probable result of taking the medication, and feasible alternatives; Refer the individual to a consulting physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient is capable and is acting voluntarily; Refer the individual for counseling, if appropriate; Inform the individual of his or her right to rescind the request for life-ending medication at any time; and Document in the individual's medical record the procedures followed and related facts. The bill requires the physician to either dispense the medication directly to the patient or, with the patient's consent, contact a pharmacist about the prescription and personally deliver, mail, or electronically transmit the prescription to the pharmacist, who can dispense the medication to the patient, the patient's expressly identified agent, or the physician. A health care provider cannot discipline a physician, nurse, pharmacist, or other health care provider for actions taken in good-faith compliance with the act or for refusing to act; however, a provider that has a policy prohibiting other health care providers from participating under the act while on the provider's premises and that notifies providers of that policy may sanction a provider who violates the policy. A person who is present when a terminally ill individual self-administers by ingestion life-ending medication is not subject to criminal or civil liability for failing to prevent the patient from self-administering the medication. Physicians, nurses, pharmacists, or other health care providers have no duty to participate in providing life-ending medication to a terminally ill individual. The bill specifies that life, health, or accident insurance or annuity policies cannot be affected by a terminally ill individual's request for or ingestion of medication to end his or her life. The act does not authorize a health care provider to end an individual's life by lethal injection, mercy killing, or active euthanasia and clarifies that a health care provider does not engage in those prohibited activities when he or she participates under the act to assist a terminally ill individual in obtaining life-ending medication. A person commits a class 2 felony if he or she: Without the permission of the terminally ill individual, willfully alters or forges a request for life-ending medication or conceals or destroys a rescission of the request; or Coerces or exerts undue influence on a terminally ill individual to request life-ending medication or to destroy a rescission of the request. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows: ARTICLE 47 Death with Dignity 25-47-101. Short title. This article shall be known and may be cited as the "Colorado Death with Dignity Act". 25-47-102. Definitions. As used in this article, unless the context otherwise requires: (1) "Adult" means an individual who is eighteen years of age or older. (2) "Attending physician" means the physician who has primary responsibility for the care of the terminally ill individual and the treatment of the individual's terminal illness. (3) "Capable" means that, in the opinion of a court or the terminally ill individual's attending physician or consulting physician, psychiatrist, or psychologist, a terminally ill individual has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the individual'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 a terminally ill individual's illness. (5) "Counseling" means one or more consultations as necessary between a psychiatrist or licensed psychologist and a terminally ill individual for the purpose of determining whether the individual is capable and not suffering from a psychiatric or psychological disorder or depression that impairs his or her ability to make an informed decision. (6) "Health care provider" means a person who, pursuant to a license, certification, registration, or other authority granted in state law, is authorized to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility. (7) "Informed decision" means a decision made by a qualified individual to request and obtain a prescription to end his or her life in a humane and dignified manner that is: (a) Based on an appreciation of the relevant facts; and (b) Made after the attending physician fully informs the qualified individual of: (I) His or her medical diagnosis; (II) His or her prognosis; (III) The potential risks associated with taking the medication to be prescribed; (IV) The probable result of taking the medication to be prescribed; and (V) The feasible alternatives, including palliative care, hospice care, and pain control. (8) "Licensed psychologist" means a person licensed under part 3 of article 43 of title 12, C.R.S., to practice psychology. (9) "Medically confirmed" means that a consulting physician who has examined the terminally ill individual and the individual's relevant medical records has confirmed the medical opinion of the attending physician. (10) "Palliative care" means specialized medical care that is focused on providing a seriously ill patient with relief from symptoms, pain, and stress from the serious illness, regardless of the diagnosis. The goal of palliative care is to improve quality of life for both the patient and the patient's family. Palliative care is provided by a team of physicians, nurses, and other specialists who work with a patient's other health care providers to provide an extra layer of support. Palliative care can be appropriate at any patient age and at any stage of a patient's serious illness and can be provided together with curative treatment. Unless otherwise indicated, "palliative care" is