BP BHEAD INT S

AN ACT Relating to recognizing and regulating the right of mentally competent terminally ill adults voluntarily to request and receive physician aid in dying; amending RCW 70.122.100 and 9A.36.060; adding a new chapter to Title 70 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. SHORT TITLE. This chapter may be known and cited as the "terminally ill patient act of 1995."

NEW SECTION. Sec. 2. LEGISLATIVE FINDINGS. The legislature finds that the liberty interest protected by the Fourteenth Amendment of the United States Constitution and by Article III of the Constitution of the state of Washington includes the freedom to make choices according to one's individual conscience about those matters that are essential to personal autonomy and basic human dignity. There is no more profoundly personal decision, nor one that is closer to the heart of personal liberty, than the choice that a terminally ill person makes to end his or her suffering and to hasten an inevitable death.

The legislature further finds that the prolongation of suffering in the process of an inevitable death serves no state interest that outweighs a patient's personal right in seeking his or her physician's aid in dying, nor has the state of Washington an interest in preventing licensed physicians from offering such assistance.

The legislature further finds that physician aid in dying must be a completely voluntary act for any person receiving or providing aid in dying. Accordingly, no one is required to take advantage of this legal right or to provide or participate in aid in dying if he or she chooses not to.

The legislature hereby declares that a competent terminally ill adult has the right to make a voluntary, revocable, recorded request for his or her physician to prescribe medication that, if self-administered by the patient, will, in a painless, humane, and dignified manner, shorten the process of dying.

NEW SECTION. Sec. 3. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Aid in dying" means assistance in the form of prescription for medication by a qualified patient's primary care physician that will, if self-administered by the patient, shorten, in a painless, humane, and dignified manner, the process of dying. Aid in dying must be voluntarily requested by the qualified patient.

(2) "Consulting physician" means a physician who is qualified by specialty or experience in making a professional diagnosis and prognosis of the patient's particular condition, and who:

(a) Is not related to the qualified patient by blood, marriage, or adoption;

(b) Is not entitled to any portion of the estate of the qualified patient upon his or her death by operation of then existing law or under any then existing will or codicil of the qualified patient;

(c) Has no creditor's claim against the qualified patient, outside of a claim for professional services rendered to the qualified patient, nor anticipates making such a claim against any portion of the estate of the qualified patient upon his or her death; and

(d) Is not a partner or shareholder in the same medical practice as the primary care physician, not including a health maintenance organization.

(3) "Health care facility" means a facility or agency licensed, certified, or otherwise authorized by the state of Washington to administer health care in the ordinary course of business.

(4) "Physician" means a person licensed under chapter 18.71 or 18.57 RCW.

(5) "Primary care physician" means a physician who treats dying patients in the ordinary course of practice and is selected by, or assigned to, the qualified patient with primary responsibility for the treatment and care of the qualified patient, and:

(a) Is not related to the qualified patient by blood, marriage, or adoption;

(b) Is not entitled to any portion of the estate of the qualified patient upon his or her death by operation of then existing law or under any then existing will or codicil of the qualified patient;

(6) "Qualified patient" means a mentally competent adult eighteen years of age or older who:

(a) Has been diagnosed and certified in writing by a primary care physician and a consulting physician to be afflicted with a terminal condition; and

(b) Has voluntarily executed a revocable recorded request for aid in dying as defined in this section.

(7) "Recorded request" means a voluntary, revocable written or video tape recorded statement meeting the requirements of section 4 of this act, and in substantially the same form as set forth in section 22 of this act if the recorded request is in writing.

(8) "Terminal condition" means an incurable and irreversible condition caused by injury, disease, or illness, that, within reasonable medical judgment, will cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of life-sustaining treatment serves only to prolong the process of dying.

NEW SECTION. Sec. 4. WITNESSED RECORDED REQUEST FOR AID IN DYING. (1) A mentally competent adult eighteen years of age or older may voluntarily execute a revocable recorded request for aid in dying.

(2) No person other than the qualified patient may request aid in dying for the qualified patient.

(3) The recorded request must be in writing or recorded on video tape. A written recorded request shall be signed and dated by the qualified patient, or by a person designated by the qualified patient to sign if the qualified patient is unable to sign.

