Florida Senate - 2020                                    SB 1800
       By Senator Rader
       29-00350A-20                                          20201800__
    1                        A bill to be entitled                      
    2         An act relating to death with dignity; creating ch.
    3         764, F.S., relating to personal autonomy; creating s.
    4         764.101, F.S.; providing a short title; creating s.
    5         764.102, F.S.; defining terms; creating s. 764.103,
    6         F.S.; providing legislative findings and intent;
    7         creating s. 764.104, F.S.; providing criteria for
    8         qualified patients; providing factors to demonstrate
    9         residency; requiring qualified patients to make oral
   10         and written requests for medication; requiring waiting
   11         periods before such requests may be made and such
   12         medication may be prescribed; providing a form for
   13         written requests; specifying requirements for the
   14         valid execution of such form; authorizing a qualified
   15         patient to rescind a request at any time and in any
   16         manner; creating s. 764.105, F.S.; specifying
   17         requirements for attending physicians; authorizing the
   18         attending physician to sign the qualified patient’s
   19         death certificate; specifying requirements for
   20         consulting physicians; specifying recordkeeping
   21         requirements; requiring certain health care providers
   22         to report certain information to the Department of
   23         Health; requiring the department to annually review
   24         certain records for compliance and publish a report on
   25         activities and compliance; providing the department
   26         rulemaking authority for a specified purpose; creating
   27         s. 764.106, F.S.; making certain provisions of legal
   28         instruments void and unenforceable under certain
   29         circumstances; prohibiting an individual’s
   30         participation in certain provisions from affecting the
   31         sale, procurement, or issuance of certain insurance
   32         policies or the rates charged for such policies;
   33         creating s. 764.107, F.S.; providing criminal
   34         penalties and immunities; defining terms; providing
   35         grounds for prohibiting certain providers from
   36         participating in certain provisions; providing
   37         permissible sanctions; requiring certain providers to
   38         use due process procedures when imposing certain
   39         sanctions; providing that certain sanctions may not be
   40         the sole basis for certain disciplinary action against
   41         a health care provider’s license; providing
   42         construction; creating s. 764.108, F.S.; authorizing
   43         claims for costs and attorney fees in certain
   44         circumstances; creating s. 764.109, F.S.; providing
   45         construction and severability; providing an effective
   46         date.
   48  Be It Enacted by the Legislature of the State of Florida:
   50         Section 1. Chapter 764, Florida Statutes, consisting of
   51  sections 764.101-764.109, Florida Statutes, entitled “Personal
   52  Autonomy,” is created.
   53         Section 2. Section 764.101, Florida Statutes, is created to
   54  read:
   55         764.101 Short title.—Sections 764.101-764.109 may be cited
   56  as the “Death with Dignity Act.
   57         Section 3. Section 764.102, Florida Statutes, is created to
   58  read:
   59         764.102 Definitions.—As used in this chapter, the term:
   60         (1) “Attending physician” means the physician who has
   61  primary responsibility for the care of the patient and treatment
   62  of the patient’s terminal condition.
   63         (2) “Competent” means that in the opinion of a court or in
   64  the opinion of the patient’s attending physician, consulting
   65  physician, psychiatrist, or psychologist, a patient has the
   66  ability to make and communicate health care decisions to health
   67  care providers, including communication through individuals
   68  familiar with the patient’s manner of communicating if those
   69  individuals are available.
   70         (3) “Consulting physician” means a physician who is
   71  qualified by specialty or experience to make a professional
   72  diagnosis and prognosis regarding the patient’s medical
   73  condition.
   74         (4)“Counseling” means one or more consultations as
   75  necessary between a psychiatrist or psychologist and a patient
   76  for the purpose of determining whether the patient is competent
   77  and whether the patient is suffering from a psychiatric or
   78  psychological disorder or depression causing impaired judgment.
   79         (5)“Department” means the Department of Health.
   80         (6)“Health care provider” means a health care
   81  practitioner, health care facility, or entity licensed or
   82  certified to provide health services in this state.
