Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0001.01 Christy Chase x2008 HOUSE BILL 16-1054 HOUSE SPONSORSHIP Court and Ginal, SENATE SPONSORSHIP Merrifield, House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning end-of-life options for individuals with a terminal illness. 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 End-of-life Options Act" (act), which authorizes an individual with a terminal illness to request, and the individual's attending physician to prescribe to the individual, medication to hasten the individual's death. To be qualified to request aid-in-dying medication, an individual must be a capable adult resident of Colorado who has a terminal illness and has voluntarily expressed the wish to receive a prescription for aid-in-dying medication by making 2 oral requests and a written request to his or her attending physician. An individual who requests aid-in-dying medication may rescind the request at any time, regardless of his or her mental state. The act outlines the responsibilities of the attending physician, including: Determining whether the requesting individual has a terminal illness, is capable of making an informed decision, and is making the request for aid-in-dying medication voluntarily; Requesting the individual to demonstrate proof of Colorado residency; Referring the individual to a consulting physician to confirm that the individual is qualified to request aid-in-dying medication; Providing full disclosures to ensure that the individual is making an informed decision; and Informing the individual of the right to rescind the request at any time. An attending physician cannot write a prescription for aid-in-dying medication unless at least 2 health care providers determine that the individual is capable of making an informed decision. The attending or consulting physician is to refer the individual to a licensed mental health professional if he or she believes the individual's ability to make an informed decision is compromised. The attending physician cannot write a prescription unless the mental health professional communicates, in writing, that the individual is capable. The bill grants immunity from civil and criminal liability and from professional discipline to a person who participates in good faith under the act. The bill also specifies that actions taken in accordance with the act do not constitute suicide, assisted suicide, mercy killing, homicide, or elder abuse. A health care provider is not obligated to prescribe aid-in-dying medication, and a health care facility may prohibit a physician from writing a prescription for a resident of the facility who intends to use aid-in-dying medication on the facility's premises. A person commits a class 2 felony if the person purposely or knowingly: Alters or forges an aid-in-dying medication request without the terminally ill individual's authorization; Conceals or destroys a rescission of a request for aid-in-dying medication; or Coerces or exerts undue influence to get a terminally ill individual to request, or to destroy a rescission of a request for, aid-in-dying medication. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add article 48 to title 25 as follows: ARTICLE 48 End-of-life Options 25-48-101. Short title. The short title of this article is the "Colorado End-of-life Options Act". 25-48-102. 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) "Aid in dying" means the medical practice of a physician prescribing medication to a qualified individual that the qualified individual may choose to self-administer to bring about his or her death. (3) "Aid-in-dying medication" means medication prescribed by a physician pursuant to this article to provide aid in dying to a qualified individual. (4) "Attending physician" means a Colorado-licensed physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual's terminal illness. (5) "Capable" means that, in the opinion of a terminally ill individual's attending physician, consulting physician, psychiatrist, or licensed mental health professional, a terminally ill individual has the ability to make and communicate an informed decision to health care providers, including communication through a person familiar with the individual's manner of communicating if that person is available. (6) "Consulting physician" means a Colorado-licensed physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual's illness. (7) "Health care provider" or "provider" means a person who is licensed, certified, registered, or otherwise authorized or permitted by law 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, including a long-term care facility as defined in section 25-3-103.7 (1) (f.3). (8) "Informed decision" means a decision that is: (a) Made by a qualified individual to request and obtain a prescription for medication that the qualified individual may self-administer to end his or her life in a peaceful manner; (b) Based on an understanding and acknowledgment of the relevant facts; and (c) Made after the attending physician fully informs the qualified individual of: (I) His or her medical diagnosis and prognosis; (II) The potential risks associated with taking the medication to be prescribed; (III) The probable result of taking the medication to be prescribed; (IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to: (A) Request aid in dying; (B) Obtain a prescription for medication to end his or her life; (C) Fill and possess a prescription for medication to end his or her life; and (D) Ultimately self-administer the medication