(4) The signing or video tape recording of the request shall be witnessed by two other adults who, at the time of witnessing, meet the following requirements:

(a) Are not related to the qualified patient by blood, marriage, or adoption;

(b) Are not entitled to any portion of the estate of the qualified patient upon his or her death by operation of law in effect at the time of witnessing or under any will or codicil in effect at the time of witnessing of the qualified patient;

(c) Have no creditor's claim against the qualified patient, nor anticipate making such a claim against any portion of the estate of the qualified patient upon his or her death;

(d) Are not the primary care physician or an employee of the primary care physician.

(5) A completed and witnessed recorded request shall be delivered to the qualified patient's primary care physician, who shall file the recorded request in the qualified patient's medical records. If the qualified patient is an inpatient at a health care facility, a copy of the recorded request shall also be delivered to the health care facility, where it shall become a part of the qualified patient's permanent record.

(6) In the event of conflict between the qualified patient's recorded request and the qualified patient's lawful attorney-in-fact for health care or the qualified patient's lawful health care surrogate, the qualified patient's recorded request shall prevail.

NEW SECTION. Sec. 5. EXAMINATION BY TWO PHYSICIANS. (1) A primary care physician who receives a recorded request from a qualified patient shall make a personal examination of the qualified patient, including an evaluation of the patient's mental competence and a review of the qualified patient's medical records, and shall apply independent reasonable medical judgment as to whether the qualified patient has a terminal condition as defined in section 3 of this act.

(2) The primary care physician shall engage in a consultation with the qualified patient for the purpose of:

(a) Explaining the qualified patient's medical diagnosis and prognosis;

(b) Helping the qualified patient to understand the prognosis, including any reasonable possibility for improvement;

(c) Reviewing the feasible alternatives to aid in dying, including available methods of pain control and the possible effects of such alternatives on the qualified patient; and

(d) Describing the nature, risks, and probable result of aid in dying.

(3) After complying with section 5(1) and (2) of this act, the primary care physician shall arrange for an examination of the qualified patient by a consulting physician selected by the primary care physician or by the qualified patient.

(4) The consulting physician shall make a personal examination of the qualified patient, including an evaluation of the patient's mental competence and a review of the qualified patient's medical records, and shall apply independent reasonable medical judgment as to whether the qualified patient has a terminal condition as defined in section 3 of this act.

(5) The consulting physician shall engage in a consultation with the qualified patient for the purpose of:

(a) Explaining the qualified patient's medical diagnosis and prognosis;

(b) Helping the qualified patient to understand the prognosis, including any reasonable possibility for improvement;

(c) Reviewing the feasible alternatives to aid in dying, including available methods of pain control and the effects of such methods on the qualified patient; and

(d) Describing the nature, risks, and probable result of aid in dying.

(6) A consulting physician shall certify in writing his or her findings to the primary care physician.

(7) If the primary care and consulting physicians both find that the qualified patient suffers from a terminal condition, the primary care physician may provide aid in dying to the qualified patient.

(8) All reasonable pain control techniques must have been offered to the qualified patient and the qualified patient must nevertheless have elected aid in dying before any aid in dying is provided.

NEW SECTION. Sec. 6. COMPLIANCE WITH RECORDED REQUEST‑-REBUTTABLE PRESUMPTION. (1) Before providing aid in dying to a qualified patient, the primary care physician shall:

(a) Review thoroughly the qualified patient's recorded request and medical record;

(b) Take reasonable steps to ensure that the requirements of this chapter have been met; and

(c) Determine that the recorded request is in accord with the consistently expressed desires of the patient, as personally expressed by the patient to the primary care physician.

(2) Absent knowledge to the contrary, there is a rebuttable presumption that the recorded request complies with this chapter and is valid.

NEW SECTION. Sec. 7. PROVISION OF AID IN DYING BY PHYSICIAN ONLY. Only a physician may provide aid in dying, which shall not be delegated.

