3975: November 14, 2008
Initiative 1000
Initiative 1000, the so-called "Washington State Death with Dignity Act", has passed with 59 percent of the vote. The purpose of this Bulletin is to provide information about what the passage of the initiative means for your hospital and to assist you in fielding questions from patients and members of the public about the initiative.
On the positive side perhaps, the resounding passage of I-1000 can be a call for hospitals and physicians to improve end of life care for terminally ill patients. This includes increasing the public's understanding of advances in the science of pain management, expanding access to hospice and palliative care, and helping patients create advance directives. At the end of this Bulletin, we provide some initial ideas for how hospitals might improve end of life care, and we look forward to your input.
Thank you to Brad Berg and Sven Peterson at the law firm Foster Pepper for their March 2008 analysis of the potential impact of I-1000 on hospitals, to Susan Doerr of Sojourn Consulting Group for her October 2008 analysis of possible WSHA actions for improving end of life care, and to Barbara Shickich of the law firm Riddell Williams for providing legal editing of this memo.
THE ACT
Description of the Act. The "Washington State Death with Dignity Act" affects terminally ill, competent, adult Washington residents medically predicted to die within six months. It allows these people to request and self-administer lethal medication prescribed by a physician. The measure requires two oral and one written requests, two physicians to diagnose the patient and determine the patient is competent, a waiting period, and physician verification of an informed patient decision. The patient must have the opportunity to rescind his or her request. Only the patient may administer the drugs to him or herself. Physicians, patients and others acting in good faith compliance have criminal and civil immunity.
Effective Date. The law becomes effective on March 4, 2009.
Right to Refuse Participation. Under the Act, only "willing health care providers" shall participate in the provision of life-ending medication to a patient who meets the requirements of the law. "Health care providers" includes hospitals. If a hospital chooses to allow participation by providers on its premises, it cannot require individual providers to participate.
Hospital Right to Prevent Participation. Hospitals may prohibit health care providers from participating in the Act on the premises of the hospital, in facilities or on property owned or controlled by the hospital, or as part of the provider's services as an employee or independent contractor of the hospital. "Participating in the Act" means performing duties of an attending physician or a consulting physician, or providing counseling, in connection with the providing of life-ending medication. If the hospital chooses to prohibit participation on its premises, it must give notice to: (1) all health care providers with privileges to practice on the premises, and (2) the general public. If the hospital chooses to impose a loss of privileges, membership, or other sanctions upon providers who participate in the Act, these sanctions should be provided for in the hospital's medical staff bylaws, policies and procedures. Sanctions may apply only if the participation occurs on hospital premises and not in private medical offices. Any sanctions must be imposed only after the provision of due process and other procedural protections normally provided prior to the imposition of sanctions.
Providing Public Notice. If a hospital enacts a policy prohibiting its providers from participating in the Act, the hospital must inform the public of its decision. We believe a posting on the hospital's web page and a press release to local media would meet this requirement. However, it also would be a good idea to include notice of the hospital's policy in the hospital's materials regarding advance directives.
Hospital Policy that Conflicts with Advance Directives. Under current state law, hospitals must ask patients if they have made an advance directive when the patient is admitted to the hospital. If a patient has an advance directive that conflicts with the hospital's policy on end of life treatment, the hospital must tell the patient of the conflict and provide the patient with an option to receive treatment elsewhere or work with the patient to develop a plan to honor the portion of the patient's advance directive that is consistent with hospital policy on end of life treatment.
Exceptions to Prohibitions on Participation. It is important to note that "participate in the Act" is defined to not include a number of related services. Specifically, the law exempts:
- Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;
- Providing information about the "Washington State Death with Dignity Act" to a patient upon the request of the patient;
- Providing a patient, upon the request of the patient, with a referral to another physician; or
- Acting outside of the course and scope of the provider's capacity as an employee or independent contractor of the health care provider that prohibits participation in the Act. In other words, physicians who are employed by, or contract with, a hospital that does not allow participation under the Act may independently participate under the Act without repercussions from the hospital (provided they do not participate on the hospital's premises).
Special Reporting Considerations. Currently, hospitals must report to the Department of Health when a staff member's privileges are revoked for unprofessional conduct. Under the Act, however, suspension or termination of staff membership or privileges because of assisting a patient with life-ending medication is not reportable. Action taken under the provisions of the Act relating to the written request for medications, the attending physician responsibilities, the consulting physician confirmation or the counseling referral shall not be the sole basis for a report of unprofessional conduct under RCW 18.130.180. What this means is if you discipline a provider solely for violating your hospital's policy on life-ending medication, you should not report that provider to the Department. Whether a report to the National Practitioner Data Bank (NPDB) is still required is not addressed by the Act. However, since participation under the Act specifically is not to be considered unprofessional conduct under RCW 18.130.180, there would be some justification for not reporting an adverse action that is based solely on participation under the Act to the NPDB either.
