An Act To Enact the Maine Death with Dignity Act
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 17-A MRSA §152-A, sub-§3 is enacted to read:
3. It is an affirmative defense to prosecution under subsection 1 that the person's conduct was expressly authorized by Title 22, chapter 418.
Sec. 2. 17-A MRSA §201, sub-§6 is enacted to read:
6. It is an affirmative defense to prosecution under subsection 1 that the person's conduct was expressly authorized by Title 22, chapter 418.
Sec. 3. 17-A MRSA §204, sub-§3 is enacted to read:
3. It is an affirmative defense to prosecution under subsection 1 that the person's conduct was expressly authorized by Title 22, chapter 418.
Sec. 4. 22 MRSA c. 418 is enacted to read:
CHAPTER 418
PATIENT-DIRECTED CARE
§ 2140. Patient-directed care at the end of life
1. Short title. This chapter may be known and cited as "the Maine Death with Dignity Act."
2. Definitions. As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
A. "Adult" means a person who is 18 years of age or older.
B. "Attending physician" means the physician who has primary responsibility for the care of a patient and the treatment of that patient's terminal disease.
C. "Competent" 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 an informed decision to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available.
D. "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a patient's disease.
E. "Counseling" means one or more consultations between a state-licensed psychiatrist, state-licensed psychologist, state-licensed clinical social worker or state-licensed clinical professional counselor and a patient for the purpose of determining that the patient is competent and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.
F. "Health care provider" means:
(1) A person licensed, certified or otherwise authorized or permitted by law to administer health care services or dispense medication in the ordinary course of business or practice of a profession; or
(2) A health care facility.
G. "Informed decision" means a decision by a qualified patient to request and obtain a prescription for medication that the qualified patient may self-administer to end the qualified patient's life in a humane and dignified manner that is based on an appreciation of the relevant facts and that is made after being fully informed by the attending physician of:
(1) The qualified patient's medical diagnosis;
(2) The qualified patient's prognosis;
(3) The potential risks associated with taking the medication to be prescribed;
(4) The probable result of taking the medication to be prescribed; and
(5) The feasible alternatives to taking the medication to be prescribed, including palliative care and comfort care, hospice care, pain control and disease-directed treatment options.
H. "Medically confirmed" means the medical opinion of an attending physician has been confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.
I. "Patient" means an adult who is under the care of a physician.
J. "Physician" means a doctor of medicine or osteopathy licensed to practice medicine in this State.
K. "Qualified patient" means a competent adult who is a resident of this State and who has satisfied the requirements of this Act in order to obtain a prescription for medication that the qualified patient may self-administer to end the qualified patient's life in a humane and dignified manner.
L. "Self-administer" means, for a qualified patient, to voluntarily ingest medication to end the qualified patient's life in a humane and dignified manner.
M. "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months.
3. Right to information. A patient has a right to information regarding all treatment options reasonably available for the care of the patient, including, but not limited to, information in response to specific questions about the foreseeable risks and benefits of medication, without a physician's withholding requested information regardless of the purpose of the questions or the nature of the information.
4. Written request for medication. An adult who is competent, is a resident of this State, has been determined by an attending physician and a consulting physician to be suffering from a terminal disease and has voluntarily expressed the wish to die may make a written request for medication that the adult may self-administer in accordance with this Act. An adult does not qualify under this Act solely because of age or disability.
5. Form of written request. A valid request for medication under this Act must be substantially in the form described in subsection 24, 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 competent, is acting voluntarily and is not being coerced to sign the request.
A. The language of a written request for medication under this Act must be the language in which any conversations or consultations or interpreted conversations or consultations between a patient and the patient's attending physician or consulting physician are held.
B. Notwithstanding paragraph A, the language of a written request for medication under this Act may be English when the conversations or consultations or interpreted conversations or consultations between a patient and the patient's attending physician or consulting physician were conducted in a language other than English if the form described in subsection 24 contains the attachment described in subsection 25.
