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BILL AS INTRODUCED 2007-2008

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H.44

Introduced by   Representatives Aswad of Burlington, Hube of Londonderry, Zuckerman of Burlington, Nuovo of Middlebury and Pillsbury of Brattleboro

Referred to Committee on

Date:

Subject:  Health; end of life; patient-directed dying

Statement of purpose:  This bill proposes, subject to appropriate safeguards, to allow a mentally competent person diagnosed with less than six months to live to request a prescription which, if taken, would hasten the dying process.

AN ACT RELATING TO PATIENT CHOICE AND CONTROL AT END OF LIFE

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The general assembly finds:

(1)  The state of Oregon has been implementing its Death with Dignity Act since 1998.  In eight years, Oregon has seen a total of 394 terminal patients formally request medication to hasten death and, of those, 246 patients took the medication and died pursuant to the act.  Oregon’s annual report on the act shows that in 2005, 64 prescriptions were written, and 38 patients died after ingesting the medication.

(2)  Vermont has about one‑fifth the population of Oregon.  In the 2000 census, Oregon had a population of 3,421,399 and Vermont a population of 608,827.

(3)  In the past decade, Oregon has seen its hospice enrollment increase significantly.  In 1993, only 20 percent of dying patients were enrolled in hospice.  By 2005, enrollment increased to 54 percent.  In 2005, 92 percent of the patients who used medication under the Death with Dignity Act were in hospice care.

(4)  Oregon health care professionals report that ten terminal patients investigate their rights under the act for every patient who formally requests a prescription.

(5)  Despite continuing improvements in techniques for palliative care, most medical experts agree that not all pain can be relieved.  Some terminal diseases, such as bone cancer, inflict untreatable agony at the end of life.  Many cancer patients report that they would have greater comfort and courage in facing their future if they were assured they could use a Death with Dignity law if their suffering became unbearable.


Sec. 2.  18 V.S.A. chapter 113 is added to read:

CHAPTER 113.  RIGHTS OF MENTALLY COMPETENT PATIENTS
SUFFERING A TERMINAL CONDITION

§ 5280.  DEFINITIONS

For purposes of this chapter:

(1)  “Attending physician” means the physician who has primary responsibility for the care of the patient.

(2)  “Capacity” shall have the same meaning as in subdivision 9701(3)(B) of this title.

(3)  “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s illness.

(4)  “Counseling” means a consultation between a psychiatrist, psychologist, or clinical social worker licensed in Vermont and a patient for the purpose of confirming that the patient: 

(A)  has capacity; and

(B)  is not suffering from a mental disorder or disease that causes the patient to have impaired judgment.

(5)  “Health care provider” shall have the same meaning as in subdivision 9432(8) of this title.

(6)  “Informed decision” means a decision by a qualified patient to request and obtain a prescription to hasten his or her death based on the patient’s understanding and appreciation of the relevant facts and was made after the patient was fully informed by the attending physician of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(7)  “Patient” means a person who is 18 years of age or older, a resident of Vermont, and under the care of a physician.

(8)  “Physician” means a physician licensed pursuant to chapters 23 and 33 of Title 26.

(9)  “Qualified patient” means a patient with capacity who has satisfied the requirements of this chapter in order to obtain a prescription for medication to hasten his or her death.

(10)  “Terminal condition” means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months.

§ 5281.  WRITTEN REQUEST FOR MEDICATION

(a)  A patient with capacity who has been determined by the attending physician and consulting physician to be suffering from a terminal condition and who has voluntarily expressed a wish to die may make a written request for medication for the purpose of hastening his or her death in accordance with this chapter.

(b)  No individual shall qualify under the provisions of this chapter solely because of age or disability.

(c)  A request for medication shall be signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that, to the best of their knowledge and belief, the patient has capacity, is acting voluntarily, and is not being coerced to sign the request.  Neither witness shall be any of the following persons:

(1)  The patient’s attending physician.

(2)  A relative of the patient by blood, marriage, or adoption.

(3)  A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient under any will or by operation of law.

(4)  An owner, operator, or employee of a health care facility, nursing home, or residential care facility where the qualified patient is receiving medical treatment or is a resident.

§ 5282.  ATTENDING PHYSICIAN; DUTIES

The attending physician shall perform all the following:

(1)  Make the initial determination of whether a patient:

(A)  is suffering a terminal condition;

(B)  has capacity; and

(C)  has made a voluntary request for medication to hasten his or her death.

(2)  Request proof of Vermont residency, which may be shown by:

(A)  a Vermont driver’s license or photo identification card;

(B)  proof of Vermont voter’s registration;

(C)  evidence of property ownership or a lease of residential premises in Vermont; or

(D)  a Vermont personal income tax return for the most recent tax year.

