MISSISSIPPI LEGISLATURE

2017 Regular Session

To: Public Health and Welfare

By: Senator(s) Jackson (11th), Dawkins

Senate Bill 2283

AN ACT TO ENACT THE MISSISSIPPI DEATH WITH DIGNITY ACT WHICH WILL ALLOW TERMINALLY ILL MISSISSIPPIANS TO END THEIR LIVES THROUGH THE VOLUNTARY SELF-ADMINISTRATION OF LETHAL MEDICATIONS, EXPRESSLY PRESCRIBED BY A PHYSICIAN FOR THAT PURPOSE; TO DEFINE TERMS AND CONDITIONS FOR THE ACT; TO ESTABLISH WHO MAY INITIATE A WRITTEN REQUEST FOR SUCH MEDICATIONS AND PROVIDE WRITTEN AND ORAL FORMS FOR SUCH REQUESTS; TO ESTABLISH THE RESPONSIBILITIES OF ATTENDING PHYSICIANS RECEIVING SUCH REQUESTS; TO ESTABLISH THE RESPONSIBILITIES OF PHYSICIANS CONSULTING ON SUCH REQUESTS; TO REQUIRE PATIENTS TO REFERRALS TO COUNSELING BY ATTENDING OR CONSULTING PHYSICIANS; TO ESTABLISH SAFEGUARDS ENSURING THAT PATIENTS MAKE INFORMED DECISIONS ON WHETHER TO ACCEPT LETHAL MEDICATIONS; TO AUTHORIZE PATIENTS WITH THE RIGHT TO RESCIND REQUESTS FOR SUCH MEDICATIONS; TO ESTABLISH WAITING PERIODS BEFORE PATIENTS MAY RECEIVE SUCH MEDICATIONS AFTER MAKING THE APPROPRIATE REQUESTS; TO REQUIRE THAT CERTAIN DOCUMENTATION BE INCLUDED IN THE PATIENT'S MEDICAL RECORDS; TO ESTABLISH RESIDENCY REQUIREMENTS FOR PATIENTS MAKING A REQUEST UNDER THE ACT; TO ESTABLISH THE REPORTING REQUIREMENTS THAT MUST BE FOLLOWED BY THE STATE HEALTH DEPARTMENT IN ADMINISTERING THIS ACT; TO ESTABLISH PERMISSIBLE CRIMINAL PENALTIES AND CIVIL LIABILITIES FOR VIOLATIONS OF THE ACT; TO AMEND SECTION 97-3-49, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Sections 1 through 24 of this act shall be known and cited as the "Mississippi Death With Dignity Act."

     SECTION 2.  The following words and phrases, whenever used in this act, have the following meanings:

          (a)  "Adult" means an individual who is eighteen (18) years of age or older.

          (b)  "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.

          (c)  "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.

          (d)  "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.

          (e)  "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 capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

          (f)  "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.

          (g)  "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:

              (i)  His or her medical diagnosis;

              (ii)  His or her prognosis;

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

              (iv)  The probable result of taking the medication to be prescribed; and

              (v)  The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.

          (h)  "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.

          (i)  "Patient" means a person who is under the care of a physician.

          (j)  "Physician" means a doctor of medicine or osteopathy licensed to practice medicine by the Mississippi State Board of Medical Licensure.

          (k)  "Qualified patient" means a capable adult who is a resident of Mississippi and has satisfied the requirements of this act in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.

          (l)  "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 3.  (1)  An adult who is capable, is a resident of Mississippi, 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 this act.

     (2)  No person shall qualify under the provisions of this act solely because of age or disability.

     SECTION 4.  (1)  A valid request for medication under this act shall be in substantially the form described in Section 23 of this act, signed and dated by the patient and witnessed by at least two (2) individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.

     (2)  One (1) of the witnesses shall be a person who is not:

          (a)  A relative of the patient by blood, marriage or adoption;

          (b)  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

          (c)  An owner, operator or employee of a health care 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 (1) of the witnesses shall be an individual designated by the facility and having the qualifications specified by the State Department of Health by rule.