C. At least one of the 2 or more witnesses required under this subsection and any interpreter required under this subsection must be a person who is not:
(1) A relative of the patient by blood, marriage or adoption;
(2) 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 any law; or
(3) An owner, operator or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.
D. The patient's attending physician at the time the written request is signed may not be a witness.
E. If the patient is a patient in a long-term care facility at the time the patient makes the written request, one of the witnesses must be an individual designated by the facility who has the qualifications specified by the department by rule.
6. Attending physician responsibilities. The attending physician shall:
A. Make the initial determination of whether a patient has a terminal disease, is competent and has made the written request under subsection 4 voluntarily;
B. Request that the patient demonstrate state residency as required by subsection 15;
C. To ensure that the patient is making an informed decision, inform the patient of:
(1) The patient's medical diagnosis;
(2) The patient's prognosis;
(3) The potential risks associated with taking the medication to be prescribed;
(4) The probable result of taking the medication to be prescribed; and
(5) The feasible alternatives to taking the medication to be prescribed, including palliative care and comfort care, hospice care, pain control and disease-directed treatment options;
D. Refer the patient to a consulting physician for medical confirmation of the diagnosis and for a determination that the patient is competent and acting voluntarily;
E. Confirm that the patient's request does not arise from coercion or undue influence by another individual by discussing with the patient, outside the presence of any other individual, except for an interpreter, whether the patient is feeling coerced or unduly influenced;
F. Refer the patient for counseling, if appropriate, as described in subsection 8;
G. Recommend that the patient notify the patient's next of kin;
H. Counsel the patient about the importance of having another person present when the patient takes the medication prescribed under this Act, and counsel the patient about not taking the medication prescribed under this Act in a public place;
I. 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 the request at the end of the 15-day waiting period pursuant to subsection 11;
J. Verify, immediately before writing the prescription for medication under this Act, that the patient is making an informed decision;
K. Fulfill the medical record documentation requirements of subsection 14;
L. Ensure that all appropriate steps are carried out in accordance with this Act before writing a prescription for medication to enable a qualified patient to end the qualified patient's life in a humane and dignified manner; and
M. Dispense medications directly, including ancillary medications intended to minimize the patient's discomfort, if the attending physician is authorized under state law or rule to dispense medications and has a current drug enforcement administration certificate or with the patient's written consent:
(1) Contact a pharmacist and inform the pharmacist of the prescription; and
(2) Deliver the written prescription personally, by mail or electronically to the pharmacist, who may dispense the medications in person to the patient, the attending physician or an expressly identified agent of the patient.
7. Consulting physician confirmation. Before a patient is determined to be a qualified patient under this Act, 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 suffering from a terminal disease and verify that the patient is competent, is acting voluntarily and has made an informed decision.
8. Consulting 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, the physician shall 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.
9. Informed decision. A qualified patient may not receive a prescription for medication under this Act unless the qualified patient has made an informed decision. Immediately before writing a prescription for medication under this Act, the attending physician shall verify that the qualified patient is making an informed decision.
10. Notification of next of kin. A patient who declines or is unable to notify the patient's next of kin may not have the patient's request for medication denied for that reason.
11. Written and oral requests. To receive a prescription for medication that the qualified patient may self-administer under this Act, a qualified patient must make an oral request and a written request and reiterate the oral request to the qualified patient's attending physician at least 15 days after making the initial oral request. At the time the qualified patient makes the qualified patient's 2nd oral request, the attending physician shall offer the qualified patient an opportunity to rescind the request.
12. Right to rescind request. A patient may rescind the patient's request at any time and in any manner without regard to the patient's mental state. A prescription for medication may not be written under this Act without the attending physician's offering the qualified patient an opportunity to rescind the request.
13. Waiting periods. At least 15 days must elapse between the patient's initial oral request and the date the patient signs the written request under subsection 11. At least 48 hours must elapse between the date the patient signs the written request and the writing of a prescription under this Act.
