Relates to the patient self-determination act; authorizes a physician with a bona fide physician-patient relationship with a patient with a terminal illness or condition to prescribe a lethal dose of the medication to be self-administered; defines terminal illness or condition to be an illness or condition which can reasonably be expected to cause death within six months, whether or not treatment is provided; provides immunity to health care providers.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5261C
SPONSOR: Paulin (MS)
 
TITLE OF BILL:
An act to amend the public health law, in relation to patient self-det-
ermination at end of life
 
PURPOSE:
To provide that a physician who prescribes in compliance with the
provisions of this article medication to a terminally ill patient to be
self-administered for the purpose of hastening the patient's death will
not be subject to civil or criminal liability or professional discipli-
nary action.
 
SUMMARY OF PROVISIONS:
Section 1 provides that this act shall be known and may be cited as the
"Patient Self-Determination Act."
Section 2 amends the Public Health Law by adding a new article 28-F, the
Patient Self-Determination Act, comprised of the following sections:
§ 2899-d sets forth definitions.
§ 2899-e sets forth the circumstances in which an adult may make a writ-
ten request for medication for the purpose of ending his or her life in
accordance with the provisions of this article.
§ 2899-f provides that a request for medication shall be signed and
dated by the patient and witnessed as provided in such section, identi-
fying persons who shall not serve as witnesses. The patient's attending
physician at the time the request shall not act as a witness.
§ 2899-g sets forth the responsibilities of the attending physician.
§ 2899-h provides that if in the opinion of the attending physician a
patient may be suffering from a psychiatric or psychological disorder or
depression causing impaired judgment, such physician shall refer the
patient for counseling. No medication to end a patient's life shall be
prescribed, dispensed or ordered until the person performing the coun-
seling determines that the patient is not suffering from a psychiatric
or psychological disorder or depression causing impaired judgment and
has capacity.
§ 2899-i sets forth the items that must be documented or filed in the
patient's medical record.
§ 2899-j provides that only requests by New York state residents under
the provisions of this article may be granted and sets forth the factors
included that demonstrate New York state residency.
§ 2899-k provides that a physician, pharmacist, other health care
professional or other person shall not be subject to civil or criminal
liability or professional disciplinary action, and shall not be subject
to discipline, suspension, loss of license, loss of privileges, or other
penalty by any health care facility or health care provider, for taking
any reasonable good-faith action or refusing to act under this article,
including engaging in discussions with a patient relating to the risks
and benefits of palliative care and end-of-life options in the circum-
stances described in this article and being present when a patient self-
administers medication. The section further provides (i) a physician,
nurse, pharmacist, or other person shall not be under any duty by law or
contract to participate in the provision of medication to a patient,
(ii) a private health care facility may prohibit the self-administering
of medication under this article while the patient is being treated or
residing in such facility if the requirements set forth in the section
have been met, (iii) a health care facility that prohibits the self-ad-
ministering of medication while the patient is being treated or residing
in the facility may prohibit a physician from prescribing, dispensing or
ordering medication for self-administering while the patient is being
treated or residing in the facility provided the facility notified the
physician in writing of its policy to prohibit such actions.
§ 2899-l provides that (i) a patient who self-administers medication
under this article will not be considered a person who is suicidal and
self-administering medication under this article shall not be deemed to
be suicide for any purpose, (ii) action taken in accordance with this
article shall not be construed for any purpose to constitute suicide,
assisted suicide, attempted suicide, promoting a suicide attempt, mercy
killing, or homicide under the law, including as an accomplice or acces-
sory or otherwise, (iii)a request by a patient to his or her attending
physician to provide medication under this article shall not, by itself,
provide the basis for the appointment of a guardian or conservator, (iv)
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 or take any other action under this
article, shall be valid, (v) no obligation owing under any contract will
be conditioned or affected by the making or rescinding of a request by a
person for medication or taking any other action under this article,
(vi) a person and his or her beneficiaries shall not be denied benefits
under a life insurance policy for actions taken in accordance with this
article, an insurer shall not provide any information in communications
made to a person about the availability of medication under this article
absent a request by such person or by his or her attending physician
upon the request of such person and any communication shall not include
both the denial of treatment and information as to the availability of
medication under this article, (vii) the sale, procurement or issue of
any professional malpractice insurance policy or the rate charged for
the policy shall not be conditioned on or affected by whether the
insured does or does not take or participate in any action under this
article.
