REFERENCE TITLE: end-of-life decisions; terminally ill individuals

State of Arizona
Senate
Fifty-sixth Legislature
First Regular Session
2023

SB 1646

Introduced by

Senators Burch: Fernandez, Gabaldón, Gonzales, Marsh, Mendez, Terán; Representative Travers

[PDF version; note there is an identical House Bill HB 2583 introduced by Representatives Mathis: Bravo, Gutierrez, Terech, Senators Burch, Marsh]

AN ACT
Amending Title 36, Arizona Revised Statutes, by adding Chapter 33; relating to end-of-life decisions.

Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 36, Arizona Revised Statutes, is amended by adding Chapter 33, to read:

CHAPTER 33
MEDICAL AID IN DYING

Article 1. General Provisions

36-3301. Definitions

In this article, unless the context otherwise requires:

1. “Adult” means an individual who is at least eighteen years of age.

2. “Attending physician” means a person who is qualified by specialty or experience to determine an individual’s eligibility to pursue medical aid in dying under this article, who agrees to write the prescriptions and who takes responsibility for counseling the individual, making care decisions, ensuring compliance with this article and submitting proper documentation to the department.

3. “Capacity” means an individual’s ability, as determined by professional standards of care, to understand and appreciate health care options available to the individual, including significant benefits and risks, and to make and communicate an informed health care decision.

4. “Coercion or undue influence” means the wilful attempt, whether by deception, intimidation or any other means, to cause an individual to request, obtain or self-administer medication pursuant to this article with intent to cause the death of the individual or to prevent the individual from obtaining or self-administering medication pursuant to this article.

5. “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual’s disease.

6. “Counseling” means one or more consultations as necessary between a mental health professional and an individual to determine whether the individual has capacity and is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

7. “Department” means the Department of Health Services.

8. “Health care facility”:

(a) means a hospital, medical clinic, nursing home or inpatient hospice facility or any other licensed health care institution where the delivery of health care is facilitated.

(b) does not include an individual health care provider.

9. “Health care provider”:

(a) means a person who is licensed, certified or otherwise authorized or allowed by the laws of this state to administer health care or dispense medication in the ordinary course of business or practice of a profession.

(b) does not include a health care facility.

10. “Informed decision” means a voluntary affirmative decision that is all of the following:

(a) made by a qualified individual to request and obtain a prescription for medication that the individual will self-administer to end the individual’s life in a humane and dignified manner.

(b) based on an appreciation of the relevant facts.

(c) made after the attending physician fully informs the individual of all of the following:

(i) the individual’s medical diagnosis.

(ii) the individual’s prognosis.

(iii) the potential risks associated with taking the medication to be prescribed.

(iv) the probable result of taking the medication to be prescribed.

(v) the feasible alternatives and concurrent or additional treatment opportunities for the individual’s terminal illness, including comfort care, palliative care, hospice care, pain control and disease-directed treatment options, as well as the risks and benefits of each alternative.

11. “Medical aid in dying” means the practice of evaluating a request from, determining qualification for and providing a prescription for medication to a qualified individual pursuant to this article.

12. “Medically confirm” means that a consulting physician who has examined the individual and the individual’s relevant medical records confirms the medical opinion of the attending physician.

13. “Mental health professional” means a psychiatrist, psychologist or psychiatric nurse practitioner who is licensed by this state.

14. “Physician” means a physician who is licensed pursuant to Title 32, Chapter 13 or 17.

15. “Prescription for medication” means a prescription that is written by an attending physician for medication for a qualified individual to self-administer to bring about a peaceful death in accordance with this article.

16. “Qualified individual” means a terminally ill adult with capacity who is a resident of this state and who has satisfied the requirements of this article in order to obtain a prescription for medication.

17. “Self-administer”:

(a) means an affirmative, conscious voluntary act by a qualified individual to ingest the prescription medication.

(b) does not include the administration of prescription medication by an injection or intravenous infusion.

18. “Telemedicine” means the delivery of health care services such as diagnosis, consultation or treatment through the use of live interactive audio and video over a secure connection that complies with the requirements of the Health Insurance Portability and Accountability Act (p.l. 104-191).

19. “Terminal illness” or “terminally ill” means an incurable illness that will, within reasonable medical judgment, result in death within six months.

36-3302. Prescription for medication; written request; initiation

An adult resident of this state who has capacity, whom the attending physician and consulting physician have determined is suffering from a terminal illness and who has voluntarily expressed a wish to die may make a written request for a prescription for medication.

