A Threshold
I’m gearing up for a continuing legal education program where I’ll be presenting on this new Colorado statute [EoLOA for short, even if it sounds more like Hawaiian], so I’m now writing part of my materials. I thought I’d start with the basics in this post by looking first at how terms are defined (or not defined) in the statute as well as the parameters of the “right to request” life ending drugs. I will list the entire definitional section here, but due to space constraints, will focus only on a couple salient terms in this post.
Here’s an overview of some of the key terms in the statute’s definitional section, 25-48-102:
- Adult means an individual who is 18 years of age or older;
- “Attending physician” means a physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness.
- “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness.
- “Health care provider” or “provider” means a person who is licensed, certified, registered, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility, including long-term care facility as defined in section 25-3-103.7(1) (f.3) and a continuing care retirement community as described in section 5-6-203 (l)(c)(I), C.R.S.
- “Informed decision” means a decision that is:
- (a)Made by an individual to obtain a prescription for medical aid-in- dying medication that the qualified individual may decide to self- administer to end his or her life in a peaceful manner;
- (b)Based on an understanding and acknowledgment of the relevant facts; and
- (c)Made after the attending physician fully informs the individual of;
- (I) His or her medical diagnosis and prognosis of six months or less;
- (II) The potential risks associated with taking the medical aid-in- dying medication to be prescribed;
- (III) The probable result of taking the medical aid-in-dying medication to be prescribed;
- (IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to:
- (A)Request medical aid in dying;
- (B) Obtain a prescription for medical aid-in-dying medication to end his or her life;
- (C) Fill the prescription and possess medical aid-in-dying medication to end his or her life; and
- (D) Ultimately self-administer the medical aid-in-dying medication to bring about a peaceful death; and
- (V) All feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.
- (6) “Licensed mental health professional” means a psychiatrist licensed under article 36 of title 12, C.R.S., or a psychologist licensed under part 3 of article 43 of title 12, C.R.S.
- (7)“Medical aid in dying” means the medical practice of a physician prescribing medical aid-in-dying medication to a qualified individual that the individual may choose to self-administer to bring about a peaceful death.
- (8) “Medical aid-in-dying medication” means medication prescribed by a physician pursuant to this article to provide medical aid in dying to a qualified individual.
- (9) “Medically confirmed” means that a consulting physician who has examined the terminally ill individual and the terminally ill individual’s relevant medical records has confirmed the medical opinion of the attending physician.
- (10) “Mental capacity” or “mentally capable” means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.
- (11) “Physician” means a doctor of medicine or osteopathy licensed to practice medicine by the Colorado medical board.
- (12) “Prognosis of six months or less” means a prognosis resulting from a terminal illness that the illness will, within reasonable medical judgment, result in death within six months and which has been medically confirmed.
- (13) “Qualified individual” means a terminally ill adult with a prognosis of six months or less, who has mental capacity, has made an informed decision, is a resident of the state, and has satisfied the requirements of this article in order to obtain a prescription for medical aid-in-dying medication to end his or her life in a peaceful manner.
- (14) “Resident” means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician:
- (a)A Colorado driver’s license or identification card pursuant to article 2 of title 42, C.R.S.;
- (b)A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado;
- (c)Evidence that the individual owns or leases property in Colorado; or
- (d)A Colorado income tax return for the most recent tax year.
- (15)“Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering the medical aid-in-dying medication to himself or herself to bring about his or her own death.
- (16) “Terminal illness” means an incurable and irreversible illness that will, within reasonable medical judgment, result in death.
So here goes . . . this law is only for adults! There is no provision for minors as is allowed in some European countries, like Belgium. Next, you’ll note that the physicians (they must be licensed M.D. or D.O., no N.P. or P.A. allowed) have a huge amount of responsibility. Remember that the gist of this law is to remove the threat of criminal prosecution for assisting a person to die by prescribing life-ending drugs under certain proscribed circumstances, so this focus on the doctors is wholly appropriate.
The two basic types of physicians are the attending and the consulting. The attending physician is the one who has primary responsibility for the care of the terminally ill individual. We are familiar with the phenomenon of the “pot shop” doctor here in Colorado . . . well this provision is designed to ensure that the attending is not someone who simply provides the scrip for the life-ending medication or “medical aid in dying” [hereafter MAID] as the statute calls it.
The attending physician must “fully inform” the individual of the diagnosis, prognosis of six months or less; as well as the choice (see (5) (c) above) and consequences of requesting MAID as well as the alternatives including additional treatment, palliative care and hospice care. Unfortunately for us, the terminology used in (5) is “informed decision,” which is a term foreign to Colorado law. In the statute it is tied to “mentally capable” in (10), which includes the ability to make and communicate an informed decision to health care providers. The Colorado term which is familiar to me is from the Colorado Medical Treatment Decision Act, at C.R.S. §15-8.7-102(7), which defines “decisional capacity” as the ability to provide informed consent to or refusal of medical treatment. A similar definition is found in the health care POA statute, at C.R.S. §15-14-505(4). The preceding section of that statute also states (at §15-14-504(4):
Nothing in this part 5 shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this part 5 be construed as permitting any affirmative or deliberate act to end a person’s life, except to permit natural death as provided by this part 5.
Interesting, huh? While reviewing inconsistencies between these terms describing capacity is something attorneys might get excited about, it appears unlikely to provide difficulties for the physicians involved. I will discuss the “mentally capable” determination a bit more in a later post that looks at mental health concerns. Likewise, the duties and responsibilities of the attending physician are numerous and I will continue the discussion of what the statute describes in a later post.
I will conclude this first post about statutory language with an observation. Death as described in the EoLOA is defanged, now a technical medical procedure, even a treatment if you will, for perceived intractable suffering. The option to seek out MAID to end suffering involved with a terminal illness has little to do with the physical pain incident to illness (statistics from Oregon bear this out) and more with the loss of dignity and quality of life, presumably incident to the progression of the disease. Why should an elder law attorney like me be concerned about this? Because in our culture, much of the experience of aging is focused on losses and precious little attention is directed toward gratitude for our continued life, such as it may be!
The other matter that concerns me greatly in the “technocratizing” of dying and actively choosing death is that we surrender even more power to our doctors. This has little to do with our perception of how medical technology is used to extend life, but rather is concerned with our thinking about the nature of life, including disease, dying and death. Our doctors cannot protect us from suffering – they are only doctors after all, but they can help manage treatment of pain.
More “vocabulary terms” next week.
© Barbara E. Cashman 2017 www.DenverElderLaw.org