to bring about a peaceful death; and (V) Feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control. (9) "Licensed mental health professional" means a psychiatrist licensed under article 36 of title 12, C.R.S., or a person licensed under article 43 of title 12, C.R.S., to practice a particular mental health profession. (10) "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. (11) "Qualified individual" means a terminally ill adult who is capable, is a resident, and has satisfied the requirements of this article in order to obtain a prescription for aid-in-dying medication to end his or her life. (12) "Resident" means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician: (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 individual owns or leases property in Colorado; or (d) A Colorado income tax return for the most recent tax year. (13) "Self-administration" means, if a qualified individual, to engage in an affirmative and voluntary act to use prescribed medication to bring about his or her own peaceful and humane death. (14) "Terminal illness" means an incurable and irreversible illness that has been medically confirmed and will, within reasonable medical judgment, result in death within six months. 25-48-103. Right to request aid-in-dying medication. (1) A capable, adult resident of Colorado may make a request, in accordance with sections 25-48-104 and 25-48-111, to receive a prescription for aid-in-dying medication if: (a) The individual's attending physician has diagnosed the individual with a terminal illness; and (b) The individual has voluntarily expressed the wish to receive a prescription for aid-in-dying medication. (2) A person does not qualify to receive a prescription for aid-in-dying medication solely because of age or disability. 25-48-104. Request process - witness requirements. (1) In order to receive a prescription for aid-in-dying medication pursuant to this article, an individual who satisfies the requirements in section 25-48-103 must make two oral requests, separated by at least fifteen days, and a valid written request to his or her attending physician. (2) (a) To be valid, a written request for aid-in-dying medication must be: (I) Substantially in the same form as set forth in section 25-48-111; (II) Signed and dated by the individual seeking the medication; and (III) Witnessed by at least two individuals who, in the presence of the individual, attest to the best of their knowledge and belief that the individual is: (A) Capable; (B) Acting voluntarily; and (C) Not being coerced to sign the request. (b) Of the two witnesses to the written request, at least one must not be: (I) Related to the individual by blood, marriage, civil union, or adoption; (II) An individual who, at the time the request is signed, is entitled, under a will or by operation of law, to any portion of the individual's estate upon his or her death; or (III) An owner, operator, or employee of a health care facility where the individual is receiving medical treatment or is a resident. (c) The individual's attending physician shall not serve as a witness to the written request. 25-48-105. Right to rescind request - requirement to offer opportunity to rescind. (1) At any time, an individual may rescind his or her request for aid-in-dying medication without regard to the individual's mental state. (2) An attending physician shall not write a prescription for aid-in-dying medication under this article unless the attending physician offers the qualified individual an opportunity to rescind the request for the medication. 25-48-106. Attending physician responsibilities. (1) The attending physician shall: (a) Make the initial determination of whether an individual requesting aid-in-dying medication has a terminal illness, is capable of making an informed decision, and has made the request voluntarily; (b) Request that the individual demonstrate Colorado residency by providing documentation as described in section 25-48-102 (12); (c) Provide a standard of care under accepted medical guidelines; (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) Provide full, individual-centered disclosures to ensure that the individual is making an informed decision by discussing with the individual: (I) His or her medical diagnosis and prognosis; (II) The feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control; (III) The potential risks associated with taking the aid-in-dying medication to be prescribed; (IV) The probable result of taking the aid-in-dying medication to be prescribed; and (V) The possibility that the individual can obtain the medication but choose not to use it; (f) Refer the individual to a licensed mental health professional pursuant to section 25-48-108 if, in the attending physician's opinion, the individual's ability to make an informed decision is compromised for any reason; (g) Confirm that the individual's request does not arise from coercion or undue influence by another person by discussing with the individual, without the presence of other persons, whether the individual is feeling coerced or unduly influenced by another person; (h) Counsel the individual about the importance of: (I) Having another person present when the individual self-administers the aid-in-dying medication prescribed pursuant to this article; (II) Not taking the aid-in-dying medication in a public place; (III) Safe-keeping and proper disposal of unused medication in accordance with section 25-48-119; and (IV) Notifying his or her next of kin of the request for aid-in-dying medication; (i) Inform the individual that he or she may rescind the request for aid-in-dying medication at any time and in any manner; (j) Verify, immediately prior to writing the prescription for aid-in-dying medication, that the individual is making an informed decision; (k) Ensure that all appropriate steps are carried out in accordance with this article before writing a prescription for aid-in-dying medication; and (l) (I) Dispense aid-in-dying medications directly to the qualified individual, including ancillary medications intended to minimize 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 authorized 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 individual expressly designated by the qualified individual. 