36-3303. Form of request; translation; witnesses; signatures

A. A valid request for a prescription for medication must be in substantially the form described in section 36-3323, be signed and dated by the qualified individual and be witnessed by two individuals who, in the presence of the qualified individual, attest that to the best of their knowledge and belief the qualified individual has capacity, is acting voluntarily and is not being coerced to sign the request. A person who does not speak English may have the written request form translated into the person’s primary language for signature.

B. One of the witnesses must be an individual who is not any of the following:

1. Related to the qualified individual by blood, marriage, adoption or registered domestic partnership.

2. At the time the request is signed, entitled to any portion of the qualified individual’s estate on the qualified individual’s death under any will or by operation of law.

3. At the time the request is signed, the qualified individual’s attending physician, consulting physician, mental health professional or interpreter.

36-3304. Attending physician; requirements

The attending physician shall do all of the following:

1. Make the initial determination whether an individual has a terminal illness, has capacity and has made the request voluntarily.

2. Request the individual to demonstrate residency in this state pursuant to section 36-3313.

3. Ensure that the individual is making an informed decision by informing the patient of all of the following:

(a) the individual’s medical diagnosis.

(b) the individual’s prognosis.

(c) the potential risks associated with taking the medication to be prescribed.

(d) the probable result of taking the medication to be prescribed.

(e) feasible alternatives and concurrent or additional treatment opportunities for the individual’s terminal illness, including comfort care, palliative care, hospice care, pain control and disease-directed treatment options, as well as the risks and benefits of each alternative.

4. Provide the individual with a referral for comfort care, palliative care, hospice care, pain control or other end-of-life treatment opportunities as requested or as clinically indicated.

5. Confirm that the individual’s request does not arise from coercion or undue influence by asking the individual about coercion and undue influence outside of the presence of other persons, except an interpreter as necessary.

6. Discuss with the individual the individual’s right to rescind the request at any time.

7. Refer the patient individual to a consulting physician to medically confirm the diagnosis and to determine that the individual has capacity and is acting voluntarily and note this determination in the individual’s medical record.

8. Refer the individual to a mental health professional for counseling if appropriate pursuant to section 36-3306 and note this determination in the individual’s medical record.

9. Counsel the individual about the importance of all of the following:

(a) safely keeping and disposing of all unused prescribed medication.

(b) the recommended methods of self-administering the medications prescribed under this article.

(c) having another person present when the individual takes the medication.

(d) not taking the medication in a public place.

(e) the benefits of notifying the individual’s next of kin.

10. Offer the individual an opportunity to rescind at the end of the fifteen-day waiting period prescribed in section 36-3311.

11. Immediately before writing the prescription for medication, verify that the individual is making an informed decision.

12. Either:

(a) If the attending physician is authorized by state and federal law to dispense the medication, dispense the medication directly, including any ancillary medications intended to minimize the individual’s discomfort.

(b) With the individual’s written consent, do both of the following:

(i) Contact a pharmacist and inform the pharmacist of the prescription.

(ii) Deliver the written prescription for medication personally or by other means to the pharmacist, who shall dispense the medications to either the qualified individual, the attending physician or an expressly identified agent of the qualified individual.

13. Document the qualified individual’s medical record as required in section 36-3312.

14. Ensure that all appropriate steps are carried out in accordance with this article before writing a prescription for medication.

36-3305. Consulting physician; confirmation of diagnosis; requirements

Before an individual is deemed qualified under this article, a consulting physician shall examine the individual and the individual’s relevant medical records, shall confirm in writing the attending physician’s diagnosis that the individual is suffering from a terminal illness and shall verify that the individual has capacity, is acting voluntarily and has made an informed decision.

36-3306. Counseling referral; prohibition

If the attending physician or the consulting physician believes an individual may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the individual for counseling. The attending physician may not write a prescription for medication until the person performing the counseling determines that the individual is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment and provides a written report.

36-3307. Informed decision required; verification

The attending physician may not write a prescription for medication unless the qualified individual has made an informed decision. Immediately before writing a prescription for medication, the attending physician shall verify that the qualified individual is making an informed decision.

36-3308. Family notification

The attending physician shall recommend that the qualified individual notify the qualified individual’s next of kin regarding the qualified individual’s request for a prescription for medication. If the qualified individual declines or is unable to notify next of kin, the attending physician may not deny the qualified individual’s request for that reason.

