Establishes the "death with dignity act"; allows terminally ill individuals to request medication for the purpose of ending his or her own life, in a humane and dignified manner.
STATE OF NEW YORK
________________________________________________________________________
9360
IN ASSEMBLY
February 22, 2012
___________
Introduced by M. of A. STEVENSON -- read once and referred to the
Committee on Health
AN ACT to amend the public health law, in relation to establishing "the
death with dignity act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "the death with
2 dignity act."
3 § 2. The public health law is amended by adding a new article 28-F to
4 read as follows:
5 ARTICLE 28-F
6 DEATH WITH DIGNITY ACT
7 Section 2899-d. Definitions.
8 2899-e. Written request for medication.
9 2899-f. Form of the written request.
10 2899-g. Attending physician responsibilities.
11 2899-h. Consulting physician confirmation.
12 2899-i. Counseling referral.
13 2899-j. Informed decision.
14 2899-k. Family notification.
15 2899-l. Written and oral requests.
16 2899-m. Right to rescind request.
17 2899-n. Waiting periods.
18 2899-o. Medical record documentation requirements.
19 2899-p. Residency requirement.
20 2899-q. Reporting requirements.
21 2899-r. Effect on construction of wills, contracts and statutes.
22 2899-s. Insurance or annuity policies.
23 2899-t. Construction.
24 2899-u. Immunities; basis for prohibiting health care provider
25 from participation; notification; permissible sanc-
26 tions.
27 2899-v. Liabilities.
28 2899-w. Claims by governmental entity for costs incurred.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13067-02-2
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1 2899-x. Form of the request.
2 2899-y. Penalties.
3 2899-z. Severability.
4 § 2899-d. Definitions. As used in this article, the following words
5 and phrases shall have the following meanings:
6 1. "Adult" means an individual who is eighteen years of age or older.
7 2. "Attending physician" means the physician who has primary responsi-
8 bility for the care of the patient and treatment of the patient's termi-
9 nal disease.
10 3. "Capable" means that in the opinion of a court or in the opinion of
11 the patient's attending physician or consulting physician, psychiatrist
12 or psychologist, a patient has the ability to make and communicate
13 health care decisions to health care providers, including communication
14 through persons familiar with the patient's manner of communicating if
15 those persons are available.
16 4. "Consulting physician" means a physician who is qualified by
17 specialty or experience to make a professional diagnosis and prognosis
18 regarding the patient's disease.
19 5. "Counseling" means one or more consultations as necessary between a
20 state licensed psychiatrist or psychologist and a patient for the
21 purpose of determining that the patient is capable and not suffering
22 from a psychiatric or psychological disorder or depression causing
23 impaired judgment.
24 6. "Health care provider" means a person licensed, certified or other-
25 wise authorized or permitted by the laws of this state to administer
26 health care or dispense medication in the ordinary course of business or
27 practice of a profession, and includes a health care facility.
28 7. "Informed decision" means a decision by a qualified patient, to
29 request and obtain a prescription to end his or her life in a humane and
30 dignified manner, that is based on an appreciation of the relevant facts
31 and after being fully informed by the attending physician of:
32 (a) His or her medical diagnosis;
33 (b) His or her prognosis;
34 (c) The potential risks associated with taking the medication to be
35 prescribed;
36 (d) The probable result of taking the medication to be prescribed; and
37 (e) The feasible alternatives, including, but not limited to, comfort
38 care, hospice care and pain control.
39 8. "Medically confirmed" means the medical opinion of the attending
40 physician has been confirmed by a consulting physician who has examined
41 the patient and the patient's relevant medical records.
42 9. "Patient" means a person who is under the care of a physician.
43 10. "Physician" means a doctor of medicine or osteopathy licensed to
44 practice medicine by the state board for medicine pursuant to article
45 one hundred thirty-one of the education law.
46 11. "Qualified patient" means a capable adult who is a resident of
47 this state and has satisfied the requirements of this article in order
48 to obtain a prescription for medication to end his or her life in a
49 humane and dignified manner.