synonymous with the terms "comfort care", "supportive care", and similar designations. (11) (a) "Participate under this article" or "participating under this article" means to engage in an act permitted by this article in good-faith compliance with the requirements of this article, including: (I) Performing the duties or functions of an attending physician pursuant to section 25-47-105, a consulting physician pursuant to section 25-47-106, or a psychiatrist or licensed psychologist pursuant to section 25-47-107; (II) Being present when a qualified individual self-administers by ingestion life-ending medications; or (III) Not acting to prevent a qualified individual from self-administering by ingestion life-ending medication. (b) The term does not include: (I) Making an initial determination that an individual has a terminal illness and informing the individual of the medical prognosis; (II) Providing information about the "Colorado Death with Dignity Act" to an individual upon his or her request; (III) Providing an individual, upon request, with a referral to another physician; or (IV) An individual contracting with his or her attending physician and consulting physician to act outside the course and scope of the physician's capacity as an employee or independent contractor of another health care provider. (12) "Physician" means a doctor of medicine or a doctor of osteopathy licensed to practice medicine under article 36 of title 12, C.R.S. (13) "Qualified individual" means a capable adult who is a resident of this state and has satisfied the requirements of section 25-47-103 in order to request a prescription for life-ending medication to be self-administered by ingestion. (14) "Terminal illness" or "terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months. 25-47-103. Individuals permitted to request life-ending medication. (1) An individual is qualified to make a request for medication for the purpose of self-administering the medication by ingestion to end his or her life in a humane and dignified manner in accordance with this article if the individual: (a) Is an adult; (b) Is capable; (c) Is a Colorado resident; (d) Is suffering from a terminal illness, as determined by the attending physician and medically confirmed by a consulting physician; and (e) Has voluntarily expressed his or her wish to die. (2) A person does not qualify under this article solely because of age or disability. 25-47-104. Written and oral requests for life-ending medication - two oral requests required - waiting period - form of written request - right to rescind. (1) (a) In order to receive a prescription for medication to self-administer by ingestion to end one's life in a humane and dignified manner, a qualified individual must make two oral requests and a written request for life-ending medication. Each request must be made to the individual's attending physician. The qualified individual must make the second oral request to his or her attending physician no sooner than fifteen days after making the initial oral request. At the time the qualified individual makes his or her second oral request, the attending physician shall offer the qualified individual an opportunity to rescind the request. (b) The attending physician shall not write a prescription for life-ending medication within: (I) Fifteen days after the qualified individual makes an initial oral request for the medication; and (II) Forty-eight hours after the qualified individual makes a written request for the medication. (2) (a) To be valid, a written request for life-ending medication must be: (I) Substantially in the same form as set forth in this section; (II) Signed and dated by a qualified individual; and (III) Witnessed by at least two individuals who, in the presence of the qualified individual, attest to the best of their knowledge and belief that the qualified individual is capable, is acting voluntarily, and is not being coerced to sign the request. (b) Of the two witnesses to the written request, one must not be: (I) A relative of the qualified individual by blood, marriage, civil union, or adoption; (II) An individual who, at the time the request is signed, would be entitled, under a will or by operation of law, to any portion of the qualified individual's estate upon his or her death; or (III) An owner, operator, or employee of a health care facility where the qualified individual is receiving medical treatment or is a resident. (c) Neither the qualified individual's attending physician nor the psychiatrist or licensed psychologist who provides counseling to the qualified individual pursuant to section 25-47-107 can be a witness to the written request. (3) A request for life-ending medication must 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 illness 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 palliative care, hospice care, and pain control. I request that my attending physician prescribe medication I can self-administer by ingestion that will end my life in a humane and dignified manner. INITIAL ONE: _____ I have informed my family of my decision and have 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. 