14. Medical record documentation requirements. The following must be documented or filed in a patient's medical record:
A. All oral requests by the patient for medication to end that patient's life in a humane and dignified manner;
B. All written requests by the patient for medication to end that patient's life in a humane and dignified manner;
C. The attending physician's diagnosis and prognosis and the attending physician's determination that the patient is competent, is acting voluntarily and has made an informed decision;
D. The consulting physician's diagnosis and prognosis and the consulting physician's verification that the patient is competent, is acting voluntarily and has made an informed decision;
E. A report of the outcome and determinations made during counseling, if counseling is provided as described in subsection 8;
F. The attending physician's offer to the patient to rescind the patient's request at the time of the patient's 2nd oral request under subsection 11; and
G. A note by the attending physician indicating that all requirements under this Act have been met, including the requirements of subsection 6, and indicating the steps taken to carry out the patient's request, including a notation of the medication prescribed.
15. Residency requirement. For purposes of this Act, only requests made by residents of this State may be granted. The residence of a person is that place where the person has established a fixed and principal home to which the person, whenever temporarily absent, intends to return. The following factors may be offered in determining a person's residence under this Act and need not all be present in order to determine a person's residence:
A. Possession of a valid driver's license issued by the Department of the Secretary of State, Bureau of Motor Vehicles;
B. Registration to vote in this State;
C. Evidence that the person owns or leases property in this State;
D. The location of any dwelling currently occupied by the person;
E. The place where any motor vehicle owned by the person is registered;
F. The residence address, not a post office box, shown on a current income tax return;
G. The residence address, not a post office box, at which the person's mail is received;
H. The residence address, not a post office box, shown on any current resident hunting or fishing licenses held by the person;
I. The residence address, not a post office box, shown on any driver's license held by the person;
J. The receipt of any public benefit conditioned upon residency, defined substantially as provided in this subsection; or
K. Any other objective facts tending to indicate a person's place of residence.
16. Disposal of unused medications. A person who has custody of or control over any unused medications prescribed pursuant to this Act after the death of the qualified patient shall personally deliver the unused medications to the nearest facility qualified to dispose of controlled substances or, if such delivery is impracticable, personally dispose of the unused medications by any lawful means, in accordance with any guidelines adopted by the department.
17. Reporting of information; adoption of rules; information collected not a public record; annual statistical report. The department shall:
A. Annually review all records maintained under this Act;
B. Require any health care provider upon writing a prescription or dispensing medication under this Act to file a copy of the prescription or dispensing record, and other documentation required under subsection 14 associated with writing the prescription or dispensing the medication, with the department.
(1) Documentation required to be filed under this paragraph must be mailed or otherwise transmitted as allowed by rules of the department no later than 30 calendar days after the writing of the prescription or the dispensing of medication under this Act, except that all documents required to be filed with the department by the prescribing physician after the death of the qualified patient must be submitted no later than 30 calendar days after the date of the death of the qualified patient.
(2) In the event that a person required under this Act to report information to the department provides an inadequate or incomplete report, the department shall contact the person to request an adequate or complete report;
C. Within 6 months of the effective date of this Act, adopt rules, which are major substantive rules pursuant to Title 5, chapter 375, subchapter 2-A, to facilitate the collection of information regarding compliance with this Act. Except as otherwise provided by law, the information collected is confidential, is not a public record and may not be made available for inspection by the public; and
D. Generate and make available to the public an annual statistical report of information collected under paragraph C and submit a copy of the report to the joint standing committee of the Legislature having jurisdiction over health matters annually by March 1st.
18. Effect on construction of wills, contracts and other agreements. 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 the person's life in a humane and dignified manner, is not valid. Any obligation owing under any currently existing contract may 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.
19. Insurance or annuity policies. The sale, procurement or issuance of any life, health or accident insurance or annuity policy or the rate charged for any life, health or accident insurance or annuity policy may not be conditioned upon or affected by the making or rescinding of a request by a qualified patient for medication that the patient may self-administer to end the patient's life in accordance with this Act. A qualified patient whose life is insured under a life insurance policy issued under the provisions of Title 24-A, chapter 29 and the beneficiaries of the policy may not be denied benefits on the basis of self-administration of medication by the qualified patient in accordance with this Act. The rating, sale, procurement or issuance of any medical professional liability insurance policy delivered or issued for delivery in this State must be in accordance with the provisions of Title 24-A.