25-48-107. Consulting physician responsibilities. (1) Before an individual who is requesting aid-in-dying medication can receive a prescription for the medication, a consulting physician of the individual's choosing must: (a) Examine the individual and his or her relevant medical records; (b) Confirm, in writing, to the attending physician: (I) That the individual is suffering from a terminal illness; (II) The individual's prognosis; and (III) That the individual is capable of making an informed decision, or provide documentation that the consulting physician has referred the individual for further evaluation in accordance with section 25-48-108. 25-48-108. Confirmation that individual is capable - referral to mental health professional. (1) An attending physician shall not prescribe aid-in-dying medication under this article for an individual with a terminal illness until the individual is determined to be capable of making an informed decision and that determination is confirmed in accordance with this section. (2) The determination of whether an individual with a terminal illness who is requesting aid-in-dying medication is capable of making an informed decision and confirmation of that determination must be made by two of the following: (a) The attending physician; (b) The consulting physician; or (c) A licensed mental health professional. (3) If, in the opinion of the attending physician or the consulting physician, the individual's ability to make an informed decision is compromised, the attending physician or consulting physician shall refer the individual to a licensed mental health professional for a determination of whether the individual is capable of making an informed decision. (4) A licensed mental health professional who evaluates an individual under this section shall communicate, in writing, to the attending or consulting physician who requested the evaluation, his or her conclusions about whether the individual is capable of making an informed decision. If the licensed mental health professional determines that the individual is not capable of making an informed decision, the attending physician shall not prescribe aid-in-dying medication to the individual. 25-48-109. Death certificate. (1) Unless otherwise prohibited by law, the attending physician may sign the death certificate of a qualified individual who obtains and self-administers aid-in-dying medication. (2) If a qualified individual dies after using aid-in-dying medication, the qualified individual's terminal illness shall be listed as the cause of death on his or her death certificate. When an attending physician certifies that a death occurred in accordance with this article, the death is not reportable and does not constitute grounds for post-mortem inquiry under section 30-10-606 (1), C.R.S. 25-48-110. Informed decision required. (1) An individual with a terminal illness is not a qualified individual and may not receive a prescription for aid-in-dying medication unless he or she has made an informed decision. (2) Immediately before writing a prescription for aid-in-dying medication under this article, the attending physician shall verify that the individual with a terminal illness is a qualified individual and is making an informed decision. 25-48-111. Form of written request. (1) A request for aid-in-dying medication authorized by this article 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. I have been fully informed of my diagnosis and prognosis, the nature of the aid-in-dying medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control. I request that my attending physician prescribe aid-in-dying medication that will end my life in a humane and dignified manner if I choose to take it, and I authorize my attending physician to contact any pharmacist about my request. I understand that I have the right to rescind this request at any time. I understand the seriousness of this request, and I expect to die if I take the aid-in-dying medication prescribed. I further understand that although most deaths occur within three hours, my death may take longer, and my attending physician has counseled me about this possibility. I make this request voluntarily, without reservation, and without being coerced, and I accept full 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: Only one of the two witnesses may: Be a relative (by blood, marriage, civil union, or adoption) of the individual signing this request; be entitled to any portion of the individual's estate upon death; or own, operate, or be employed at a health care facility where the individual is a patient or resident. 