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 individual 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; and (d) Is not an individual for whom either of us is the attending physician. __________ Witness 1/Date __________ Witness 2/Date NOTE: One witness must not be a relative (by blood, marriage, civil union, or adoption) of the individual signing this request, must not be entitled to any portion of the individual's estate upon death, and must not own, operate, or be employed at a health care facility where the individual is a patient or resident. (4) A qualified individual may rescind his or her request for life-ending medication at any time and in any manner without regard to his or her mental state. An attending physician shall not write a prescription for life-ending medication under this article unless the attending physician offers the qualified individual an opportunity to rescind the request for the medication in accordance with subsection (1) of this section. 25-47-105. Attending physician responsibilities. (1) The attending physician shall: (a) Make the initial determination of whether an individual making a request for life-ending medication has a terminal illness, is capable, and has made the request voluntarily; (b) Request that the individual demonstrate Colorado residency pursuant to section 25-47-112; (c) Inform the individual of the following in order to ensure that the individual is making an informed decision: (I) His or her medical diagnosis; (II) His or her prognosis; (III) The potential risks associated with taking the medication to be prescribed; (IV) The probable result of taking the medication to be prescribed; and (V) The feasible alternatives, including palliative care, hospice care, and pain control; (d) Refer the individual to a consulting physician of the individual's choosing for medical confirmation of the diagnosis and prognosis and for a determination of whether the individual is capable and acting voluntarily; (e) Refer the individual for counseling, if appropriate, pursuant to section 25-47-107; (f) Recommend that the individual notify his or her next of kin about the request; (g) Counsel the individual about the importance of having another person present when the individual self-administers by ingestion the life-ending medication prescribed pursuant to this article and of ingesting the life-ending medication in a private place; (h) Inform the individual that he or she has an opportunity to rescind the request at any time and in any manner and offer the individual an opportunity to rescind pursuant to section 25-47-104 (1) (a); (i) Verify, immediately prior to writing the prescription for life-ending medication, that the qualified individual is making an informed decision; (j) Fulfill the medical record documentation requirements of section 25-47-110; (k) Ensure that all appropriate steps are carried out in accordance with this article prior to writing a prescription for medication to enable a qualified individual to end his or her life in a humane and dignified manner; and (l) (I) Dispense medications directly to the qualified individual, including ancillary medications intended to facilitate the desired effect while minimizing the individual's discomfort, if the attending physician has a current drug enforcement administration certificate and complies with any applicable administrative rule; or (II) With the qualified individual's written consent: (A) Contact a licensed pharmacist and inform the pharmacist of the prescription; and (B) Deliver the written prescription personally, by mail, or through electronic transmission in the manner permitted under article 42.5 of title 12, C.R.S., to the pharmacist, who shall dispense the medication to the qualified individual, the attending physician, or an expressly identified agent of the qualified individual. 25-47-106. Consulting physician confirmation. (1) Before an individual with a terminal illness is qualified under section 25-47-103, a consulting physician of the individual's choosing must: (a) Examine the individual and his or her relevant medical records; (b) Confirm, in writing, the attending physician's diagnosis that the individual is suffering from a terminal illness and the prognosis; and (c) Verify that the individual is capable, is acting voluntarily, and has made an informed decision. 25-47-107. Counseling referral. If, in the opinion of the attending physician or the consulting physician, an individual with a terminal illness may be suffering from a psychiatric or psychological disorder or depression that may impair his or her ability to make an informed decision, the physician shall refer the individual for counseling. The attending physician shall not prescribe life-ending medication to a qualified individual with a terminal illness until the person performing the counseling determines that the individual is not suffering from a psychiatric or psychological disorder or depression that impairs his or her ability to make an informed decision. 25-47-108. Informed decision. A qualified individual is eligible to receive a prescription for life-ending medication to self-administer by ingestion only if he or she has made an informed decision. Immediately prior to writing a prescription for life-ending medication under this article, the attending physician must verify whether the qualified individual is making an informed decision in accordance with section 25-47-105 (1) (c) and (1) (i). 