PART 1.85. End of Life Option
Act
443.
This part shall be known and may be cited as the End of Life
Option Act.
443.1.
As used in this part, the following definitions shall apply:
(a) “
Adult”
means an individual
18 years of age or older.
(b) “Aid-in-dying medication”
means medication
determined and prescribed by a physician for a
qualified individual,
which the qualified individual may choose to
self-administer
to bring about his or her death due to a
terminal
illness.
(c) “Attending physician” means
the physician who has primary responsibility
for the health care of an
individual and treatment of the individual’s terminal illness.
(d) “Competent” means that, in
the opinion of a court
or in the opinion of an individual’s attending
physician,
consulting physician,
psychiatrist,
or
psychologist,
the
individual has the ability to make and communicate
an
informed
decision
to health care providers,
including communication through a person
familiar
with the individual’s manner of communicating, if that person
is available.
(e) “Consulting physician” means
a physician
who is qualified by specialty or experience
to make a
professional diagnosis and prognosis
regarding an individual’s illness.
(f) “Counseling” means one or
more consultations, as necessary,
between an individual and a
psychiatrist
or
psychologist licensed in this state
for the purpose of
determining that the individual is competent
and is not suffering from
a psychiatric or psychological disorder
or depression causing impaired
judgment.
(g) “Department” means the State
Department of Public Health.
(h) “Health care provider” or
“provider” means a person
licensed, certified, or otherwise authorized
or permitted by law
to administer health care or dispense medication
in
the ordinary course of business or practice of a profession,
including,
but not limited to, physicians, doctors of osteopathy, and pharmacists.
“Health care provider” or “provider” includes a health care facility as
identified in Section 1250.
(i) “
Informed
decision” means a
decision by a
terminally
ill individual
to request and obtain a
prescription for medication
that the individual may self-administer to
end the individual’s life,
that is based on an understanding and
acknowledgment
of the relevant facts, and that is made after
being
fully informed
by the attending physician of all of the following:
(2) The potential risks
associated with taking the medication to be prescribed.
(3) The probable result of
taking the medication to be prescribed.
(4) The possibility that the
individual may choose not to obtain the medication
or may obtain the
medication but may decide not to take it.
(j) “Medically confirmed” means
the medical opinion of the attending physician
has been
confirmed
by a
consulting physician
who has examined the individual and the
individual’s relevant medical records.
(k) “Physician” means a doctor
of medicine or osteopathy
licensed to practice medicine in this state.
(l) “Public place” means any
street, alley, park, public building,
any place of business or assembly
open to or frequented by the public,
and any other place that is open
to the public view,
or to which the public has access.
(o) “
Terminal
illness”
means an
incurable and irreversible illness
that has been medically confirmed
and will,
within reasonable medical judgment,
result in death within
six months.
443.2.
(a) A competent, qualified individual who is a terminally
ill adult
may make a request to receive a prescription for aid-in-dying
medication
if all of the following conditions are satisfied:
(1) The qualified individual’s
attending physician has determined
the individual to be suffering from
a
terminal
illness.
(3) The qualified individual is
a
resident
of California
and is able to establish residency through any
of the following means:
(A) Possession of a California
driver license.
(B) Registration to vote in
California.
(C) Evidence that the person
owns or leases property in California.
(D) Filing of a California tax
return for the most recent tax year.
(b) A person may not qualify
under the provisions of this part
solely because of age or disability.
(c) A request for a prescription
for aid-in-dying medication under this part
shall not be made on behalf
of the patient through a power of attorney,
an advance health care
directive, or a conservator.
443.3.
(a) A qualified individual wishing to receive a prescription
for aid-in-dying medication
pursuant to this part shall submit
two
oral
requests,
a minimum of
15
days apart,
and a
written
request to his or
her attending physician.
(b) A
valid
written
request for
aid-in-dying medication under subdivision (a)
shall meet all of the
following conditions:
(1) The request shall be in
substantially the form described in Section 443.9.
(2) The request shall be signed
and dated by the qualified individual seeking the medication.
(3) The request shall be
witnessed by at least two other adult persons
who, in the presence of
the qualified individual,
shall attest that to the best of their
knowledge and belief
the qualified individual is all of the following:
(C) Not being coerced to sign
the request.