50 12. "Terminal disease" means an incurable and irreversible disease
51 that has been medically confirmed and will, within reasonable medical
52 judgment, produce death within six months.
53 § 2899-e. Written request for medication. 1. An adult who is capable,
54 is a resident of this state and has been determined by the attending
55 physician and consulting physician to be suffering from a terminal
56 disease, and who has voluntarily expressed his or her wish to die, may
A. 9360 3
1 make a written request for medication for the purpose of ending his or
2 her life in a humane and dignified manner in accordance with the
3 provisions of this article.
4 2. No person shall qualify under the provisions of this article solely
5 because of age or disability.
6 § 2899-f. Form of the written request. 1. A valid request for medica-
7 tion under the provisions of this article shall be in substantially the
8 form described in section twenty-eight hundred ninety-nine-x of this
9 article signed and dated by the patient and witnessed by at least two
10 individuals who, in the presence of the patient, attest that to the best
11 of their knowledge and belief the patient is capable, acting voluntar-
12 ily, and is not being coerced to sign the request.
13 2. One of the witnesses shall be a person who is not:
14 (a) A relative of the patient by blood, marriage or adoption;
15 (b) A person who at the time the request is signed would be entitled
16 to any portion of the estate of the qualified patient upon death under
17 any will or by operation of law; or
18 (c) An owner, operator or employee of a health care facility where the
19 qualified patient is receiving medical treatment or is a resident.
20 3. The patient's attending physician at the time the request is signed
21 shall not be a witness.
22 4. If the patient is a patient in a long term care facility at the
23 time the written request is made, one of the witnesses shall be an indi-
24 vidual designated by the facility.
25 § 2899-g. Attending physician responsibilities. 1. The attending
26 physician shall:
27 (a) Make the initial determination of whether a patient has a terminal
28 disease, is capable, and has made the request voluntarily;
29 (b) Request that the patient demonstrate New York state residency;
30 (c) To ensure that the patient is making an informed decision, inform
31 the patient of:
32 (i) His or her medical diagnosis;
33 (ii) His or her prognosis;
34 (iii) The potential risks associated with taking the medication to be
35 prescribed;
36 (iv) The probably result of taking the medication to be prescribed;
37 and
38 (v) The feasible alternatives, including, but not limited to, comfort
39 care, hospice care and pain control;
40 (d) Refer the patient to a consulting physician for medical confirma-
41 tion of the diagnosis, and for a determination that the patient is capa-
42 ble and acting voluntarily;
43 (e) Refer the patient for counseling if appropriate pursuant to
44 section twenty-eight hundred ninety-nine-i of this article;
45 (f) Recommend that the patient notify next of kin;
46 (g) Counsel the patient about the importance of having another person
47 present when the patient takes the medication prescribed pursuant to the
48 provisions of this article and of not taking the medication in a public
49 place;
50 (h) Inform the patient that he or she has an opportunity to rescind
51 the request at any time and in any manner, and offer the patient an
52 opportunity to rescind at the end of the fifteen day waiting period
53 pursuant to section twenty-eight hundred ninety-nine-l of this article;
54 (i) Verify, immediately prior to writing the prescription for medica-
55 tion under the provisions of this article, that the patient is making an
56 informed decision;
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1 (j) Fulfill the medical record documentation requirements of section
2 twenty-eight hundred ninety-nine-o of this article;
3 (k) Ensure that all appropriate steps are carried out in accordance
4 with the provisions of this article prior to writing a prescription for
5 medication to enable a qualified patient to end his or her life in a
6 humane and dignified manner; and
7 (l) (i) Dispense medications directly, including ancillary medications
8 intended to facilitate the desired effect to minimize the patient's
9 discomfort, provided the attending physician, has a current Drug
10 Enforcement Administration certificate and complies with any applicable
11 rule or regulation; or
12 (ii) With the patient's written consent:
13 (A) Contact a pharmacist and inform the pharmacist of the
14 prescription; and
15 (B) Deliver the written prescription personally or by mail to the
16 pharmacist, who will dispense the medications to either the patient, the
17 attending physician or an expressly identified agent of the patient.
