BILL NUMBER: AB 651 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 15, 2006
AMENDED IN SENATE JUNE 15, 2005
AMENDED IN SENATE JUNE 6, 2005
AMENDED IN ASSEMBLY MAY 26, 2005
AMENDED IN ASSEMBLY APRIL 26, 2005
AMENDED IN ASSEMBLY APRIL 12, 2005
INTRODUCED BY Assembly Members Berg and Levine
(Coauthors: Assembly Members Bass, Canciamilla, Chu, Dymally,
Goldberg, Koretz, Laird, Leno, and Wolk)
(Coauthors: Senators Kuehl, Lowenthal, and Romero)
FEBRUARY 17, 2005
An act to add Chapter 3.95 (commencing with Section 7195) to Part
1 of Division 7 of the Health and Safety Code, relating to death.
LEGISLATIVE COUNSEL'S DIGEST
AB 651, as amended, Berg California Compassionate Choices Act.
Existing law authorizes an adult to give an individual health care
instruction and to appoint an attorney to make health care decisions
for that individual in the event of his or her incapacity pursuant
to a power of attorney for health care.
This bill would enact the California Compassionate Choices Act,
which would authorize an adult who meets certain qualifications, and
who has been determined by his or her attending physician to be
suffering from a terminal disease, as defined, to make a request for
medication for the purpose of ending his or her life in a
humane and dignified manner prescribed pursuant to
this bill to provide comfort with an assurance of peaceful dying if
suffering becomes unbearable . The bill would establish
procedures for making these requests.
This bill would further provide that no provision in a contract,
will, or other agreement, or in a health care service plan contract,
policy of disability insurance, or health benefit plan contract,
shall be valid to the extent it would affect whether a person may
make or rescind a request for the above- described
medication for the purpose of ending his or her life
in a humane and dignified manner . The bill would prohibit
the sale, procurement, or issuance of any life, health, or accident
insurance or annuity policy, or the rate charged for any policy, from
being conditioned upon or affected by the request. The bill would
require that nothing in its provisions be construed to authorize
ending a patient's life by lethal injection, mercy killing, or active
euthanasia, and would provide that action taken in accordance with
the act shall not constitute suicide or homicide.
This bill would provide immunity from civil or criminal liability
or professional disciplinary action for participating in good faith
compliance with the act. The bill would provide that no health care
provider is under any duty to participate in providing to a qualified
patient medication to end that patient's life and would authorize a
general acute care hospital to prohibit a licensed physician from
carrying out a patient's request under this act on the premises of
the hospital if the hospital has notified the licensed physician of
its policy regarding this act.
This bill would require the State Department of Health Services to
adopt regulations regarding the collection of information to
determine the use of and compliance with the act, and would require
the department to annually review a sample of certain records and
make a statistical report of the information collected.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.95 (commencing with Section 7195) is added to
Part 1 of Division 7 of the Health and Safety Code, to read:
CHAPTER 3.95. California Compassionate Choices Act
Article 1. General Provisions
7195. (a) The Legislature believes that dying patients should
have choices throughout the continuum of palliative care and that
much must be done to improve access to hospice care and pain
management. Hospice and effective palliative care successfully assist
many thousands of terminally ill patients to die with dignity and
without pain, and the Legislature hopes that all patients considering
the procedures available under this chapter will properly consider
other options, including hospice care and effective pain management.
The Legislature finds that medical studies have shown that between 5
and 10 percent of dying patients experience severe pain and suffering
that cannot be palliated by the best hospice or comfort care. The
Legislature finds that in response to the Death with Dignity Act in
the State of Oregon, that the referrals to hospice increased
significantly. In addition, doctors significantly increased the use
of morphine and other strong pain medications, thus improving the
end-of-life care for more dying patients.
(b) (1) It is the intent of the Legislature that the personal and
autonomous choice of dying patients regarding the time and manner of
their death provided under this chapter be viewed as but one of
several end-of-life options for dying patients.
(2) It is the intent of the Legislature that this chapter be
strictly construed and not expanded in any manner. The restrictions
and safeguards in the provisions of this chapter are based on the
intent of the Legislature to balance the personal and autonomous
choice of dying patients regarding the time and manner of their death
and the Legislature's goal of providing safeguards to ensure that
there are not instances of a coerced, unwanted, or early death by a
vulnerable dying patient.
