SENATE BILL 308
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Elizabeth "Liz Stefanics and Carrie Hamblen
and Bill B. O'Neill and Deborah A. Armstrong
AN ACT
RELATING TO HEALTH CARE; ENACTING THE ELIZABETH WHITEFIELD END-OF-LIFE OPTIONS ACT; AMENDING A SECTION OF CHAPTER 30, ARTICLE 2 NMSA 1978 TO ESTABLISH RIGHTS, PROCEDURES AND PROTECTIONS RELATING TO MEDICAL AID IN DYING; ESTABLISHING REPORTING REQUIREMENTS; REMOVING CRIMINAL LIABILITY FOR PROVIDING ASSISTANCE PURSUANT TO THE ELIZABETH WHITEFIELD END-OF-LIFE OPTIONS ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 10 of this act may be cited as the "Elizabeth Whitefield End-of-Life Options Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Elizabeth Whitefield End-of-Life Options Act:
A. "adult" means a resident of the state who is eighteen years of age or older;
B. "capacity" means an individual's ability to understand and appreciate health care options available to that individual, including significant benefits and risks, and to make and communicate an informed health care decision. A determination of capacity shall be made only according to professional standards of care and the provisions of Section 24-7A-11 NMSA 1978;
C. "health care entity" means an entity, other than an individual, that is licensed to provide any form of health care in the state, including a hospital, clinic, hospice agency, home health agency, long-term care agency, pharmacy, group medical practice, medical home or any similar entity;
D. "health care provider" means any of the following individuals authorized pursuant to the New Mexico Drug, Device and Cosmetic Act to prescribe a medication to be used in medical aid in dying:
(1) a physician licensed pursuant to the Medical Practice Act;
(2) an osteopathic physician licensed pursuant to the Osteopathic Medicine Act;
(3) a nurse licensed in advanced practice pursuant to the Nursing Practice Act; or
(4) a physician assistant licensed pursuant to the Physician Assistant Act or the Osteopathic Medicine Act;
E. "medical aid in dying" means the medical practice wherein a health care provider prescribes medication to a qualified individual who may self-administer that medication to bring about a peaceful death;
F. "mental health professional" means a state-licensed psychiatrist, psychologist, master social worker, psychiatric nurse practitioner or professional clinical mental health counselor;
G. "prescribing health care provider" means a health care provider who prescribes medical aid in dying medication;
H. "qualified individual" means an individual who has met the requirements of Section 3 of the Elizabeth Whitefield End-of-Life Options Act;
I. "self-administer" means taking an affirmative, conscious, voluntary action to ingest a pharmaceutical substance; and
J. "terminal illness" means a disease or condition that is incurable and irreversible and that, in accordance with reasonable medical judgment, will result in death within six months.
SECTION 3. [NEW MATERIAL] MEDICAL AID IN DYING--PRESCRIBING HEALTH CARE PROVIDER DETERMINATION--FORM.--A prescribing health care provider may provide a prescription for medical aid in dying medication to an individual only after the prescribing health care provider has:
A. determined that the individual has:
(1) capacity;
(2) a terminal illness;
(3) voluntarily made the request for medical aid in dying; and
(4) the ability to self-administer the medical aid in dying medication;
B. provided medical care to the individual in accordance with accepted medical standards of care;
C. determined that the individual is making an informed decision after discussing with the individual the:
(1) individual's medical diagnosis and prognosis;
(2) potential risks associated with self-administering the medical aid in dying medication that the individual has requested the health care provider to prescribe;
(3) probable result of self-administering the medical aid in dying medication to be prescribed;
(4) individual's option of choosing to obtain the medical aid in dying medication and then deciding not to use it; and
(5) feasible alternative, concurrent or additional treatment opportunities, including hospice care and palliative care focused on relieving symptoms and reducing suffering;
D. determined in good faith that the individual's request does not arise from coercion or undue influence by another person;
E. noted in the individual's health record the prescribing health care provider's determination that the individual qualifies to receive medical aid in dying;
F. confirmed in the individual's health record that at least one physician or osteopathic physician licensed pursuant to the Medical Practice Act or the Osteopathic Medicine Act has determined that the individual has capacity, a terminal illness and the ability to self-administer the medical aid in dying medication. That physician may be the prescribing health care provider pursuant to this section, the individual's hospice health care provider or another physician who meets the requirements of this subsection;
G. affirmed that the individual is:
(1) enrolled in a medicare-certified hospice program; or
(2) eligible to receive medical aid in dying after the prescribing health care provider has referred the individual to a consulting health care provider, who has experience with the underlying condition rendering the qualified individual terminally ill, and the consulting health care provider has:
(a) examined the individual;
(b) reviewed the individual's relevant medical records; and
(c) confirmed, in writing, the prescribing health care provider's prognosis that the individual is suffering from a terminal illness; and
H. provided substantially the following form to the individual and enters the form into the individual's health record after the form has been completed with all of the required signatures and initials:
"REQUEST FOR MEDICATION TO END MY LIFE IN A PEACEFUL MANNER
I, ______________________________________________, am an adult of sound mind.