25-47-109. Family notification. The attending physician shall recommend that the qualified individual notify his or her next of kin about the request for medication pursuant to this article. The attending physician may approve the request for life-ending medication even if the qualified individual declines or is unable to notify his or her next of kin. 25-47-110. Medical record documentation requirements - reporting requirements - department compliance reviews - rules. (1) The appropriate health care provider shall document or file the following information in a qualified individual's medical record: (a) All oral requests by a qualified individual for life-ending medication; (b) All written requests by a qualified individual for life-ending medication; (c) The attending physician's diagnosis, prognosis, and determination that the qualified individual is capable, is acting voluntarily, and is making an informed decision; (d) The consulting physician's diagnosis, prognosis, and verification that the qualified individual is capable, is acting voluntarily, and is making an informed decision; (e) A report of the outcome and determinations made during counseling, if performed; (f) The attending physician's offer to the qualified individual to rescind his or her request pursuant to section 25-47-104 (1) (a); and (g) A note by the attending physician indicating that all requirements under this article have been satisfied and indicating the steps taken to carry out the request, including a notation of the medication prescribed. (2) (a) The department of public health and environment shall annually review a sample of records maintained pursuant to this article to ensure compliance. The department shall adopt rules to facilitate the collection of information regarding compliance with this article. Except as otherwise required by law, the information collected by the department is not a public record and is not available for public inspection. However, the department shall generate and make available to the public an annual statistical report of information collected under this subsection (2). (b) The department shall require any health care provider, upon dispensing a life-ending medication pursuant to this article, to file a copy of the dispensing record with the department. The dispensing record is not a public record and is not available for public inspection. 25-47-111. Requirements for reporting death to coroner. When the death of a qualified individual occurs, the death shall be reported to the appropriate county coroner. The coroner or his or her designee must be notified of the attending physician's name and contact information in order for the coroner to verify whether the death followed the procedures as required in this article. Once the circumstances of a death reported pursuant to this section are verified, the coroner is not required to perform an autopsy pursuant to section 30-10-606.5 (1) (a), C.R.S. 25-47-112. Colorado residency requirement. (1) An attending physician shall grant a request pursuant to this article for life-ending medication only if the requester is a Colorado resident who is qualified under section 25-47-103 and who makes the request in accordance with section 25-47-104. (2) An individual with a terminal illness may demonstrate Colorado residency by providing any of the following documentation: (a) A Colorado driver's license or identification card issued pursuant to article 2 of title 42, C.R.S.; (b) A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado; (c) Evidence that the person owns or leases property in Colorado; or (d) A Colorado income tax return for the most recent tax year. 25-47-113. Immunity for good faith participation - prohibition against reprisals - exception for gross misconduct. (1) A person is not subject to civil or criminal liability or professional disciplinary action for participating under this article. (2) Subject to section 25-47-115, a professional organization or association or a health care provider shall not subject a person to any of the following because the health care provider participated or refused to participate under this article: (a) Censure; (b) Discipline; (c) Suspension; (d) Loss of license, privileges, or membership; or (e) Any other penalty. (3) A request by a qualified individual for, or the provision by an attending physician of, life-ending medication in good-faith compliance with this article does not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator. (4) This section does not limit civil or criminal liability for negligence, recklessness, or intentional misconduct. 25-47-114. No duty to prescribe or dispense. A health care provider has no duty, by law or contract, to participate in the provision of life-ending medication to a qualified individual. If a health care provider is unable or unwilling to grant a qualified individual's request for life-ending medication made pursuant to this article, and the qualified individual transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the qualified individual's relevant medical records to the new health care provider. 25-47-115. Health care provider may prohibit participation - sanctions if provider violates policy. (1) (a) A health care provider may prohibit another health care provider from participating under this article on the prohibiting health care provider's premises. The prohibiting health care provider must notify the health care provider in writing of its policy with regard to participating under this article. (b) As used in this section, "notify" means providing a separate written statement to a health care provider specifically informing the provider, prior to his or her participation under this article, of the sanctioning health care provider's policy about participation in activities covered under this article. (2) A health care provider may subject another health care provider to the following sanctions if the sanctioning health care provider has complied with subsection (1) of this section: (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 health care provider is a member of the sanctioning health care provider's medical staff and participated under this article while