BILL REQ. #:  S-4477.1 

Read first time 01/26/2006.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to the Washington death with dignity act; amending RCW 42.56.360; adding a new chapter to Title 70 RCW; repealing RCW 70.122.100; prescribing penalties; and providing an effective date.

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

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Adult" means an individual who is eighteen years of age or older.
     (2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.
     (3) "Capable" means that, in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist, or psychologist, 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.
     (4) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.
     (5) "Counseling" means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.
     (6) "Health care 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, and includes a health care facility.
     (7) "Informed decision" means a decision 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 after being fully informed by the attending physician of:
     (a) His or her medical diagnosis;
     (b) His or her prognosis;
     (c) The potential risks associated with taking the medication to be prescribed;
     (d) The probable result of taking the medication to be prescribed; and
     (e) The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control.
     (8) "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.
     (9) "Patient" means a person who is under the care of a physician.
     (10) "Physician" means a doctor of medicine or osteopathy licensed to practice medicine in the state of Washington.
     (11) "Qualified patient" means a capable adult who is a resident of Washington state 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.
     (12) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.

NEW SECTION.  Sec. 2   (1) An adult who is capable, is a resident of Washington state, and has been determined by the attending physician and 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 to end his or her life in a humane and dignified manner in accordance with this chapter.
     (2) A person does not qualify under this chapter solely because of age or disability.

NEW SECTION.  Sec. 3   (1) A valid request for medication under this chapter must be in substantially the form described in section 21 of this act, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.
     (2) One of the witnesses must be a person who is not:
     (a) A relative of the patient by blood, marriage, or adoption;
     (b) 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; or
     (c) An owner, operator, or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.
     (3) The patient's attending physician at the time the request is signed may not be a witness.
     (4) If the patient is a patient in a long-term care facility at the time the written request is made, one of the witnesses must be an individual designated by the facility and having the qualifications specified by the department of health by rule.

NEW SECTION.  Sec. 4   (1) The attending physician must:
     (a) Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily;
     (b) Request that the patient demonstrate Washington residency under section 13 of this act;
     (c) To ensure that the patient is making an informed decision, inform the patient of:
     (i) His or her medical diagnosis;
     (ii) His or her prognosis;
     (iii) The potential risks associated with taking the medication to be prescribed;
     (iv) The probable result of taking the medication to be prescribed; and
     (v) The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control;
     (d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;
     (e) Refer the patient for counseling if appropriate under section 6 of this act;
     (f) Recommend that the patient notify next of kin;
     (g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed under this chapter and of not taking the medication in a public place;
     (h) 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 fifteen-day waiting period under section 9 of this act;
     (i) Verify, immediately before writing the prescription for medication under this chapter, that the patient is making an informed decision;
     (j) Fulfill the medical record documentation requirements of section 12 of this act;
     (k) Ensure that all appropriate steps are carried out in accordance with this chapter before writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and
     (l)(i) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, if the attending physician is authorized under statute and rule to dispense and has a current drug enforcement administration certificate; or
     (ii) With the patient's written consent:
     (A) Contact a pharmacist and inform the pharmacist of the prescription; and
     (B) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician, or an expressly identified agent of the patient.
     (2) The attending physician may sign the patient's death certificate.

NEW SECTION.  Sec. 5   Before a patient is qualified under this chapter, a consulting physician must 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, is acting voluntarily, and has made an informed decision.

NEW SECTION.  Sec. 6   If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician must refer the patient for counseling. Medication to end a patient's life in a humane and dignified manner may not be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

NEW SECTION.  Sec. 7   A person may not 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. Immediately before writing a prescription for medication under this chapter, the attending physician must verify that the patient is making an informed decision.

NEW SECTION.  Sec. 8   The attending physician shall recommend that the patient notify the next of kin of his or her request for medication under this chapter. A patient who declines or is unable to notify next of kin may not have his or her request denied for that reason.

