Chapter 423 Oregon Laws 1999
Session Law
AN ACT
SB 491
Relating to Oregon Death
with Dignity Act; creating new provisions; amending ORS 127.800, 127.805,
127.815, 127.825, 127.835, 127.860, 127.865, 127.885 and 127.897; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 127.800 is amended to read:
127.800. s.1.01. Definitions. The following words and phrases,
whenever used in ORS 127.800 to 127.897, [shall]
have the following meanings:
(1) "Adult" means an individual who is 18 years of
age or older.
(2) "Attending physician" means the physician who has
primary responsibility for the care of the patient and treatment of the
patient's terminal disease.
(3) "Capable"
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 health care decisions to health
care providers, including communication through persons familiar with the
patient's manner of communicating if those persons are available.
[(3)] (4) "Consulting physician"
means a physician who is qualified by specialty or experience to make a
professional diagnosis and prognosis regarding the patient's disease.
[(4)] (5) "Counseling" means [a consultation] one or more consultations as necessary between a state licensed
psychiatrist or psychologist and a patient for the purpose of determining [whether] that the patient is capable
and not suffering from a psychiatric or psychological disorder[,] or depression causing impaired
judgment.
[(5)] (6) "Health care provider"
means a person licensed, certified[,]
or otherwise authorized or permitted by the law of this state to administer
health care or dispense medication
in the ordinary course of business or practice of a profession, and includes a
health care facility.
[(6)
"Incapable" means that in the opinion of a court or in the opinion of
the patient's attending physician or consulting physician, a patient lacks the
ability to make and communicate health care decisions to health care providers,
including communication through persons familiar with the patient's manner of
communicating if those persons are available. Capable means not incapable.]
(7) "Informed decision" means a decision by a
qualified patient, to request and obtain a prescription to end his or her 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:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with taking the medication
to be prescribed;
(d) The probable result of taking the medication to be
prescribed; and
(e) The feasible alternatives, including, but not limited to,
comfort care, hospice care and pain control.
(8) "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.
(9) "Patient" means a person who is under the care of
a physician.
(10) "Physician" means a doctor of medicine or
osteopathy licensed to practice medicine by the Board of Medical Examiners for
the State of Oregon.
(11) "Qualified patient" means a capable adult who is
a resident of Oregon and has satisfied the requirements of ORS 127.800 to
127.897 in order to obtain a prescription for medication to end his or her life
in a humane and dignified manner.
(12) "Terminal disease" means an incurable and
irreversible disease that has been medically confirmed and will, within
reasonable medical judgment, produce death within six [(6)] months.
SECTION 2.
ORS 127.805 is amended to read:
127.805. s.2.01. Who may initiate a written request for
medication. (1) An adult who is
capable, is a resident of Oregon, and has been determined by the attending
physician and consulting physician to be suffering from a terminal disease, and
who has voluntarily expressed his or her wish to die, may make a written
request for medication for the purpose of ending his or her life in a humane
and dignified manner in accordance with ORS 127.800 to 127.897.
(2) No person shall
qualify under the provisions of ORS 127.800 to 127.897 solely because of age or
disability.
SECTION 3.
ORS 127.815 is amended to read:
127.815. s.3.01. Attending physician responsibilities. (1) The attending physician shall:
[(1)] (a) Make the initial determination of
whether a patient has a terminal disease, is capable, and has made the request
voluntarily;
(b) Request that the
patient demonstrate Oregon residency pursuant to ORS 127.860;
[(2)] (c) To ensure that the patient is making an
informed decision, inform the patient of:
[(a)] (A) His or her medical diagnosis;
[(b)] (B) His or her prognosis;
[(c)] (C) The potential risks associated with
taking the medication to be prescribed;
[(d)] (D) The probable result of taking the
medication to be prescribed; and
[(e)] (E) The feasible alternatives,
including, but not limited to, comfort care, hospice care and pain control; [.]