36-3309. Use of interpreters

An interpreter whose services are provided to an individual requesting information on care under this article shall meet the standards adopted by the national council on interpreting in health care or other standards deemed acceptable by the Department for health care providers in this state. an interpreter who is used for the purposes of this article may not:

1. Be related to the qualified individual by blood, marriage, registered domestic partnership or adoption or be entitled to a portion of the individual’s estate on death.

2. Act as a witness for the individual’s written request.

36-3310. Right to rescind request; disposal of unused medication

A. A qualified individual may rescind a request at any time and in any manner without regard to the qualified individual’s mental state. The attending physician may not write a prescription for medication without offering the qualified individual an opportunity to rescind the request.

B. If the attending physician writes a prescription for medication and the qualified individual decides not to use the medication to end the qualified individual’s life, the unused medication must be disposed of by any legal means or as prescribed by rule.

36-3311. Oral request; written request; waiting period; waiver

A. To receive a prescription for medication that a qualified individual may self-administer under this article, the qualified individual must make an oral request to the attending physician either in person or by telemedicine, if the attending physician determines the use of telemedicine is clinically appropriate, and a written request with two witnesses at least fifteen days after making the initial oral request. A prescription for medication may not be written before receipt of the qualified individual’s written request.

B. Notwithstanding subsection A of this section, if the attending physician attests that the qualified individual will, within reasonable medical judgment, die within the fifteen days after making the initial oral request, the qualified individual may reiterate the oral request to the attending physician and submit the written request at any time after making the initial oral request, and the fifteen-day waiting period may be waived.

36-3312. Medical records; documentation; requirements

All of the following shall be documented or filed in the qualified individual’s medical record:

1. All oral requests by the qualified individual for a prescription for medication.

2. All written requests by the qualified individual for a prescription for medication.

3. The attending physician’s diagnosis and prognosis and determination that the qualified individual has capacity, is acting voluntarily and has made an informed decision.

4. The consulting physician’s diagnosis and prognosis and verification that the qualified individual has capacity, 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 qualified individual to rescind the qualified individual’s request at the time of the qualified individual’s oral request.

7. A note from the attending physician indicating that all requirements under this article have been met and indicating the steps taken to carry out the request, including a notation of any medications prescribed.

36-3313. Residency requirement; definition

A. The attending physician may grant an individual’s request under this article only if the individual’s residence is in this state. An individual may present any of the following to show the individual’s residency under this section:

1. A valid Arizona driver license that contains the individual’s physical residence address. A post office box is not a residence address for the purposes of this paragraph.

2. A valid Arizona nonoperating identification license that contains the individual’s physical residence address. A post office box is not a residence address for the purposes of this paragraph.

3. Evidence that the individual owns or leases property in this state.

4. Proof of voter registration in this state.

5. A current income tax return that contains the individual’s physical residence address. A post office box is not a residence address for the purposes of this paragraph.

6. Any other means of demonstrating residency acceptable to the attending physician.

B. For the purposes of this section, “residence” means a place where a person has established a fixed and principal home to which the person, whenever temporarily absent, intends to return.

36-3314. Annual records review; reporting requirements; confidentiality; rules; annual report

A. The Department shall annually review a sample of records maintained pursuant to this article.

B. The Department shall require a health care provider, within thirty days after dispensing a prescription for medication pursuant to this article, to file a copy of the dispensing record with the department.

C. The Department shall adopt rules to facilitate the collection of information regarding compliance with this article. Except as otherwise required by law, the information collected is not a public record and is not available for inspection by the public.

D. The department shall generate and make available to the public an annual statistical report of information collected under this section.

36-3315. Effect on construction of contracts, wills or agreements

A. A provision in a contract, will or other agreement, whether written or oral, is invalid to the extent that the provision would affect whether a qualified individual may make or rescind a request for a prescription for medication.

B. An obligation owing under any currently existing contract may not be conditioned on or affected by the making or rescinding of a request by a qualified individual for a prescription for medication.

36-3316. Insurance or annuity policies

The sale, procurement or issuance or delivery of benefits under a life, health or accident insurance or annuity policy or the rate charged for a policy may not be conditioned on or affected by the availability of medication pursuant to this article or on a qualified individual making or rescinding a request for a prescription for medication. A qualified individual’s act of ingesting medication to end the individual’s life in a humane and dignified manner does not affect a life, health or accident insurance or annuity policy issued or delivered in this state. The rating, sale, procurement or issuance of any medical professional liability insurance policy in this state must be made in accordance with Title 20.

36-3317. Construction of article; standard of care

A. This article does not authorize a health care provider or any other person to end a qualified individual’s life by lethal injection or subcutaneous infusions, mercy killing or active euthanasia.

