Senate BillNo. 128


Introduced by Senators Wolk and Monning

(Principal coauthors: Senators Jackson and Leno)

(Principal coauthor: Assembly Member Eggman)

(Coauthors: Senators Block, Hall, Hancock, Hernandez, Hill, McGuire, and Wieckowski)

(Coauthors: Assembly Members Cristina Garcia, Quirk, and Mark Stone)

January 20, 2015


An act to add Part 1.85 (commencing with Section 443) to Division 1 of the Health and Safety Code, relating to end of life.

LEGISLATIVE COUNSEL’S DIGEST

SB 128, as introduced, Wolk. End of life.

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 End of Life Option Act authorizing an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal illness, as defined, to make a request for medication prescribed pursuant to these provisions for the purpose of ending his or her life. The bill would establish the procedures for making these requests. The bill would also establish the forms to request aid-in-dying medication and under specified circumstances an interpreter declaration to be signed subject to penalty of perjury, thereby imposing a crime and state-mandated local program.

This bill would prohibit a provision in a contract, will, or other agreement, or in a health care service plan contract, or health benefit plan contract, from being conditioned upon or affected by a person making or rescinding a request for the above-described medication. 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.

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 participation in activities authorized pursuant to this bill shall be voluntary.

This bill would make it a felony to knowingly alter or forge a request for medication to end an individual’s life without his or her authorization or to conceal or destroy a rescission of a request for medication, if it is done with the intent or effect of causing the individual’s death. The bill would make it a felony to knowingly coerce or exert undue influence on an individual to request medication for the purpose of ending his or her life or to destroy a rescission of a request. By creating a new crime, the bill would impose a state-mandated local program. The bill would provide 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, among others, suicide or homicide.

This bill would require the State Department of Public Health 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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Part 1.85 (commencing with Section 443) is
2added to Division 1 of the Health and Safety Code, to read:

3 

4PART 1.85.  End of Life Option Act

5

 

6

443.  

This part shall be known and may be cited as the End of
7Life Option Act.

8

443.1.  

As used in this part, the following definitions shall apply:

9(a) “Adult” means an individual 18 years of age or older.

10(b) “Aid-in-dying medication” means medication determined
11and prescribed by a physician for a qualified individual, which the
12qualified individual may choose to self-administer to bring about
13his or her death due to a terminal illness.

14(c) “Attending physician” means the physician who has primary
15responsibility for the health care of an individual and treatment of
16the individual’s terminal illness.

17(d) “Competent” means that, in the opinion of a court or in the
18opinion of an individual’s attending physician, consulting
19physician, psychiatrist, or psychologist, the individual has the
20ability to make and communicate an informed decision to health
21care providers, including communication through a person familiar
22with the individual’s manner of communicating, if that person is
23available.

24(e) “Consulting physician” means a physician who is qualified
25by specialty or experience to make a professional diagnosis and
26prognosis regarding an individual’s illness.

27(f) “Counseling” means one or more consultations, as necessary,
28between an individual and a psychiatrist or psychologist licensed
29in this state for the purpose of determining that the individual is
30competent and is not suffering from a psychiatric or psychological
31disorder or depression causing impaired judgment.

32(g) “Department” means the State Department of Public Health.

33(h) “Health care provider” or “provider” means a person
34licensed, certified, or otherwise authorized or permitted by law to
35administer health care or dispense medication in the ordinary
36course of business or practice of a profession, including, but not
37limited to, physicians, doctors of osteopathy, and pharmacists.
P4    1“Health care provider” or “provider” includes a health care facility
2as identified in Section 1250.

3(i) “Informed decision” means a decision by a terminally ill
4individual to request and obtain a prescription for medication that
5the individual may self-administer to end the individual’s life, that
6is based on an understanding and acknowledgment of the relevant
7facts, and that is made after being fully informed by the attending
8physician of all of the following:

9(1) The individual’s medical diagnosis and prognosis.

10(2) The potential risks associated with taking the medication to
11be prescribed.

12(3) The probable result of taking the medication to be prescribed.

13(4) The possibility that the individual may choose not to obtain
14the medication or may obtain the medication but may decide not
15to take it.

16(5) The feasible alternatives or additional treatment
17opportunities, including, but not limited to, comfort care, hospice
18care, palliative care, and pain control.