(3) The Legislature finds and declares that historically persons
with disabilities have been subject to discrimination in the
provision of medical care and have been treated by some as though
their lives were less valuable or worthy of maintenance than those
without disabilities. The Legislature finds that this discriminatory
conduct is both illegal and reprehensible.
(4) It is the intent of the Legislature that a disability or age
alone are not is not a reason for a
patient to be a qualified patient as defined in subdivision (l) of
Section 7195.1. Any disabled individual or elderly person, and any
physician who is the attending physician to these individuals, must
strictly comply with all of the provisions of this chapter. Strict
and rigorous attention must be evidenced in distinguishing chronic
conditions, which are not eligible conditions under this chapter, and
terminal illnesses, which are eligible, as described in this
chapter.
(5) It is the intent of the Legislature for the physician
discussions and written patient documents in this chapter to be
translated in a manner that is consistent with Section 7295.2 of the
Government Code, Section 10133.8 of the Insurance Code, and Section
1367.04 if the otherwise qualified patient is non-English proficient
and meets the criteria of those sections.
7l95.1. For purposes of this chapter the following definitions
shall apply:
(a) "Adult" means an individual who is 18 years of age or older.
(b) "Attending physician" means the physician who has primary
responsibility for the care of the patient and for treatment of the
patient's terminal disease.
(c) "Capable" means that in the opinion of the patient's attending
physician or consulting physician, a 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. Incapable means that the patient does not have the mental
capacity to make and understand decisions about his or her medical
care. persons are available.
(d) "Consulting physician" means a physician, other than the
attending physician, who is qualified by specialty or experience to
make a professional diagnosis and prognosis regarding the patient's
disease.
(e) "Counseling" means a consultation between a state licensed
psychiatrist or psychologist and a patient for the purpose of
determining whether the patient is suffering from a psychiatric or
psychological disorder, or depression causing impaired judgment.
(f) "Health care provider" means a person licensed, certified, or
otherwise authorized or permitted by the law of this state to
administer health care in the ordinary course of business or practice
of a profession, and includes a licensed health care facility.
(g) (1) "Health care facility" means any health facility described
in Section 1250.
(2) "Hospice" means a comprehensive, interdisciplinary program of
medical and socially supportive care delivered to patients with a
terminal disease in order to palliate their symptoms and pain since
the patient's condition is no longer amenable to curative therapies
and for whom the primary therapeutic goal is comfort and dignity at
the end of life.
(h) "Informed decision" means a decision, made by a qualified
patient, to request and obtain a prescription to end his or her life
in a humane and dignified manner, that is not based on coercion by
the patient's next-of-kin or any other third parties, is based on an
appreciation of the relevant facts, and is made after being fully
informed by the attending physician of all of the following:
(1) His or her medical diagnosis.
(2) His or her prognosis.
(3) The potential risk associated with taking the medication to be
prescribed.
(4) The probable result of taking the medication to be prescribed.
(5) The feasible alternatives, as provided in paragraph (5) of
subdivision (b) of Section 7196, including, but not limited to,
comfort care, hospice care, and pain control.
(i) "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.
(j) "Medication" means medication prescribed pursuant to this
chapter to provide comfort with an assurance of peaceful dying if
suffering becomes unbearable.
(j)
(k) "Patient" means a person who is under the care of a
physician.
(k)
(l) "Physician" means a doctor of medicine or
osteopathy licensed to practice medicine by the Medical Board of
California.
(l)
(m) "Qualified patient" means a capable adult who is a
resident of California and has satisfied the requirements of this
chapter in order to obtain a prescription for medication to
end his or her life in a humane and dignified manner.
.
(m)
(n) "Resident" means a person who has lived in a
principal place of residence in the State of California for six
months or more.
(n)
(o) "Terminal disease" means an incurable and
irreversible disease that has been medically confirmed and will,
within reasonable medical judgment, produce death within six months.
7195.3. An adult who is capable, is a resident of California, has
been determined by the attending physician and a consulting
physician to be suffering from a terminal disease, and who has
voluntarily expressed his or her wish to obtain life-ending
medication to his or her attending physician shall, in addition to
the other requirements of this chapter, make a written request for
medication for the purpose of ending his or her life in a
humane and dignified manner medication in
accordance with this chapter in order to be eligible for
qualification under this chapter.
7195.5. (a) A valid written request for medication under this
chapter shall be in substantially the form prescribed by Section
7199, 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 is capable, acting
voluntarily, and is not being coerced to sign the request.
(b) Both 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) A person who at the time the request is signed would be
entitled to any portion of the estate of the qualified patient upon
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 shall not be a witness.
