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REFERENCE TITLE: terminally ill; care choices |
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State of Arizona Senate Fifty-second Legislature Second Regular Session 2016
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SB 1136 |
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Introduced by Senators McGuire: Dalessandro, Hobbs; Representative Andrade
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AN ACT
amending title 36, Arizona Revised Statutes, by adding chapter 33; Relating to end-of-life decisions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 36, Arizona Revised Statutes, is amended by adding chapter 33, to read:
CHAPTER 33
DEATH WITH DIGNITY
ARTICLE 1. GENERAL PROVISIONS
36-3301 Definitions
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 patient and treatment of the patient's terminal disease.
3. "Capable" means that in the opinion of a court or in the opinion of a patient's attending physician or consulting physician, psychiatrist or psychologist, the patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient'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 the patient's disease.
5. "Counseling" means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.
6. "Department" means the department of health services.
7. "Health care provider" means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.
8. "Informed decision" means a decision by a qualified patient to request and obtain a prescription to end the patient's life in a humane and dignified manner that is based on an appreciation of the relevant facts and that is made after being fully informed by the attending physician of all of the following:
(a) The patient's medical diagnosis.
(b) The patient's prognosis.
(c) The potential risks associated with taking the medication to be prescribed.
(d) The probable result of taking the medication to be prescribed.
(e) Feasible alternatives to taking the medication, including comfort care, hospice care and pain control.
9. "Medically confirmed" means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.
10. "Patient" means a person who is under the care of a physician.
11. "Physician" means an individual who is licensed pursuant to title 32, chapter 13 or 17.
12. "Qualified patient" means a capable adult who is a resident of this state and who has satisfied the requirements of this article in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.
13. "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will produce death, with reasonable medical judgment, within six months.
36-3302. Written request for medication; initiation
A. An adult who is capable, is a resident of this state and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed a wish to die, may make a written request for medication for the purpose of ending the person's life in a humane and dignified manner in accordance with this article.
B. A person does not qualify under this article solely because of age or disability.
36-3303. Form of request; witnesses; signatures
A. A valid request for medication under this article shall be in substantially the form described in section 36‑3321, be signed and dated by the patient and be 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 is capable, is acting voluntarily and is not being coerced to sign the request.
B. One of the witnesses shall be a person who is not any of the following:
1. A relative of the patient by blood, marriage or adoption.
2. At the time the request is signed, entitled to any portion of the estate of the qualified patient on the patient's death under any will or by operation of law.
3. An owner, operator or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.
C. The patient's attending physician at the time the request is signed may not be a witness.
D. If the patient is a patient in a long term care facility at the time the written request is made, one of the witnesses shall be an individual who is designated by the facility and who has the qualifications specified by the department in rule.
36-3304. Attending physician; requirements
A. The attending physician shall do all of the following:
1. Make the initial determination of whether a patient has a terminal disease, is capable and has made the request voluntarily.
2. Request that the patient demonstrate residency in this state pursuant to section 36‑3313.
3. To ensure that the patient is making an informed decision, inform the patient of all of the following:
(a) The patient's medical diagnosis.
(b) The patient's prognosis.
(c) The potential risks associated with taking the medication to be prescribed.
(d) The probable result of taking the medication to be prescribed.
(e) Feasible alternatives to taking the medication, including comfort care, hospice care and pain control.
4. Refer the patient to a consulting physician for medical confirmation of the diagnosis and for a determination that the patient is capable and acting voluntarily.
5. Refer the patient for counseling if appropriate pursuant to section 36‑3306.
6. Recommend that the patient notify the patient's next of kin.
7. Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to this article and of not taking the medication in a public place.
8. Inform the patient that the patient can rescind the request at any time and in any manner and offer the patient an opportunity to rescind at the end of the fifteen‑day waiting period pursuant to section 36‑3309.
9. Verify, immediately before writing the prescription for medication under this article, that the patient is making an informed decision.
10. Fulfill the medical record documentation requirements of section 36‑3312.
11. Ensure that all appropriate steps are carried out in accordance with this article before writing a prescription for medication to enable a qualified patient to end the patient's life in a humane and dignified manner.
12. Either:
(a) If the attending physician is authorized by state and federal law to dispense the medication, dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort.