19(j) “Medically confirmed” means the medical opinion of the
20attending physician has been confirmed by a consulting physician
21who has examined the individual and the individual’s relevant
22medical records.

23(k) “Physician” means a doctor of medicine or osteopathy
24licensed to practice medicine in this state.

25(l) “Public place” means any street, alley, park, public building,
26any place of business or assembly open to or frequented by the
27public, and any other place that is open to the public view, or to
28which the public has access.

29(m) “Qualified individual” means a competent adult who is a
30resident of California and has satisfied the requirements of this
31part in order to obtain a prescription for medication to end his or
32her life.

33(n) “Self-administer” means a qualified individual’s affirmative,
34conscious, and physical act of using the medication to bring about
35his or her own death.

36(o) “Terminal illness” means an incurable and irreversible illness
37that has been medically confirmed and will, within reasonable
38medical judgment, result in death within six months.

39

443.2.  

(a) A competent, qualified individual who is a
40terminally ill adult may make a request to receive a prescription
P5    1for aid-in-dying medication if all of the following conditions are
2satisfied:

3(1) The qualified individual’s attending physician has
4determined the individual to be suffering from a terminal illness.

5(2) The qualified individual has voluntarily expressed the wish
6to receive a prescription for aid-in-dying medication.

7(3) The qualified individual is a resident of California and is
8able to establish residency through any of the following means:

9(A) Possession of a California driver license.

10(B) Registration to vote in California.

11(C) Evidence that the person owns or leases property in
12California.

13(D) Filing of a California tax return for the most recent tax year.

14(4) The qualified individual documents his or her request
15pursuant to the requirements set forth in Section 443.3.

16(b) A person may not qualify under the provisions of this part
17solely because of age or disability.

18(c) A request for a prescription for aid-in-dying medication
19under this part shall not be made on behalf of the patient through
20a power of attorney, an advance health care directive, or a
21conservator.

22

443.3.  

(a) A qualified individual wishing to receive a
23prescription for aid-in-dying medication pursuant to this part shall
24submit two oral requests, a minimum of 15 days apart, and a written
25request to his or her attending physician.

26(b) A valid written request for aid-in-dying medication under
27subdivision (a) shall meet all of the following conditions:

28(1) The request shall be in substantially the form described in
29Section 443.9.

30(2) The request shall be signed and dated by the qualified
31individual seeking the medication.

32(3) The request shall be witnessed by at least two other adult
33persons who, in the presence of the qualified individual, shall attest
34that to the best of their knowledge and belief the qualified
35individual is all of the following:

36(A) Competent.

37(B) Acting voluntarily.

38(C) Not being coerced to sign the request.

39(c) At most, one of the two witnesses at the time the written
40request is signed may:

P6    1(1) Be related to the qualified individual by blood, marriage, or
2adoption or be entitled to a portion of the person’s estate upon
3death, but not both.

4(2) Own, operate, or be employed at a health care facility where
5the qualified individual is receiving medical treatment or resides.

6(d) The attending physician of the qualified individual shall not
7be one of the witnesses required pursuant to paragraph (3) of
8subdivision (b).

9

443.4.  

(a) A qualified individual may at any time rescind his
10or her request for aid-in-dying medication without regard to the
11qualified individual’s mental state.

12(b) A prescription for aid-in-dying medication provided under
13this part may not be written without the attending physician
14offering the qualified individual an opportunity to rescind the
15request.

16

443.5.  

(a) Before prescribing aid-in-dying medication, the
17attending physician shall do all of the following:

18(1) Make the initial determination of all of the following:

19(A) Whether the requesting adult is competent.

20(B) Whether the requesting adult has a terminal illness.

21(C) Whether the requesting adult has voluntarily made the
22request for aid-in-dying medication pursuant to Sections 443.2
23and 443.3.

24(D) Whether the requesting adult is a qualified individual
25pursuant to subdivision (m) of Section 443.1.

26(2) Ensure the qualified individual is making an informed
27decision by discussing with him or her all of the following:

28(A) His or her medical diagnosis and prognosis.

29(B) The potential risks associated with taking the aid-in-dying
30medication to be prescribed.

31(C) The probable result of taking the aid-in-dying medication
32to be prescribed.