B. Actions taken in accordance with this article do not, for any purpose, constitute suicide, assisted suicide, mercy killing, elder abuse or homicide as prescribed in Title 13. State reports may not refer to acts committed under this article as suicide or assisted suicide. State reports must refer to acts committed under this article as obtaining and self-administering life-ending medication.

C. This article does not lower the applicable standard of care for attending physicians, consulting physicians, mental health professionals or other health care providers who provide services under this article.

36-3318. Health care facilities; transfer; coordination; duties

If a qualified individual wishes to transfer to a different health care facility to receive medical aid in dying care, the nonparticipating health care facility shall coordinate the transfer in a timely manner, including the transfer of the qualified individual’s medical records, including a notation of the date that the individual first requested medical aid in dying. The nonparticipating health care facility’s referral to a participating health care facility is not participation in medical aid in dying but is deemed a medical standard of care.

36-3319. Immunities; prohibiting a health care provider from participation; permissible sanctions; definitions

A. Except as provided in section 36-3321:

1. A health care provider or health care facility is not subject to civil or criminal liability or professional disciplinary action, including censure, suspension, loss of license, loss of medical privileges, loss of membership or any other penalty, for engaging in the practice of medical aid in dying in accordance with the standard of care and in good faith compliance with this article.

2. A health care provider, health care facility or professional organization or association may not subject a health care provider to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or any other penalty for providing medical aid in dying in accordance with the standard of care and in good faith pursuant to this article or for providing scientific and accurate information about medical aid in dying to an individual when discussing end-of-life care options.

3. A health care provider is not subject to civil or criminal liability or professional discipline if, with the consent of the qualified individual, the health care provider is present when the qualified individual self-administers medication prescribed pursuant to this article or at the time of the qualified individual’s death.

4. A request by a qualified individual for or provision by an attending physician of a prescription for medication in good faith compliance with this article does not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

5. A health care provider is not under any duty, whether by contract, statute or any other legal requirement, to participate in providing a qualified individual prescribed medication to end the qualified individual’s life. If a health care provider is unable or unwilling to carry out a qualified individual’s request under this article and the qualified individual transfers the qualified individual’s care to a new health care provider, the prior health care provider shall transfer, on request, a copy of the qualified individual’s relevant medical records to the new health care provider.

6. Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in activities covered by this article on the premises of the prohibiting health care provider if the prohibiting health care provider has notified the health care provider of the prohibiting health care provider’s policy regarding participating in activities covered by this article. This paragraph does not prevent a health care provider from providing a qualified individual with health care services that do not constitute participation in activities covered by this article.

7. Notwithstanding paragraphs 1, 2 and 3 of this subsection, a health care provider may subject another health care provider to any of the following sanctions if the sanctioning health care provider has notified the sanctioned health care provider before participating in activities covered by this article that the actions are prohibited:

(a) Loss of privileges, loss of membership or any other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned health care provider is a member of the sanctioning health care provider’s medical staff and participates in activities covered by this article 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 health care provider.

(b) Termination of 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 health care provider participates in activities covered by this article 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.

(c) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned health care provider participates in activities covered by this article while acting in the course and scope of the sanctioned health care provider’s capacity as an employee or independent contractor of the sanctioning health care provider. this subdivision does not prevent either of the following:

(i) A health care provider from participating in activities covered by this article while acting outside the course and scope of the health care provider’s capacity as an employee or independent contractor.

(ii) A qualified individual from contracting with the qualified individual’s attending physician and consulting physician to act outside the course and scope of the health care provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

8. A health care provider that imposes sanctions pursuant to paragraph 7 of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to imposing sanctions on another health care provider.

9. Action taken pursuant to section 36-3303, 36-3304, 36-3305 or 36-3306 may not be the sole basis for a report of unprofessional conduct under Title 32, Chapter 13 or 17.

B. For the purposes of this section:

1. “Notify” means that a sanctioning health care provider specifically informs a health care provider in a separate statement in writing of the sanctioning health care provider’s policy about participating in activities covered by this article.

2. “Participate in activities covered by this article”:

(a) Means any of the following:

(i) to perform the duties of an attending physician pursuant to section 36-3304 or a consulting physician pursuant to section 36-3305 or the counseling function pursuant to section 36-3306.

(ii) to perform the duties of a mental health professional if a referral to one is made.

(iii) to deliver the prescription for medication, to dispense the prescribed medication or to deliver the dispensed medication pursuant to this article.