§ 2899-m provides for the adoption of rules and regulations by the DOH
for the safe disposal of unused medications prescribed, dispensed or
ordered under this article.
§ 2899-n provides that in the event a patient dies as a result of medi-
cation self-administered under this article, the death certificate shall
indicate that the cause of death was the underlying terminal illness or
condition of the patient.
§ 2899-o provides for the annual review by the commissioner of health of
a sample of the records maintained under section twenty-eight hundred
ninety-nine-i of this article. The section further provides that the
department may adopt regulations establishing reporting requirements for
physicians taking action under this article to determine utilization and
compliance with this article. The information collected under this
section shall be confidential and shall be collected in a manner that
protects the privacy of the patient, his or her family, and any health
care provider acting in connection with such patient under this article.
The department shall prepare a report annually containing relevant data
regarding utilization and compliance with this article and shall post
such report on its website.
§ 2899-p provides the severability clause. Section 3 sets forth the
effective date.
 
JUSTIFICATION:
The highly publicized, planned death of Brittany Maynard has highlighted
the need for terminally ill patients to be able to access aid in dying.
Ms. Maynard, who was a native of California, was forced to move to
Oregon to gain control of her dying process. Her death, and the accompa-
nying press attention, led the California legislature to pass, and
Governor Jerry Brown to sign, an aid in dying law on October 5, 2015.
The national debate that accompanies Ms. Maynard's plight focused the
nation on the desire of patients with a terminal illness to determine -
for themselves - how and when they die. These patients, when mentally
competent and without impaired judgment, should be afforded this right.
Patients should not be forced to relocate to another state or to leave
the country to control how their lives end. Patients seek to die with
dignity, on their own terms, typically in their own homes, surrounded by
their family and other loved ones.
New Yorkers strongly support empowering terminally-ill, mentally compe-
tent patients to control their own death. A 2015 poll found that 77% of
all New Yorkers support aid in dying, including 75% of Catholics, 72% of
Republicans, 67% of self-identified Conservatives, and 78% of New York-
ers Upstate.
Nationally, according to HealthDay/Harris poll findings released in
December 2014, 74% of American adults believe that terminally ill
patients in great pain should have the right to end their lives (14%
were opposed). Gallup, which has been polling this issue since 1947, has
found that a majority of Americans have supported aid in dying since
1973. Their most recent poll found 68% of Americans support aid in
dying.
Physicians also support aid in dying. In a recent survey conducted by
Medscape, 54% of physicians in the U.S. believe that aid in dying should
be permitted, while only 31% opposed it.
The Patient Self-Determination Act will enable mentally competent,
terminally ill patients to choose to self-administer medication to bring
about a peaceful death. It also provides their physician, when acting in
good faith in accordance with the provisions of the Act, protections
from civil and criminal liability and professional disciplinary action.
This legislation includes a provision that a request for medication for
the purpose of ending one's life should not be considered by itself
grounds for the appointment of a guardian or a conservator out of an
abundance of caution. A person who has been determined to have capacity
to request medication under the Act should not be forced to undergo an
additional proceeding resulting in delay, costs such as legal fees, and
additional strain.
Five states - Oregon, Vermont, Washington, California and Montana -
allow physician assisted aid in dying. In addition, New Mexico had a
court rule that patients have a constitutional right to aid in dying;
that decision is under appeal.
Aid in dying legislation recently passed the New Jersey Assembly, and
legislators in a total of 20 states, including all of New England, Mary-
land, North Carolina, Tennessee, Oklahoma, Utah, Wyoming and Missouri,
have aid in dying bills pending.
Aid in dying legislation is supported by the American Public Health
Association, the American Medical Women's Association, the American
Medical Student Association, the American College of Legal Medicine, and
Lamda Legal.
 
LEGISLATIVE HISTORY:
New bill.
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
Effective immediately.
STATE OF NEW YORK
________________________________________________________________________
5261--C
2015-2016 Regular Sessions
IN ASSEMBLY
February 13, 2015
___________
Introduced by M. of A. PAULIN, DINOWITZ, GALEF, ZEBROWSKI, GOTTFRIED,
BLAKE -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, CROUCH, DUPREY,
SKARTADOS -- read once and referred to the Committee on Health --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- again reported from said committee
with amendments, ordered reprinted as amended and recommitted to said
committee -- recommitted to the Committee on Health in accordance with
Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to patient self-det-
ermination at end of life
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 "patient
2 self-determination 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 AID IN DYING
7 Section 2899-d. Definitions.
8 2899-e. Written request for medication.