   83         (7)“Informed decision” means a decision voluntarily made
   84  by a qualified patient to request and obtain a prescription to
   85  end his or her life after a sufficient explanation and
   86  disclosure of the subject matter to enable the qualified patient
   87  to appreciate the relevant facts, including the qualified
   88  patient’s medical diagnosis and prognosis, the potential risks
   89  associated with taking the medication to be prescribed, the
   90  probable results of taking the medication, and the feasible
   91  alternatives to taking the medication, and to make a knowing
   92  health care decision without coercion or undue influence.
   93         (8)“Medically confirmed” means the medical opinion of the
   94  attending physician has been confirmed by a consulting physician
   95  who has examined the patient and the patient’s relevant medical
   96  records.
   97         (9)“Medication” means a drug as defined in s. 465.003
   98  which an attending physician prescribes to a qualified patient
   99  under this chapter to end his or her life in a humane and
  100  dignified manner.
  101         (10)“Physician” means a person who is licensed to practice
  102  medicine under chapter 458 or osteopathic medicine under chapter
  103  459.
  104         (11)“Psychiatrist” means a physician who has primarily
  105  diagnosed and treated nervous and mental disorders for a period
  106  of at least 3 years inclusive of a psychiatric residency.
  107         (12)“Psychologist” means a person who is licensed to
  108  practice psychology under chapter 490.
  109         (13)“Qualified patient” means an individual who has
  110  satisfied the requirements of this chapter to obtain a
  111  prescription for medication to end his or her life in a humane
  112  and dignified manner.
  113         (14)“Terminal condition” means a medically confirmed
  114  condition caused by an injury, illness, or disease which is
  115  incurable and irreversible and which will, within reasonable
  116  medical judgment, cause the patient’s death within 6 months.
  117         Section 4. Section 764.103, Florida Statutes, is created to
  118  read:
  119         764.103 Legislative findings and intent.—The Legislature
  120  finds that every competent adult has the fundamental right of
  121  self-determination regarding decisions pertaining to his or her
  122  own health, and recognizes that for some faced with a terminal
  123  condition, prolonging life may result in a painful or burdensome
  124  existence. It is the intent of the Legislature to establish a
  125  procedure to allow a competent individual who has a terminal
  126  condition, and who makes a fully informed decision that he or
  127  she no longer wants to live, to obtain medication to end his or
  128  her life in a humane and dignified manner.
  129         Section 5. Section 764.104, Florida Statutes, is created to
  130  read:
  131         764.104 Qualified patients; residency requirements; written
  132  and oral requests for medication; waiting periods; form
  133  requirements; right to rescind requests.—
  134         (1)(a)An individual may request medication for the purpose
  135  of ending his or her life in a humane and dignified manner if
  136  the individual:
  137         1.Is 18 years of age or older;
  138         2.Is a resident of Florida;
  139         3.Has been clinically diagnosed with a terminal condition
  140  by his or her attending physician which has been medically
  141  confirmed by a consulting physician;
  142         4.Is competent;
  143         5.Is making an informed decision; and
  144         6.Has voluntarily expressed his or her wish to die.
  145         (b)An individual may not qualify for medication under this
  146  chapter solely because of age or disability.
  147         (2)Factors demonstrating Florida residency include, but
  148  are not limited to:
  149         (a)Possession of a Florida driver license;
  150         (b)Registration to vote in Florida; or
  151         (c)Evidence that the individual owns or leases property in
  152  Florida.
  153         (3)To obtain medication under this chapter, a qualified
  154  patient must first make two oral requests and then one written
  155  request for the medication.
  156         (a)A qualified patient may not make the second oral
  157  request until at least 15 days after making the first oral
  158  request. However, if the qualified patient’s attending physician
  159  has medically confirmed that the qualified patient will, within
  160  reasonable medical judgment, die within 15 days after making the
  161  first oral request, the qualified patient may make the oral
  162  request to his or her attending physician at any time after
  163  making the first oral request.
  164         (b)After a qualified patient makes a second oral request,
  165  the attending physician must give the qualified patient an
  166  opportunity to rescind the request.
  167         (c)A qualified patient may make a written request for
  168  medication under this chapter after he or she has made a second
  169  oral request for the medication and has been offered the
  170  opportunity to rescind the request.