on the sanctioning provider's health care facility premises, other than a private medical office of a physician or other provider; (b) Termination of a lease or other property contract or other nonmonetary remedies provided by lease contract, other than loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned health care provider participates under this article 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) (I) Termination of a contract or other nonmonetary remedies provided by contract if the sanctioned provider participates under this article 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. (II) Nothing in this paragraph (c) prevents: (A) A health care provider from participating under this article while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or (B) An individual 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. (3) A health care provider that imposes sanctions pursuant to this section must follow all due process and other procedures the sanctioning health care provider has that are related to the imposition of sanctions on another health care provider. (4) Suspension or termination of staff membership or clinical privileges under this section is not reportable under section 24-34-110 (4) (d), C.R.S. 25-47-116. Insurance or annuity policies. The sale, procurement, or issuance of, or the rate charged for, any life, health, or accident insurance or annuity policy any policy must not be conditioned upon or affected by the making or rescinding of a request, by an individual with a terminal illness, for medication to end his or her life in accordance with this article. A qualified individual's act of ingesting medication to end his or her life in a humane and dignified manner pursuant to this article does not affect a life, health, or accident insurance or annuity policy. 25-47-117. Effect on wills, contracts, and statutes. (1) A provision in a contract, will, or other agreement, whether written or oral, that would affect whether a qualified individual may make or rescind a request for medication to end his or her life pursuant to this article is invalid. (2) An obligation owing under any currently existing contract must not be conditioned or affected by the making or rescinding of a request by a qualified individual for medication to end his or her life pursuant to this article. 25-47-118. Safe disposal of unused medications. Medication dispensed under this article that the terminally ill individual decides not to use or that remains unused after the terminally ill individual's death must be disposed of in accordance with section 25-15-328. 25-47-119. Mercy killing prohibited - actions complying with article not mercy killing. Nothing in this article authorizes a physician or any other person to end an individual's life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this article do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide under the "Colorado Criminal Code", title 18, C.R.S. This section does not conflict with section 1553 of the "Patient Protection and Affordable Care Act", Pub.L. 111-148, as amended by the "Health Care and Education Reconciliation Act of 2010", Pub.L. 111-152. 25-47-120. Liabilities. (1) A person who, without authorization of an individual with a terminal illness and with the intent or effect of causing the terminally ill individual's death, willfully alters or forges a request for a life-ending medication or conceals or destroys a rescission of the request commits a class 2 felony and is subject to punishment in accordance with section 18-1.3-401, C.R.S. (2) A person who coerces or exerts undue influence on an individual with a terminal illness to request medication for the purpose of ending the terminally ill individual's life or to destroy a rescission of a request for life-ending medication commits a class 2 felony and is subject to punishment in accordance with section 18-1.3-401, C.R.S. (3) Nothing in this article limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person. (4) The penalties specified in this article do not preclude criminal penalties applicable under other law for conduct that fails to comply with this article. 25-47-121. Claims by government entity for costs. A government entity that incurs costs resulting from an individual terminating his or her life pursuant to this article in a public place has a claim against the estate of the individual to recover the costs and reasonable attorney fees related to enforcing the claim. 25-47-122. No effect on advance medical directives. (1) Nothing in this article affects or negates: (a) A declaration made under article 18 of title 15, C.R.S., directing that life-sustaining procedures be withheld or withdrawn; (b) A CPR directive executed under article 18.6 of title 15, C.R.S.; or (c) An advance medical directive executed under article 18.7 of title 15, C.R.S. SECTION 2. Exception to the requirements of section 2-2-703, Colorado Revised Statutes. The general assembly hereby finds that the enactment of section 25-47-120, Colorado Revised Statutes, enacted in section 1 of this act, will result in the minor fiscal impact of one additional offender being convicted and sentenced to the department of corrections during the five years following passage of this act. Because of the relative insignificance of this degree of fiscal impact, this enactment is an exception to the five-year appropriation requirements specified in section 2-2-703, Colorado Revised Statutes. SECTION 3. Applicability. This act applies to conduct occurring on or after July 1, 2015. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.