18 2. Notwithstanding any other provision of law, the attending physician
19 may sign the patient's death certificate.
20 § 2899-h. Consulting physician confirmation. Before a patient is qual-
21 ified under the provisions of this article, a consulting physician shall
22 examine the patient and his or her relevant medical records and confirm,
23 in writing, the attending physician's diagnosis that the patient is
24 suffering from a terminal disease, and verify that the patient is capa-
25 ble, is acting voluntarily and has made an informed decision.
26 § 2899-i. Counseling referral. If in the opinion of the attending
27 physician or the consulting physician a patient may be suffering from a
28 psychiatric or psychological disorder or depression causing impaired
29 judgment, either physician shall refer the patient for counseling. No
30 medication to end a patient's life in a humane and dignified manner
31 shall be prescribed until the person performing the counseling deter-
32 mines that the patient is not suffering from a psychiatric or psycholog-
33 ical disorder or depression causing impaired judgment.
34 § 2899-j. Informed decision. No person shall receive a prescription
35 for medication to end his or her life in a humane and dignified manner
36 unless he or she has made an informed decision as defined in subdivision
37 seven of section twenty-eight hundred ninety-nine-d of this article.
38 Immediately prior to writing a prescription for medication under the
39 provisions of this article, the attending physician shall verify that
40 the patient is making an informed decision.
41 § 2899-k. Family notification. The attending physician shall recommend
42 that the patient notify the next of kin of his or her request for medi-
43 cation pursuant to the provisions of this article. A patient who
44 declines or is unable to notify next of kin shall not have his or her
45 request denied for that reason.
46 § 2899-l. Written and oral requests. In order to receive a
47 prescription for medication to end his or her life in a humane and
48 dignified manner, a qualified patient shall have made an oral request
49 and a written request, and reiterate the oral request to his or her
50 attending physician no less than fifteen days after making the initial
51 oral request. At the time the qualified patient makes his or her second
52 oral request, the attending physician shall offer the patient an oppor-
53 tunity to rescind the request.
54 § 2899-m. Right to rescind request. A patient may rescind his or her
55 request at any time and in any manner without regard to his or her
56 mental state. No prescription for medication under the provisions of
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1 this article may be written without the attending physician offering the
2 qualified patient an opportunity to rescind the request.
3 § 2899-n. Waiting periods. No less than fifteen days shall elapse
4 between the patient's initial oral request and the writing of a
5 prescription under the provisions of this article. No less than forty-
6 eight hours shall elapse between the patient's written request and the
7 writing of a prescription under the provisions of this article.
8 § 2899-o. Medical record documentation requirements. The following
9 shall be documented or filed in the patient's medical record:
10 1. All oral requests by a patient for medication to end his or her
11 life in a humane and dignified manner;
12 2. All written requests by a patient for medication to end his or her
13 life in a humane and dignified manner;
14 3. The attending physician's diagnosis and prognosis, determination
15 that the patient is capable, acting voluntarily and has made an informed
16 decision;
17 4. The consulting physician's diagnosis and prognosis, and verifica-
18 tion that the patient is capable, acting voluntarily and has made an
19 informed decision;
20 5. A report of the outcome and determinations made during counseling,
21 if performed;
22 6. The attending physician's offer to the patient to rescind his or
23 her request at the time of the patient's second oral request pursuant to
24 section twenty-eight hundred ninety-nine-i of this article; and
25 7. A note by the attending physician indicating that all requirements
26 under the provisions of this article have been met and indicating the
27 steps taken to carry out the request, including a notation of the medi-
28 cation prescribed.
29 § 2899-p. Residency requirement. Only requests made by New York state
30 residents under the provisions of this article shall be granted. Factors
31 demonstrating New York state residency shall include but shall not be
32 limited to:
33 1. Possession of a New York state driver's license;
34 2. Registration to vote in New York state;
35 3. Evidence that the person owns or leases property in New York state;
36 or
37 4. Filing of a New York state tax return for the most recent tax year.