Article 2. Safeguards
7196. Upon being voluntarily informed by a qualified patient that
the patient wishes to receive medication for the purpose of
ending his or her life in a humane and dignified manner in
in accordance with this chapter, the attending physician
shall do all of the following:
(a) Make the initial determination of whether a patient has a
terminal disease, is capable, and has made the request voluntarily.
(b) Inform the patient of all of the following:
(1) His or her medical diagnosis.
(2) His or her prognosis.
(3) The potential risks associated with taking the medication to
be prescribed.
(4) The probable result of taking the medication to be prescribed.
(5) The feasible alternatives, including, but not limited to,
comfort care, hospice care, and pain control. This disclosure must be
provided in writing to the patient, and shall include, but not be
limited to, contact information about locally based providers of
comfort and hospice care.
(c) 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.
(d) Refer the patient for counseling , if appropriate
pursuant to Section 7196.2.
(e) Request that the patient notify next of kin.
(f) Inform the patient that he or she 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 described in Section 7196.5.
(g) Verify, immediately prior to writing the prescription for
medication under this chapter, that the patient is making an informed
decision.
(h) Fulfill the medical record documentation requirements of
Section 7196.8.
(i) Ensure that all appropriate steps are carried out in
accordance with this chapter prior to writing a prescription for
medication to enable a qualified patient to end his or her
life in a humane and dignified manner. medication.
7196.1. Before a patient is qualified under this chapter, a
consulting physician shall examine the patient and his or her
relevant medical records and shall, in writing, confirm, the
attending physician's diagnosis and that the patient is suffering
from a terminal disease and verify that the patient is capable, is
acting voluntarily, and has made an informed decision.
7196.2. If, in the opinion of the attending physician or the
consulting physician, a patient may be suffering from a psychiatric
or psychological disorder that impairs judgment or from depression or
medication that impairs judgment, or the patient is not a hospice
patient, the attending physician or consulting physician shall
require the patient to undergo counseling as specified in subdivision
(e) of Section 7195.1. In this case, no medication to end
the patient's life in a humane and dignified manner
this case, no medication shall be prescribed unless the patient
first undergoes the requisite consultation or counseling and until
the person performing the counseling determines that the patient is
not suffering from a psychiatric or psychological disorder that
impairs judgment, or from impaired judgment caused by depression or
medication.
7196.3. No person shall receive a prescription for medication
to end his or her life in a humane and dignified manner
unless he unless he or she has made an informed
decision as defined in subdivision (h) of Section 7195. 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.
7196.4. The attending physician shall ask the patient to notify
the patient's next of kin of his or her request for medication
pursuant to this chapter. A patient who declines or is unable to
notify next of kin shall not have his or her request denied for that
reason.
7196.5. In order to receive a prescription for medication
to end his or her life in a humane and dignified manner, a
qualified , a qualified patient shall have made
an oral request and a written request, and reiterate the oral request
to his or her attending physician no less than 15 days after making
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.
7196.6. A patient may rescind his or her request at any time and
in any manner without regard to his or her 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.
7196.7. No less than 15 days shall elapse between the patient's
initial oral request and the writing of a prescription under this
chapter. No less than 48 hours shall elapse between the patient's
written request and the writing of a prescription under this chapter.
7196.8. The following shall be documented or filed in the patient'
s medical record:
(a) All oral requests by a patient for medication to end his or
her life in a humane and dignified manner.
(b) All written requests by a patient for medication to end his or
her life in a humane and dignified manner.
(c) The attending physician's diagnosis and prognosis, and his or
her determination that the patient is capable, acting voluntarily,
and has made an informed decision.
(a) All oral requests by a patient for medication.
(b) All written requests by a patient for medication.
(d) The consulting physician's diagnosis and prognosis, and his or
her verification that the patient is capable, acting voluntarily,
and has made an informed decision.
(e) A report of the outcome and determinations made during
counseling, if performed.
(f) The attending physician's offer to the patient to rescind his
or her request at the time of the patient's second oral request
pursuant to Section 7196.5.
(g) The attending physician's discussion with the patient of
feasible alternatives, including, but not limited to, hospice care,
comfort care, and pain control.
(h) A note by the attending physician indicating that all the
requirements of this chapter have been met and indicating the steps
taken to carry out the request, including a notation of the
medication prescribed.
7196.9. Only requests made by California residents under this
chapter shall be granted.
