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A Model State Act To Authorize And Regulate Physician-Assisted Suicide
The following document is a Model State Act drafted over two years by a team of lawyers, physicians, academics and Hemlock Society members in Boston. It closely resembles their Model Act published in the Winter, l996, issue of the Harvard Journal on Legislation, "but this special version is an adaptation of the Act designed to fit it squarely within the constitutional protections for physician-assisted suicide afforded by the U S Court of Appeals for the Ninth Circuit's March 6, l996, decision in Compassion in Dying v. Washington State. There it was decided that the Due Process clause of the Fourteenth Amendment is violated by any categorical ban on assisted suicide which does not make exceptions for physician-assistance in suicide to terminally ill patients who competently request it.
Political groups and legislators are invited to make use of the following Model State Act but are advised not to alter the wording of the Act without consultation with its authors. This Model Act is NOT copyright and may be downloaded and photocopied as necessary.

A Model State Act To Authorize And Regulate Physician-Assisted Suicide

Section 1. Statement of Purpose
The principal purpose of this Act is to enable an individual who requests it to receive assistance from a physician in obtaining the medical means for that individual to end his or her life when he or she suffers from a terminal illness and is otherwise qualified under the terms of the Act. Its further purposes are (a) to ensure that the request for such assistance is complied with only when it is fully informed, reasoned, free of undue influence from any person, and not the result of a distortion of judgment due to clinical depression or any other mental illness, and (b) to establish mechanisms for continuing oversight and regulation of the process for providing such assistance. The provisions of this Act should be liberally construed to further these purposes.

Section 2. Definitions
As used in this Act,

(a) "Commissioner" means the Commissioner of the Department.

(b) "Department" means the Department of Public Health [or similar state agency].

(c) "Health care facility" means a hospital, hospice, nursing home, long-term residential care facility, or other institution providing medical services and licensed or operated in accordance with the law of this state or the United States.

(d) "Medical means of suicide" means medical substances or devices that the responsible physician prescribes for or supplies to a patient for the purpose of enabling the patient to end his or her own life. "Providing medical means of suicide" includes providing a prescription therefor.

(e) "Patient's medical record" means (1) in the case of a patient who is in a health care facility, the record of the patient's medical care that such facility is required by law or professional standards to compile and maintain, and (2) in the case of a patient who is not in such a facility, the record of the patient's medical care that the responsible physician is required by law or professional standards to compile and maintain.

(f) "Person" includes any individual, corporation, professional corporation, partnership, unincorporated association, government, government agency, or any other legal or commercial entity.

(g) "Responsible physician" means the physician, licensed to practice medicine in this state, who (1) has full or partial responsibility for treatment of a patient who is terminally ill, and (2) takes responsibility for providing medical means of suicide to the patient.

(h) "Terminal illness" means a bodily disorder that is likely to cause a patient's death within six months.

Section 3. Authorization to Provide Assistance
(a) It is lawful for a responsible physician who complies in all material respects with Sections 4, 5, and 6 of this Act to provide a patient with medical means of suicide, provided that the responsible physician acts on the basis of an honest belief that

the patient is eighteen years of age or older;
the patient has a terminal illness; and
the patient has made a request of the responsible physician to provide medical means of suicide, which request

(a) is not the result of a distortion of the patient's judgment due to clinical depression or any other mental illness;
(b) represents the patient's reasoned choice based on an understanding of the information that the responsible physician has provided to the patient pursuant to Section 4(d) of this Act concerning the patient's medical condition and medical options;
(C) has been made free of undue influence by any person; and
(D) has been repeated without self- contradiction by the patient on two separate occasions at least fourteen days apart, the last of which is no more than seventy-two hours before the responsible physician provides the patient with the medical means of suicide.
(b) A responsible physician who has provided a patient with medical means of suicide in accordance with the provisions of this Act may, if the patient so requests, be present and assist the patient at the time that the patient makes use of such means, provided that the actual use of such means is the knowing, intentional, and voluntary physical act of the patient.