(3)  Inform the patient of all the following:

(A)  The patient’s medical diagnosis.

(B)  The patient’s prognosis.

(C)  The range of possible results, including potential risks associated with taking the medication to be prescribed.

(D)  The probable result of taking the medication to be prescribed.

(E)  All feasible end-of-life services, including comfort care, hospice care, and pain control.

(4)  Refer the patient to a consulting physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient has capacity and is acting voluntarily.

(5)  Refer the patient for counseling if appropriate under section 5284 of this chapter.

(6)  Recommend that the patient notify the next of kin.

(7)  Counsel the patient about the importance of having another individual present when the patient takes the medication pursuant to this chapter and the importance of not taking the medication in a public place.

(8)  Inform the patient that the patient has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15-day waiting period.

(9)  Verify, immediately prior to writing the prescription for medication under this chapter, that the patient is making an informed decision.

(10)  Fulfill the medical record documentation requirements of section 5290 of this title.

(11)  Ensure that all required steps are carried out in accordance with this chapter prior to writing a prescription for medication to hasten death.

(12)(A)  Dispense medication directly, including ancillary medication intended to facilitate the desired effect to minimize the patient’s discomfort, provided the attending physician is licensed to dispense medication in Vermont, has a current Drug Enforcement Administration certificate, and complies with any applicable administrative rules; or

(B)  With the patient’s written consent:

(i)  contact a pharmacist and inform the pharmacist of the prescription; and

(ii)  deliver the written prescription to the pharmacist, who will dispense the medication to the patient, the attending physician, or an expressly identified agent of the patient.

(13)  Notwithstanding any other provision of law, the attending physician may sign the patient’s death certificate.

§ 5283.  MEDICAL CONSULTATION REQUIRED

Before a patient is qualified in accordance with this chapter, a consulting physician shall examine the patient and the patient’s relevant medical records and confirm in writing the diagnosis of the attending physician that the patient is suffering from a terminal condition and verify that the patient has capacity, is acting voluntarily, and has made an informed decision.

§ 5284.  COUNSELING REFERRAL

If, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a mental disorder or disease causing impaired judgment, either physician shall refer the patient for counseling.  No medication to end the patient’s life shall be prescribed until the person performing the counseling determines that the patient is not suffering from a mental disorder or disease that causes the patient to have impaired judgment.

§ 5285.  INFORMED DECISION

No person shall receive a prescription for medication to hasten his or her death unless the patient has made an informed decision.  Immediately prior to writing a prescription for medication in accordance with this chapter, the attending physician shall verify that the patient is making an informed decision.

§ 5286.  FAMILY NOTIFICATION

The attending physician shall recommend that the patient notify the patient’s next of kin of the patient’s request for medication in accordance with this chapter.  A patient who declines or is unable to notify the next of kin shall not be refused medication in accordance with this chapter.

§ 5287.  WRITTEN AND ORAL REQUESTS

In order to receive a prescription for medication to hasten death, a qualified patient shall have made an oral request and a written request and shall have reaffirmed the oral request to his or her attending physician no less than 15 days after the initial oral request.  At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

§ 5288.  RIGHT TO RESCIND

A patient may rescind the request at any time and in any manner regardless of the patient’s mental state.  No prescription for medication under this chapter may be written without the attending physician offering the qualified patient an opportunity to rescind the request.

§ 5289.  WAITING PERIOD

The attending physician shall write a prescription no less than 48 hours after the last to occur of all of the following events:

(1)  the patient’s written request for medication to hasten his or her death;

(2)  the patient’s second oral request; and

(3)  the attending physician’s offering the patient an opportunity to rescind the request.

§ 5290.  MEDICAL RECORD DOCUMENTATION

The following shall be documented and filed in the patient’s medical record:

(1)  The date and wording of all oral requests of the patient for medication to hasten his or her death.

(2)  All written requests by a patient for medication to hasten his or her death.

(3)  The attending physician’s diagnosis, prognosis, and basis for the determination that the patient has capacity, is acting voluntarily, and has made an informed decision.

(4)  The consulting physician’s diagnosis, prognosis, and verification that the patient has capacity, is acting voluntarily, and has made an informed decision.

(5)  A report of the outcome and determinations made during any counseling which the patient may have received.

(6)  The date and wording of the attending physician’s offer to the patient to rescind the request for medication at the time of the patient’s second oral request.

(7)  A note by the attending physician indicating that all requirements under this chapter have been satisfied and all the steps that have been taken to carry out the request, including a notation of the medication prescribed.

§ 5291.  REPORTING REQUIREMENT

(a)  The department of health shall annually review the records of qualified patients who have hastened their deaths in accordance with this chapter.

