HB 1433-FN - AS INTRODUCED

1998 SESSION

98-2192

01/09

HOUSE BILL 1433-FN

AN ACT relative to physician aid-in-dying for certain persons suffering from a terminal condition.

SPONSORS: Rep. Thulander, Hills 6; Rep. Guest, Graf 10; Rep. Cooper, Carr 2; Rep. W. Riley, Ches 7; Sen. Russman, Dist 19

COMMITTEE: Judiciary and Family Law

ANALYSIS

This bill allows a mentally competent person who is 18 years of age or older and who has been diagnosed as having a terminal condition by the patient's attending physician and a consulting physician to request a prescription for medication which will enable the patient to control the time, place, and manner of such patient's death.

Under this bill, the request is witnessed and signed in essentially the same manner as a living will. The bill requires the department of health and human services to collect certain information and compile a statistical analysis of such information.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

98-2192

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord One Thousand Nine Hundred and Ninety-Eight

AN ACT relative to physician aid-in-dying for certain persons suffering from a terminal condition.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Aid-in-Dying for Certain Persons Suffering Terminal Illnesses. Amend RSA by inserting after 137-K the following new chapter:

CHAPTER 137-L

AID-IN-DYING

137-L:1 Statement of Purpose. The state of New Hampshire recognizes that persons have a right, founded in the autonomy of the person, to control the decisions relating to the rendering of their own medical care. The state of New Hampshire further recognizes that medical care for terminally ill patients who are capable of making informed decisions during the time of their illness includes the right, with assistance from their physicians, to decide how they die with dignity. Many terminally ill patients experience severe, unrelenting suffering. To remedy these situations the state of New Hampshire hereby declares that the laws of the state shall permit a licensed physician, upon written request of a terminally ill patient in a condition of severe, unrelenting suffering, to provide such patient with a prescription for lethal medication which will allow the patient, if the patient chooses to do so, to self-administer and thus control the time, place, and manner of death.

137-L:2 Definitions. In this chapter:

I. "Adult" means an individual who is 18 years of age or older.

II. "Attending physician" means the physician who has primary responsibility for treatment and care of the patient's terminal disease.

III. "Capable" means that, in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, a patient has the ability to make and communicate health care decisions to health care providers, including electronic communication, if appropriate, and communication through persons familiar with the patient's manner of communicating if those persons are available.

IV. "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.

V. "Counseling" means a consultation between a licensed psychiatrist, certified psychologist, or psychiatric social worker and a patient for the purpose of determining whether the patient is suffering from a psychiatric or psychological disorder, depression, or any physical disorder causing impaired judgment.

VI. "Department" means the department of health and human services.

VII. "Health care provider" means a person licensed, certified, or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or practice of a profession, and includes a health care facility.

VIII. "Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end the patient's 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 the:

(a) Medical diagnosis.

(b) Prognosis.

(c) Potential risks associated with taking the medication to be prescribed.

(d) Probable result of taking the medication to be prescribed.

(e) Feasible alternatives, including, but not limited to, comfort care, hospice care, palliative treatment, and pain control.

IX. "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.

X. "Patient" means a person who is under the care of a physician.

XI. "Physician" means a person licensed by this state to practice medicine or osteopathy.

XII. "Qualified patient" means a capable adult who is a resident of New Hampshire or is a patient regularly treated in a New Hampshire health care facility and who has satisfied the requirements of this chapter in order to obtain a prescription for medication to end the patient's life in a humane and dignified manner.

XIII. "Terminal condition" means an incurable and irreversible condition, for the end stage of which there is no known treatment which will alter its course to death, and which, in the opinion of the attending physician and consulting physician competent in that disease category, will result in premature death.

137-L:3 Initiating a Written Request for Medication. An adult who is capable and a resident of New Hampshire, or who is a patient regularly treated in a New Hampshire health care facility, and who has been determined by the attending physician and consulting physician to be in a condition of severe, unrelenting suffering from a terminal disease, and who has voluntarily expressed a wish to die, may make a written request for medication for the purpose of ending such person's life in a humane and dignified manner in accordance with this chapter. If such a patient is unable to write, a person familiar with the patient's manner of communication may fill out the written request form, under RSA 137-L:4, in the patient's presence.