9 2899-f. Written request signed and witnessed.
10 2899-g. Attending physician responsibilities.
11 2899-h. Counseling referral.
12 2899-i. Medical record documentation requirements.
13 2899-j. Residency requirement.
14 2899-k. Protection of health care providers and facilities.
15 2899-l. Relation to other laws and contracts.
16 2899-m. Safe disposal of unused medications.
17 2899-n. Death certificate.
18 2899-o. Reporting.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07446-23-6
A. 5261--C 2
1 2899-p. Severability.
2 § 2899-d. Definitions. As used in this article:
3 1. "Adult" means an individual who is twenty-one years of age or
4 older.
5 2. "Attending physician" means the physician who has primary responsi-
6 bility for the care of the patient and treatment of the patient's termi-
7 nal disease.
8 3. "Capacity" means the ability to understand and appreciate the
9 nature and consequences of health care decisions, including the benefits
10 and risks of and alternatives to any proposed health care, and to reach
11 an informed decision and to communicate health care decisions to a
12 physician, including communication through persons familiar with the
13 patient's manner of communicating if those persons are available.
14 4. "Counseling" means one or more consultations as necessary between a
15 state licensed psychiatrist or psychologist and a patient for the
16 purpose of determining that the patient has capacity and is not suffer-
17 ing from a psychiatric or psychological disorder or depression causing
18 impaired judgment.
19 5. "Health care facility" means a general hospital, nursing home, or
20 residential health care facility as defined in section twenty-eight
21 hundred one of this chapter.
22 6. "Health care provider" means a person or entity licensed, certi-
23 fied, or authorized by law to administer health care or dispense medica-
24 tion in the ordinary course of business or practice of a profession.
25 7. "Impaired judgment" means that a person lacks the ability to under-
26 stand and appreciate the nature and consequences of health care deci-
27 sions, including the benefits and risks of and alternatives to any
28 proposed health care, and to reach an informed decision.
29 8. "Medication" means medication capable of ending and to be used with
30 the intent of ending the patient's life, including any ancillary medica-
31 tion intended to minimize the patient's discomfort.
32 9. "Palliative care" means health care treatment, including interdis-
33 ciplinary end-of-life care, and consultation with patients and family
34 members, to prevent or relieve pain and suffering and to enhance the
35 patient's quality of life, including hospice care under article forty of
36 this chapter.
37 10. "Patient" means a person who is twenty-one years of age or older,
38 a resident of New York state, and under the care of a physician.
39 11. "Physician" means an individual licensed to practice medicine in
40 New York state.
41 12. "Terminal illness or condition" means an illness or condition
42 which can reasonably be expected to cause death within six months,
43 whether or not treatment is provided.
44 § 2899-e. Written request for medication. 1. An adult who has capaci-
45 ty, is a resident of this state, and has been determined by the attend-
46 ing physician and, if applicable, consulting physician to be suffering
47 from a terminal illness or condition, may make a written request for and
48 consent to self-administer medication for the purpose of ending his or
49 her life in accordance with this article.
50 2. No person shall qualify under this article solely because of age or
51 disability.
52 § 2899-f. Written request signed and witnessed. 1. A request for medi-
53 cation under this article shall be signed and dated by the patient and
54 witnessed by at least two individuals who, in the presence of the
55 patient, attest that to the best of their knowledge and belief the
56 patient has capacity, is acting voluntarily, and is not being coerced to
A. 5261--C 3
1 sign the request. The department may develop a suggested form for a
2 request under this article.
3 2. One of the witnesses shall be a person who is not:
4 (a) a relative of the patient by blood, marriage or adoption;
5 (b) a person who at the time the request is signed would be entitled
6 to any portion of the estate of the patient upon death under any will or
7 by operation of law; or
8 (c) an owner, operator or employee of a health care facility where the
9 patient is receiving treatment or is a resident.
10 3. The patient's attending physician or, if applicable, consulting
11 physician at the time the request is signed shall not be a witness.
