Physician-Assisted Death: Balancing the Rights of Providers, Patients, and Other Stakeholders ABA Washington Health Law Summit December 13, 2016 Washington, DC Pamela S. Kaufmann, Partner Hanson Bridgett LLP tel. 415.995.5043 pkaufmann@hansonbridgett.com 1 Overview National Right to Die Movement California End of Life Option Act ( EOLOA ) from 5000 Feet Utilization Funding Tips for Attorneys 2 1
National Right to Die Movement Oregon Death with Dignity Act, ORS 127 et al. First state to enact right-to-die laws Bill took effect in 1998; voter initiative Withstood state and federal legislative and court challenges Gonzales v. Oregon, 546 US 243 (2006): Ashcroft overstepped authority by attempting to prosecute participating physicians and pharmacists; Controlled Substances Act could not be used to delegitimize a state standard of health care 3 National Right to Die Movement Washington Death with Dignity Act, RCW 70.245 et seq. Voter initiative approved in 2008; effective since 2009 Based on Oregon statute 4 2
National Right to Die Movement Vermont Patient Choice and Control at the End of Life Act, 12 VSA Chapter 13 First aid-in-dying law passed via legislative process Governor made issue part of his campaign platform before 2012 election Took effect 2013 Based on Oregon and Washington laws 5 National Right to Die Movement Montana Right resides in case law Baxter v. Montana, 2009 MT 449 (2009) Nothing in MT law prohibits MDs from honoring terminally ill, mentally competent patient s request for aid-in-dying drugs There is little difference between removing life support (allowed in MT) and taking aidin-dying drugs In 2015, bills were introduced in Montana legislature on both sides of issue; none passed 6 3
National Right to Die Movement Nationwide Effort to Enact Death With Dignity ( DWD ) Laws in 46 remaining states Death with Dignity Political Fund Defended Oregon law Spearheaded efforts in WA, VT and CA Led (and leads) efforts in several other states 7 CA End of Life Option Act ( EOLOA ) California bill took effect June 9, 2016 Based on Oregon law Allows terminally ill patients to end their lives by obtaining aid-in-dying drugs ( AID drugs ) from participating physicians Most recent and perhaps most refined of four end-of-life statutes 8 4
EOLOA: Self-Administration Defined as patient s affirmative, conscious, and physical act of administering & ingesting the aid-in-dying drug to bring about death Requires definitive expression of intent to take AID drugs, mental competence, and physical ability to self-administer drugs No agent may request AID drugs No person may assist patient with ingestion 9 EOLOA: Eligibility Must Be: CA resident, 18 years old or older; Capable of understanding nature and consequence of health care decision and its significant benefits, risks + alternatives, and capable of communicating health care decisions to providers; and Diagnosed with terminal disease that, with reasonable certainty, will cause death within six months. 10 5
EOLOA: Request for AID Drugs Must make two oral requests to attending MD at least 15 days apart Must also make written request to attending MD An agent of patient cannot make request Form is signed and dated by patient and witnessed by at least two people attesting to best of their knowledge that patient is acting voluntarily, is capable, and is not being coerced. One witness must NOT be a relative, beneficiary of patient s estate, attending MD, or owner, operator, or ee of health care facility at which pt. lives/receives care 11 EOLOA: Attending MD s Role Confirms terminal diagnosis, capacity, residency, informed consent Informs patient of risks and alternatives (hospice, palliative care) and right not to take AID drugs/rescind request Refers patient to mental health for counseling if notes depression or other mental health issues Counsels patient to tell family of plans, have someone present at ingestion, and not to consume drugs in public Refers patient to consulting physician Gives patient statutory attestation form to complete and sign w/in 48 hours of choosing to take AID drugs 12 6