137-L:4 Form of the Written Request.

I. A valid request for medication under this chapter shall be in substantially the form described in paragraph V of this section, signed and dated by the patient and witnessed by at least 2 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.

II. One of the witnesses shall 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.

III. The patient's attending physician at the time the request is signed shall not be a witness.

IV. If the patient is a patient in a long term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the division.

V. REQUEST FOR MEDICATION

I,............................, am an adult of sound mind.

I am in a condition of severe, unrelenting suffering from

......................., which my attending physician has

determined is a terminal disease and which has been medically

confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the

nature of medication to be prescribed and potential associated

risks, the expected result, and the feasible alternatives,

including comfort care, hospice care, palliative treatment, and

pain control.

I request that my attending physician prescribe medication

that will end my life in a humane and dignified manner.

INITIAL ONE:

     I have informed my family of my decision and taken their

opinions into consideration.

     I have decided not to inform my family of my decision.

     I have no family to inform of my decision.

I understand that I have the right to rescind this request at

any time.

I understand the full import of this request and I expect to

die when I take the medication to be prescribed.

I make this request voluntarily and without reservation, and

I accept full moral responsibility for my actions.

Signed:............................

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

DECLARATION OF WITNESSES

We declare that the person signing this request:

(a) Is personally known to us or has provided proof of identity;

(b) Signed this request in our presence;

(c) Appears to be of sound mind and not under duress, fraud, or

undue influence;

(d) Is not a patient for whom either of us is attending physician.

................................................Witness 1/Date

................................................Witness 2/Date

Note: One witness shall not be a relative (by blood, marriage, or adoption) of the person signing this request, shall not be entitled to any portion of the person's estate upon death and shall not own, operate, or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.

137-L:5 Attending Physician Responsibilities.

I. The attending physician shall:

(a) Make the initial determination of whether a patient has a terminal disease and is in a condition of severe, unrelenting suffering; is capable; and has made the request voluntarily.

(b) Inform the patient of the:

(1) Medical diagnosis.

(2) Prognosis.

(3) Potential risks associated with taking the medication to be prescribed.

(4) Probable result of taking the medication to be prescribed.

(5) Feasible alternatives, including, but not limited to, comfort care, hospice care, palliative treatment, and pain control.

(c) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily.

(d) Refer the patient for counseling if appropriate pursuant to RSA 137-L:7

(e) Request that the patient notify next of kin.

(f) Inform the patient that the patient has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15-day waiting period pursuant to RSA 137-L:9.

(g) Verify, immediately prior to writing the prescription for medication under this chapter, that the patient is making an informed decision.

(h) Fulfill the medical record documentation requirements of RSA 137-L:10.

(i) Ensure that all appropriate steps are carried out in accordance with this chapter prior to writing a prescription for medication to enable a qualified patient to end the patient's life in a humane and dignified manner.

II. The attending physician who has provided a patient with the medical means of aid-in-dying in accordance with the provisions of this chapter may, if the patient so requests, be present and assist the patient at the time the patient makes use of such medical means, provided, that the actual use of such means is the knowing, intentional, and voluntary physical act of the patient.

137-L:6 Consulting Physician Confirmation. Before a patient is qualified under this chapter, a consulting physician shall examine the patient and the patient's relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is in a condition of severe, unrelenting suffering from a terminal disease and verify that the patient is capable, is acting voluntarily, and has made an informed decision.

137-L:7 Counseling Referral. 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 shall refer the patient for counseling. No medication to end a patient's life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder, or depression or any physical disorder causing impaired judgment.

137-L:8 Informed Decision; Family Notification.

I. No person shall receive a prescription for medication to end such person's life in a humane and dignified manner unless such person has made an informed decision as defined in RSA 137-L:2, VIII. Immediately prior to writing a prescription for medication under this chapter, the attending physician shall verify that the patient is making an informed decision.

II. The attending physician shall ask the patient to notify next of kin of the patient's request for medication pursuant to this chapter. A patient who declines or is unable to notify next of kin shall not have the patient's request denied for that reason.

137-L:9 Written and Oral Requests; Rescinding a Request; Waiting Periods.