20. Authority of Act; references to acts committed under Act; applicable standard of care. This Act does not 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 Act do not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide under the law. State reports may not refer to acts committed under this Act as "suicide" or "assisted suicide." Consistent with the provisions of this Act, state reports must refer to acts committed under this Act as obtaining and self- administering life-ending medication. Nothing contained in this Act may be interpreted to lower the applicable standard of care for the attending physician, the consulting physician, a psychiatrist or a psychologist or other health care provider providing services under this Act.
21. Voluntary participation. Nothing in this Act requires a health care provider to provide medication to a qualified patient to end the qualified patient's life. If a health care provider is unable or unwilling to carry out the qualified patient's request under this Act, the health care provider shall transfer any relevant medical records for the patient to a new health care provider upon request by the patient.
22. Basis for prohibiting persons or entities from participation; notification; penalties; permissible actions. The following provisions govern the basis for prohibiting persons or entities from participating in activities under this Act, notification, penalties and permissible actions.
A. Subject to compliance with paragraph B and notwithstanding any other law, a health care provider may prohibit its employees, independent contractors or other persons or entities, including other health care providers, from participating in activities under this Act while on premises owned or under the management or direct control of that prohibiting health care provider or while acting within the course and scope of any employment by, or contract with, the prohibiting health care provider.
B. A health care provider that elects to prohibit its employees, independent contractors or other persons or entities, including other health care providers, from participating in activities under this Act, as described in paragraph A, shall first give notice of the policy prohibiting participation under this Act to those employees, independent contractors or other persons or entities, including other health care providers. A health care provider that fails to provide notice to those employees, independent contractors or other persons or entities, including other health care providers, in compliance with this paragraph may not enforce such a policy against those employees, independent contractors or other persons or entities, including other health care providers.
C. Subject to compliance with paragraph B, the prohibiting health care provider may take action, including, but not limited to, the following, as applicable, against an employee, independent contractor or other person or entity, including another health care provider, that violates this policy:
(1) Loss of privileges, loss of membership or other action authorized by the bylaws or rules and regulations of the medical staff;
(2) Suspension, loss of employment or other action authorized by the policies and practices of the prohibiting health care provider;
(3) Termination of any lease or other contract between the prohibiting health care provider and the employee, independent contractor or other person or entity, including another health care provider, that violates the policy; or
(4) Imposition of any other nonmonetary remedy provided for in any lease or contract between the prohibiting health care provider and the employee, independent contractor or other person or entity, including another health care provider, in violation of the policy.
D. Nothing in this section may be construed to prevent, or to allow a prohibiting health care provider to prohibit, an employee, independent contractor or other person or entity, including another health care provider, from any of the following:
(1) Participating, or entering into an agreement to participate, in activities under this Act while on premises that are not owned or under the management or direct control of the prohibiting health care provider or while acting outside the course and scope of the participant's duties as an employee of, or an independent contractor for, the prohibiting health care provider; or
(2) Participating, or entering into an agreement to participate, in activities under this Act as an attending physician or consulting physician while on premises that are not owned or under the management or direct control of the prohibiting health care provider.
E. In taking actions pursuant to paragraph C, a health care provider shall comply with all procedures required by law, its own policies or procedures and any contract with the employee, independent contractor or other person or entity, including another health care provider, in violation of the policy, as applicable.
F. Any action taken by a prohibiting health care provider pursuant to this subsection is not reportable to the appropriate licensing board under Title 32, including, but not limited to, the Board of Licensure in Medicine, the Board of Osteopathic Licensure and the Maine Board of Pharmacy. The fact that a health care provider participates in activities under this Act may not be the sole basis for a complaint or report by another health care provider to the appropriate licensing board under Title 32, including, but not limited to, the Board of Licensure in Medicine, the Board of Osteopathic Licensure and the Maine Board of Pharmacy.
G. As used in this subsection, unless the context otherwise indicates, the following terms have the following meanings.
(1) "Notice" means a separate statement in writing advising of the prohibiting health care provider's policy with respect to participating in activities under this Act.