I am suffering from a terminal illness, which is a disease or condition that is incurable and irreversible and that, according to reasonable medical judgment, will result in my death within six months. My health care provider has determined that the illness is in its terminal phase.
_____ (Patient Initials)
I have been fully informed of my diagnosis and prognosis, the nature of the medical aid in dying medication to be prescribed and the potential associated risks, the expected result and the feasible alternative, concurrent or additional treatment opportunities, including hospice care and palliative care focused on relieving symptoms and reducing suffering. _____ (Patient Initials)
I request that my health care provider prescribe medication that will end my life in a peaceful manner if I choose to self-administer the medication, and I authorize my health care provider to contact a willing pharmacist to fulfill this request. _____ (Patient Initials)
I understand that I have the right to rescind this request at any time. _____ (Patient Initials)
I understand the full import of this request, and I expect to die if I self-administer the medical aid in dying medication prescribed. I further understand that although most deaths occur within three hours, my death may take longer. My health care provider has counseled me about this possibility.
_____ (Patient Initials)
I make this request voluntarily and without reservation.
Signed: ___________________________________________
Date: ____________________ Time: ________________
DECLARATION OF WITNESSES:
We declare that the person signing this request:
1. is personally known to us or has provided proof of identity;
2. signed this request in our presence;
3. appears to be of sound mind and not under duress, fraud or undue influence; and
4. is not a patient for whom either of us is a health care provider.
Witness 1: Witness 2:
Signature: __________________ _________________
Printed Name: __________________ _________________ Relationship
to Patient: __________________ _________________
Date: __________________ _________________. NOTE: No more than one witness shall be a relative by blood, marriage or adoption of the person signing this request. No more than one witness shall own, operate or be employed at a health care facility where the person signing this request is a patient or resident.".
SECTION 4. [NEW MATERIAL] DETERMINING CAPACITY.--If an individual has a recent history of a mental health disorder or an intellectual disability that could cause impaired judgment with regard to end-of-life medical decision making, or if, in the opinion of the prescribing health care provider or consulting health care provider, an individual currently has a mental health disorder or an intellectual disability that may cause impaired judgment with regard to end-of-life medical decision making, the individual shall not be determined to have capacity to make end-of-life decisions until the:
A. health care provider refers the individual for evaluation by a mental health professional with the training and expertise to assess a person with such a disorder or disability; and
B. mental health professional determines the individual to have capacity to make end-of-life decisions after evaluating the individual during one or more visits with the individual.
SECTION 5. [NEW MATERIAL] WAITING PERIOD.--A prescription for medical aid in dying medication shall:
A. not be filled until forty-eight hours after the prescription for medical aid in dying medication has been written, unless the qualified individual's prescribing health care provider has medically confirmed that the qualified individual may, within reasonable medical judgment, die before the expiration of the waiting period identified herein, in which case, the prescription may be filled once the prescribing health care provider affirms that all requirements have been fulfilled pursuant to Section 3 of the Elizabeth Whitefield End-of-Life Options Act; and
B. indicate the date and time that the prescription for medical aid in dying medication was written and indicate the first allowable date and time when it may be filled.
SECTION 6. [NEW MATERIAL] MEDICAL AID IN DYING--RIGHT TO KNOW.--A health care provider shall inform a terminally ill patient of all reasonable options related to the patient's care that are legally available to terminally ill patients that meet the medical standards of care for end-of-life care.
SECTION 7. [NEW MATERIAL] DEATH CERTIFICATE--CAUSE OF DEATH.--The cause of death of a qualified individual who is deceased pursuant to self-administration of medica