33(D) The possibility that he or she may choose to obtain the
34medication but not take it.

35(E) The feasible alternatives or additional treatment
36opportunities, including, but not limited to, comfort care, hospice
37care, palliative care, and pain control.

38(3) Refer the qualified individual to a consulting physician for
39medical confirmation of the diagnosis, prognosis, and for a
P7    1determination that the qualified individual is competent and has
2complied with the provisions of this part.

3(4) Refer the qualified individual for counseling if appropriate.

4(5) Ensure that the qualified individual’s request does not arise
5from coercion or undue influence by another person.

6(6) Counsel the qualified individual about the importance of all
7of the following:

8(A) Having another person present when he or she takes the
9aid-in-dying medication prescribed pursuant to this part.

10(B) Not taking the aid-in-dying medication in a public place.

11(7) Inform the qualified individual that he or she may rescind
12the request for aid-in-dying medication at any time and in any
13manner.

14(8) Offer the qualified individual an opportunity to rescind the
15request for medication before prescribing the aid-in-dying
16medication.

17(9) Verify, immediately prior to writing the prescription for
18medication, that the qualified individual is making an informed
19decision.

20(10) Ensure that all appropriate steps are carried out in
21accordance with this part before writing a prescription for
22aid-in-dying medication.

23(11) Fulfill the record documentation that may be required under
24Section 443.16.

25(b) If the conditions set forth in subdivision (a) are satisfied,
26the attending physician may deliver the aid-in-dying medication
27in any of the following ways:

28(1) Dispense aid-in-dying medications directly, including
29ancillary medication intended to minimize the qualified individual’s
30discomfort, if the attending physician meets all of the following
31criteria:

32(A) Is registered as a dispensing physician with the Medical
33Board of California.

34(B) Has a current United States Drug Enforcement
35Administration (USDEA) certificate.

36(C) Complies with any applicable administrative rule or
37regulation.

38(2) With the qualified individual’s written consent, the attending
39physician may contact a pharmacist, inform the pharmacist of the
40prescriptions, and deliver the written prescriptions personally, by
P8    1mail, or electronically to the pharmacist, who shall dispense the
2medications to the qualified individual, the attending physician,
3or a person expressly designated by the qualified individual and
4with the designation delivered to the pharmacist in writing or
5verbally.

6(c) Delivery of the dispensed medication to the qualified
7individual, the attending physician, or a person expressly
8designated by the qualified individual may be made by: personal
9delivery, United Parcel Service, United States Postal Service,
10Federal Express, or by messenger service.

11

443.6.  

Prior to a qualified individual obtaining aid-in-dying
12medication from the attending physician, the consulting physician
13shall perform all of the following:

14(a) Examine the qualified individual and his or her relevant
15medical records.

16(b) Confirm in writing the attending physician’s diagnosis and
17prognosis.

18(c) Verify, in the opinion of the consulting physician, that the
19qualified individual is competent, acting voluntarily, and has made
20an informed decision.

21(d) Fulfill the record documentation that may be required under
22Section 443.16.

23

443.7.  

(a) Unless otherwise prohibited by law, the attending
24physician may sign the qualified individual’s death certificate.

25(b) The cause of death listed on an individual’s death certificate
26who uses aid-in-dying medication shall be the underlying terminal
27illness.

28

443.8.  

A qualified individual may not receive a prescription
29for aid-in-dying medication pursuant to this part, unless he or she
30has made an informed decision. Immediately before writing a
31prescription for aid-in-dying medication under this part, the
32attending physician shall verify that the individual is making an
33informed decision.

34

443.9.  

(a) A request for aid-in-dying medication as authorized
35by this part shall be in substantially the following form:


36

 

REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER I, ......................................................, am an adult of sound mind and a resident of the state of California.
I am suffering from ................, which my attending physician has determined is in its terminal phase 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, hospice care, palliative care, and pain control.
I request that my attending physician prescribe 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.
INITIAL ONE:
............ I have informed one or more members of 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 if I take the aid-in-dying medication to be 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 and without reservation.
 