I. In order to receive a prescription for medication to end a patient's life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to the patient's attending physician no fewer than 15 days after making the initial oral request. At the time the qualified patient makes a second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

II. A patient may rescind such patient's request at any time and in any manner without regard to the patient's 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.

III. No fewer than 15 days shall elapse between the patient's initial oral request and the writing of a prescription under this chapter. No fewer that 48 hours shall elapse between the patient's written request and the writing of a prescription under this chapter.

IV. A qualified patient who is unable to communicate orally may satisfy the oral request requirement of this chapter by making an electronic request, if appropriate.

137-L:10 Medical Record Documentation Requirements. The following shall be documented or filed in the patient's medical record:

I. All oral requests by a patient for medication to end such patient's life in a humane and dignified manner.

II. All written requests by a patient for medication to end such patient's life in a humane and dignified manner.

III. The attending physician's diagnosis and prognosis, determination that the patient is capable, acting voluntarily, and has made an informed decision.

IV. The consulting physician's diagnosis, prognosis, and verification that the patient is capable, acting voluntarily, and has made an informed decision.

V. A report of the outcome and determinations made during counseling, if performed.

VI. The attending physician's offer to the patient to rescind the patient's request at the time of the patient's second oral request pursuant to RSA 137-L:9.

VII. 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.

137-L:11 Applicability. This chapter shall apply only to requests made by New Hampshire residents or requests by patients regularly treated in a New Hampshire health care facility.

137-L:12 Reporting; Rulemaking.

I. The division shall adopt rules relative to the collection of information required under this chapter and relative to the qualifications of witnesses under RSA 137-L:4, IV. The information collected shall not be a public record under RSA 91-A and shall not be made available for inspection by the public.

II. The division shall annually review a sample of records maintained pursuant to this chapter and shall generate and make available to the public an annual statistical report of the information.

137-L:13 Exceptions.

I. No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end the person's life in a humane and dignified manner, shall be valid.

II. No obligation owing under any currently existing contract shall be conditioned or affected by the making or rescinding of a request, by a person, for medication to end such person's life in a humane and dignified manner.

III. The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication to end the person's life in a humane and dignified manner. Neither shall a qualified patient's act of ingesting medication to end such patient's life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.

IV. Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this chapter shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.

137-L:14 Immunities. Except as provided in RSA 137-L:15:

I. No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this chapter. This includes being present when a qualified patient takes the prescribed medication to end the patient's life in a humane and dignified manner. This shall also include assisting the patient under RSA 137-L:5, II.

II. No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter.

III. No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of this chapter shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

IV. No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement, to participate in the provision to a qualified patient of medication to end the patient's 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 such patient's care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.

137-L:15 Liabilities.

I. A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death shall be guilty of a class A felony.

II. A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient's life or to destroy a rescission of such a request, shall be guilty of a class A felony.

III. Nothing in this chapter limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

IV. The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions of this chapter.

137-L:16 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.

2 Effective Date. This act shall take effect January 1, 1999.

LBAO

98-2192

11/6/97

HB 1433-FN - FISCAL NOTE

AN ACT relative to physician aid-in-dying for certain persons suffering from a terminal condition.

FISCAL IMPACT:

The Department of Health and Human Services stated this bill will increase state expenditures by $17,272 in FY 1999 and $9,362 in FY 2000 and each year thereafter. There will be no impact on state, county and local revenues or county and local expenditures.

METHODOLOGY:

The Department indicated that to promulgate rules regarding the collection of information and the qualifications of witnesses will require 2 month's time of a Program Specialist III, LG 22, to gather information, prepare the draft rules, and hold the meetings required under RSA 541-A:11. An additional two month's effort will be required to review a sample of the records maintained under this bill and prepare the annual report. Updating after the first year would require two months annually. The Department estimated an expenditure of $1,500 in current expense annually for office supplies and printing. Calculations for state expenditures follows:

FY 1999 FY 2000

LG 22 Max. salary for 4 months = $36,158 x 4/12 = $12,040

LG 22 Max. salary for 2 months = $36,158 x 2/12 = $6,002

Benefits @ 31% 3,732 1,860

Current Expense 1,500 1,500

Total $17,272 $9,362