38 § 2899-q. Reporting requirements. 1. (a) The state board for medicine
39 shall annually review a sample of records maintained pursuant to the
40 provisions of this article.
41 (b) The state board for medicine shall require any health care provid-
42 er upon dispensing medication pursuant to the provisions of this article
43 to file a copy of the dispensing record with the state board for medi-
44 cine.
45 2. The state board for medicine shall make rules to facilitate the
46 collection of information regarding compliance with the provisions of
47 this article. Except as otherwise required by law, the information
48 collected shall not be a public record and may not be made available for
49 inspection by the public.
50 3. The state board for medicine shall generate and make available to
51 the public an annual statistical report of information collected under
52 subdivision two of this section.
53 § 2899-r. Effect on construction of wills, contracts and statutes. 1.
54 No provision in a contract, will or other agreement, whether written or
55 oral, to the extent the provision would affect whether a person may make
A. 9360 6
1 or rescind a request for medication to end his or her life in a humane
2 and dignified manner, shall be valid.
3 2. No obligation owing under any currently existing contract shall be
4 conditioned or affected by the making or rescinding of a request, by a
5 person, for medication to end his or her life in a humane and dignified
6 manner.
7 § 2899-s. Insurance or annuity policies. The sale, procurement, or
8 issuance of any life, health, or accident insurance or annuity policy or
9 the rate charged for any policy shall not be conditioned upon or
10 affected by the making or rescinding of a request, by a person, for
11 medication to end his or her life in a humane and dignified manner.
12 Neither shall a qualified patient's act of ingesting medication to end
13 his or her life in a humane and dignified manner have an effect upon a
14 life, health, or accident insurance or annuity policy.
15 § 2899-t. Construction. The provisions of this article shall not be
16 construed to authorize a physician or any other person to end a
17 patient's life by lethal injection, mercy killing or active euthanasia.
18 Actions taken in accordance with the provisions of this article shall
19 not, for any purpose, constitute suicide, assisted suicide, mercy kill-
20 ing or homicide, under the law.
21 § 2899-u. Immunities; basis for prohibiting health care provider from
22 participation; notification; permissible sanctions. 1. No person shall
23 be subject to civil or criminal liability or professional disciplinary
24 action for participating in good faith compliance with the provisions of
25 this article. This includes being present when a qualified patient takes
26 the prescribed medication to end his or her life in a humane and digni-
27 fied manner.
28 2. No professional organization or association, or health care provid-
29 er, may subject a person to censure, discipline, suspension, loss of
30 license, loss of privileges, loss of membership or other penalty for
31 participating or refusing to participate in good faith compliance with
32 the provisions of this article.
33 3. No request by a patient for or provision by an attending physician
34 of medication in good faith compliance with the provisions of this arti-
35 cle shall constitute neglect for any purpose of law or provide the sole
36 basis for the appointment of a guardian or conservator.
37 4. No health care provider shall be under any duty, whether by
38 contract, by statute or by any other legal requirement to participate in
39 the provision to a qualified patient of medication to end his or her
40 life in a humane and dignified manner. If a health care provider is
41 unable or unwilling to carry out a patient's request under the
42 provisions of this article, and the patient transfers his or her care to
43 a new health care provider, the prior health care provider shall trans-
44 fer, upon request, a copy of the patient's relevant medical records to
45 the new health care provider.
46 5. (a) Notwithstanding any other provision of law, a health care
47 provider may prohibit another health care provider from participating in
48 the provisions of this article on the premises of the prohibiting
49 provider if the prohibiting provider has notified the health care
50 provider of the prohibiting provider's policy regarding participating in
51 the provisions of this article. Nothing in this subdivision prevents a
52 health care provider from providing health care services to a patient
53 that do not constitute participation in the provisions of this article.