(c) At most, one of the two
witnesses at the time the written request is signed may:
(1) Be related to the qualified
individual by blood, marriage, or adoption
or be entitled to a portion
of the person’s estate upon death, but not both.
(2) Own, operate, or be employed
at a health care facility
where the qualified individual is receiving
medical treatment or resides.
(d) The attending physician of
the qualified individual
shall not be one of the witnesses required
pursuant to paragraph (3) of subdivision (b).
443.4.
(a) A qualified individual may at any time
rescind
his
or
her request for aid-in-dying medication
without regard to the qualified
individual’s mental state.
(b) A prescription for
aid-in-dying medication
provided under this part may not be written
without the attending physician offering the qualified individual
an
opportunity
to rescind the request.
443.5.
(a) Before prescribing aid-in-dying medication,
the
attending physician shall do all of the following:
(1) Make the initial
determination of all of the following:
(A) Whether the requesting adult
is
competent.
(D) Whether the requesting adult
is a
qualified
individual
pursuant to subdivision (m) of Section 443.1.
(2) Ensure the qualified
individual is making an
informed
decision
by discussing with him or her
all of the following:
(B) The potential risks
associated with taking the aid-in-dying medication to be prescribed.
(C) The probable result of
taking the aid-in-dying medication to be prescribed.
(D) The possibility that he or
she may choose to obtain the medication but not take it.
(3) Refer the qualified
individual to a
consulting
physician
for medical confirmation of the
diagnosis, prognosis,
and for a determination that the qualified
individual is
competent
and has complied with the provisions of this
part.
(4) Refer the qualified
individual for counseling if appropriate.
(6) Counsel the qualified
individual about the importance of all of the following:
(A) Having another person
present
when he or she takes the aid-in-dying medication prescribed
pursuant to this part.
(B) Not taking the aid-in-dying
medication in a public place.
(7) Inform the qualified
individual that he or she may
rescind
the request for aid-in-dying
medication at any time and in any manner.
(8) Offer the qualified
individual an opportunity to
rescind
the
request for medication
before
prescribing the aid-in-dying medication.
(9) Verify, immediately prior to
writing the prescription for medication,
that the qualified individual
is making an
informed
decision.
(10) Ensure that all appropriate
steps are carried out in accordance with this part
before writing a
prescription for aid-in-dying medication.
(b) If the conditions set forth
in subdivision (a) are satisfied,
the attending physician may deliver
the aid-in-dying medication
in any of the following ways:
(1) Dispense aid-in-dying
medications directly,
including ancillary medication intended to
minimize the qualified individual’s discomfort,
if the attending
physician meets all of the following criteria:
(A) Is registered as a
dispensing physician with the Medical Board of California.
(B) Has a current United States
Drug Enforcement Administration (USDEA) certificate.
(C) Complies with any applicable
administrative rule or regulation.
(2) With the qualified
individual’s written consent,
the attending physician may contact a
pharmacist,
inform the pharmacist of the prescriptions,
and deliver the
written prescriptions personally,
by mail, or electronically to the
pharmacist,
who shall dispense the medications to the qualified
individual,
the attending physician,
or a person expressly designated
by the qualified individual
and with the designation delivered to the
pharmacist in writing or verbally.
(c) Delivery of the dispensed
medication to
the qualified individual, the attending physician,
or a
person expressly designated by the qualified individual may be made by:
personal delivery, United Parcel Service, United States Postal Service,
Federal Express, or by messenger service.
443.6.
Prior to a qualified individual obtaining
aid-in-dying medication
from the attending physician,
the consulting physician shall perform
all of the following:
(d) Fulfill the record
documentation that may be required under Section 443.16.
443.7.
(a) Unless otherwise prohibited by law,
the attending
physician may sign the qualified individual’s death certificate.
(b) The cause of death listed on
an individual’s death certificate
who uses aid-in-dying medication
shall be the underlying terminal illness.
443.8.
A qualified individual may not receive a prescription for
aid-in-dying medication
pursuant to this part, unless he or she has
made an
informed
decision.
Immediately before writing a prescription
for aid-in-dying medication under this part,
the attending physician
shall verify that the individual is making an
informed
decision.
443.9.