(b) With the patient's written consent, do both of the following:
(i) Contact a pharmacist and inform the pharmacist of the prescription.
(ii) Deliver the written prescription personally or by other means to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient.
B. Notwithstanding any other provision of law, the attending physician may sign the patient's death certificate.
36-3305. Consulting physician confirmation of diagnosis
Before a patient is deemed qualified under this article, a consulting physician shall examine the patient and the patient's relevant medical records, shall confirm in writing the attending physician's diagnosis that the patient is suffering from a terminal disease and shall verify that the patient is capable, is acting voluntarily and has made an informed decision.
36-3306. Counseling referral; prohibition
If, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. Medication to end a patient's life in a humane and dignified manner may not be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.
36-3307. Informed decision
A person may not receive a prescription for medication to end the patient's life in a humane and dignified manner unless the person has made an informed decision. Immediately before writing a prescription for medication under this article, the attending physician shall verify that the patient is making an informed decision.
36-3308. Family notification
The attending physician shall recommend that the patient notify the patient's next of kin of the patient's request for medication pursuant to this article. A patient who declines or is unable to notify next of kin may not have the patient's request denied for that reason.
36-3309. Written and oral requests
In order to receive a prescription for medication to end the patient's life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to the patient's attending physician at least fifteen days after making the initial oral request. At the time the qualified patient makes the second oral request, the attending physician shall offer the patient an opportunity to rescind the request.
36-3310. Right to rescind request
A patient may rescind a request at any time and in any manner without regard to the patient's mental state. A prescription for medication under this article may not be written without the attending physician offering the qualified patient an opportunity to rescind the request.
36-3311. Waiting periods
At least fifteen days shall elapse between the patient's initial oral request and the writing of a prescription under this article. At least forty‑eight hours shall elapse between the patient's written request and the writing of a prescription under this article.
36-3312. Medical records; documentation; requirements
All of the following shall be documented or filed in the patient's medical record:
1. All oral requests by a patient for medication to end the patient's life in a humane and dignified manner.
2. All written requests by a patient for medication to end the patient's life in a humane and dignified manner.
3. The attending physician's diagnosis and prognosis and determination that the patient is capable, is acting voluntarily and has made an informed decision.
4. The consulting physician's diagnosis and prognosis and verification that the patient is capable, is acting voluntarily and has made an informed decision.
5. A report of the outcome and determinations made during counseling, if performed.
6. The attending physician's offer to the patient to rescind the patient's request at the time of the patient's second oral request pursuant to section 36‑3309.
7. A note by the attending physician indicating that all requirements under this article have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed.
36-3313. Residency requirement
Only requests made by residents of this state under this article may be granted. Factors demonstrating Arizona residency include any of the following:
1. Possession of an Arizona driver license.
2. Registration to vote in this state.
3. Evidence that the person owns or leases property in this state.
4. Filing of an Arizona state tax return for the most recent tax year.
36-3314. Reporting requirements
A. The department shall annually review a sample of records maintained pursuant to this article.
B. The department shall require any health care provider on dispensing medication pursuant to this article to file a copy of the dispensing record with the department.
C. 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 is not a public record and may not be made available for inspection by the public.
D. The department shall generate and make available to the public an annual statistical report of information collected under of this section.
36-3315. Effect on construction of contracts, wills or agreements
A. A provision in a contract, will or other agreement, whether written or oral, to the extent that the provision would affect whether a person may make or rescind a request for medication to end the person's life in a humane and dignified manner, is invalid.
B. An obligation owing under any currently existing contract may not be conditioned on or affected by the making or rescinding of a request, by a person, for medication to end the person's life in a humane and dignified manner.
36-3316. Insurance or annuity policies
The sale, procurement or issuance of any life, health or accident insurance or annuity policy or the rate charged for any policy may not be conditioned on or affected by the making or rescinding of a request, by a person, for medication to end the person's life in a humane and dignified manner. A qualified patient's act of ingesting medication to end the patient's life in a humane and dignified manner does not have an effect on a life, health or accident insurance or annuity policy issued or delivered in this state.
36-3317. Construction of article
This article does not authorize a physician or any other person to end a patient'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 law.
36-3318. Immunities; prohibiting a health care provider from participation; permissible sanctions; definitions
A. Except as provided in section 36‑3319:
1. A person is not subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this article, including being present when a qualified patient takes the prescribed medication to end the patient's life in a humane and dignified manner.