EOLOA: Consulting MD s Role Confirms terminal diagnosis made by attending physician Verifies that patient has capacity, is making informed decision, and is acting voluntarily Refers patient to counseling if there are mental health issues; no medication may be prescribed until mental health specialist determines that patient no longer suffers from mental health condition impairing his or her judgment Gives statutory compliance form to attending MD 13 EOLOA: Prescription Once he or she has written request, attending MD may prescribe AID drugs Attending physician delivers prescription directly to pharmacist (or can dispense himself or herself if allowed by law) Pharmacist dispenses Rx directly to attending physician, patient, or patient s designee 14 7
EOLOA: Participation Defined Includes: Performing duties of attending MD, consulting MD, or mental health specialist Delivering Rx for, dispensing, or delivering AID drugs Being present during ingestion of AID drugs Excludes: Diagnosing a terminal disease or making a prognosis, or determining that patient has capacity to make decisions Providing patient with information about EOLOA Referring patient to a participating provider 15 EOLOA: Effect on Insurance No life, health, or accident insurance or annuity policy or rate can be conditioned upon or affected by making or rescinding an AID request Death from consuming AID drugs is deemed a natural death from underlying disease Insurance carrier cannot provide info. about AID drugs unless requested by patient or attending physician Insurance carrier cannot, in one communication, deny coverage for treatment and provide patient with information about AID drugs 16 8
EOLOA: Immunities for Participating Actions taken in accordance with EOLOA are not considered suicide, homicide, or assisted suicide; thus, another person: Can be present during ingestion Can prepare AID drugs But cannot assist with ingestion No actions taken in compliance with law shall be a basis for a claim of neglect or elder abuse A health care provider ( HCP ) or professional org. shall not subject an individual to censure, discipline, suspension, loss of license, loss of privileges, or other penalty for participating in good faith compliance with EOLOA 17 EOLOA: Immunities for Opting Out No person or entity is required to participate or take any action in support of another s choice to participate. Can opt out due to conscience, morality, or ethics. A HCP can, with notice, prohibit employees, independent contractors, or others, including HCPs, from participating under law on its premises. It can prohibit participation off-site if job-related. A HCP or profess l org shall not subject an individual to censure, discipline, suspension, loss of license, loss of privileges, or other penalty for refusing to participate. HCPs include MDs, pharmacies, hospitals, SNFs, hospices, etc. They exclude AL, social models 18 9
Oregon Utilization Data Since 98: 1,545 Rxs and 991 deaths from AID drugs 2015: 218 Rxs and 132 deaths from AID drugs: 78% of patients were 65+; median age was 73 72% had cancer; 6% ALS; 7% heart disease 90% percent died at home, 92% in hospice care 9 patients died in a LTC facility, ALF, foster home 37%: private insurance+; 63%: Medi/Medi only 96% told family Reasons: limited activities, autonomy, dignity 93% were white; 43% had college degrees 19 Washington Utilization Data 2015: 213 Rxs; 166 deaths from AID drugs Age range: 20-97 73% had cancer; 8% had ALS/neurol. disease Of 166 who ingested meds, 86% died at home, 81% on hospice, and 10% in LTC, ALF, foster care 142 different MDs; 49 different pharmacists 94% told family Reasons: autonomy, dignity, ltd. participation 98% were white; 74% had at least some college 95% had insurance public or private 20 10
Funding for Aid-in-Dying Medicare/Medicaid generally won t pay for AID drugs Medicare will pay for end-of-life planning, including learning about options such as death with dignity Oregon Oregon Health Plan (Medicaid) will pay for consultations and AID drugs, but must use state money only Private insurers typically pay for AID consultations/drugs Washington Paid mostly privately Few insurers cover AID consultations/drugs California: Budget includes Medicaid pymt for AID drugs 21 Tips For Attorneys Counseling Providers Be sensitive to client s culture and narrative, including religious beliefs. Advise client to: Disclose policy to patients/residents, staff, volunteers, contractors Train and retrain staff Encourage patients/residents to prepare advance health care directives Care plan Promote candid discussion of end-of-life issues 22 11