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) is an individual whom we believe 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, or adoption) of the person signing this request or be entitled to a portion of the person’s estate upon death. Only one of the two witnesses may own, operate or be employed at a health care facility where the person is a patient or resident.
P9   4012P9   29

 

P10   1(b) (1) The written language of the request shall be written in
2the same translated language as any conversations, consultations,
3or interpreted conversations or consultations between a patient and
4his or her attending or consulting physicians.

5(2) Notwithstanding paragraph (1), the written request may be
6prepared in English even where the conversations or consultations
7or interpreted conversations or consultations where conducted in
8a language other than English if the English language form includes
9an attached interpreter’s declaration that is signed under penalty
10of perjury. The interpreter’s declaration shall state words to the
11effect that:

 

I (INSERT NAME OF INTERPRETER), am fluent in English and (INSERT TARGET LANGUAGE).

On (insert date) at approximately (Insert time), I read the “Request for Medication to End My Life” to (insert name of individual/patient) in (insert target language).

Mr./Ms. (Insert name of patient/qualified individual) affirmed to me that he/she understood the content of this form and affirmed his/her desire to sign this form under his/her own power and volition and that the request to sign the form followed consultations with an attending and consulting physician.

I declare that I am fluent in English and (insert target language) and further declare under penalty of perjury that the foregoing is true and correct.

Executed at (insert city, county, and state) on this (insert day of month) of (insert month), (insert year).

X______Interpreter signature

X______Interpreter printed name

X______Interpreter address

P9   29

 

30(3) An interpreter provided by paragraph (2) shall not be related
31to the qualified individual by blood, marriage, or adoption or be
32entitled to a portion of the person’s estate upon death. An
33interpreter provided by paragraph (2) shall be qualified as described
34in subparagraph (H) of paragraph (2) of subdivision (c) of Section
351300.67.04 of Title 28 of the California Code of Regulations.

36

443.10.  

(a) A provision in a contract, will, or other agreement,
37whether written or oral, to the extent the provision would affect
38whether a person may make or rescind a request for aid-in-dying
39medication, is not valid.

P11   1(b) An obligation owing under any currently existing contract
2may not be conditioned or affected by a qualified individual making
3or rescinding a request for aid-in-dying medication.

4

443.11.  

(a) The sale, procurement, or issuance of a life, health,
5accident insurance or annuity policy, health care service plan
6contract, or health benefit plan, or the rate charged for a policy or
7plan contract may not be conditioned upon or affected by a person
8making or rescinding a request for aid-in-dying medication.

9(b) Notwithstanding any other law, a qualified individual’s act
10of self-administering aid-in-dying medication may not have an
11effect upon a life, health, or accident insurance or annuity policy
12other than that of a natural death from the underlying illness.

13

443.12.  

(a) Notwithstanding any other law, a person shall not
14be subject to civil or criminal liability or professional disciplinary
15action for participating in good faith compliance with this part,
16including an individual who is present when a qualified individual
17self-administers the prescribed aid-in-dying medication.

18(b) A health care provider or professional organization or
19association may not subject an individual to censure, discipline,
20suspension, loss of license, loss of privileges, loss of membership,
21or other penalty for participating or refusing to participate in good
22faith compliance with this part.

23(c) A request by an individual to an attending physician or to a
24pharmacist to dispense aid-in-dying medication or provide
25aid-in-dying medication in good faith compliance with the
26provisions of this part does not constitute neglect or elder abuse
27for any purpose of law or provide the sole basis for the appointment
28of a guardian or conservator.

29(d) (1) Participation in activities authorized pursuant to this
30part shall be voluntary. A person or entity that elects, for reasons
31of conscience, morality, or ethics, not to engage in activities
32authorized pursuant to this part is not required to take any action
33in support of a patient’s decision under this part, except as
34otherwise required by law.

35(2) If a health care provider is unable or unwilling to carry out
36an individual’s request under this part and the individual transfers
37care to a new health care provider, the prior health care provider
38shall transfer, upon request, a copy of the individual’s relevant
39medical records to the new health care provider.

P12   1(e) Nothing in this part shall prevent a health care provider from
2providing an individual with health care services that do not
3constitute participation in this part.

4

443.13.  

A health care provider may not be sanctioned for any
5of the following:

6(a) Making an initial determination that an individual has a
7terminal illness and informing him or her of the medical prognosis.

8(b) Providing information about the End of Life Option Act to
9a patient upon the request of the individual.