NEW SECTION.  Sec. 9   To receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient must have made an oral request and a written request, and reiterate the oral request to his or her attending physician at least fifteen days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician must offer the patient an opportunity to rescind the request.

NEW SECTION.  Sec. 10   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.

NEW SECTION.  Sec. 11   At least fifteen days must elapse between the patient's initial oral request and the writing of a prescription under this chapter. At least forty-eight hours must elapse between the patient's written request and the writing of a prescription under this chapter.

NEW SECTION.  Sec. 12   The following must be documented or filed in the patient's medical record:
     (1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner;
     (2) All written requests by a patient for medication to end his or her life in a humane and dignified manner;
     (3) The attending physician's diagnosis and prognosis, and determination that the patient is capable, is acting voluntarily, and has made an informed decision;
     (4) The consulting physician's diagnosis and prognosis, and verification that the patient is capable, is acting voluntarily, and has made an informed decision;
     (5) A report of the outcome and determinations made during counseling, if performed;
     (6) The attending physician's offer to the patient to rescind his or her request at the time of the patient's second oral request under section 9 of this act; and
     (7) A note by the attending physician indicating that all requirements under this chapter have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed.

NEW SECTION.  Sec. 13   Only requests made by Washington state residents under this chapter may be granted. Factors demonstrating Washington state residency include but are not limited to:
     (1) Possession of a Washington state driver's license;
     (2) Registration to vote in Washington state; or
     (3) Evidence that the person owns or leases property in Washington state.

NEW SECTION.  Sec. 14   (1)(a) The department of health must annually review a sample of records maintained under this chapter.
     (b) The department of health must require any health care provider upon dispensing medication under this chapter to file a copy of the dispensing record with the department.
     (2) The department of health must adopt rules to facilitate the collection of information regarding compliance with this chapter. Except as otherwise required by law, the information collected is not a public record and may not be made available for inspection by the public.
     (3) The department of health must generate and make available to the public an annual statistical report of information collected under subsection (2) of this section.

NEW SECTION.  Sec. 15   (1) Any 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, is not valid.
     (2) Any obligation owing under any currently existing contract may not 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.

NEW SECTION.  Sec. 16   The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy may 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 may not have an effect upon a life, health, or accident insurance or annuity policy.

NEW SECTION.  Sec. 17   Nothing in this chapter authorizes 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 do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.

NEW SECTION.  Sec. 18   (1) Except as provided in section 19 of this act and subsection (2) of this section:
     (a) A person may not 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) A professional organization or association, or health care provider, may not 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) A patient's request for or provision by an attending physician of medication in good faith compliance with this chapter does not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator; and
     (d) A health care provider is not 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 must transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.
     (2)(a) A health care provider may prohibit another health care provider from participating in this chapter on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider's policy regarding participating in this chapter. This subsection does not prevent a health care provider from providing health care services to a patient that do not constitute participation in this chapter.
     (b) A health care provider may subject another health care provider to the sanctions stated in this subsection if the sanctioning health care provider has notified the sanctioned provider before participation in this chapter that it prohibits participation in this chapter:
     (i) Loss of privileges, loss of membership, or other sanctions provided under the medical staff bylaws, policies, and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider's medical staff and participates in this chapter while on the health care facility premises of the sanctioning health care provider, but not including the private medical office of a physician or other provider;
     (ii) Termination of a lease or other property contract or other nonmonetary remedies provided by a lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in this chapter while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or
     (iii) Termination of a contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in this chapter while acting in the course and scope of the sanctioned provider's capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this subsection (2)(b)(iii) prevents:
     (A) A health care provider from participating in this chapter while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or
     (B) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.
     (c) A health care provider that imposes sanctions under (b) of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.
     (d) For the purposes of this subsection:
     (i) "Notify" means a separate statement in writing to the health care provider specifically informing the health care provider before the provider's participation in this chapter of the sanctioning health care provider's policy about participation in activities covered by this chapter.
     (ii) "Participate in this chapter" means to perform the duties of an attending physician under section 4 of this act, the consulting physician function under section 5 of this act, or the counseling function under section 6 of this act. "Participate in this chapter" does not include:
     (A) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;
     (B) Providing information about the Washington death with dignity act to a patient upon the request of the patient;
     (C) Providing a patient, upon the request of the patient, with a referral to another physician; or
     (D) A patient contracting with his or her attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.
     (3) Suspension or termination of staff membership or privileges under subsection (2) of this section is not reportable under RCW 18.71.0193. Action taken under section 3, 4, 5, or 6 of this act may not be the sole basis for a report of unprofessional conduct under RCW 18.130.180.
     (4) This chapter does not allow a lower standard of care for patients in the community where the patient is treated or a similar community.