NEW SECTION. Sec. 8. REVOCATION. (1) A recorded request may be revoked at any time by the qualified patient, without regard to his or her mental state or competency, by any of the following methods:

(a) By being canceled, defaced, obliterated, burned, torn, or otherwise destroyed by or at the direction of the qualified patient with the intent to revoke the recorded request.

(b) By a written revocation by the qualified patient expressing his or her intent to revoke the recorded request, signed and dated by the qualified patient. If the qualified patient is in a health care facility and under the care and management of a physician, the physician shall record in the patient's medical record the time and date when he or she received notification of the written revocation.

(c) By oral expression or assertive conduct by the qualified patient to the primary care physician of his or her intent to revoke the recorded request. The oral or assertive conduct revocation is effective only upon communication to the primary care physician by the qualified patient. The primary care physician shall confirm with the patient that he or she wishes to revoke and shall record in the patient's medical record the time, date, and place of the revocation.

(2) No one but the qualified patient may revoke the qualified patient's recorded request for aid in dying.

(3) There shall be no criminal, civil, or administrative liability on the part of any person, firm, or organization for following a recorded request that has been revoked unless that person, firm, or organization had actual knowledge, or should reasonably have had knowledge, of the revocation.

NEW SECTION. Sec. 9. TERM OF RECORDED REQUEST. A recorded request is effective unless revoked in the manner prescribed in section 8 of this act. This chapter shall not prevent a qualified patient from reexecuting a recorded request at any time in accordance with section 4 of this act.

NEW SECTION. Sec. 10. NO COMPULSION. (1) A physician or health care professional is not required to provide or participate in aid in dying if he or she is opposed.

(2) A privately owned health care facility is not required to permit aid in dying in that facility.

NEW SECTION. Sec. 11. TRANSFER OF PATIENT. (1) If a physician or a health care facility declines to provide aid in dying to a qualified patient, the physician or health care facility shall assist the patient in transferring his or her care, as soon as reasonably possible, to another physician or health care facility to enable the patient to receive aid in dying. A copy of the patient's relevant medical records shall be transferred to the new physician or health care facility.

(2) A physician or health care facility that does not comply with a valid recorded request is not subject to civil or criminal liability unless the physician or health care facility unreasonably delays or willfully obstructs the transfer of a patient upon the patient's request for such a transfer.

NEW SECTION. Sec. 12. FEES. Fees set by physicians or health care facilities for providing aid in dying must be fair and reasonable.

NEW SECTION. Sec. 13. FAMILY NOTIFICATION. A patient requesting aid in dying is encouraged to notify next of kin of the request. A patient who declines or cannot supply family details may not, for that reason, be denied rights under this chapter.

NEW SECTION. Sec. 14. PROTECTION OF HEALTH CARE PROFESSIONALS. (1)(a) A physician, health care professional, health care facility, employee of a health care facility, or licensed pharmacist, who, acting in good-faith compliance with the requirements of this chapter, participates in, or is present at, aid in dying at the voluntary recorded request of a qualified patient is not subject to civil, criminal, or administrative liability for participating in or being present at aid in dying.

(b) A health care facility is not barred under this section from disciplining an employee who acted contrary to the written policy of the health care facility and in furtherance of a patient's voluntary request.

(2) No physician, or licensed health care professional acting under the direction of a physician, who acts in good-faith compliance with the requirements of this chapter, shall be liable for professional misconduct or disciplinary action solely because of his or her participation in aid in dying.

NEW SECTION. Sec. 15. INSURANCE. (1) No insurer doing business in the state of Washington shall refuse to insure, cancel, refuse to renew, reassess the risk of an insured, or raise premiums on the basis of whether or not the insured has considered or completed a recorded request. No insurer may require or request the insured to disclose whether he or she has executed a recorded request.

(2) The making of a recorded request pursuant to section 4 of this act does not restrict, inhibit, or impair in any manner the sale, procurement, issuance or rates of any policy of life, health, or disability insurance, nor shall it affect in any way the terms of an existing policy of life, health, or disability insurance. No policy of life, health, or disability insurance may be legally impaired or invalidated in any manner by the provision of aid in dying to an insured qualified patient.

(3) A physician, health care facility, insurer, self-insured employee benefit plan, or nonprofit hospital service plan may not require any person to execute or prohibit any person from executing a recorded request as a condition for receiving insurance coverage or health care services. Violation of this subsection is a misdemeanor.

