Colorado’s End of Life Options Act: A Legal Perspective Dan Norris, Elder Abuse Resource Prosecutor, Oregon Department of Justice Jessica Radke, Deputy District Attorney Elder Abuse Prosecution Unit First Judicial District Attorney’s Office

To be eligible for aid in dying, a person must meet the following criteria: Be a resident of CO, 18 years of age or older; Have a diagnosis of a terminal illness with a prognosis of 6 months to live or less; Have mental capacity and ability to make his/her own decisions; Be able to administer the medication oneself; AND Be voluntarily seeking the medication. Residency can be shown by tax return, ownership of property in CO, DL/ID card or voter registration card C.R.S § 25-48-103

What are the Procedures for Receiving Medical Aid in Dying? The person is required to: Make TWO oral requests at least 15 days apart to his/her physician Make ONE written request What are the Procedures for Receiving Medical Aid in Dying?

Written Requests C.R.S § 25-48-112 The written request must be signed and dated by the person seeking medical aid in dying and witnessed by at least two parties who confirm the person seeking aid is: mentally capable, not under duress, coercion, or undue influence, acting voluntarily Written Requests C.R.S § 25-48-112

Written Requests C.R.S § 25-48-104(1)(2) At least one of the witnesses CANNOT: Be related to the person seeking medical aid in dying; Entitled to anything in the person’s will; Owner/employee or resident of a health care facility Written Requests C.R.S § 25-48-104(1)(2)

Written Requests C.R.S. § 25-48-104(2)(c) Neither the person’s individual attending physician nor the person’s Power of Attorney shall serve as a witness to the written request. Written Requests C.R.S. § 25-48-104(2)(c)

Can a Person Rescind his/her Request? C.R.S § 25-48-105 At any time, an individual may rescind his or her request for medical aid-in-dying medication without regard to the individual's mental state. An attending physician must offer the qualified individual an opportunity to rescind the request for the medical aid-in- dying medication. Attending physician must ensure that the person is fully informed of all his/her options: palliative care, hospice and offer opportunities to take back the request for aid in dying. Can a Person Rescind his/her Request? C.R.S § 25-48-105

Attending Physician Responsibilities C.R.S § 25-48-106 Ensure that the individual is making an informed decision by discussing with the individual: the feasible alternatives, including comfort care, palliative care, hospice care, and pain control; the potential risks associated with taking the medical aid-in-dying medication to be prescribed; Confirm with the individual that this is voluntary Attending Physician Responsibilities C.R.S § 25-48-106

Attending Physician Responsibilities C.R.S. §25-48-106 Counsel the individual about the importance of: having another person present when the individual self-administers medication; ensure that all appropriate steps are carried out before writing a prescription for medical aid-in-dying medication. Attending Physician Responsibilities C.R.S. §25-48-106

Consulting Physician Responsibilities C.R.S §25-48-107 Examine the individual and his or her relevant medical records; Confirm, in writing, to the attending physician: that the individual has a terminal illness; the individual has a prognosis of six months or less; that the individual is making an informed decision; and that the individual is mentally capable. Consulting Physician Responsibilities C.R.S §25-48-107

What does this mean for Law Enforcement? What do officers do when they arrive

What is missing from the law? Law does not specify what drug will be provided to the person. Secanol has been typically prescribed in Oregon, however nothing mandates what drug is to be used. Law enforcement might come across someone who has been prescribed a cheaper narcotic or more than one drug Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing from the law?

Law does not specify what drug will be provided to the person. Secanol has been typically prescribed in Oregon, however nothing mandates what drug is to be used. Law enforcement might come across someone who has been prescribed a cheaper narcotic or more than one drug Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing?

Law does not require the use of the drug in a certain amount of time or to notify someone if you are not going to take it. Oregon reports many of the drugs go unused. Medication could be lost or stolen. Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing?

Law does not require where individual has to be at the time of taking the medication. A person could choose to be at his or her home, a friend’s home, a park, a car—any of which could trigger a police response. Physicians only required to counsel individuals to no use medication in public. Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing?

Law does not require individual to notify ANYONE that they are taking the medication or have ANYONE present when they self administer. Police responders would have to investigation whether this was a death associated with the act, or some other situation. Would an autopsy be required if no documentation? Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing?

Law does not require individual to notify ANYONE that they are taking the medication or have anyone present when they self administer. Police responders would have to investigation whether this was a death associated with the act, or some other situation. Would an autopsy be required if no documentation? What would the death certificate read? Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement. What is missing?