12 § 2899-g. Attending physician responsibilities. 1. The attending
13 physician shall:
14 (a) make the determination of whether a patient has a terminal illness
15 or condition, has capacity, and has made the request voluntarily;
16 (b) request that the patient demonstrate New York state residency;
17 (c) refer the patient for counseling, if appropriate, under section
18 twenty-eight hundred ninety-nine-h of this article;
19 (d) provide information and counseling under section twenty-nine
20 hundred ninety-seven-c of this chapter; and
21 (e) fulfill the medical record documentation requirements of section
22 twenty-eight hundred ninety-nine-i of this article.
23 2. Subject to section twenty-eight hundred ninety-nine-h of this arti-
24 cle, the attending physician who makes the determination that the
25 patient has a terminal illness or condition, has capacity and has made a
26 request for medication as provided in section twenty-eight hundred nine-
27 ty-nine-e of this article, may personally, or by direction to another
28 physician, prescribe, dispense or order appropriate medication in
29 accordance with the patient's request under this article, and at the
30 patient's request, facilitate the filling of the prescription and deliv-
31 ery of the medication to the patient.
32 3. In accordance with the direction of the prescribing, dispensing or
33 ordering physician and the consent of the patient, the patient may
34 administer the medication to himself or herself. A health care profes-
35 sional shall not administer the medication to the patient but, acting
36 within the scope of his or her lawful practice, may facilitate the
37 patient in self-administering the medication.
38 § 2899-h. Counseling referral. If in the opinion of the attending
39 physician a patient may be suffering from a psychiatric or psychological
40 disorder or depression causing impaired judgment, such physician shall
41 refer the patient for counseling. No medication to end a patient's life
42 shall be prescribed, dispensed or ordered until the person performing
43 the counseling determines that the patient is not suffering from a
44 psychiatric or psychological disorder or depression causing impaired
45 judgment and has capacity.
46 § 2899-i. Medical record documentation requirements. The following
47 shall be documented or filed in the patient's medical record:
48 1. all oral requests by a patient for medication to end his or her
49 life;
50 2. all written requests by a patient for medication to end his or her
51 life;
52 3. the attending physician's diagnosis and prognosis, and determi-
53 nation whether the patient has capacity and is acting voluntarily;
54 4. a report of the outcome and determinations made during counseling,
55 if performed; and
A. 5261--C 4
1 5. a note by the attending physician indicating whether all require-
2 ments under this article have been met and indicating the steps taken to
3 carry out the request, including a notation of the medication
4 prescribed, dispensed or ordered.
5 § 2899-j. Residency requirement. Only requests made by New York state
6 residents under the provisions of this article shall be granted. Factors
7 demonstrating New York state residency shall include but shall not be
8 limited to:
9 1. Possession of a New York state driver's license;
10 2. Registration to vote in New York state;
11 3. Evidence that the person owns or leases property in New York state;
12 or
13 4. Filing of a New York state tax return for the most recent tax year.
14 § 2899-k. Protection of health care providers and facilities. 1. A
15 physician, pharmacist, other health care professional or other person
16 shall not be subject to civil or criminal liability or professional
17 disciplinary action, and shall not be subject to discipline, suspension,
18 loss of license, loss of privileges, or other penalty by any health care
19 facility or health care provider, for taking any reasonable good-faith
20 action or refusing to act under this article, including: (a) engaging in
21 discussions with a patient relating to the risks and benefits of end-of-
22 life options in the circumstances described in this article, (b) being
23 present when a patient self-administers medication, (c) refraining from
24 acting to prevent the patient from self-administering such medication,
25 or (d) refraining from acting to resuscitate or rescue the patient after
26 he or she self-administers such medication. However, paragraphs (c) and
27 (d) of this subdivision shall not apply where there are reasonable
28 grounds to believe, under the circumstances, that the patient has
29 rescinded his or her request or consent to self-administer medication
30 under this article or communicates a desire that the lethal action of
31 the medication be reversed.
32 2. A physician, nurse, pharmacist, or other person shall not be under
33 any duty, by law or contract, to participate in the provision of medica-
34 tion to a patient under this article.
