New Approach SD Planning “Death with Dignity” Initiative for 2018

Last updated on 2016-12-26

Undeterred by its failure to place medical cannabis on South Dakota’s 2016 ballot, New Approach South Dakota plans to put its petitioning experience to work with a new initiative effort to put assisted suicide on our 2018 ballot.

Melissa Mentele of New Approach SD provided me with the following draft text, which she says has been submitted to the Legislative Research Council for review. The text comes from the Washington Death with Dignity Act, which Washington state voters approved in 2008. The sponsors have edited the draft a little, but several references to Washington and Washington state code remain for LRC to highlight and strike. (I have marked the Washington references I’ve spotted in red italics and welcome your further proofing.)

Note that the Washington statute forbids referring to the action it authorizes as “suicide” or “assisted suicide.” The statutorily preferred term is “obtaining and self-administering life-ending medication.” I imagine I’ll be in for a language critique, since I’m not going to crowd all seven of those words into every blog headline and sentence I write about this initiative when what we’re talking about, ending one’s own life, is quite literally captured by one word, “suicide.” Let the word war begin.

Whatever we call it, the action authorized by the South Dakota Death with Dignity Act would be available to terminally ill South Dakotans who make a written request for self-administerable life-ending medication. The person seeking to end her/his life must obtain signatures from two witnesses—at least one not a relative, not an heir, and not a staff member of the health care facility taking care of the person seeking to commit suicide. It also imposes a number of requirements on the attending physician who may prescribe the life-ending drugs, plus a second opinion to verify the terminal diagnosis and a fifteen-day waiting period, all of which will invite comparisons with South Dakota’s current physician requirements, forced pregnancy counseling, and 72-hour-plus waiting period for patients seeking abortions.

 

South Dakota Death with Dignity Act

Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

1. “Adult” means an individual who is eighteen 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. “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 healthcare providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.
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.
5. “Counseling” means one or more consultations as necessary between a state licensed psychiatrist or psychologist 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.
6. “Health care provider” means a person licensed, certified, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.
7. “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 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:
   1. His or her medical diagnosis;
   2. His or her 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 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 in the state of Washington.
11. “Qualified patient” means a competent adult who is a resident of Washington state and has satisfied the requirements of this chapter in order to obtain a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner.
12. “Self-administer” means a qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner.
13. “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.

Written request for medication.

1. An adult who is competent, is a resident of South Dakota, 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 that the patient may self-administer to end his or her life in a humane and dignified manner in accordance with this chapter.
2. A person does not qualify under this chapter solely because of age or disability.

Form of the written request.

1. A valid request for medication under this chapter shall be in substantially the form, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is competent, acting voluntarily, and is not being coerced to sign the request.
2. One of the witnesses shall 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 law; or
   3. An owner, operator, or employee of a healthcare facility where the qualified patient is receiving medical treatment or is a resident.
3. The patient’s attending physician at the time the request is signed shall not be a witness.
4. 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 department of health by rule.

Attending physician responsibilities.

1. The attending physician shall:
   1. Make the initial determination of whether a patient has a terminal disease, is competent, and has made the request voluntarily;
   2. Request that the patient demonstrate South Dakota residency under RCW 70.245.130;
   3. To ensure that the patient is making an informed decision, inform the patient of:
      1. His or her medical diagnosis;
      2. His or her 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 including, but not limited to, comfort care, hospice care, and pain control;
   4. 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;
   5. Refer the patient for counseling if appropriate under RCW 70.245.060;
   6. Recommend that the patient notify next of kin;
   7. Counsel the patient about the importance of having another person present when the patient takes the medication prescribed under this chapter and of not taking the medication in a public place;
   8. 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 fifteen-day waiting period;
   9. Verify, immediately before writing the prescription for medication under this chapter, that the patient is making an informed decision;
   10. Fulfill the medical record documentation requirements;
   11. Ensure that all appropriate steps are carried out in accordance with this chapter before writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and
   12. 1. Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient’s discomfort, if the attending physician is authorized under statute and rule to dispense and has a current drug enforcement administration certificate; or
       2. 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 facsimile to the pharmacist, who will dispense the medications directly to either the patient, the attending physician, or an expressly identified agent of the patient. Medications dispensed pursuant to this subsection shall not be dispensed by mail or other form of courier.
2. The attending physician may sign the patient’s death certificate which shall list the underlying terminal disease as the cause of death.