  171         (d)An attending physician may not prescribe medication to
  172  a qualified patient under this chapter until at least 48 hours
  173  after the qualified patient makes a written request for the
  174  medication.
  175         (4)(a)A written request for medication under this chapter
  176  must be in a form substantially similar to the following:
  177                       REQUEST FOR MEDICATION                      
  178                     TO END MY LIFE IN A HUMANE                    
  179                        AND DIGNIFIED MANNER                       
  180  I, ...(name of qualified patient)..., am an adult of sound mind.
  182  I am suffering from ...(medical condition)..., which my
  183  attending physician has determined is a terminal condition and
  184  which has been medically confirmed by a consulting physician.
  186  I have been fully informed of my diagnosis, prognosis, the
  187  nature of the medication to be prescribed and potential
  188  associated risks, the expected result of taking the medication,
  189  and the feasible alternatives, including comfort care, hospice
  190  care, and pain control.
  192  Pursuant to chapter 764, Florida Statutes, I request that my
  193  attending physician prescribe medication that will end my life
  194  in a humane and dignified manner.
  197  [....] I have informed my family members of my decision and
  198  taken their opinions into consideration.
  199  [....] I have decided not to inform my family members of my
  200  decision.
  201  [....] I have no family members to inform of my decision.
  207  I understand the full import of this request and I expect to die
  208  when I take the medication to be prescribed. I further
  209  understand that although most deaths occur within 3 hours, my
  210  death may take longer and my physician has counseled me about
  211  this possibility.
  213  I make this request voluntarily and without reservation, and I
  214  accept full moral responsibility for my actions.
  216  Signed: ...( signature of qualified patient)...
  217  Dated: ...( date)...
  219                      DECLARATION OF WITNESSES                     
  220  We declare that the person signing this request:
  221         1.Is personally known to us or has provided proof of
  222  identity;
  223         2.Signed this request in our presence;
  224         3.Appears to be of sound mind and not under duress, fraud,
  225  or undue influence; and
  226         4.Is not a patient for whom either of us is the attending
  227  physician.
  229  First witness			Second witness
  230  ...(print name)...		...(print name)...
  231  ...(signature)...		...(signature)...
  232  ...(date)...			...(date)...
  234  NOTE: At least one witness may not be a relative (by blood,
  235  marriage, or adoption) of the person signing this request, may
  236  not be entitled to any portion of the person’s estate upon
  237  death, and may not be an owner, operator, or employee of a
  238  health care facility where the person is a patient or resident.
  239         (b)To be valid, the written request must be signed by the
  240  qualified patient and witnessed by at least two individuals who,
  241  in the presence of the qualified patient, attest that to the
  242  best of their knowledge and belief, the qualified patient is
  243  competent, is acting voluntarily, and is not being coerced to
  244  sign the request. At least one of the witnesses must be a person
  245  who is not:
  246         1.A relative of the patient by blood, marriage, or
  247  adoption;
  248         2.A person who at the time the request is signed would be
  249  entitled to any portion of the estate of the qualified patient
  250  upon death under any will or by operation of law; or
  251         3.An owner, operator, or employee of a health care
  252  facility where the qualified patient is receiving medical
  253  treatment or is a resident.
  254         (c)The qualified patient’s attending physician at the time
  255  the request is signed may not serve as a witness.
  256         (5)A qualified patient may rescind his or her request at
  257  any time and in any manner without regard to his or her mental
  258  state.
  259         Section 6. Section 764.105, Florida Statutes, is created to
  260  read:
  261         764.105 Attending physician responsibilities; consulting
  262  physician responsibilities; reporting requirements.—
  263         (1)The attending physician shall do all of the following:
  264         (a)Make the initial determination of whether a patient has
  265  a terminal condition, is competent, and has voluntarily made the
  266  request for medication to end his or her life.
  267         (b)Refer the patient to a consulting physician for medical
  268  confirmation of the diagnosis, and for a determination that the
  269  patient is competent and acting voluntarily.
  270         (c)Ensure that the patient is making an informed decision
  271  by fully informing the patient of the facts relevant to all of
  272  the following:
  273         1.The patient’s medical diagnosis.
  274         2.The patient’s prognosis.