2. A professional organization or association, or health care provider, may not subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or any other penalty for participating or refusing to participate in good faith compliance with this article.
3. A request by a patient for or provision by an attending physician of 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. A health care provider is not under any duty, whether by contract, statute or any other legal requirement, to participate in the provision to a qualified patient of medication to end the patient's life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's request under this article, and the patient transfers the patient's care to a new health care provider, the prior health care provider shall transfer, on request, a copy of the patient's relevant medical records to the new health care provider.
5. Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in this article on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider's policy regarding participating in this article. This paragraph does not prevent a health care provider from providing health care services to a patient that do not constitute participation in this article.
6. Notwithstanding paragraphs 1, 2, 3 and 4 of this subsection, a health care provider may subject another health care provider to any of the following sanctions if the sanctioning health care provider has notified the sanctioned provider before participation in this article that the actions are prohibited:
(a) Loss of privileges, loss of membership or any other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning health care provider's medical staff and participates in this article while on the health care facility premises of the sanctioning health care provider, but not including the private medical office of a physician or other provider.
(b) Termination of lease or other property contract or other nonmonetary remedies provided by a lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in 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.
(c) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned health care provider participates in 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. This paragraph does not to prevent any of the following:
(i) A health care provider from participating in this article while acting outside the course and scope of the provider's capacity as an employee or independent contractor.
(ii) A patient from contracting with the patient's 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.
7. A health care provider that imposes sanctions pursuant to paragraph 6 of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.
8. Action taken pursuant to section 36‑3303, 36‑3304, 36‑3305 or 36‑3306 may not be the sole basis for a report of unprofessional conduct under title 32, chapter 13 or 17.
9. This article does not allow a lower standard of care for patients in the community where the patient is treated or a similar community.
B. For the purposes of this section:
1. "Notify" means specifically informing the health care provider in a separate statement in writing prior to the provider's participation in this article of the sanctioning health care provider's policy about participation in activities covered by this article.
2. "Participate in this article":
(a) Means to perform the duties of an attending physician pursuant to section 36‑3304 or a consulting physician pursuant to section 36‑3305 or the counseling function pursuant to section 36‑3306.
(b) Does not include making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis, providing information about this article to a patient on the request of the patient or providing a patient, on the request of the patient, with a referral to another physician or a patient contracting with the patient's attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.
36-3319. Violations; classification; liability
A. A person who without authorization of the patient wilfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death is guilty of a class 2 felony.
B. A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient's life, or to destroy a rescission of such a request, is guilty of a class 2 felony.
C. This article does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.
D. The penalties in this article do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this article.
36-3320. Claims by governmental entity; costs
Any governmental entity that incurs costs resulting from a person terminating the person's life pursuant to this article in a public place has a claim against the estate of the person to recover the costs and reasonable attorney fees related to enforcing the claim.
36-3321. Form of request
A request for a medication as authorized by this article shall 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 disease and which has been medically confirmed by a consulting physician.
I have been fully informed of my diagnosis, my prognosis, the nature of medication to be prescribed and potential associated risks, the expected result and the feasible alternatives, including comfort care, hospice care and pain control.
I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.
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 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 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:
1. Is personally known to us or has provided proof of identity.
2. Signed this request in our presence.
3. Appears to be of sound mind and to not be under duress, fraud or undue influence.
4. Is not a patient for whom either of us is the attending physician.
__________ Witness 1/Date ____________
__________ Witness 2/Date ____________
NOTE: One witness may not be a relative (by blood, marriage or adoption) of the person signing this request, may not be entitled to any portion of the person's estate on death and may not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.
36-3322. Violations; classification
A. A person is guilty of a class 2 felony who, without authorization of the principal, wilfully alters, forges, conceals or destroys an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal's desires and interests, with the intent and effect of causing a withholding or withdrawal of life‑sustaining procedures or of artificially administered nutrition and hydration that hastens the death of the principal.
B. Except as provided in subsection A of this section, a person is guilty of a class 1 misdemeanor who, without authorization of the principal, wilfully alters, forges, conceals or destroys an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal's desires and interests with the intent or effect of affecting a health care decision.
Sec. 2. Severability
If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.