54 (b) Notwithstanding the provisions of subdivisions one, two, three and
55 four of this section, a health care provider may subject another health
56 care provider to the sanctions stated in this subdivision if the sanc-
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1 tioning health care provider has notified the sanctioned provider prior
2 to participation in the provisions of this article that it prohibits
3 participation in the provisions of this article.
4 (i) Loss of privileges, loss of membership or other sanction provided
5 pursuant to the medical staff bylaws, policies and procedures of the
6 sanctioning health care provider if the sanctioned provider is a member
7 of the sanctioning provider's medical staff and participates in the
8 provisions of this article while on the health care facility premises,
9 of the sanctioning health care provider, but not including the private
10 medical office of a physician or other provider;
11 (ii) Termination of lease or other property contract or other nonmone-
12 tary remedies provided by lease contract, not including loss or
13 restriction of medical staff privileges or exclusion from a provider
14 panel, if the sanctioned provider participates in the provisions of this
15 article while on the premises of the sanctioning health care provider or
16 on property that is owned by or under the direct control of the sanc-
17 tioning health care provider; or
18 (iii) Termination of contract or other nonmonetary remedies provided
19 by contract if the sanctioned provider participates in the provisions of
20 this article while acting in the course and scope of the sanctioned
21 provider's capacity as an employee or independent contractor of the
22 sanctioning health care provider. Nothing in this paragraph shall be
23 construed to prevent:
24 (A) A health care provider from participating in the provisions of
25 this article while acting outside the course and scope of the provider's
26 capacity as an employee or independent contractor; or
27 (B) A patient from contracting with his or her attending physician and
28 consulting physician to act outside the course and scope of the provid-
29 er's capacity as an employee or independent contractor of the sanction-
30 ing health care provider.
31 (c) A health care provider that imposes sanctions pursuant to para-
32 graph (b) of this subdivision must follow all due process and other
33 procedures the sanctioning health care provider may have that are
34 related to the imposition of sanctions on another health care provider.
35 (d) For purposes of this subdivision:
36 (i) "Notify" means a separate statement in writing to the health care
37 provider specifically informing the health care provider prior to the
38 provider's participation in the provisions of this article of the sanc-
39 tioning health care provider's policy about participation in activities
40 covered by the provisions of this article.
41 (ii) "Participate in death with dignity act" means to perform the
42 duties of an attending physician pursuant to section twenty-eight
43 hundred ninety-nine-g of this article; the consulting physician function
44 pursuant to section twenty-eight hundred ninety-nine-h of this article,
45 or the counseling function pursuant to section twenty-eight hundred
46 ninety-nine-i of this article. "Participate in death with dignity act"
47 does not include:
48 (A) Making an initial determination that a patient has a terminal
49 disease and informing the patient of the medical prognosis;
50 (B) Providing information about the death with dignity act to a
51 patient upon the request of the patient;
52 (C) Providing a patient, upon the request of the patient, with a
53 referral to another physician; or
54 (D) A patient contracting with his or her attending physician and
55 consulting physician to act outside of the course and scope of the
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1 provider's capacity as an employee or independent contractor of the
2 sanctioning health care provider.
3 6. Action taken pursuant to section twenty-eight hundred
4 ninety-nine-f, twenty-eight hundred ninety-nine-g, twenty-eight hundred
5 ninety-nine-h, or twenty-eight hundred ninety-nine-i shall not be the
6 sole basis for a report of unprofessional or dishonorable conduct under
7 article one hundred thirty-one-a of the education law.
8 7. No provision of the provisions of this article shall be construed
9 to allow a lower standard of care for patients in the community where
10 the patient is treated or a similar community.
11 § 2899-v. Liabilities. 1. A person who without authorization of the
12 patient willfully alters or forges a request for medication or conceals
13 or destroys a rescission of that request with the intent or effect of
14 causing the patient's death shall be guilty of a class A felony.
15 2. A person who coerces or exerts undue influence on a patient to
16 request medication for the purpose of ending the patient's life, or to
17 destroy a rescission of such a request, shall be guilty of a class A
18 felony.
