In November of 2008, Washington State residents passed Initiative 1000: The Washington State Death with Dignity Act ("Act"). The provisions of the Act become effective on March 4, 2009, and it is important that hospitals take note of the obligations that the Act imposes on providers. As discussed below, only "willing health care providers" should participate in providing life-ending medication; therefore, hospitals will need to decide whether or not to permit the services contemplated by the Act. Whatever option hospitals choose, there are important changes that must be made to policies, leases, and bylaws in order to comply with the Act.
Basics of the Act
The Act allows physicians to prescribe life-ending medication under detailed conditions. These specific conditions are described in the Act and include:
- The Act only affects terminally ill, competent, adult Washington residents who make an informed decision;
- The patient must be medically predicted to die within six months;
- The patient must make two oral requests, as well as a written request for life-ending medication. There is a 15-day waiting period between the first oral and second oral requests;
- A patient's written request for the medication must be witnessed by two people; one may not be the relative, heir, or physician of the patient, or an employee of the healthcare facility where the patient is receiving care;
- Two physicians ("attending" and "consulting" physicians) must diagnose the patient and determine whether the patient is competent;
- A physician must refer the patient for counseling if he or she believes that the patient suffers from a mental health condition. Life-ending medication may not be dispensed until a counselor indicates that the patient does not have a mental health condition specified in the Act.
- The patient must be informed of all other options including palliative and hospice care;
- The attending physician must give the patient the opportunity to rescind his or her request for life-ending medication. This notification of the patient's right to rescind must be documented.
- There is a 48-hour waiting period between the written request and the writing of the prescription; and
- The patient must administer the life-ending medication to himself or herself.
Deciding whether to participate
The Act states that only "willing health care providers," including hospitals, should participate in providing life-ending medication to patients. Therefore, hospitals have the option of participating or not participating under the Act.
Choosing to participate
If a hospital decides to participate, it cannot require individual providers to participate. Additionally, the hospital must 1) make sure that it carefully reviews the requirements of the Act; 2) understand the documentation and witness requirements of the Act; 3) update policies and medical staff bylaws to comply with the Act; and 4) ensure that all hospital administrators understand the details of the Act. Hospitals and physicians that comply with the Act in good faith have criminal and civil immunity and protection from professional licensure action.
Choosing not to participate
If a hospital decides not to participate, it can only prohibit the Act's services in specific situations, including: 1) on the premises of the hospital, 2) in facilities or on property owned or controlled by the hospital, or 3) as part of the provider's services as an employee or independent contractor of the hospital.
A non-participating hospital also must notify the general public, as well as all healthcare providers with privileges to practice on the premises, that it will not offer services under the Act. In order to notify the public, a hospital must a post a notice on its web page and issue a press release to local media.
It is also important that a non-participating hospital make amendments to any leases or contracts that involve providers who are prohibited from offering the Act's services. Implementing these amendments is especially critical if the hospital desires to impose sanctions on providers who violate hospital policies pertaining to the Act.
It is important to note that even if a provider chooses not to participate, it still must provide the following services for patients:
- 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
- Allowing a patient to contract with his or her attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the hospital.
Reporting violations
Participation in I-1000 is protected by statute, and is not an act that constitutes "unprofessional conduct." Therefore, no reports to the Department of Health are necessary if a provider is found to be in violation of a hospital's policies that prohibit providers from participating under the Act.
It remains an open question whether providers who participate in I-1000 in violation of a hospital's policies must be reported to the National Practitioner Data Bank (NPDB). However, if a provider's privileges are suspended for more than 30 days, a report to NPDB may be required under NPDB rules.
Next Steps
Participating hospitals need to ensure that end of life policies conform to the Act's requirements. Additionally, hospitals should use standard forms to comply with the Act, which will be released by the Department of Health in March of 2009.
Non-participating hospitals may amend their leases and contracts to allow sanctions on providers who violate hospital policies pertaining to the Act. It is also important that non-participating hospitals with credentialed medical staff conform their bylaws to I-1000. For example, if a hospital chooses not to participate in the Act, it is important that the bylaws explicitly preclude I-1000 activities so that sanctions can be imposed against providers if necessary.
Please let us know if you have any questions about compliance with Washington State's Death with Dignity Act. We are happy to help you properly implement the requirements of this new law.
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