Consulting physician confirmation.

Before a patient is qualified under this chapter, a consulting physician shall examine the patient and his or her 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.

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. Medication to end a patient’s life in a humane and dignified manner shall 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.

Informed decision.

A person shall not receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision. Immediately before writing a prescription for medication under this chapter, the attending physician shall verify that the qualified patient is making an informed decision.

Notification of next of kin.

The attending physician shall recommend that the patient notify the next of kin of his or her request for medication under this chapter. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason.

Written and oral requests.

To receive a prescription for medication that the qualified patient may self-administer to end his or her 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 his or her attending physician at least fifteen days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the qualified patient an opportunity to rescind the request.

Right to rescind request.

A patient may rescind his or her request at any time and in any manner without regard to his or her 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.

Waiting periods.

1. At least fifteen days shall elapse between the patient’s initial oral request and the writing of a prescription under this chapter.
2. At least forty-eight hours shall elapse between the date the patient signs the written request and the writing of a prescription under this chapter.

Medical record documentation requirements.

The following shall be documented or filed in the patient’s medical record:

1. All oral requests by a patient for medication to end his or her life in a humane and dignified manner;
2. All written requests by a patient for medication to end his or her life in a humane and dignified manner;
3. The attending physician’s diagnosis and prognosis, and determination that the patient is competent, is acting voluntarily, and has made an informed decision;
4. The consulting physician’s diagnosis and prognosis, and verification that the patient is competent, is acting voluntarily, and has made an informed decision;
5. A report of the outcome and determinations made during counseling, if performed
6. The attending physician’s offer to the patient to rescind his or her request at the time of the patient’s second oral request; and
7. 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.

Residency requirement.

Only requests made by South Dakota residents under this chapter may be granted. Factors demonstrating South Dakota residency include but are not limited to:

1. Possession of a South Dakota driver’s license;
2. Registration to vote in South Dakota; or
3. Evidence that the person owns or leases property in South Dakota.

Disposal of unused medications.

Any medication dispensed under this chapter that was not self-administered shall be disposed of by lawful means.

Reporting of information to the department of health—Adoption of rules—Information collected not a public record—Annual statistical report.

1. 1. The department of health shall annually review all records maintained under this chapter.
   2. The department of health shall require any health care provider upon writing a prescription or dispensing medication under this chapter to file a copy of the dispensing record and such other administratively required documentation with the department. All administratively required documentation shall be mailed or otherwise transmitted as allowed by department of health rule to the department no later than thirty calendar days after the writing of a prescription and dispensing of medication under this chapter, except that all documents required to be filed with the department by the prescribing physician after the death of the patient shall be mailed no later than thirty calendar days after the date of death of the patient. In the event that anyone required under this chapter to report information to the department of health provides an inadequate or incomplete report, the department shall contact the person to request a complete report.
2. The department of health shall adopt rules to facilitate the collection of information regarding compliance with this chapter. Except as otherwise required by law, the information collected is not a public record and may not be made available for inspection by the public.
3. The department of health shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section.

Effect on construction of wills, contracts, and statutes.

1. 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 his or her life in a humane and dignified manner, is not valid.
2. Any obligation owing under any currently existing contract shall not be conditioned or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner.

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 policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication that the patient may self-administer to end his or her life in a humane and dignified manner. A qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner shall not have an effect upon a life, health, or accident insurance or annuity policy.

Authority of chapter—References to practices under this chapter—Applicable standard of care.

1. Nothing in this chapter authorizes 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 do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. State reports shall not refer to practice under this chapter as “suicide” or “assisted suicide.” state reports shall refer to practice under this chapter as obtaining and self-administering life-ending medication.
2. Nothing contained in this chapter shall be interpreted to lower the applicable standard of care for the attending physician, consulting physician, psychiatrist or psychologist, or other health care provider participating under this chapter.

Immunities—Basis for prohibiting health care provider from participation—Notification—Permissible sanctions.