NEW SECTION.  Sec. 19   (1) 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 is guilty of a class A felony.
     (2) A person who coerces or exerts undue influence on a patient to request medication to end the patient's life, or to destroy a rescission of a request, is guilty of a class A felony.
     (3) This chapter does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.
     (4) The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter.

NEW SECTION.  Sec. 20   Any governmental entity that incurs costs resulting from a person terminating his or her life under this chapter in a public place has a claim against the estate of the person to recover such costs and reasonable attorneys' fees related to enforcing the claim.

NEW SECTION.  Sec. 21   A request for a medication as authorized by this chapter must be in substantially the following form:

NEW SECTION.  Sec. 22   This act may be known and cited as the Washington death with dignity act.

NEW SECTION.  Sec. 23   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.

NEW SECTION.  Sec. 24   Sections 1 through 23 of this act constitute a new chapter in Title 70 RCW.

Sec. 25   RCW 42.56.360 and 2005 c 274 s 416 are each amended to read as follows:
     (1) The following health care information is exempt from disclosure under this chapter:
     (a) Information obtained by the board of pharmacy as provided in RCW 69.45.090;
     (b) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420;
     (c) Information and documents created specifically for, and collected and maintained by a quality improvement committee under RCW 43.70.510 or 70.41.200, or by a peer review committee under RCW 4.24.250, regardless of which agency is in possession of the information and documents;
     (d)(i) Proprietary financial and commercial information that the submitting entity, with review by the department of health, specifically identifies at the time it is submitted and that is provided to or obtained by the department of health in connection with an application for, or the supervision of, an antitrust exemption sought by the submitting entity under RCW 43.72.310;
     (ii) If a request for such information is received, the submitting entity must be notified of the request. Within ten business days of receipt of the notice, the submitting entity shall provide a written statement of the continuing need for confidentiality, which shall be provided to the requester. Upon receipt of such notice, the department of health shall continue to treat information designated under this subsection (1)(d) as exempt from disclosure;
     (iii) If the requester initiates an action to compel disclosure under this chapter, the submitting entity must be joined as a party to demonstrate the continuing need for confidentiality;
     (e) Records of the entity obtained in an action under RCW 18.71.300 through 18.71.340;
     (f) Except for published statistical compilations and reports relating to the infant mortality review studies that do not identify individual cases and sources of information, any records or documents obtained, prepared, or maintained by the local health department for the purposes of an infant mortality review conducted by the department of health under RCW 70.05.170; ((and))
     (g) Information collected by the department of health under chapter 70.-- RCW (sections 1 through 23 of this act) except as provided in section 14 of this act; and
     (h) Complaints filed under chapter 18.130 RCW after July 27, 1997, to the extent provided in RCW 18.130.095(1).
     (2) Chapter 70.02 RCW applies to public inspection and copying of health care information of patients.

NEW SECTION.  Sec. 26   RCW 70.122.100 (Mercy killing or physician-assisted suicide not authorized) and 1992 c 98 s 10 & 1979 c 112 s 11 are each repealed.

NEW SECTION.  Sec. 27   Section 25 of this act takes effect July 1, 2006.