(a) A request for aid-in-dying medication as authorized by
this part
shall be in substantially the following form:
| REQUEST FOR MEDICATION TO END MY LIFE
IN A HUMANE AND DIGNIFIED MANNER I,
......................................................, am an adult of
sound mind and a resident of the state of California. |
| I am suffering from ................,
which my attending physician has determined is in its terminal phase
and which has been medically confirmed. |
| I have been fully informed of my
diagnosis and prognosis, the nature of the aid-in-dying medication to
be prescribed and potential associated risks, the expected result, and
the feasible alternatives or additional treatment opportunities,
including comfort care, hospice care, palliative care, and pain control. |
| I request that my attending physician
prescribe medication that will end my life in a humane and dignified
manner if I choose to take it, and I authorize my attending physician
to contact any pharmacist about my request. |
| INITIAL ONE: |
| ............ I have informed one or
more members of my family of my decision and taken their opinions into
consideration. |
| ............ I have decided not to
inform my family of my decision. |
| ............ I have no family to
inform of my decision. |
| I understand that I have the right to
rescind this request at any time. |
| I understand the full import of this
request and I expect to die if I take the aid-in-dying medication to be
prescribed. I further understand that although most deaths occur within
three hours, my death may take longer, and my attending physician has
counseled me about this possibility. |
| I make this request voluntarily and
without reservation. |
|
| Signed:.............................................. |
| Dated:............................................... |
|
|
| DECLARATION OF WITNESSES |
| We declare that the person signing
this request: |
| (a) is personally known to us or has
provided proof of identity; |
| (b) signed this request in our
presence; |
| (c) is an individual whom we believe
to be of sound mind and not under duress, fraud, or undue influence; and |
| (d) is not an individual for whom
either of us is the attending physician. |
| ............................Witness
1/Date |
| ............................Witness
2/Date |
| NOTE: Only one of the two witnesses
may be a relative (by blood, marriage, or adoption) of the person
signing this request or be entitled to a portion of the person’s estate
upon death. Only one of the two witnesses may own, operate or be
employed at a health care facility where the person is a patient or
resident. |
(b) (1) The written
language of the request shall be written
in the same translated
language as any conversations, consultations,
or interpreted
conversations or consultations between a patient
and his or her
attending or consulting physicians.
(2) Notwithstanding paragraph
(1),
the written request may be prepared in English
even where the
conversations or consultations
or interpreted conversations or
consultations
where conducted in a language other than English
if the
English language form includes an attached interpreter’s declaration
that is signed under penalty of perjury.
The interpreter’s declaration
shall state words to the effect that:
| I (INSERT NAME OF INTERPRETER), am
fluent in English and (INSERT TARGET LANGUAGE). |
|
On (insert date) at approximately (Insert time), I read the
“Request for Medication to End My Life” to (insert name of
individual/patient) in (insert target language).
|
|
Mr./Ms. (Insert name of patient/qualified individual)
affirmed to me that he/she understood the content of this form and
affirmed his/her desire to sign this form under his/her own power and
volition and that the request to sign the form followed consultations
with an attending and consulting physician.
|
|
I declare that I am fluent in English and (insert target
language) and further declare under penalty of perjury that the
foregoing is true and correct.
|
|
Executed at (insert city, county, and state) on this (insert
day of month) of (insert month), (insert year).
|
|
X______Interpreter signature
|
|
X______Interpreter printed name
|
|
X______Interpreter address
|
(3) An interpreter provided by
paragraph (2)
shall not be related to the qualified individual by
blood, marriage, or adoption
or be entitled to a portion of the
person’s estate upon death.
An interpreter provided by paragraph (2)
shall be qualified as described in
subparagraph (H) of paragraph (2) of
subdivision (c)
of Section 1300.67.04 of Title 28 of the California
Code of Regulations.
443.10.
(a) A provision in a contract, will, or other agreement,
whether written or oral, to the extent the provision would affect
whether a person may make or rescind a request for aid-in-dying
medication, is not valid.
(b) An obligation owing under
any currently existing contract
may not be conditioned or affected by a
qualified individual
making or rescinding a request for aid-in-dying
medication.
443.11.
(a) The sale, procurement, or issuance
of a life, health,
accident insurance or annuity policy,
health care service plan
contract, or health benefit plan,
or the rate charged for a policy or
plan contract
may not be conditioned upon or affected by
a person
making or rescinding a request for aid-in-dying medication.
(b) Notwithstanding any other
law,
a qualified individual’s act of self-administering aid-in-dying
medication
may not have an effect upon a life, health, or accident
insurance or annuity policy
other than that of a natural death from the
underlying illness.