     SECTION 5.  (1)  The attending physician shall:

          (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 Mississippi residency pursuant to Section 14 of this act;

          (c)  To ensure that the patient is making an informed decision, inform the patient of:

              (i)  His or her medical diagnosis;

              (ii)  His or her prognosis;

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

              (iv)  The probable result of taking the medication to be prescribed; and

              (v)  The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control;

          (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;

          (e)  Refer the patient for counseling if appropriate pursuant to Section 7 of this act;

          (f)  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 this act and of not taking the medication in a public place;

          (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 fifteen-day waiting period pursuant to Section 10 of this act;

          (i)  Verify, immediately prior to writing the prescription for medication under this act, that the patient is making an informed decision;

          (j)  Fulfill the medical record documentation requirements of Section 13 of this act;

          (k)  Ensure that all appropriate steps are carried out in accordance with this act before writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and

          (l)  (i)  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 Mississippi State Board of Medical Licensure and/or Mississippi State Board of Pharmacy, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or

              (ii)  With the patient's written consent:

                   1.  Contact a pharmacist and inform the pharmacist of the prescription; and

                   2.  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 6.  Before a patient is qualified under this act, 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 capable, is acting voluntarily and has made an informed decision.

     SECTION 7.  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 8.  No person shall 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 as defined in Section 2(g) of this act.  Immediately prior to writing a prescription for medication under this act, the attending physician shall verify that the patient is making an informed decision.

     SECTION 9.  The attending physician shall recommend that the patient notify the next of kin of his or her request for medication pursuant to this act.  A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason.

     SECTION 10.  In order to receive a prescription for medication 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 no less than fifteen (15) 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 patient an opportunity to rescind the request.

     SECTION 11.  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 act may be written without the attending physician offering the qualified patient an opportunity to rescind the request.

     SECTION 12.  No less than fifteen (15) days shall elapse between the patient's initial oral request and the writing of a prescription under this act.  No less than forty-eight (48) hours shall elapse between the patient's written request and the writing of a prescription under this act.

     SECTION 13.  The following shall be documented or filed in the patient's medical record:

          (a)  All oral requests by a patient for medication to end his or her life in a humane and dignified manner;

          (b)  All written requests by a patient for medication to end his or her life in a humane and dignified manner;

          (c)  The attending physician's diagnosis and prognosis, determination that the patient is capable, acting voluntarily and has made an informed decision;

          (d)  The consulting physician's diagnosis and prognosis, and verification that the patient is capable, acting voluntarily and has made an informed decision;

          (e)  A report of the outcome and determinations made during counseling, if performed;

          (f)  The attending physician's offer to the patient to rescind his or her request at the time of the patient's second oral request pursuant to Section 10 of this act; and

          (g)  A note by the attending physician indicating that all requirements under this act have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed.

     SECTION 14.  (1)  Only requests made by Mississippi residents under this act shall be granted.

     (2)  Factors demonstrating Mississippi residency include, but are not limited to:

          (a)  Possession of a Mississippi driver's license;

          (b)  Registration to vote in Mississippi;

          (c)  Evidence that the person owns or leases property in Mississippi; or

          (d)  Filing of a Mississippi tax return for the most recent tax year.

     SECTION 15.  (1)  (a)  The State Board of Health shall annually review a sample of records maintained pursuant to this act.

          (b)  The board shall require any health care provider upon dispensing medication pursuant to this act to file a copy of the dispensing record with the board.

     (2)  The State Board of Health shall make rules to facilitate the collection of information regarding compliance with this act.  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 State Board of Health shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section.

     SECTION 16.  (1)  No 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, shall be valid.

     (2)  No obligation owing under any currently existing contract shall 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.

     SECTION 17.  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 to end his or her life in a humane and dignified manner.  Neither shall a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.

     SECTION 18.  Nothing in this act shall be construed to authorize 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 act shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.

     SECTION 19.  Except as provided in Section 20 of this act:

          (a)  No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this act.  This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.

          (b)  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 this act.