25-48-112. Standard of care. (1) Physicians and health care providers shall provide medical services under this act that meet or exceed the standard of care for end-of-life medical care. (2) When a health care provider makes a diagnosis that an individual has a terminal illness, the health care provider, upon the individual's request, shall provide the individual with comprehensive information and counseling, in accordance with this section, regarding legal end-of-life medical care options. 25-48-113. 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 aid in dying pursuant to this article is invalid. (2) An obligation owing under any currently existing contract must not be conditioned upon, or affected by, a qualified individual's act of making or rescinding a request for aid-in-dying medication pursuant to this article. 25-48-114. Insurance or annuity policies. (1) The sale, procurement, or issuance of, or the rate charged for, any life, health, or accident insurance or annuity policy must not be conditioned upon, or affected by, a qualified individual's act of making or rescinding a request for aid-in-dying medication in accordance with this article. (2) A qualified individual's act of self-administering aid-in-dying medication pursuant to this article does not affect a life, health, or accident insurance or annuity policy, other than that the death is a natural death resulting from the qualified individual's terminal illness. 25-48-115. Immunity for good-faith participation - prohibition against reprisals. (1) A person is not subject to civil or criminal liability or professional disciplinary action for participating in good faith under this article, which includes being present when a qualified individual self-administers the prescribed aid-in-dying medication. (2) A health care provider or professional organization or association shall not subject an individual to any of the following for participating or refusing to participate in good-faith compliance 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, aid-in-dying medication in good-faith compliance with this article does not: (a) Constitute neglect or elder abuse for any purpose of law; or (b) Provide the sole basis for the appointment of a guardian or conservator. 25-48-116. No duty to prescribe or dispense. (1) A health care provider may choose whether to participate in providing aid-in-dying medication to a qualified individual in accordance with this article. (2) If a health care provider is unable or unwilling to carry out a qualified individual's request for aid-in-dying medication made in accordance with 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. 25-48-117. Health care facility may prohibit participation - sanctions if provider violates policy. (1) A health care facility may prohibit a physician from writing a prescription for aid-in-dying medication for a qualified individual who is a resident in the facility and who intends to use the aid-in-dying medication on the facility's premises. The health care facility must notify the physician in writing of its policy with regard to prescriptions for aid-in-dying medication. (2) A health care facility or health care provider shall not subject a physician, nurse, pharmacist, or other person to discipline, suspension, loss of license or privileges, or any other penalty or sanction for actions taken in good-faith reliance on this article or for refusing to act under this article. (3) Nothing in this section or in section 25-48-115 or 25-48-116 prevents a health care provider from providing to an individual health care services that do not constitute participation under this article. 25-48-118. Liabilities. (1) A person commits a class 2 felony and is subject to punishment in accordance with section 18-1.3-401, C.R.S., if the person, with intent or the effect of causing an individual's death, purposely or knowingly: (a) Alters or forges a request for aid-in-dying medication to end an individual's life without the individual's authorization; or (b) Conceals or destroys a rescission of a request for aid-in-dying medication. (2) A person commits a class 2 felony and is subject to punishment in accordance with section 18-1.3-401, C.R.S., if the person purposely or knowingly coerces or exerts undue influence on an individual with a terminal illness to: (a) Request aid-in-dying medication for the purpose of ending the terminally ill individual's life; or (b) Destroy a rescission of a request for aid-in-dying medication. (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 is inconsistent with this article. 25-48-119. Safe disposal of unused medications. A person who has custody or control of aid-in-dying 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 shall dispose of the unused aid-in-dying medication by lawful means in accordance with section 25-15-328 or any other state or federally approved medication take-back program authorized under the federal "Secure and Responsible Drug Disposal Act of 2010", Pub.L. 111-273, and regulations adopted pursuant to the federal act. 25-48-120. Actions complying with article not a crime. Nothing in this article authorizes a physician or any other person to end an individual's life by lethal injection, mercy killing, or euthanasia. Actions taken in accordance with this article do not, for any purpose, constitute suicide, assisted suicide, mercy killing, homicide, or elder abuse under the "Colorado Criminal Code", title 18, C.R.S. 25-48-121. 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. 25-48-122. 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. Applicability. This act applies to conduct occurring on or after the effective date of this act. SECTION 3. 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.