Where the Light Comes In
Today I’m presenting on this topic at the biennial Advanced Elder Law Institute, put on by Continuing Legal Education in Colorado. It’s a two day program and I’m looking forward to it. One of the best things about being a lawyer is I am always challenged to learn new things, as the law is – just like the rest of us – in a constant state of change and development!
As you may be aware, Colorado voters passed ballot initiative 106 last November and after certification of the election results by our Secretary of State, the law went into effect when Governor Hickenlooper signed it (by proclamation, in accordance with Article V of the Colorado Constitution) on December 16, 2016. Colorado became the sixth state to have a physician assisted death law. Other states with such laws include Oregon (the first state to have such a law) and Washington, where voters approved the laws as ballot initiatives; as well as Vermont and California, with their laws being passed by their legislatures in 2013 and 2015, respectively. Technically, Montana is also one of these states (by virtue of a Montana Supreme Court decision) but it doesn’t have any regulatory means of providing physician assisted death.
The title of the Colorado statute is the Colorado End of Life Options Act (EoLOA), but the terminology used for the death-causing prescription is “medical aid in dying” (hereafter MAID).
Unlike most statutes originating as legislation in the Colorado legislature, there was no preparation time for easing into this new law. What are the implications of this?
Doctors have to get up to speed quickly on this new law. They hold considerable power in this new law – they make the determination whether a person qualifies under the EoLOA as “terminally ill;” is “mentally capable” to request the MAID, get and fill that prescription. Emergency rules had to be put in place by the Colorado Department of Public Health & Environment concerning the new law. You can read the rules and download a couple of the forms on the CDPHE site.
There have been a number of complications with this new law and its immediate enactment. The EoLOA is designed to cover all physicians and facilities unless there is a written policy notifying both patients and physicians of the facility’s policy to “opt out” of compliance with the law. One of the challenges with simplifying this complicated issue of MAID in the initiative is that the law makes MAID available but there is no guarantee that an individual will have access to such MAID. Several religious based systems opted out fairly early and there are other complications that have presented with other facilities. Here’s a Denver Post article which speaks to some of those challenges.
An individual’s access to MAID may depend on where one lives. Access may be more difficult in rural areas. A local rural hospital board explained their “opt out” policy as follows:
The law requires that hospitals opt in or opt out of the practice; participation by hospitals and physicians is voluntary. In December, YVMC’s Board of Trustees decided to opt out of participation in the End of Life Options Act at this time. This is due largely to the number of standards that must in place to meet both the requirements of the law and the needs of patients. The Board of Trustees, along with YVMC’s Ethics Committee, will continue to review the End of Life Options Act and will keep the possibility open to opt into the End of Life Options Act at a later date.
Because of this decision to opt out, patients are not permitted to self-administer medical aid in dying medication on YVMC’s premises, nor are employed or contracted physicians permitted to write a prescription for medical aid in dying medication for an individual who intends to self-administer medical aid in dying medication on YVMC’s premises.
Colorado is not the only state experiencing these difficulties. Here’s a recent NY Times article on aid in dying and access difficulties.
I’ll close with three “tips” regarding MAID and minimizing conflict at the end of life:
- Talk to your doctor and find out what all of your options are
- Talk to your family and loved ones about what you might decide to do
- Don’t wait too long! The MAID process takes at least two weeks….
© Barbara E. Cashman 2017 www.DenverElderLaw.org