1. 1. A person shall not 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 his or her life in a humane and dignified manner;
   2. A professional organization or association, or health care provider, may not 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;
   3. A patient’s request for or provision by an attending physician of medication in good faith compliance with this chapter does not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator; and
   4. Only willing health care providers shall 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 this chapter, 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.
2. 1. A health care provider may prohibit another health care provider from participating under chapter 1, Laws of 2009 on the premises of the prohibiting provider if the prohibiting provider has given notice to all health care providers with privileges to practice on the premises and to the general public of the prohibiting provider’s policy regarding participating [text omits Washington reference but fails to replace it with South Dakota reference].
   2. A health care provider may subject another health care provider to the sanctions stated in this subsection if the sanctioning health care provider has notified the sanctioned provider before participation[text omits Washington reference but fails to replace it with South Dakota reference].
      1. Loss of privileges, loss of membership, or other sanctions provided under 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 while on the health care facility premises of the sanctioning health care provider, but not including the private medical office of a physician or other provider;
      2. Termination of a lease or other property contract or other nonmonetary remedies provided by a lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in 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
      3. Termination of a contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in [text omits Washington reference but fails to replace it with South Dakota reference] 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 subsection (2)(b)(iii) prevents:
         1. A health care provider from participating in while acting outside the course and scope of the provider’s capacity as an employee or independent contractor; or
         2. 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.
   3. A health care provider that imposes sanctions under (b) of this subsection shall 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.
   4. For the purposes of this subsection:
      1. “Notify” means a separate statement in writing to the healthcare provider specifically informing the health care provider before the provider’s participation in chapter 1, Laws of 2009 of the sanctioning health care provider’s policy about participation in activities covered by this chapter.
      2. “Participate in [text omits Washington reference but fails to replace it with South Dakota reference]” does not include:
         1. Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;
         2. Providing information about the Washington death with dignity act to a patient upon the request of the patient;
         3. Providing a patient, upon the request of the patient, with a referral to another physician; or
         4. 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.
3. Suspension or termination of staff membership or privileges under subsection (2) of this section is not reportable [text omits Washington reference but fails to replace it with South Dakota reference]. Action taken may not be the sole basis for a report of unprofessional conduct [text omits Washington reference but fails to replace it with South Dakota reference].
4. References to “good faith” in subsection (1)(a), (b), and (c) of this section do not allow a lower standard of care for health care providers in the state of South Dakota.

Willful alteration/forgery—Coercion or undue influence—Penalties—Civil damages—Other penalties not precluded.

1. 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 is guilty of a class A felony. [Check this: in Washington, class A felony is one step down from aggravated first degree murder, while in South Dakota, class A felony is the highest category of crimes in terms of penalty issued.]
2. A person who coerces or exerts undue influence on a patient to request medication to end the patient’s life, or to destroy a rescission of a request, is guilty of a class A felony.
3. This chapter does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.
4. The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter.

Claims by governmental entity for costs incurred.

Any governmental entity that incurs costs resulting from a person terminating his or her life under this chapter in a public place has a claim against the estate of the person to recover such costs and reasonable attorneys’ fees related to enforcing the claim.

Form of the request.

A request for a medication as authorized by this chapter shall be in substantially the following form:

REQUEST FOR MEDICATION TO END MY LIFE IN A HUMAN [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 I may self-administer to end my life in a humane and dignified manner and to 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 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

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:

Witness 1	Witness 2
Initials	Initials
….	….	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;
….	….	4. Is not a patient for whom either of us is the attending physician.

Printed Name of Witness 1:. . . .
Signature of Witness 1/Date:. . . .
Printed Name of Witness 2:. . . .
Signature of 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.

This act may be known and cited as the South Dakota death with dignity act.

This act takes effect one hundred twenty days after the election at which it is approved [New Approach South Dakota, “South Dakota Death with Dignity Act,” preliminary draft submitted to Legislative Research Committee, 2016.10.05].

Per SDCL 2-1-1.2, New Approach SD could begin circulating a petition to place this measure on the ballot on November 6 of this year, 24 months before the 2018 general election. At 4,000-plus words and maybe four pages in six-point font, that will be another hefty petition and another long read for signers.