[(3)] (d) 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;
[(4)] (e) Refer the patient for counseling if
appropriate pursuant to ORS 127.825;
[(5)] (f) [Request] Recommend that
the patient notify next of kin;
(g) Counsel the patient
about the importance of having another person present when the patient takes
the medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking
the medication in a public place;
[(6)] (h) Inform the patient that he or she
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 ORS 127.840;
[(7)] (i) Verify, immediately prior to
writing the prescription for medication under ORS 127.800 to 127.897, that the
patient is making an informed decision[:];
[(8)] (j) Fulfill the medical record
documentation requirements of ORS 127.855;
[(9)] (k) Ensure that all appropriate steps
are carried out in accordance with ORS 127.800 to 127.897 prior to writing a
prescription for medication to enable a qualified patient to end his or her
life in a humane and dignified manner[.]; and
(L)(A) Dispense medications
directly, including ancillary medications intended to facilitate the desired
effect to minimize the patient's discomfort, provided the attending physician
is registered as a dispensing physician with the Board of Medical Examiners,
has a current Drug Enforcement Administration certificate and complies with any
applicable administrative rule; or
(B) With the patient's
written consent:
(i) Contact a pharmacist and
inform the pharmacist of the prescription; and
(ii) Deliver the written
prescription personally or by mail to the pharmacist, who will dispense the
medications to either the patient, the attending physician or an expressly
identified agent of the patient.
(2) Notwithstanding any
other provision of law, the attending physician may sign the patient's death
certificate.
SECTION 4.
ORS 127.825 is amended to read:
127.825. s.3.03. 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 causing impaired judgment.
SECTION 5. Section 5a of this 1999 Act is added to and
made a part of ORS 127.800 to 127.897.
SECTION 5a. Any governmental entity that incurs costs
resulting from a person terminating his or her life pursuant to the provisions
of ORS 127.800 to 127.897 in a public place shall have a claim against the
estate of the person to recover such costs and reasonable attorney fees related
to enforcing the claim.
SECTION 6.
ORS 127.835 is amended to read:
127.835. s.3.05. Family notification. The attending physician
shall [ask] recommend that the patient [to]
notify the next of kin of his or her
request for medication pursuant to ORS 127.800 to 127.897. A patient who
declines or is unable to notify next of kin shall not have his or her request
denied for that reason.
NOTE: Section
7 was deleted by amendment. Subsequent sections were not renumbered.
SECTION 8.
ORS 127.860 is amended to read:
127.860. s.3.10. Residency requirement. Only requests made by
Oregon residents[,] under ORS 127.800
to 127.897[,] shall be granted. Factors demonstrating Oregon residency
include but are not limited to:
(1) Possession of an Oregon
driver license;
(2) Registration to vote in
Oregon;
(3) Evidence that the person
owns or leases property in Oregon; or
(4) Filing of an Oregon tax
return for the most recent tax year.
SECTION 9.
ORS 127.865 is amended to read:
127.865. s.3.11. Reporting requirements. (1)(a) The Health Division shall annually
review a sample of records maintained pursuant to ORS 127.800 to 127.897.
(b) The division shall
require any health care provider upon dispensing medication pursuant to ORS
127.800 to 127.897 to file a copy of the dispensing record with the division.
(2) The Health Division shall make rules to facilitate the
collection of information regarding compliance with ORS 127.800 to 127.897. Except as otherwise required by law,
the information collected shall not be a public record and may not be made
available for inspection by the public.
(3) The [Health]
division shall generate and make available to the public an annual statistical
report of information collected under subsection (2) of this section.
SECTION 10. ORS
127.885 is amended to read:
127.885. s.4.01. Immunities. Except as provided in ORS 127.890:
(1) No person shall be subject to civil or criminal liability
or professional disciplinary action for participating in good faith compliance
with ORS 127.800 to 127.897. This includes being present when a qualified
patient takes the prescribed medication to end his or her life in a humane and
dignified manner.
(2) 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 ORS
127.800 to 127.897.
(3) No request by a patient for or provision by an attending
physician of medication in good faith compliance with the provisions of ORS
127.800 to 127.897 shall constitute neglect for any purpose of law or provide
the sole basis for the appointment of a guardian or conservator.
(4) 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 his or her life in a
humane and dignified manner. If a health care provider is unable or unwilling
to carry out a patient's request under ORS 127.800 to 127.897, and the patient
transfers his or her 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.