The cause of death shall be listed as the underlying terminal illness and the death does not constitute grounds for post- mortem inquiry under section 30-10- 606(1), C.R.S. Other than spelling out doctor responsibilities, much of the procedure and practical implications are not spelled out in the legislation, which could potential pose a problem for law enforcement.

Immunity for Actions in Good Faith C.R.S § 25-48-121 A person is not subject to civil or criminal liability or professional disciplinary action for acting in good faith under the Act Actions taken in compliance do not constitute suicide, assisted suicide, euthanasia, mercy killing, homicide, or elder abuse Immunity for Actions in Good Faith C.R.S § 25-48-121

Criminal Penalties C.R.S. § 25-48-119 Class 2 Felony (8 to 24 years Dept. of Corrections) Knowingly or intentionally causes an individual’s death by forging or altering a medical aid in dying medication request without authorization, or By concealing or destroying a recission of a request for medication. Criminal Penalties C.R.S. § 25-48-119

Criminal Penalties C.R.S. § 25-48-119 Class 2 Felony (8 to 24 years Dept. of Corrections) Knowingly or intentionally coercing or exerting undue influence on an individual with a terminal illness to request the medical aid in dying medication for the purpose of ending the individual’s life or, Destroys a rescission of a request for the medication. Undue influence – taking advantage of someone’s mental state, pain or neediness. Criminal Penalties C.R.S. § 25-48-119

Oregon’s Death With Dignity 1998-2016 Dan Norris, Elder Abuse Resource Prosecutor, Oregon Department of Justice

In the 18 years we’ve had Death with Dignity, we have 17 years of data In the 18 years we’ve had Death with Dignity, we have 17 years of data. Of those Oregonians who have received a prescription for life-ending drugs, over 1/3 historically have chosen not to use it.

Who Is Using DWDA? 69.8% are 65 and older; the median age is 73 45.5% have Baccalaureate degrees or Higher 26.4% have some college You can see the numbers yourselves. This is the age group you would expect to use this option. Those younger tend to have debilitating, chronic diseases and have a short lifespan remaining. We were initially concerned that patients choosing this option would not be well-educated or well-informed. As you can see, that fear was unfounded.

90.5% are enrolled in hospice 98.6% are insured Who Is Using DWDA? 90.5% are enrolled in hospice 98.6% are insured The hospice number is unsurprising. Again, we assumed that the financial implications of terminal illness would drive people to use this option. Again, our assumptions were wrong.

Why Is DWDA Used? 77.9% = cancer 8.3% = ALS 4.5% = chronic lower respiratory disease 2.6% = heart disease

Why Is DWDA Used? 91.6% = losing autonomy 89.7% = less able to make life enjoyable 78.7% = loss of dignity 48.2% = losing control of bodily functions 25.2% = inadequate pain control/concern 4.1% = burden on family/caregivers 3.1% = financial implications of treatment Of the over 1,500 people who requested medication, here are the reasons they chose when filling out their requests with the Oregon Health Authority. Most of this population has been insured, so the percent listing financial concerns as a reason was quite low. Control and their image of themselves are the chief drivers of most of these decisions.

As you can see, we’ve seen an 8. 5 times increase in usage in 17 years As you can see, we’ve seen an 8.5 times increase in usage in 17 years. As Death with Dignity becomes an option for more and more patients, the chances for abuse also increase. A mandatory and thorough reporting system is essential. Since 2011, the Oregon Health Authority has reported any failure in compliance with the Death with Dignity Act.

Since DWDA began in 1998, 991 people have used it Since DWDA began in 1998, 991 people have used it. We’ve had 14 very minor errors, most of which were clerical issues in paperwork. Of the 7 other minor violations, as classified by the Oregon Health Authority, 5 involved witnessing of the patient signing the forms; 1 involved failure of the physician to wait the required 48 hours before the medication was delivered to the patient; and 1 involved incomplete consent documentation—the patient had not filled out all of the required paperwork.

Despite the fact that only 5 states have DWDA, as you can see, it is coming to a jurisdiction near you. You don’t have to reinvent the wheel. California borrowed from Oregon’s law and made significant improvements—most significantly for the people who do not take the medication California has specific protocols on how the medication should be returned. Some of you are going to be part of the debate in your state. Hopefully you can take the lessons learned in Oregon and the good work done here in California to guide the conversations in your state. THANK YOU.

Jessica Radke, DDA jradke@jeffco.us 303-271-6934 Questions? Jessica Radke, DDA jradke@jeffco.us 303-271-6934