7197.1. (a) The department shall adopt regulations regarding
requirements for the collection of information to determine the use
of and compliance with this chapter. The information collected shall
not be a public record and shall not be made available for inspection
by the public.
(b) The department shall generate and make available to the public
an annual statistical report of information collected
, disaggregated by age, gender, race, ethnicity, and
language spoken at home, pursuant to subdivision (a).
(c) The department shall annually review a sample of records
maintained pursuant to this chapter.
7197.3. (a) No provision in a contract, will, or other agreement,
whether written or oral, to the extent the provision would affect
whether a person may make or rescind a request for
medication to end his or her life in a humane and dignified manner,
shall be valid. medication, shall be valid.
(b) No obligation owing under any contract in existence on or
before January 1, 2006, 2007, shall be
conditioned or affected by the making or rescinding of a request by a
person for medication to end his or her life in a humane
and dignified manner. .
(c) No health care service plan contract, as defined in
subdivision (r) of Section 1345, shall be conditioned upon or
affected by the making or rescinding of a request by a person for
medication to end his or her life in a humane and dignified
manner medication . Any such contract provision
shall be invalid.
(d) No provision of a policy of disability insurance or a health
benefit plan contract that provides coverage for hospital, medical,
or surgical expenses pursuant to Part 2 (commencing with Section
10110) of Division 2 of the Insurance Code shall be conditioned upon
or affected by the making or rescinding of a request by a person to
end his or her life in a humane and dignified manner. Any such policy
provision shall be invalid.
7197.5. The sale, procurement, or issuance 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 end
his or her life in a humane and dignified manner. A qualified
medication. A qualified patient's act of
ingesting medication to end his or her life in a humane and dignified
manner in accordance with this chapter shall not have an effect upon
a life, health, or accident insurance or annuity policy.
7197.7. 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. The patient must
self-administer the medication provided under this chapter. Actions
taken in accordance with this chapter shall not, for any purpose,
constitute suicide, assisted suicide, mercy killing, or homicide,
under the law. Every state agency, department, or office that
prepares or issues a document or report that describes or refers to
the medical practice described in this chapter shall use the phrase
"aid in dying" to describe or reference the medical practice in the
document or report.
7197.8. Nothing in this chapter shall affect the authority of a
coroner or medical examiner to investigate a death.
Article 3. Immunities and Liabilities
7198. Except as provided in Section 7198.5:
(a) Notwithstanding any other provision of law, no person shall be
subject to civil or criminal liability or professional disciplinary
action for participating in good faith compliance with this chapter.
This includes being present when a qualified patient takes the
prescribed medication to end his or her life in a humane and
dignified manner.
(b) No professional organization or association, or heath 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 this chapter
shall constitute neglect for any purpose of law or provide the sole
basis for the appointment of a guardian or conservator.
(d) 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 end his or her life in a humane and dignified manner.
If a health medication. If a health care
provider is unable or unwilling to carry out a patient's request
under this chapter, and the patient transfers his or her care to a
new health care provider, the prior health care provider shall
transfer, upon request, a copy of the patient's relevant medical
records to the new health care provider.
(e) Notwithstanding any other provision of law, a general acute
care hospital, as defined in subdivision (a) of Section 1250, may
prohibit a licensed physician from carrying out a patient's request
under this chapter on the premises of the hospital if the hospital
has notified the licensed physician of its policy regarding this
chapter.
7198.5. (a) Nothing in this chapter limits civil or criminal
liability resulting from other negligent conduct or intentional
misconduct by any person.
(b) The penalties in this chapter do not preclude criminal
penalties applicable under other law for conduct that is inconsistent
with this chapter.
Article 4. Severability
7198.9. Any section of this chapter that is held invalid as to
any person or circumstance shall not affect the application of any
other section of this chapter that can be given full effect without
the invalid section or portion thereof.
Article 5. Form of the Request
7199. A request for a medication as authorized by this chapter
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
which will, within reasonable medical judgment,
likely lead to my death within six months,
and which has been medically confirmed by a
consulting
physician.
I have been fully informed of my diagnosis,
prognosis, the nature of the medication to be
prescribed, and the 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 allow me to hasten the end
of 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 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: On Neith e r witness
shall not be a relative (by
blood, marriage, or adoption) of the person
signing this request, shall not be entitled to
signing this request. Neither witness shall be
entitled to any portion of the person's estate
upon death,
upon death. Neither witness shall own, operate,
and shall not own, operate, or be employed at a
health care facility where
health care facility where the person is a
the person is a patient or resident.