Documentation Requirements. Health care providers must follow the documentation requirements outlined in the law. The patient's attending physician is responsible for ensuring that the medical record contains documentation of patient requests for lethal medication, physician diagnosis and determination of competency, verification by a consulting physician, notification of the patient's right to rescind, and notation of steps taken to comply with the request, including any medication prescribed. The patient's written request must be witnessed by two witnesses, one of whom may not be a relative or heir of the patient, or an owner, operator, or employee of the health care facility where the patient is receiving care. If the patient is an inpatient at a health care facility, then one of the witnesses must be an individual designated by the facility.
Health care providers dispensing medication under the Act must file a copy of the dispensing record and other administratively required documentation with the Department of Health. The Act does not specify the penalties for failure to comply with the medical record documentation and reporting requirements. The Department of Health will develop rules to implement this section of the law.
Answering Patient Queries. The new law does not address what health care providers must do if a patient asks for a prescription for life-ending medication under the Act. Hospital leaders and governing boards must carefully consider how they will respond, and should develop policies and procedures for addressing requests for medication. Among the options a hospital or health system could consider allowing its providers to do are:
- Fulfilling either a confirming or a counseling role, while ensuring the law is followed carefully;
- Connecting the patient with a hospital chaplain or other spiritual advisor to counsel them;
- Referring the patient to a physician who will give them a prescription or to an organization that will help them such as Compassion & Choices in Dying;
- Giving the patient the prescription, while ensuring the law is followed carefully;
- Declining to give the patient the prescription or a referral and telling them they must find someone who will assist them on their own;
- Educating the patient about advances in pain and symptom management; and/or;
- Assisting the patient in accessing hospice/palliative care.
Finding a Physician. We have received questions about how patients can find a physician who will write a prescription for life-ending medication. WSHA does not plan to compile such a list.
Compassion & Choices in Dying is the organization that backed the initiative. In Oregon, Compassion & Choices in Dying provides information and support to people in the final stages of their lives. Among the range of services they provide is assistance with life-ending medication for those clients who make the request. The organization provides a personal presence at the death of a qualified person should he or she desire. It is likely the Washington chapter will offer similar services. Their web site is www.candcofwa.org.
FINISH SECTION
IMPROVING CARE
The passage of Initiative 1000 can be considered an opportunity for hospitals and health care providers to redouble efforts to improve end of life care. Hospitals in Oregon report a rededication to ensuring their patients have the end of life experience they desired after the passage of that state's "Death with Dignity" law.
Surveys show that most people want to die at home or in a hospice program. For most people, the last place they wish to die is in a hospital. People's end of life concerns include avoiding physical and psychological distress, having control over decisions related to their care, and avoiding death-prolonging treatments.
Unfortunately, the evidence suggests people are not getting what they want. Few hospitals offer palliative or hospice care programs. The average hospice length of stay is less than three weeks. Seriously ill patients experience undertreated pain across all care settings.
Caregivers struggle with having meaningful conversations with patients about the end of their lives. Many caregivers continue to treat the final stages of slow dying mistakenly, as if it were a sudden trauma.
Washington State data shows that only about 4.5 percent of people die in hospice. Fully 32 percent of deaths occur in hospitals.
Under direction from the WSHA Board of Trustees in response to Initiative 1000, WSHA staff will be working on ways hospitals can lead in providing the full range of options for patients at end of life. Some ideas include:
- Improving the availability of, and access to, palliative/hospice care.
- Educating patients about the advancements in pain control. (Many people do not know how far the science of pain management has progressed. For people who may have watched someone suffer at the end of their lives a number of years ago, the range of options is now dramatically different.)
- Teaching providers how to have the difficult, but necessary, conversations with patients and families when it is clear the patient has a life-limiting illness.
- Promoting the use of the Physician Orders for Life Sustaining Treatment (POLST) form.
- Promoting systems in hospitals to ensure patients' end of life wishes are well-documented. For example, hospitals could encourage every patient to create an advance directive at hospital admission.
- Improving connections to the state Department of Health advance directives registry.
Washington hospital leaders had many different positions on Initiative 1000. Regardless of your position, improving end of life care is a goal we can all support. We look forward to your ideas and assistance in this important work.