Section 4. Discussion with Patient and Documentation
Before providing medical means of suicide to a patient pursuant to Section 3 of this Act, the responsible physician shall
(a) offer to the patient all medical care, including hospice care if available, that is consistent with accepted clinical practice and that can practicably be made available to the patient for the purpose of curing or palliating the patient's illness or alleviating symptoms, including pain and other discomfort;
(b) offer the patient the opportunity to consult with a social worker or other individual trained and experienced in providing social services to determine whether services are available to the patient that could improve the patient's circumstances sufficiently to cause the patient to reconsider his or her request for medical means of suicide;
(c) counsel the patient to inform the patient's family of the request if the patient has not already done so and the responsible physician believes that doing so would be in the patient's interest; and
(d) supply to and discuss with the patient all available medical information that is necessary to provide the basis for a reasoned decision concerning a request for medical means of suicide, including all such information regarding the patient's diagnosis and prognosis, the medical treatment options and the medical means of suicide that can be made available to the patient, and their benefits and burdens, all in accordance with the following procedures:

at least two adult individuals must witness the discussion required by this paragraph (d), at least one of whom (a) is not affiliated with any person that is involved in the care of the patient, and (b) does not stand to benefit personally in any way from the patient's death;
the responsible physician shall inform each witness that he or she may question the responsible physician and the patient to ascertain that the patient has, in fact, heard and understood all of the material information discussed pursuant to this paragraph (d); and
the responsible physician shall document the discussion with the patient held pursuant to this paragraph (d), using one of the following methods:

(a)an audio tape or a video tape of the discussion, during which the witnesses acknowledge their presence; or

(b) a written summary of the discussion which the patient reads and signs and which the witnesses attest in writing to be accurate.

The documentation required by this subparagraph (3) must be included and retained with the patient's medical record, and access to and disclosure of such records and copies of them are governed by the provisions of Section 10 of this Act.

Section 5. Professional Consultation and Documentation
Before providing medical means of suicide to a patient pursuant to Section 3 of this Act, the responsible physician shall
(a) secure a written opinion from a consulting physician who has examined the patient and is qualified to make such an assessment that the patient is suffering from a terminal illness;
(b) secure a written opinion from a licensed psychiatrist, clinical psychologist, or psychiatric social worker who has examined the patient and is qualified to make such an assessment that the patient has requested medical means of suicide and that the patient's request meets the criteria set forth in Sections 3(a)(3)(A), 3(a)(3)(B), and 3(a)(3)(C) of this Act to the effect that the request is not the result of a distortion of the patient's judgment due to clinical depression or any other mental illness, is reasoned, is fully informed, and is free of undue influence by any person; and
(c) place the written opinions described in paragraphs (a) and (b) of this section in the patient's medical record.

Section 6. Recording and Reporting by the Responsible Physician
Promptly after providing medical means of suicide to a patient, the responsible physician shall (a) record the provision of such means in the patient's medical record, (b) submit a report to the Commissioner on such form as the Commissioner may require pursuant to Section 8(a) of this Act, and (c) place a copy of such report in the patient's medical record.

Section 7. Actions by Persons Other than the Responsible Physician
(a) An individual who acts on the basis of an honest belief that the requirements of this Act have been or are being met may, if the patient so requests, be present and assist at the time that the patient makes use of medical means of suicide, provided that the actual use of such means is the knowing, intentional, and voluntary physical act of the patient.
(b) A licensed pharmacist, acting in accordance with the laws and regulations of this state and the United States that govern the dispensing of prescription drugs and devices and controlled substances, may dispense medical means of suicide to a person who the pharmacist reasonably believes presents a valid prescription for such means.
(c) An individual who acts on the basis of an honest belief that the requirements of this Act have been or are being met may counsel or assist the responsible physician in providing medical means of suicide to a patient.

Section 8. Record Keeping by the Department
(a) The Commissioner shall by regulation specify a form of report to be submitted by physicians pursuant to Section 6(b) of this Act in order to provide the Department with such data regarding the provision of medical means of suicide as the Commissioner determines to be necessary or appropriate to enable effective oversight and regulation of the operation of this Act. Such report shall include, at a minimum, the following information:

the patient's diagnosis, prognosis, and the alternative medical treatments, consistent with accepted clinical practice, that the responsible physician advised the patient were practicably available;
the date on which and the name of the health care facility or other place where the responsible physician complied with the patient's request for medical means of suicide, the medical means of suicide that were prescribed or otherwise provided, and the method of recording the discussion required by Section 4(d) of this Act;
the patient's vital statistics, including county of residence, age, sex, race, and marital status;
the type of medical insurance and name of insurer of the patient, if any;
the names of the responsible physician, the medical and mental health consultants who delivered opinions pursuant to Section 5 of this Act, and the witnesses required by Section 4(d) of this Act; and
the location of the patient's medical record.
(b) The Commissioner shall require that the report described in paragraph (a) of this section not include the name of the patient but shall provide by regulation for an anonymous coding or reference system that enables the Commissioner or the responsible physician to associate such report with the patient's medical record.

