BILL NUMBER: AB 1592 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 13, 1999
AMENDED IN ASSEMBLY APRIL 15, 1999
INTRODUCED BY Assembly Member Aroner
(Coauthors: Assembly Members Keeley and Longville)
FEBRUARY 26, 1999
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 the Death
with Dignity Act.
LEGISLATIVE COUNSEL'S DIGEST
AB 1592, as amended, Aroner. The Death with Dignity Act.
Existing law authorizes an individual of sound mind and 18 or more
years of age to execute a declaration governing the withholding or
withdrawal of life sustaining treatment. Existing law also
authorizes an individual to appoint an attorney in fact to make
health care decisions for that individual in the event of his or her
incapacity pursuant to a durable power of attorney for health care.
This bill would enact the Death with Dignity 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. 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 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 it 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. This bill would also provide that willful
alteration or forgery of a request with certain intent, and coercion
or exertion of undue influence on a patient to make a request, are
felonies, thereby imposing a state-mandated local program.
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.
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. 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. DEATH WITH DIGNITY 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. 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 choice of
physician-assisted dying, as defined in this chapter, be viewed as an
end-of-life option for dying patients.
(2) It is the intent of the Legislature that the provisions of
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) It is the intent of the Legislature that a disability or age
alone are not 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.
7l95.1.
7195.1. 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" "Competent" means that
, in the opinion of a court or 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 not capable.
(d) Incompetent means not competent. Indicia of
incompetency may include, but are not limited to, a psychiatric or
psychological disorder, including depression, that is causing
impaired judgment.
(d) "Chronic disease" means a long-term or incurable illness or an
impairment that can be physiological or psychological or an
anatomical abnormality of bodily structure or function, except that a
patient shall not be deemed to have a chronic disease if he or she
has a terminal condition that, based upon reasonable medical
judgment, will produce death within six months.
(e) "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. The consulting physician may not be a partner or
shareholder, or otherwise have a significant financial interest, in a
business in which the attending physician has a significant
financial interest.
(e)
(f) "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)
(g) "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)
(h) "Health care facility" means any health facility
described in Section 1250.
(h)
(i) "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 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, including, but not limited to,
comfort care, hospice care, and pain control.
(i)
(j) "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)
(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
competent 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. The fact
that an individual has a disability, as defined in the Americans with
Disabilities Act of 1990 (42 U.S.C., Sec. 12102(2)), shall not,
itself, be a sufficient basis for a determination that the individual
has a terminal disease.
7195.3. An adult who is capable competent
, 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 die, may make a written request for medication for the purpose of
ending his or her life in a humane and dignified manner in accordance
with this chapter.
7195.5. (a) A valid 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
competent , 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) 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.
(d) If the patient is a patient in a long-term health care
facility at the time the written request is made, one of the
witnesses shall be an individual designated by the facility and
having the qualifications specified in regulations adopted by the
State Department of Health Services.
Article 2. Safeguards and Effects
7196. The attending physician shall do all of the following:
(a) Make the initial determination of whether a patient has a
terminal disease, is capable competent
, 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.
(c) Refer the patient to a consulting physician for medical
confirmation of the diagnosis, and for a determination that the
patient is capable competent 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.
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 confirm, in writing, the attending
physician's diagnosis, that the patient is suffering from a terminal
disease, and verify that the patient is capable
competent , 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 psychiatric or psychological disorder, or depression
including depression, causing impaired judgment,
either physician shall offer the patient for counseling. No
medication to end a patient's life in a humane and dignified manner
shall be prescribed until the person performing the counseling
determines that the patient is not suffering from a psychiatric or
psychological disorder, or depression
including depression, causing impaired judgment.
7196.3. No person shall receive a prescription for medication to
end his or her life in a humane and dignified manner 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 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
competent , acting voluntarily, and has made an informed
decision.
(d) The consulting physician's diagnosis and prognosis, and his or
her verification that the patient is capable
competent , 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 state 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 may not be made available
for inspection by the public.
(b) The state department shall generate and make available to the
public an annual statistical report of information collected pursuant
to subdivision (a).
(c) The state 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.
(b) No obligation owing under any contract in existence on or
before January 1, 2000, 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.
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 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. Actions taken in
accordance with this chapter shall not, for any purpose, constitute
suicide, assisted suicide, mercy killing, or homicide, under the law.
Article 3. Immunities and Liabilities
7198. Except as provided in Section 7198.5:
(a) 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
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.
7198.5. (a) A person who without authorization of the patient
willfully 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 shall be guilty of a 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, shall be guilty of a
felony.
(c) Nothing in this chapter limits liability for civil damages
resulting from other negligent conduct or intentional misconduct by
any person.
(d) 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 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 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 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 have 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: One witness shall not be a relative (by blood, marriage, or
adoption) of the person signing this request, shall not be entitled
to
any portion of the person's estate upon death, and shall 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.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.