  275         3.The potential risks associated with taking the
  276  medication to be prescribed.
  277         4.The probable result of taking the medication to be
  278  prescribed.
  279         5.The feasible alternatives, including, but not limited
  280  to, comfort care, hospice care, and pain control.
  281         (d)Verify the patient’s Florida residency.
  282         (e)Refer the patient to a psychiatrist or psychologist for
  283  counseling if the physician believes the patient may be
  284  suffering from a psychiatric or psychological disorder or
  285  depression causing impaired judgment. The physician may not
  286  prescribe medication under this chapter until the psychiatrist
  287  or psychologist counseling the patient determines that the
  288  patient is not suffering from a psychiatric or psychological
  289  disorder or depression causing impaired judgment.
  290         (f)Recommend that a patient notify next of kin of the
  291  patient’s decision. The physician may not refuse to prescribe
  292  medication to a qualified patient because he or she declines or
  293  is unable to notify next of kin.
  294         (g)Inform the qualified patient that he or she has an
  295  opportunity to rescind the request at any time and in any
  296  manner, and offer the qualified patient an opportunity to
  297  rescind the request after the qualified patient’s second oral
  298  request at the end of the 15-day waiting period pursuant to s.
  299  764.104.
  300         (h)Immediately before writing a prescription for
  301  medication under this chapter, verify that the qualified patient
  302  is making an informed decision.
  303         (i)Counsel the patient about the importance of having
  304  another person present when the patient takes the medication
  305  prescribed under this chapter and of not taking the medication
  306  in a public place.
  307         (j)Comply with the medical record documentation
  308  requirements of this section.
  309         (k)Ensure that all appropriate steps are carried out in
  310  accordance with this chapter before writing a prescription for
  311  medication to enable a qualified patient to end his or her life
  312  in a humane and dignified manner.
  313         (l)1.Dispense medications directly, including ancillary
  314  medications intended to minimize the patient’s discomfort,
  315  provided the attending physician is registered as a dispensing
  316  practitioner under s. 465.0276, has a current Drug Enforcement
  317  Administration number, and complies with applicable laws and
  318  rules; or
  319         2.With the patient’s written consent:
  320         a.Contact a pharmacist and inform the pharmacist of the
  321  prescription; and
  322         b.Deliver the written prescription personally or by mail
  323  to the pharmacist, who will dispense the medications to either
  324  the patient, the attending physician, the patient’s legal
  325  representative, or an individual whom the patient designates in
  326  writing.
  327         (2)Notwithstanding any other law, the attending physician
  328  may sign the patient’s death certificate.
  329         (3)A consulting physician shall examine the patient and
  330  his or her relevant medical records to confirm, in writing,
  331  whether the consulting physician agrees with the attending
  332  physician’s diagnosis that the patient is suffering from a
  333  terminal condition, and verify whether the patient is competent,
  334  is acting voluntarily, and has made an informed decision. A
  335  consulting physician must refer the patient to a psychiatrist or
  336  psychologist for counseling if the physician believes the
  337  patient may be suffering from a psychiatric or psychological
  338  disorder or depression causing impaired judgment.
  339         (4)An attending physician is responsible for ensuring that
  340  all of the following is documented or filed in the patient’s
  341  medical record:
  342         (a)All oral requests by a patient for medication under
  343  this chapter.
  344         (b)All written requests by a patient for medication under
  345  this chapter.
  346         (c)The attending physician’s diagnosis, prognosis, and
  347  determination that the patient is competent, is acting
  348  voluntarily, and has made an informed decision.
  349         (d)The consulting physician’s diagnosis, prognosis, and
  350  verification that the patient is competent, is acting
  351  voluntarily, and has made an informed decision.
  352         (e)A report of the outcome and determinations made during
  353  counseling, if performed.
  354         (f)The attending physician’s offer to the patient to
  355  rescind his or her request at the time of the patient’s second
  356  oral request.
  357         (g)A note by the attending physician indicating that all
  358  requirements under this chapter have been met and indicating the
  359  steps taken to carry out the request, including a notation of
  360  the medication prescribed.
  361         (5)A health care provider who dispenses medication
  362  prescribed under this chapter must file a copy of the dispensing
  363  record with the department.