35 3. A private health care facility may prohibit the self-administering
36 of medication under the article while the patient is being treated or
37 residing in the health care facility if:
38 (a) such prescribing, dispensing, ordering or self-administering is
39 contrary to a formally adopted policy of such facility that is expressly
40 based on sincerely held religious beliefs or sincerely held moral
41 convictions central to the facility's operating principles;
42 (b) such facility has informed the patient of such policy prior to or
43 upon admission, if reasonably possible; and
44 (c) if the patient requests, the patient is transferred promptly to
45 another health care facility that is reasonably accessible under the
46 circumstances and willing to permit the prescribing, dispensing, order-
47 ing and self-administering of medication under this article with respect
48 to the patient.
49 4. A health care facility that prohibits the self-administering of
50 medication under this article while the patient is being treated or
51 residing in the health care facility under this section may prohibit a
52 physician from prescribing, dispensing or ordering medication for self-
53 administering while the patient is being treated or residing in the
54 health care facility, provided the health care facility has notified the
55 physician in writing of its policy to prohibit such actions. Notwith-
56 standing subdivision one of this section, any person who violates a
A. 5261--C 5
1 policy established by a health care facility under this section may be
2 subject to sanctions otherwise allowable under law, contract and facili-
3 ty policy.
4 § 2899-l. Relation to other laws and contracts. 1. (a) A patient who
5 self-administers medication under this article shall not be considered
6 to be a person who is suicidal, and self-administering medication under
7 this article shall not be deemed to be suicide, for any purpose.
8 (b) Action taken in accordance with this article shall not be
9 construed for any purpose to constitute suicide, assisted suicide,
10 attempted suicide, promoting a suicide attempt, mercy killing, or homi-
11 cide under the law, including as an accomplice or accessory or other-
12 wise.
13 2. A request by a patient to his or her attending physician to provide
14 medication under this article shall not, by itself, provide the basis
15 for the appointment of a guardian or conservator.
16 3. (a) No provision in a contract, will or other agreement, whether
17 written or oral, to the extent the provision would affect whether a
18 person may make or rescind a request for medication or take any other
19 action under this article, shall be valid.
20 (b) No obligation owing under any contract shall be conditioned or
21 affected by the making or rescinding of a request by a person for medi-
22 cation or taking any other action under this article.
23 4. A person and his or her beneficiaries shall not be denied benefits
24 under a life insurance policy for actions taken in accordance with this
25 article.
26 5. An insurer shall not provide any information in communications made
27 to a person about the availability of medication under this article
28 absent a request by such person or by his or her attending physician
29 upon the request of such person. Any communication shall not include
30 both the denial of treatment and information as to the availability of
31 medication under this article.
32 6. The sale, procurement, or issue of any professional malpractice
33 insurance policy or the rate charged for the policy shall not be condi-
34 tioned upon or affected by whether the insured does or does not take or
35 participate in any action under this article.
36 § 2899-m. Safe disposal of unused medications. The department shall
37 make regulations providing for the safe disposal of unused medications
38 prescribed, dispensed or ordered under this article.
39 § 2899-n. Death certificate. In the event that a patient dies as a
40 result of medication self-administered under this article, the death
41 certificate shall indicate that the cause of death was the underlying
42 terminal illness or condition of the patient. However, where there are
43 reasonable grounds to believe, under the circumstances, that the patient
44 rescinded his or her request or consent to self-administer medication
45 under this article or communicated a desire that the lethal action of
46 the medication be reversed, and the patient nevertheless died from the
47 self-administration of the medication, the self-administration of the
48 medication may be listed as the cause of death.
49 § 2899-o. Reporting. 1. The commissioner shall annually review a
50 sample of the records maintained under section twenty-eight hundred
51 ninety-nine-i of this article. The department may adopt regulations
52 establishing reporting requirements for physicians taking action under
53 this article to determine utilization and compliance with this article.
54 The information collected under this section shall be confidential and
55 shall be collected in a manner that protects the privacy of the patient,
A. 5261--C 6
1 his or her family, and any health care provider acting in connection
2 with such patient under this article.
3 2. The department shall prepare a report annually containing relevant
4 data regarding utilization and compliance with this article and shall
5 post such report on its website.
6 § 2899-p. Severability. If any provision of this article or any appli-
7 cation of any provision of this article, is held to be invalid, or to
8 violate or be inconsistent with any federal law or regulation, that
9 shall not affect the validity or effectiveness of any other provision of
10 this article, or of any other application of any provision of this arti-
11 cle, which can be given effect without that provision or application;
12 and to that end, the provisions and applications of this article are
13 severable.
14 § 3. This act shall take effect immediately.