(iv) to be present when the qualified individual takes the medication prescribed pursuant to this article.

(b) Does not include making an initial determination that an individual has a terminal disease and informing the individual of the medical prognosis, providing information about this article to an individual on the individual’s request or providing an individual, on the individual’s request, with a referral to another health care provider for the purpose of assessing medical aid in dying or an individual contracting with the individual’s attending physician and consulting physician to act outside of the course and scope of the health care provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

36-3320. Death certificates

A. Unless otherwise prohibited by law, the attending physician or the director of the health care facility where a qualified individual terminated the qualified individual’s life pursuant to this article shall sign the death certificate of a qualified individual who obtained and self-administered a prescription for medication pursuant to this article.

B. When a death has occurred in accordance with this article, the cause of death must be listed as the underlying terminal illness. A qualified individual’s act of self-administering medication prescribed pursuant to this article may not be included on the death certificate.

36-3321. Violations; classification; liability

A. A person is guilty of a class 2 felony who, without the qualified individual’s authorization, wilfully alters or forges a request for a prescription for medication or conceals or destroys a rescission of that request with the intent or effect of causing the qualified individual’s death.

B. A person is guilty of a class 2 felony who coerces or exerts undue influence on a qualified individual with a terminal illness to request a prescription for medication pursuant to this article with the intent or effect of causing the qualified individual’s death.

C. A person is guilty of a class 2 felony who, without authorization of the qualified individual, wilfully alters, forges, conceals or destroys an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the qualified individual’s desires and interests, with the intent and effect of causing a withholding or withdrawal of life-sustaining procedures or artificially administered nutrition and hydration that hastens the death of the qualified individual.

D. Except as provided in subsection C of this section, a person is guilty of a class 1 misdemeanor who, without authorization of the qualified individual, wilfully alters, forges or destroys an instrument, or any other evidence or document reflecting the qualified individual’s desires and interests with the intent or effect of affecting a health care decision of the qualified individual.

E. This article does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

F. The penalties in this article do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this article.

36-3322. Claims by governmental entity; costs

A governmental entity that incurs costs resulting from a qualified individual terminating the qualified individual’s life pursuant to this article in a public place has a claim against the estate of the qualified individual to recover the costs and reasonable attorney fees related to enforcing the claim.

36-3323. Prescription for medication; form of request

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

REQUEST FOR MEDICATION to END MY LIFE IN A HUMANE AND DIGNIFIED MANNER

I, (name of individual) , am an adult of sound mind.

I am suffering from (description of illness), which my attending physician has determined is a terminal illness.

I have been fully informed of my diagnosis, my prognosis, the potential risks associated with taking the medication to be prescribed and the probable result of taking the medication. I have been informed of the feasible alternatives and concurrent or additional treatment opportunities, including comfort care, palliative care, hospice care, pain control and disease-directed treatment options, as well as the risks and benefits of each alternative.

I request that my attending physician prescribe medication that will end my life in a humane and dignified manner, should I choose to self-administer it.

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 attending physician has counseled me about this possibility.

I make this request voluntarily and without reservation.

Qualified individual’s signature: ______________________

Dated: ___________________________

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 to not be under duress, fraud or undue influence.

4. Is not a patient for whom either of us is the attending physician.

Witness 1 signature: ______________ Dated: ____________

Witness 2 signature: ______________ Dated: ____________

NOTE: One witness cannot be a relative (by blood, marriage, registered domestic partnership or adoption) of the qualified individual signing this request and cannot be entitled to any portion of the qualified individual’s estate on death. The qualified individual’s attending physician, consulting physician, mental health professional and interpreter cannot be a witness.

36-3324. Form of interpreter attachment

The form of an attachment for the purposes of providing interpreter services must be in substantially the following form:

I, ____(name of interpreter)_____, am fluent in English and (language of qualified individual). On (date) at approximately (time), I read the “request for medication to end my life in a humane and dignified manner” to (name of qualified individual) in (language of qualified individual) who affirmed to me that he/she understands the content of this form, that he/she desires to sign this form under his/her own power and volition and that he/she requested to sign this form after consulting with an attending physician and a consulting physician.

Under penalty of perjury, I declare that I am fluent in English and (language of qualified individual) and that the contents of this form, to the best of my knowledge, are true and correct.

Executed at (name of city, county and state) on (date)

Interpreter’s signature: ___________________________

Interpreter’s printed name: ________________________

Interpreter’s address: _____________________________

Sec. 2. Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.