(5)(a) Notwithstanding
any other provision of law, a health care provider may prohibit another health
care provider from participating in ORS 127.800 to 127.897 on the premises of
the prohibiting provider if the prohibiting provider has notified the health
care provider of the prohibiting provider's policy regarding participating in
ORS 127.800 to 127.897. Nothing in this paragraph prevents a health care
provider from providing health care services to a patient that do not constitute
participation in ORS 127.800 to 127.897.
(b) Notwithstanding the
provisions of subsections (1) to (4) of this section, a health care provider
may subject another health care provider to the sanctions stated in this
paragraph if the sanctioning health care provider has notified the sanctioned
provider prior to participation in ORS 127.800 to 127.897 that it prohibits
participation in ORS 127.800 to 127.897:
(A) Loss of privileges, loss
of membership or other sanction provided pursuant to the medical staff bylaws,
policies and procedures of the sanctioning health care provider if the
sanctioned provider is a member of the sanctioning provider's medical staff and
participates in ORS 127.800 to 127.897 while on the health care facility
premises, as defined in ORS 442.015, of the sanctioning health care provider,
but not including the private medical office of a physician or other provider;
(B) Termination of lease or
other property contract or other nonmonetary remedies provided by lease
contract, not including loss or restriction of medical staff privileges or
exclusion from a provider panel, if the sanctioned provider participates in ORS
127.800 to 127.897 while on the premises of the sanctioning health care
provider or on property that is owned by or under the direct control of the
sanctioning health care provider; or
(C) Termination of contract
or other nonmonetary remedies provided by contract if the sanctioned provider
participates in ORS 127.800 to 127.897 while acting in the course and scope of
the sanctioned provider's capacity as an employee or independent contractor of
the sanctioning health care provider. Nothing in this subparagraph shall be
construed to prevent:
(i) A health care provider
from participating in ORS 127.800 to 127.897 while acting outside the course
and scope of the provider's capacity as an employee or independent contractor;
or
(ii) A patient from
contracting with his or her attending physician and consulting physician to act
outside the course and scope of the provider's capacity as an employee or
independent contractor of the sanctioning health care provider.
(c) A health care provider
that imposes sanctions pursuant to paragraph (b) of this subsection must follow
all due process and other procedures the sanctioning health care provider may
have that are related to the imposition of sanctions on another health care
provider.
(d) For purposes of this
subsection:
(A) "Notify" means
a separate statement in writing to the health care provider specifically
informing the health care provider prior to the provider's participation in ORS
127.800 to 127.897 of the sanctioning health care provider's policy about
participation in activities covered by ORS 127.800 to 127.897.
(B) "Participate in ORS
127.800 to 127.897" means to perform the duties of an attending physician
pursuant to ORS 127.815, the consulting physician function pursuant to ORS
127.820 or the counseling function pursuant to ORS 127.825. "Participate
in ORS 127.800 to 127.897" does not include:
(i) Making an initial
determination that a patient has a terminal disease and informing the patient
of the medical prognosis;
(ii) Providing information
about the Oregon Death with Dignity Act to a patient upon the request of the
patient;
(iii) Providing a patient,
upon the request of the patient, with a referral to another physician; or
(iv) A patient contracting
with his or her attending physician and consulting physician to act outside of
the course and scope of the provider's capacity as an employee or independent
contractor of the sanctioning health care provider.
(6) Suspension or
termination of staff membership or privileges under subsection (5) of this
section is not reportable under ORS 441.820. Action taken pursuant to ORS
127.810, 127.815, 127.820 or 127.825 shall not be the sole basis for a report
of unprofessional or dishonorable conduct under ORS 677.415 (2) or (3).
(7) No provision of ORS
127.800 to 127.897 shall be construed to allow a lower standard of care for
patients in the community where the patient is treated or a similar community.
SECTION 11.
ORS 127.897 is amended to read:
127.897. s.6.01. Form of the request. A request for a
medication as authorized by ORS 127.800 to 127.897 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.
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, prognosis, the
nature of medication to be prescribed and potential associated risks, the
expected result, and the feasible alternatives, including comfort care, hospice
care 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 further understand that although most deaths occur within three
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
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.
___________________________________________________________________
SECTION 12. This 1999 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 1999 Act takes effect on its passage.
Approved by the Governor
June 30, 1999
Filed in the office of
Secretary of State June 30, 1999
Effective date June 30, 1999
__________