Introduction

The Washington Death with Dignity Act (the "Act") enacted by voter initiative in November 2008 and codified at RCW 70.245, permits a physician to prescribe life-ending medication to a patient, but only if the patient meets strict qualifications and the physician follows a series of required safeguards. Clients interested in the Act should consult directly with their healthcare providers, but this update offers an overview of the Act, when a patient may receive prescriptions for life-ending medication and how some healthcare providers have responded to the Act.

Basic Qualifications

To qualify, a patient must be 18 years of age or older, be a Washington resident and have the competence to make informed decisions regarding medical care. A physician may not prescribe life-ending medication to minors or nonresidents. The residency requirement is satisfied by a Washington driver's license, Washington voter registration, evidence that the patient owns or leases property in Washington, or other similar evidence. 

The patient must also be diagnosed by the attending physician with an incurable and irreversible disease that, in the physician's reasonable medical judgment, will end the patient's life within six months. This conclusion must be confirmed by a consulting physician who has expertise in diagnosing and providing prognoses for the patient's disease. 

If either the attending or the consulting physician thinks that the patient's judgment may be impaired because the patient may be suffering from a psychiatric or psychological disorder or depression, the patient must be referred for counseling. The physician may not prescribe life-ending medication for the patient until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression that impairs the patient's judgment. 

Procedural Safeguards

A fundamental requirement of the Act is that a physician may not administer life-ending medication. The Act instead permits the physician to prescribe life-ending medication to be self-administered by the patient, but only upon adherence to strict procedural safeguards. To initiate the process for receiving a prescription for life-ending medication, the patient must make requests both orally and in writing. The written request must be in a form prescribed by the statute and signed by the patient, and two witnesses must sign the request. Neither witness may be the attending physician, and at least one witness must be a disinterested party. If the patient is a patient at a long-term care facility, one of the witnesses must be a designee of the facility. 

A minimum of 15 days after the initial oral request and 48 hours after the patient's signed written request must pass before the physician may prescribe the medication. Upon receiving the patient's initial oral request, the attending physician must first verify the patient's age and residency. The physician must then make the required medical diagnosis and prognosis. Following the diagnosis, the patient must be fully informed of the diagnosis and prognosis, any risks of taking the medication, the probable result of taking the medication and feasible alternatives to taking the medication, including comfort care, hospice care and pain control. The physician must verify that the patient is competent to make the request for life-ending medication and is doing so voluntarily.

The attending physician is then required to refer the patient to a consulting physician for confirmation of the diagnosis and prognosis and confirmation that the patient is competent and acting voluntarily. If either the attending or consulting physician believes that the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the patient must be referred to counseling as described above.

While the patient is not required to notify his or her next of kin, the attending physician must recommend that the patient do so. The physician must also counsel the patient about the importance of having another person present when administering the medication and of not taking the medication in a public place. 

The attending physician is required to inform the patient that the patient may rescind the request for life-ending medication at any time and in any manner. At the conclusion of the 15-day and 48-hour waiting periods, the physician must again inform the patient of the right to rescind the request. If the patient makes a second oral request for life-ending medication after the waiting periods, the attending physician is required once again to verify that the patient is competent and making an informed, voluntary decision. Before prescribing the medication, the physician must finally verify and document in the patient's medical record that the requirements under the statute have been met. 

If the patient qualifies for a prescription for life-ending medication and the attending physician has satisfied all of the procedural requirements, the patient may obtain the medication in one of two ways. If the attending physician is authorized and certified to dispense medication, the physician may dispense the medication directly to the patient.

Alternatively, the attending physician may, with the patient's written consent, contact a pharmacist to inform the pharmacist of the prescription and deliver the written prescription personally, by mail or by facsimile directly to the pharmacist. The pharmacist may then dispense the medication directly to the patient, the attending physician or an expressly identified agent of the patient.

Legal Consequences

A patient who self-administers life-ending medication is considered to have died from the underlying terminal disease. The disease is to be listed as the cause of death on the death certificate. The decision to request and administer life-ending medication generally has no legal effect in Washington on the property rights of the patient or on those of the patient's heirs or beneficiaries. Life insurance and annuity policies, for example, are prohibited from being made contingent on a patient's making or rescinding a request for life-ending medication.

Response From Medical Community

The Act only releases physicians and medical care providers from liability, if they comply with the Act in good faith. It does not require participation. Some Washington healthcare providers are participating in the Act, while others are not participating for legal, ethical or moral reasons at some or all of their care facilities. Physicians may decline to participate in the Act at any time and they are not required to refer the patient to a physician who will participate. Clients who think they might wish to exercise the rights given them by the Act should ask their physicians in advance if the physicians will be able and willing to prescribe life-ending medication if circumstances arise in which the clients meet the requirements of the Act.

© 2014 Perkins Coie LLP