Amended in Senate March 17, 2015

Senate Bill No. 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 begin insert Chu, Cooper, Frazier, end insert Cristina Garcia, Quirk, begin insert Rendon, end insert and begin delete Mark Stone) end delete begin insert Mark Stone) end insert

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 amended, 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 begin delete act. end delete begin insert act, and would specify that the immunities and prohibitions on sanctions of a health care provider are solely reserved for conduct provided for by the bill. end insert 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:

SECTION 1.  

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

 

PART 1.85.  End of Life Option Act

 

443.  

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

443.1.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(k) “Physician” means a doctor of medicine or osteopathy
begin insert currently end insert licensed to practice medicine in this state.

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

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

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

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

443.2.  

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

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

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

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

(A) Possession of a California driver begin delete license. end delete begin insert license or other
identification issued by the State of California. end insert

(B) Registration to vote in California.

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

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

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

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

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

443.3.  

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

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

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

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

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

(A) Competent.

(B) Acting voluntarily.

(C) Not being coerced to sign the request.

(c)  begin delete At most, end delete begin insert Only end insert one of the two witnesses at the time the written
request is signed may:

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

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

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

443.4.  

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

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

443.5.  

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

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

(A) Whether the requesting adult is competent.

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

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

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

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

(A) His or her medical diagnosis and prognosis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A)  begin delete Is registered as a dispensing physician with the Medical
Board of California. end delete begin insert Is authorized to dispense medicine under
California law. end insert

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

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

(2) With the qualified individual’s written consent, the attending
physician may contact a pharmacist, inform the pharmacist of the
prescriptions, and deliver the written prescriptions personally, by
mail, or electronically to the pharmacist, who begin delete shall end delete begin insert may end insert dispense
the medications to the qualified individual, the attending physician,
or a person expressly designated by the qualified individual and
with the designation delivered to the pharmacist in writing or
verbally.

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

443.6.  

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

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

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

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

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

443.7.  

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

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

443.8.  

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

443.9.  

(a) A request for aid-in-dying medication as authorized
by this part 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 and a resident of the begin delete state end delete begin insert State end insert 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. begin delete I further understand that although most deaths occur within three hours, my death may take longer, and my end delete begin insert My end insert attending physician has counseled me about begin delete this possibility. end delete begin insert the possibility that my death may not be immediately upon the consumption of the medication. end insert

I make this request begin delete voluntarily and without reservation. end delete begin insert voluntarily, without reservation, and without being coerced. end insert

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.

 

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

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

 

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

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

Mr./Ms. begin delete (Insert end delete begin insert (insert end 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

 

(3) An interpreter provided by paragraph (2) shall not be related
to the qualified individual by blood, marriage, or adoption or be
entitled to a portion of the person’s estate upon death. An
interpreter provided by paragraph (2) shall be qualified as described
in subparagraph (H) of paragraph (2) of subdivision (c) of Section
1300.67.04 of Title 28 of the California Code of Regulations.

443.10.  

(a) A 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 aid-in-dying
medication, is not valid.

(b) An obligation owing under any begin delete currently existing end delete contract
begin insert in effect on January 1 end insert begin insert , 2016, end insert may not be conditioned or affected
by a qualified individual making or rescinding a request for
aid-in-dying medication.

443.11.  

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

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

443.12.  

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

(b) A health care provider or professional organization or
association may not subject an individual 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 part.

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

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

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

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

443.13.  

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

(a) Making an initial determination begin insert pursuant to the standard of
care end insert that an individual has a terminal illness and informing him
or her of the medical prognosis.

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

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

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

begin insert

(e) Notwithstanding any contrary provision in this section, the
immunities and prohibitions on sanctions of a health care provider
are solely reserved for actions taken pursuant to this part and
those health care providers may be sanctioned for conduct and
actions not included and provided for in this part if the conduct
and actions do not comply with the standards and practices set
forth by the Medical Board of California.

end insert

443.14.  

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

(b) Knowingly coercing or exerting 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 is punishable as a
felony.

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

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

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

443.15.  

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

443.16.  

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

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

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

443.17.  

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

443.18.  

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

SEC. 2.  

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

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

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

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

SEC. 3.  

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

SEC. 4.  

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