Section 9. Enforcement and Reporting by the Department
(a) The Commissioner shall enforce the provisions of this Act and shall report to the Attorney General and the appropriate board of registration [or similar state agency] any violation of its provisions.
(b) The Commissioner shall promulgate such rules and regulations as the Commissioner determines to be necessary or appropriate to implement and achieve the purposes of this Act and shall, at least ninety days prior to adopting any rule or regulation affecting the conduct of a physician acting under the provisions of this Act, submit such proposed rule or regulation to the Board of Registration in Medicine [or similar state agency] for such Board's review and advice.
(c) The Board of Registration in Medicine [or similar state agency] may promulgate no rule or regulation inconsistent with the provisions of this Act or with the rules and regulations of the Department promulgated under it and shall, at least ninety days prior to adopting any rule or regulation affecting the conduct of a physician acting under the provisions of this act, submit such proposed rule or regulation to the Commissioner for the Commissioner's review and advice.
(d) The Commissioner shall report to the Legislature annually concerning the operation of this Act and the achievement of its stated purposes. The report of the Commissioner shall be made available to the public upon its submission to the Legislature. In order to facilitate such annual reporting, the Commissioner may collect and review such information as the Commissioner determines to be helpful to the Department, the Board of Registration in Medicine [or similar state agency], or the Legislature and may by regulation require the submission of such information to the Department.

Section 10. Confidentiality of Records and Reports
(a) The information that a person acting under this Act obtains from or about a patient is confidential and may not be disclosed to any other person without the patient's consent or the consent of a person with lawful authority to act on the patient's behalf, except as this Act or any other provision of law may otherwise require.
(b) The report that a responsible physician files with the Department pursuant to Section 6(b) of this Act is confidential, is not a public record, and is not subject to the provisions of [the state public records statute or freedom of information act].

Section 11. Provider's Freedom of Conscience
(a) No individual who is conscientiously opposed to providing a patient with medical means of suicide may be required to do so or to assist a responsible physician in doing so.
(b) A health care facility that has adopted a policy opposed to providing patients with medical means of suicide and has given reasonable notice of such policy to its staff members may prohibit such staff members from providing such means to a patient who is within its facilities or under its care.

Section 12. Patient's Freedom from Discrimination
(a) No physician, health care facility, health care service plan, provider of health or disability insurance, self-insured employee health care benefit plan, or hospital service plan may require any individual to request medical means of suicide as a condition of eligibility for service, benefits, or insurance. No such physician or entity may refuse to provide medical services or medical benefits to an individual because such individual has requested medical means of suicide, except as Section 11 of this Act permits.
(b) A patient's use of medical means of suicide to end such patient's life in compliance with the applicable provisions of this Act shall not be considered suicide for the purpose of voiding a policy of insurance on the life of such patient.

Section 13. Liability
(a) No person who has acted in compliance with the applicable provisions of this Act in providing medical means of suicide to an individual shall be subject to civil or criminal liability therefor.
(b) No individual who has acted in compliance with the applicable provisions of this Act in providing medical means of suicide to a patient shall be subject therefor to professional sanction, loss of employment, or loss of privileges, provided that such action does not violate a policy of a health care facility which complies with Section 11(b) of this Act.
(c) Except as provided in paragraphs (a) and (b) of this section, this Act does not limit the civil, criminal, or disciplinary liability of any person for intentional or negligent misconduct.

Section 14. Criminal Penalties
In addition to any other civil, criminal, or disciplinary liability which he or she may otherwise incur thereby, an individual who willfully violates Section 3, 4, 5, 6, or 7 of this Act is guilty of a [specify grade of offense].


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