  364         (6)The department shall annually review a sample of
  365  records maintained under this chapter for compliance and
  366  annually publish a statistical report on activities and
  367  compliance pursuant to this chapter. The department shall adopt
  368  rules to collect information for this purpose.
  369         Section 7. Section 764.106, Florida Statutes, is created to
  370  read:
  371         764.106 Effect on construction of wills, contracts, and
  372  statutes; insurance or annuity policies.—
  373         (1)A provision in a contract, will, or other agreement,
  374  whether written or oral, to the extent the provision would
  375  affect whether a person may make or rescind a request for
  376  medication under this chapter, is void and unenforceable.
  377         (2)An obligation owed under any existing contract may not
  378  be conditioned or affected by a person making or rescinding a
  379  request for medication under this chapter.
  380         (3)The sale, procurement, or issuance of any life, health,
  381  or accident insurance or annuity policy, or the rate charged for
  382  any policy, may not be conditioned upon or affected by a person
  383  making or rescinding a request for medication under this
  384  chapter. A qualified patient’s act of ingesting medication
  385  prescribed under this chapter may not affect a life, health, or
  386  accident insurance or annuity policy.
  387         Section 8. Section 764.107, Florida Statutes, is created to
  388  read:
  389         764.107 Penalties; liabilities; immunities; grounds for
  390  prohibiting health care provider participation; notification;
  391  permissible sanctions.—
  392         (1)A person who:
  393         (a)Without authorization of the patient, willfully alters
  394  or forges a request for medication under this chapter or
  395  conceals or destroys a rescission of that request with the
  396  intent or effect of causing the patient’s death commits a felony
  397  of the first degree, punishable as provided in s. 775.082, s.
  398  775.083, or s. 775.084.
  399         (b)Coerces or exerts undue influence on a patient to
  400  request medication under this chapter for the purpose of ending
  401  the patient’s life or to destroy a rescission of a medication
  402  request commits a felony of the first degree, punishable as
  403  provided in s. 775.082, s. 775.083, or s. 775.084.
  404         (2)This chapter does not limit further liability for civil
  405  damages resulting from other negligent conduct or intentional
  406  misconduct by any person.
  407         (3)The penalties in this chapter do not preclude criminal
  408  penalties applicable under other law for conduct that is
  409  inconsistent with this chapter.
  410         (4)Except as provided in subsections (1) and (5):
  411         (a)A person is not subject to civil or criminal liability
  412  or professional disciplinary action for participating in good
  413  faith compliance with this chapter. This includes being present
  414  when a qualified patient takes the medication prescribed under
  415  this chapter.
  416         (b)A professional organization or association, or a health
  417  care provider, may not subject a person to censure, discipline,
  418  suspension, loss of license, loss of privileges, loss of
  419  membership, or other penalty solely for refusing to participate
  420  in this chapter or for participating in good faith compliance
  421  with this chapter.
  422         (c)A request by a patient for, or provision by an
  423  attending physician of, medication in good faith compliance with
  424  this chapter does not constitute neglect for any purpose of law
  425  or provide the sole basis for the appointment of a guardian or
  426  conservator.
  427         (d)A health care provider is not under any duty, whether
  428  by contract, by statute, or by any other legal requirement, to
  429  participate in the provision of medication prescribed under this
  430  chapter to a qualified patient. If a health care provider is
  431  unable or unwilling to carry out a patient’s request under this
  432  chapter, and the patient transfers his or her care to a new
  433  health care provider, the prior health care provider shall
  434  transfer, upon request, a copy of the patient’s relevant medical
  435  records to the new health care provider.
  436         (5)(a)As used in this subsection, the term:
  437         1.“Notify” means a separate statement in writing to the
  438  health care provider specifically informing the health care
  439  provider before the provider’s participation in this chapter of
  440  the sanctioning health care provider’s policy about
  441  participation in activities covered by this chapter.