19 3. Nothing in the provisions of this article limits further liability
20 for civil damages resulting from other negligent conduct or intentional
21 misconduct by any person.
22 4. The penalties in the provisions of this article do not preclude
23 criminal penalties applicable under other law for conduct which is
24 inconsistent with the provisions of this article.
25 § 2899-w. Claims by governmental entity for costs incurred. Any
26 governmental entity that incurs costs resulting from a person terminat-
27 ing his or her life pursuant to the provisions of this article in a
28 public place shall have a claim against the estate of the person to
29 recover such costs and reasonable attorney fees related to enforcing the
30 claim.
31 § 2899-x. Form of the request. A request for a medication as author-
32 ized by the provisions of this article shall be in substantially the
33 following form:
34 REQUEST FOR MEDICATION
35 TO END MY LIFE IN A HUMANE
36 AND DIGNIFIED MANNER
37 I, ______________________, am an adult of sound mind.
38 I am suffering from _____________, which my attending physician has
39 determined is a terminal disease and which has been medically confirmed
40 by a consulting physician.
41 I have been fully informed of my diagnosis, prognosis, the nature of
42 medication to be prescribed and potential associated risks, the expected
43 result, and the feasible alternatives, including comfort care, hospice
44 care and pain control.
45 I request that my attending physician prescribe medication that will end
46 my life in a humane and dignified manner.
47 INITIAL ONE:
48 ___ I have informed my family of my decision and taken their opinions
49 into consideration.
50 ___ I have decided not to inform my family of my decision.
51 ___ I have no family to inform of my decision.
52 I understand that I have the right to rescind this request at any time.
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1 I understand the full import of this request and I expect to die when I
2 take the medication to be prescribed. I further understand that although
3 most deaths occur within three hours, my death may take longer and my
4 physician has counseled me about this possibility.
5 I make this request voluntarily and without reservation, and I accept
6 full moral responsibility for my actions.
7 Signed: __________
8 Dated: __________
9 DECLARATION OF WITNESSES
10 We declare that the person signing this request:
11 (a) Is personally known to us or has provided proof of identify;
12 (b) Signed this request in our presence;
13 (c) Appears to be of sound mind and not under duress, fraud or undue
14 influence;
15 (d) Is not a patient for whom either of us is attending physician.
16 __________ Witness 1/Date
17 __________ Witness 2/Date
18 NOTE: One witness shall not be a relative (by blood, marriage or
19 adoption) of the person signing this request, shall not be entitled to
20 any portion of the person's estate upon death and shall not own, operate
21 or be employed at a health care facility where the person is a patient
22 or resident. If the patient is an inpatient at a health care facility,
23 one of the witnesses shall be an individual designated by the facility.
24 § 2899-y. Penalties. 1. It shall be a class A felony for a person
25 without authorization of the principal to willfully alter, forge,
26 conceal or destroy an instrument, the reinstatement or revocation of an
27 instrument or any other evidence or document reflecting the principal's
28 desires and interests, with the intent and effect of causing a withhold-
29 ing or withdrawal of life-sustaining procedures or of artificially
30 administered nutrition and hydration which hastens the death of the
31 principal.
32 2. Except as provided in subdivision one of this section, it shall be
33 a class A misdemeanor for a person without authorization of the princi-
34 pal to willfully alter, forge, conceal or destroy an instrument, the
35 reinstatement or revocation of an instrument, or any other evidence or
36 document reflecting the principal's desires and interests with the
37 intent or effect of affecting a health care decision.
38 § 2899-z. Severability. If any clause, sentence, paragraph, section or
39 part of this article shall be adjudged by any court of competent juris-
40 diction to be invalid, such judgment shall not affect, impair or invali-
41 date the remainder thereof, but shall be confined in its operation to
42 the clause, sentence, paragraph, section or part thereof, directly
43 involved in the controversy in which such judgement shall have been
44 rendered.
45 § 3. This act shall take effect on the first of November next succeed-
46 ing the date on which it shall have become a law.