10(c) Providing an individual, upon request, with a referral to
11another physician.

12(d) Contracting with an individual to act outside the course and
13scope of the provider’s capacity as an employee or independent
14contractor of a health care provider that prohibits activities under
15this part.

16

443.14.  

(a) Knowingly altering or forging a request for
17medication to end an individual’s life without his or her
18authorization or concealing or destroying a rescission of a request
19for medication is punishable as a felony if the act is done with the
20intent or effect of causing the individual’s death.

21(b) Knowingly coercing or exerting undue influence on an
22individual to request medication for the purpose of ending his or
23her life or to destroy a rescission of a request is punishable as a
24felony.

25(c) For purposes of this section, “knowingly” has the meaning
26provided in Section 7 of the Penal Code.

27(d) Nothing in this section limits further liability for civil
28damages resulting from other negligent conduct or intentional
29misconduct by any person.

30(e) The penalties in this section do not preclude criminal
31penalties applicable under any law for conduct inconsistent with
32the provisions of this part.

33

443.15.  

Nothing in this part may be construed to authorize a
34physician or any other person to end an individual’s life by lethal
35injection, mercy killing, or active euthanasia. Actions taken in
36accordance with this part shall not, for any purposes, constitute
37suicide, assisted suicide, mercy killing, homicide, or elder abuse
38 under the law.

39

443.16.  

(a) The State Public Health Officer, in consultation
40with the State Department of Social Services, shall adopt
P13   1regulations establishing reporting requirements for physicians and
2pharmacists pursuant to this part.

3(b) The reporting requirements shall be designed to collect
4information to determine utilization and compliance with this part.
5The information collected shall be confidential and shall be
6collected in a manner that protects the privacy of the patient, the
7patient’s family, and any medical provider or pharmacist involved
8with the patient under the provisions of this part.

9(c) Based on the information collected, the department shall
10provide an annual compliance and utilization statistical report
11aggregated by age, gender, race, ethnicity, and primary language
12spoken at home and other data the department may determine
13relevant. The department shall make the report public within 30
14days of completion of each annual report.

15

443.17.  

A person who has custody or control of any unused
16aid-in-dying medication prescribed pursuant to this part after the
17death of the patient shall personally deliver the unused aid-in-dying
18medication for disposal by delivering it to the nearest qualified
19facility that properly disposes of controlled substances, or if none
20is available, shall dispose of it by lawful means.

21

443.18.  

Any governmental entity that incurs costs resulting
22from a qualified individual terminating his or her life pursuant to
23the provisions of this part in a public place shall have a claim
24against the estate of the qualified individual to recover those costs
25and reasonable attorney fees related to enforcing the claim.

26

SEC. 2.  

The Legislature finds and declares that Section 1 of
27this act, which adds Section 443.16 to the Health and Safety Code,
28imposes a limitation on the public’s right of access to the meetings
29of public bodies or the writings of public officials and agencies
30within the meaning of Section 3 of Article I of the California
31Constitution. Pursuant to that constitutional provision, the
32Legislature makes the following findings to demonstrate the interest
33protected by this limitation and the need for protecting that interest:

34(a) Any limitation to public access to personally identifiable
35patient data collected pursuant to Section 443.16 of the Health and
36Safety Code as proposed to be added by this act is necessary to
37protect the privacy rights of the patient and his or her family.

38(b) The interests in protecting the privacy rights of the patient
39and his or her family in this situation strongly outweigh the public
P14   1interest in having access to personally identifiable data relating to
2services.

3(c) The statistical report to be made available to the public
4pursuant to subdivision (c) of Section 443.16 of the Health and
5Safety Code is sufficient to satisfy the public’s right to access.

6

SEC. 3.  

The provisions of this part are severable. If any
7provision of this part or its application is held invalid, that
8invalidity shall not affect other provisions or applications that can
9be given effect without the invalid provision or application.

10

SEC. 4.  

No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12the only costs that may be incurred by a local agency or school
13district will be incurred because this act creates a new crime or
14infraction, eliminates a crime or infraction, or changes the penalty
15for a crime or infraction, within the meaning of Section 17556 of
16the Government Code, or changes the definition of a crime within
17the meaning of Section 6 of Article XIII B of the California
18Constitution.



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