  442         2.“Participation in this chapter” means to perform the
  443  duties of an attending physician, the consulting physician
  444  function, or the counseling function pursuant to s.764.105. The
  445  term does not include:
  446         a.Making an initial determination that a patient has a
  447  terminal disease and informing the patient of the medical
  448  prognosis;
  449         b.Providing information about the Death with Dignity Act
  450  to a patient upon the request of the patient;
  451         c.Providing a patient, upon the request of the patient,
  452  with a referral to another physician; or
  453         d.A patient contracting with his or her attending
  454  physician and consulting physician to act outside of the course
  455  and scope of the provider’s capacity as an employee or
  456  independent contractor of the sanctioning health care provider.
  457         (b)Notwithstanding any other law, a health care provider
  458  may prohibit participation in this chapter on the premises of
  459  facilities that it owns or operates if it first notifies the
  460  health care providers practicing in its facilities of its
  461  policy. This paragraph does not prevent a health care provider
  462  from providing health care services to a patient which do not
  463  constitute participation in this chapter.
  464         (c)Notwithstanding subsection (4), if a health care
  465  provider has a policy prohibiting its facilities, operators, or
  466  employees from participation in this chapter and has notified
  467  them of the policy, then the prohibiting health care provider
  468  may subject its facilities, operators, or employees to the
  469  following sanctions for participating in this chapter in
  470  violation of that policy:
  471         1.Loss of privileges, loss of membership, or other
  472  sanction provided under the medical staff bylaws, policies, and
  473  procedures of the sanctioning health care provider if the
  474  sanctioned health care provider is a member of the sanctioning
  475  health care provider’s medical staff and participates in this
  476  chapter while on the facility premises of the sanctioning health
  477  care provider, but not including the private medical office of a
  478  physician or other provider;
  479         2.Termination of lease or other property contract or other
  480  nonmonetary remedies provided by lease contract, not including
  481  loss or restriction of medical staff privileges or exclusion
  482  from a provider panel, if the sanctioned provider participates
  483  in this chapter while on the premises of the sanctioning health
  484  care provider or on property that is owned by or under the
  485  direct control of the sanctioning health care provider; or
  486         3.Termination of contract or other nonmonetary remedies
  487  provided by contract if the sanctioned provider participates in
  488  this chapter while acting in the course and scope of the
  489  sanctioned health care provider’s capacity as an employee or
  490  independent contractor of the sanctioning health care provider.
  491  This subparagraph may not be construed to prevent:
  492         a.A health care provider from participating in carrying
  493  out the provisions of this chapter while acting outside the
  494  course and scope of the provider’s capacity as an employee or
  495  independent contractor; or
  496         b.A patient from contracting with his or her attending
  497  physician and consulting physician to act outside the course and
  498  scope of the provider’s capacity as an employee or independent
  499  contractor of the sanctioning health care provider.
  500         (d)A health care provider that imposes sanctions under
  501  paragraph (c) must follow all due process and other procedures
  502  the sanctioning health care provider may have which are related
  503  to the imposition of sanctions on another health care provider.
  504         (6)Suspension or termination of staff membership or
  505  privileges under subsection (5) may not be the sole basis for a
  506  disciplinary complaint or investigation against a health care
  507  provider’s license.
  508         (7)This chapter may not be construed to allow a lower
  509  standard of care for patients.
  510         Section 9. Section 764.108, Florida Statutes, is created to
  511  read:
  512         764.108 Claims by governmental entity for costs incurred.
  513  Any governmental entity that incurs costs resulting from a
  514  person terminating his or her life pursuant to this chapter in a
  515  public place shall have a claim against the estate of the person
  516  to recover the costs and reasonable attorney fees related to
  517  enforcing the claim.
  518         Section 10. Section 764.109, Florida Statutes, is created
  519  to read:
  520         764.109 Construction; severability.—
  521         (1)This chapter may not be construed to authorize a
  522  physician or any other person to end a patient’s life by lethal
  523  injection, mercy killing, or active euthanasia. Actions taken in
  524  accordance with this chapter do not constitute suicide, assisted
  525  suicide, mercy killing, or homicide for any purpose under the
  526  law.
  527         (2)Any section of this chapter being held invalid as to
  528  any person or circumstance does not affect the application of
  529  any other section of this chapter which can be given full effect
  530  without the invalid section or application, and to this end the
  531  provisions of this chapter are severable.
  532         Section 11. This act shall take effect July 1, 2020.