443.12.
(a) Notwithstanding any other law, a person shall not be
subject to
civil or criminal liability or professional disciplinary
action
for participating in good faith compliance with this part,
including an individual who is present
when a qualified individual
self-administers the prescribed aid-in-dying medication.
(b) A health care provider or
professional organization or association
may not subject an individual
to censure, discipline, suspension,
loss of license, loss of
privileges, loss of membership, or other penalty
for participating or
refusing to participate in good faith compliance with this part.
(c) A request by an individual
to an attending physician
or to a pharmacist to dispense aid-in-dying
medication
or provide aid-in-dying medication
in good faith compliance
with the provisions of this part
does not constitute neglect or elder
abuse for any purpose of law
or provide the sole basis for the
appointment of a guardian or conservator.
(d) (1) Participation in
activities authorized pursuant to this part shall be voluntary.
A
person or entity that elects, for reasons of conscience, morality, or
ethics,
not to engage in activities authorized pursuant to this part
is
not required to take any action in support of a patient’s decision
under this part,
except as otherwise required by law.
(2) If a health care provider is
unable or unwilling
to carry out an individual’s request under this
part
and the individual transfers care to a new health care provider,
the prior health care provider shall transfer, upon request,
a copy of
the individual’s relevant medical records to the new health care
provider.
(e) Nothing in this part shall
prevent a health care provider
from providing an individual with health
care services
that do not constitute participation in this part.
443.13.
A health care provider may not be sanctioned for any of the
following:
(a) Making an initial
determination that an individual has a terminal illness
and informing
him or her of the medical prognosis.
(b) Providing information about
the End of Life Option Act
to a patient upon the request of the
individual.
(c) Providing an individual,
upon request, with a referral to another physician.
(d) Contracting with an
individual
to act outside the course and scope of the provider’s
capacity
as an employee or independent contractor
of a health care
provider that prohibits activities under this part.
443.14.
(a) Knowingly altering or forging
a request for medication
to end an individual’s life
without his or her authorization
or
concealing or destroying a rescission of a request for medication
is
punishable as a felony if the act is done
with the intent or effect of
causing the individual’s death.
(b) Knowingly coercing or
exerting undue influence
on an individual to request medication for the
purpose of ending his or her life
or to destroy a rescission of a
request is punishable as a felony.
(c) For purposes of this
section, “knowingly” has the meaning provided in Section 7 of the Penal
Code.
(d) Nothing in this section
limits further liability for civil damages
resulting from other
negligent conduct or intentional misconduct by any person.
(e) The penalties in this
section do not preclude
criminal penalties applicable under any law
for
conduct inconsistent with the provisions of this part.
443.15.
Nothing in this part may be construed
to authorize a physician or
any other person to end an individual’s life
by lethal injection, mercy
killing, or active euthanasia.
Actions taken in accordance with this
part shall not, for any purposes, constitute
suicide, assisted suicide,
mercy killing, homicide, or elder abuse under the law.
443.16.
(a) The State Public Health Officer,
in consultation with
the State Department of Social Services,
shall adopt regulations
establishing reporting requirements
for physicians and pharmacists
pursuant to this part.
(b) The reporting requirements
shall be designed
to collect information to determine utilization and
compliance with this part.
The information collected shall be
confidential
and shall be collected in a manner that protects the
privacy
of the patient, the patient’s family, and any medical provider
or pharmacist
involved with the patient under the provisions of this
part.
(c) Based on the information
collected,
the department shall provide an annual compliance and
utilization statistical report
aggregated by age, gender, race,
ethnicity, and primary language spoken at home
and other data the
department may determine relevant.
The department shall make the report
public
within 30 days of completion of each annual report.
443.17.
A person who has custody or control of any unused aid-in-dying
medication
prescribed pursuant to this part after the death of the
patient
shall personally deliver the unused aid-in-dying medication for
disposal
by delivering it to the nearest qualified facility that
properly disposes of controlled substances,
or if none is available,
shall dispose of it by lawful means.
443.18.
Any governmental entity that incurs costs
resulting from a
qualified individual terminating his or her life
pursuant to the
provisions of this part in a public place
shall have a claim against
the estate of the qualified individual
to recover those costs and
reasonable attorney fees related to enforcing the claim.