(b)  The department of health shall require that any physician who writes a prescription pursuant to this chapter file a report with the department covering all the prerequisites for writing a prescription under this chapter.

(c)  The department of health shall make rules to facilitate the collection of information regarding compliance with this chapter.  The information collected shall not be public record and shall not be made available for inspection by the public.

(d)  The department of health shall generate and make available to the public an annual statistical report of information collected under subsection (c) of this section.

§ 5292.  PROHIBITIONS; CONTRACT CONSTRUCTION

(a)  No provision in a contract, will, or other agreement, whether written or oral, shall be valid, to the extent the provision would affect whether a person may make or rescind a request for medication to hasten his or her death in accordance with this chapter.

(b)  The sale, procurement, or issue of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request by a person for medication to hasten his or her death in accordance with this chapter or the act by a qualified patient to hasten his or her death pursuant to this chapter.  Neither shall a qualified patient’s act of ingesting medication to hasten his or her death have an effect on a life, health, or accident insurance or annuity policy.

§ 5293.  IMMUNITIES

(a)  No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance in accordance with this chapter.  This includes being present when a qualified patient takes the prescribed medication to hasten his or her death in accordance with this chapter.

(b)  No professional organization or association or health care provider may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter.

(c)  No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of this chapter shall constitute neglect for any purpose of law.

(d)  No request by a patient for medication under this chapter shall provide the sole basis for the appointment of a guardian or conservator.

(e)  No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement, to participate in the provision to a qualified patient of medication to hasten his or her death in accordance with this chapter.  If a health care provider is unable or unwilling to carry out a patient’s request in accordance with this chapter and the patient transfers his or her care to a new health care provider, the previous health care provider, upon request, shall transfer a copy of the patient’s relevant medical records to the new health care provider.

§ 5294.  HEALTH CARE FACILITY EXCEPTION

Notwithstanding any other provision of law, a health care facility may prohibit an attending physician from writing a prescription for medication under this chapter for a patient who is a resident in its facility and intends to use the medication on the facility’s premises, provided the facility has notified the attending physician in writing of its policy with regard to such prescriptions.  Notwithstanding subsection 5293(b) of this title, any health care provider who violates a prohibition established under this section may be subject to sanctions otherwise allowable under law or contract.

§ 5295.  LIABILITIES AND PENALTIES

(a)  Nothing in this chapter shall be construed to limit liability for civil damages resulting from negligent conduct or intentional misconduct by any person.

(b)  Nothing in this chapter or in section 2312 of Title 13 shall be construed to limit criminal prosecution under any other provision of law.

(c)  A health care provider is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with this chapter, provided such failure is not in good faith.

§ 5296.  FORM OF THE REQUEST

A request for medication as authorized by this chapter shall be substantially in the following form:

REQUEST FOR MEDICATION

TO HASTEN MY DEATH

I, ___________________ , am an adult of sound mind.

I am suffering from _______________, which my attending physician has determined is a terminal disease and which has been 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 end-of-life services, including comfort care, hospice care, and pain control.

I request that my attending physician prescribe medication that will hasten my death.

INITIAL ONE:

_____ I have informed my family of my decision and 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 change my mind 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, and 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 person 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;

(d)  Is not a patient for whom either of us is the attending physician.

Witness 1/Date ______________________________________

Witness 2/Date ______________________________________

NOTE:  Neither witness may be a relative (by blood, marriage, or adoption) of the person signing this request, may be entitled to any portion of the person’s estate upon death, or may own, operate, or be employed at a health care facility where the person is a patient or resident.

§ 5297.  STATUTORY CONSTRUCTION

Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia.  Action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing, or homicide under the law.

Sec. 2.  13 V.S.A. § 2312 is added to read:

§ 2312.  Violation of PATIENT CHOICE AND CONTROL AT END OF

              LIFE ACT

(a)(1)  No person shall:

(A)  willfully alter or forge a patient’s request for medication intended to end the patient’s life pursuant to chapter 113 of Title 18, with the intent or effect of causing the patient’s death; or

(B)  conceal or destroy a rescission of a patient’s request for medication intended to end the patient’s life pursuant to chapter 113 of Title 18, with the intent or effect of causing the patient’s death.

(2)  No person shall coerce or exert undue influence on a patient:

(A)  to request medication intended to end the patient’s life pursuant to chapter 113 of Title 18; or

(B)  to destroy a patient’s rescission of a request for medication intended to end the patient’s life pursuant to chapter 113 of Title 18.

(b)  A person who violates this section and thereby causes the death of the patient shall be guilty of first degree murder and subject to the penalties provided in subsection 2303(a) of this title.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us