(4) No life insurer doing business in the state of Washington may refuse to pay sums due upon the death of an insured because the insured received aid in dying in accordance with this chapter.

(5) No insurer doing business in the state of Washington may exclude from coverage any fair and reasonable fees charged for aid in dying.

(6) Nothing in this section may be construed to change existing law regarding the availability of insurance coverage to a person deemed to have a preexisting condition.

NEW SECTION. Sec. 16. UNLAWFUL ACTS. (1) Any person who unduly influences another to execute a recorded request, including through persuasion that the patient is a financial, emotional or other burden to his or her family, other persons, or the state, is guilty of a misdemeanor; or, if death occurs as a result of such undue influence, is guilty of a felony punishable according to the laws of this state.

(2) Any person who fraudulently induces another to execute a recorded request is guilty of a misdemeanor; or, if death occurs as a result of such fraud, is guilty of a felony punishable according to the laws of this state.

(3) Any person who willfully thwarts, conceals, cancels, defaces, obliterates, or damages the recorded request of another without that qualified patient's express consent is guilty of a misdemeanor.

(4) Any person who falsifies or forges the recorded request of another, or willfully conceals or withholds personal knowledge of a revocation as provided in section 8 of this act, with the intent to hasten death contrary to the wishes of the qualified patient, and thereby directly causes hastening of death, is guilty of the crime of murder and shall be punished according to the laws of this state.

(5) Nothing in this chapter may be construed to condone, authorize, or approve the deliberate ending of a life without a qualified patient's documented and witnessed request.

NEW SECTION. Sec. 17. OTHER RIGHTS. (1) Nothing in this chapter may impair or supersede any right that any person may have to seek judicial redress for any violations of this chapter.

(2) Nothing in this chapter may impair or supersede any right or legal responsibility that any person may have regarding the withholding or withdrawal of life-sustaining procedures in any lawful manner.

(3) Nothing in this chapter may impair or supersede any right or legal responsibility that any person may have as a result of a validly executed durable power of attorney.

NEW SECTION. Sec. 18. REPORTING AND REGULATION. (1) The state department of health shall adopt rules to govern the provision of aid in dying in accordance with this chapter, including rules specifying detailed recordkeeping and reporting requirements for physicians, health care professionals, and health care facilities that participate in aid in dying.

(2) The state department of health shall compile and publish an annual report of aid in dying statistics for the state of Washington. In all cases, the identity of qualified patients and any participating physicians, health care professionals, or facilities may not be publicly reported and are exempt from the public disclosure requirements of chapter 42.17 RCW.

(3) Advertising of aid in dying services is subject to regulation by the state of Washington.

NEW SECTION. Sec. 19. AID IN DYING CLINICS. Medical facilities for the sole purpose of aid in dying are not permitted in this state.

NEW SECTION. Sec. 20. RECOGNITION OF REQUEST EXECUTED IN ANOTHER STATE. A recorded request that has been executed in another state in compliance with the law of that state and that substantially complies with section 4 of this act is deemed valid for the purpose of this chapter.

NEW SECTION. Sec. 21. FORM OF RECORDED REQUEST. A written recorded request under this chapter must be in substantially the following form:

Voluntary Request For A Prescription For Self-Administered Medication That Will Enable Me To Shorten, In A Painless, Humane, And Dignified Manner, The Process Of My Dying.

This recorded request is made on . . . . . . 19. . . I, . . . . . . . . . . . ., being a mentally competent adult eighteen years of age or older, do voluntarily make known my desire that the process of my dying be shortened in a painless, humane, and dignified manner with the aid of prescribed medication that I will self-administer. I understand that I have a condition that qualifies me for assistance under the Terminal Patient Act, as certified by two physicians, and I ask my primary care physician to prescribe medication appropriate for this purpose. I trust and hope that he or she will comply. If he or she declines, which is his or her right, then I urge that he or she assist in locating a colleague who will comply.

Determining the time and place of my death shall be at my sole discretion. The manner of my death shall be determined jointly by my primary care physician and myself.