(2) "Participating, or entering into an agreement to participate, in activities under this Act" means doing or entering into an agreement to do any one or more of the following:
(a) Performing the duties of an attending physician as specified in this Act;
(b) Performing the duties of a consulting physician as specified in this Act;
(c) Performing the duties of a state-licensed psychiatrist, state-licensed psychologist, state-licensed clinical social worker or state-licensed clinical professional counselor, in the circumstance that a referral to one is made pursuant to subsection 8;
(d) Delivering the prescription for, dispensing or delivering the dispensed medication pursuant to this Act; or
(e) Being present when the qualified patient takes the medication prescribed pursuant to this Act.
"Participating, or entering into an agreement to participate, in activities under this Act" does not include doing, or entering into an agreement to do, any of the following: diagnosing whether a patient has a terminal disease, informing the patient of the medical prognosis or determining whether a patient has the capacity to make decisions; providing information to a patient about this Act; or providing a patient, upon the patient's request, with a referral to another health care provider for the purposes of participating in the activities authorized by this Act.
23. Claims by governmental entity for costs incurred. Any governmental entity that incurs costs resulting from a person ending the person's life under this Act in a public place has a claim against the estate of the person to recover the costs and reasonable attorney's fees related to enforcing the claim.
24. Form of the request. A request for medication as authorized by this Act must 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. I am 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 and prognosis, the nature of medication to be prescribed and potential associated risks, the expected result and feasible alternatives, including palliative care and comfort care, hospice care, pain control and disease-directed treatment options.
I request that my attending physician prescribe medication that I may self-administer to end my life in a humane and dignified manner and contact any pharmacist to fill the prescription.
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 further understand that, although most deaths occur within 3 hours, my death may take longer and my physician has counseled me about this possibility.
I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.
Signed: ....................................................
Dated: ......................................................
DECLARATION OF WITNESSES
By initialing and signing below on or after the date the person named above signs, we declare that the person making and signing the above request:
Initials of Witness 1:
.......... 1. Is personally known to us or has provided proof of identity;
.......... 2. Signed this request in our presence on the date of the person's signature;
......... 3. Appears to be of sound mind and not under duress, fraud or undue influence; and
.......... 4. Is not a patient for whom either of us is the attending physician.
Printed Name of Witness 1: ................................................
Signature of Witness 1/Date: ............................................
Initials of Witness 2:
.......... 1. Is personally known to us or has provided proof of identity;
.......... 2. Signed this request in our presence on the date of the person's signature;
......... 3. Appears to be of sound mind and not under duress, fraud or undue influence; and
.......... 4. Is not a patient for whom either of us is the attending physician.
Printed Name of Witness 2: ................................................
Signature of Witness 2/Date: .............................................
NOTE: One witness must be a person who is not a relative by blood, marriage or adoption of the person signing this request, is not entitled to any portion of the person's estate upon death and does not own or operate or is not employed at a health care facility where the person is a patient or resident. The person's attending physician at the time the request is signed may not be a witness. If the person is an inpatient at a long-term care facility, one of the witnesses must be an individual designated by the facility.
25. Form of interpreter attachment. The form of an attachment for purposes of providing interpretive services as described in subsection 5, paragraph B must be in substantially the following form:
I, .........................., am fluent in English and (language of patient).
On (date) at approximately (time) I read the "REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER" to (name of patient) in (language of patient).
Mr./Ms. (name of patient) affirmed to me that he/she understands the content of this form, that he/she desires to sign this form under his/her own power and volition and that he/she requested to sign the form after consultations with an attending physician and a consulting physician.
Under penalty of perjury, I declare that I am fluent in English and (language of patient) and that the contents of this form, to the best of my knowledge, are true and correct.
Executed at (name of city, county and state) on (date).
Interpreter's signature: ..................................
Interpreter's printed name: ............................
Interpreter's address: .....................................
Effective 90 days following adjournment of the 129th Legislature, First Regular Session, unless otherwise indicated.