          (c)  No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of this act shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

          (d)  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 this act, 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.

          (e)  (i)  Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in this act 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 this act.  Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in this act as described in subparagraph (iv) of this paragraph (e).

              (ii)  Notwithstanding the provisions of paragraphs (a) through (d) 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 this act that it prohibits participation in this act:

                   1.  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 this act while on the health care facility premises, as defined in Section 41-7-173, of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

                   2.  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 this act 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 contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in this act 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 item 3 shall be construed to prevent:

                        a.  A health care provider from participating in this act while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or

                        b.  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.

              (iii)  A health care provider that imposes sanctions pursuant to subparagraph (ii) of this paragraph (e) 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.

              (iv)  For purposes of this paragraph (e):

                   1.  "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 this act of the sanctioning health care provider's policy about participation in activities covered by this act.

                   2.  "Participate in this act" means to perform the duties of an attending physician pursuant to Section 5 of this act, the consulting physician function pursuant to Section 6 of this act or the counseling function pursuant to Section 7 of this act.  "Participate in this act" does not include:

                        a.  Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

                        b.  Providing information about the Mississippi Death with Dignity Act to a patient upon the request of the patient;

                        c.  Providing a patient, upon the request of the patient, with a referral to another physician; or

                        d.  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.

          (f)  Suspension or termination of staff membership or privileges under paragraph (e) of this section is not reportable under Section 73-25-83.  Action taken pursuant to Sections 4 through 7 of this act shall not be the sole basis for a report of unprofessional or dishonorable conduct under Section 73-25-29.

          (g)  No provision of this act 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 20.  (1)  It shall be unlawful for any person, without authorization of the patient, to willfully alter or forge a request for medication or conceal or destroy a rescission of that request with the intent or effect of causing the patient's death.

     (2)  It shall be unlawful for any person to coerce or exert undue influence on a patient to request medication for the purpose of ending the patient's life, or to destroy a rescission of such a request.

     (3)  Any person who violates this section is guilty of a felony and upon conviction shall be confined for not less than one (1) year nor more than twenty (20) years and fined not more than Ten Thousand Dollars ($10,000.00), or both.

     (4)  Nothing in this act limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

     (5)  The penalties in this act do not preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions of this act.

     SECTION 21.  Any governmental entity that incurs costs resulting from a person terminating his or her life pursuant to the provisions of this act 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 22.  Any section of this act being held invalid as to any person or circumstance shall not affect the application of any other section of this act which can be given full effect without the invalid section or application.

     SECTION 23.  A request for a medication as authorized by this act 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 (3) 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 (1) 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 (1) of the witnesses shall be an individual designated by the facility.

     SECTION 24.  (1)  (a)  It shall be unlawful for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal's desires and interests, with the intent and effect of causing a withholding or withdrawal of life-sustaining procedures or of artificially administered nutrition and hydration which hastens the death of the principal.

          (b)  Any person who violates this subsection is guilty of a felony and upon conviction shall be confined for not less than one (1) year nor more than twenty (20) years and fined not more than Ten Thousand Dollars ($10,000.00), or both.

     (2)  (a)  Except as provided in subsection (1) of this section, it shall be unlawful for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal's desires and interests with the intent or effect of affecting a health care decision.

          (b)  Any person who violates this subsection is guilty of a misdemeanor and upon conviction shall be confined for no more than one (1) year, fined not more than One Thousand Dollars ($1,000.00), or both.

     SECTION 25.  Section 97-3-49, Mississippi Code of 1972, is amended as follows:

     97-3-49.  Except as otherwise provided in the Mississippi Death with Dignity Act, a person who * * * wilfully willfully, or in any manner, advises, encourages, abets, or assists another person to take, or in taking, the latter's life, or in attempting to take the latter's life, is guilty of a felony and, on conviction, shall be punished by imprisonment in the Penitentiary not exceeding ten (10) years, or by fine not exceeding One Thousand Dollars ($1,000.00), and imprisonment in the county jail not exceeding one (1) year.

     SECTION 26.  This act shall take effect and be in force from and after July 1, 2017.