This recorded request shall remain valid until revoked by me and only me. I may revoke this recorded request at any time.

I recognize that a physician's judgment is not always certain, and that medical science continues to make progress in extending life, but in spite of these facts, I nevertheless wish aid in dying rather than letting my condition take its natural course.

It is solely my option, and not my physician's, to inform my family of my intentions.

I have given full consideration to and understand the full import of this recorded request. I accept the moral and legal responsibility for receiving aid in dying.

Signed: (Name) . . . . . . . . . . . . . . . .

City and State of Residence . . . . . . . . . . . . .

NOTICE - This recorded request is not valid unless it is signed by two qualified witnesses who are present when you sign or acknowledge your signature. The witnesses must not be related to you by blood, marriage, or adoption; they must not be entitled to any part of your estate, or, at the time of execution of the recorded request, have any claim against any portion of your estate; and they must not include: Your primary care physician or an employee of your primary care physician.

If you have attached any additional pages to this form, you must sign and date each of the additional pages at the same time you date and sign this recorded request.

STATEMENT OF WITNESSES

TO VOLUNTARY RECORDED REQUEST TO PHYSICIANS

I declare under penalty of perjury under the laws of the state of Washington that the person who signed or acknowledged this document is personally known to me (or proved to me on the basis of satisfactory evidence to be the qualified patient of this recorded request); that he or she signed or acknowledged this recorded request in my presence; that he or she appears to be of sound mind and under no duress, fraud, or undue influence; that I am not the primary care physician or an employee of the primary care physician.

I further declare under penalty of perjury under the laws of the state of Washington that I am not related to the qualified patient by blood, marriage, or adoption, and, to the best of my knowledge, I am not entitled to any part of the estate of the qualified patient upon the death of the qualified patient under a will now existing or by operation of law, and have no claim nor anticipate making a claim against any portion of the estate of the qualified patient upon his or her death.

Dated: . . . . . . . . . . . . . . . . . . . . . . . . . .

Witness's Signature: . . . . . . . . . . . . . . . . . . .

Print Name: . . . . . . . . . . . . . . . . . . . . . . .

Residence Address: . . . . . . . . . . . . . . . . . . . .

Dated: . . . . . . . . . . . . . . . . . . . . . . . . . .

Witness's Signature: . . . . . . . . . . . . . . . . . . .

Print Name: . . . . . . . . . . . . . . . . . . . . . . .

Residence Address: . . . . . . . . . . . . . . . . . . . .

NEW SECTION. Sec. 22. ASSISTANCE TO SUICIDE OUTSIDE OF PROVISIONS OF THIS ACT. (1) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following without acting in good-faith compliance with the provisions of this chapter is guilty of promoting a suicide attempt, a class C felony under RCW 9A.36.060:

(a) Provides the physical means by which the other person attempts or commits suicide;

(b) Participates in a physical act by which the other person attempts or commits suicide.

(2) This section does not apply to withholding or withdrawing medical treatment.

(3) This section does not apply to prescribing, dispensing, or administering medications or procedures if the intent is to relieve pain or discomfort and not to cause death, even if the medication or procedure may hasten or increase the risk of death.

Sec. 23. RCW 70.122.100 and 1992 c 98 s 10 are each amended to read as follows:

MERCY KILLING OR ASSISTED SUICIDE NOT AUTHORIZED. Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or ((~~physician-~~)) assisted suicide as defined in RCW 9A.36.060, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying, or to permit physician aid in dying other than under the conditions specified in sections 1 through 22 of this act.

Sec. 24. RCW 9A.36.060 and 1975 1st ex.s. c 260 s 9A.36.060 are each amended to read as follows:

PROMOTING A SUICIDE ATTEMPT. (1) A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide, except that a licensed physician providing aid in dying at the voluntary, revocable, recorded request of an adult patient with a terminal condition and in compliance with sections 1 through 22 of this act is not liable under this section for promoting suicide.

(2) Promoting a suicide attempt is a class C felony.

NEW SECTION. Sec. 25. CODIFICATION. Sections 1 through 22 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 26. CAPTIONS NOT LAW. Captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 27. SEVERABILITY. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.