Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Colorado's Potential New Legislation: The Colorado End of Life Options Act

I have a friend who lost her father to one of those killer diseases that we all fear; one that causes grimaces and slow head shakes when the diagnosis is revealed. It happened a couple of years ago.

I did not know my friend’s father and I have not spoken to her in depth about the details of her loss. But I have spent enough time with her to know that to her and her father and their family, it was all wrong, for all of the reasons one would expect. But it was also all wrong because my friend’s father wanted the end of his life to be on his terms. It was not.

There is a movement, or if not a movement, a trend that is gaining traction toward legislation that allows people with terminal illnesses the right to intentionally end their lives when and where they want through the use of prescribed lethal drugs. My friend and her father joined this movement while he was still alive and wanted that sort of control over the end of his life. He was claimed by his illness without gaining that control. And as it currently stands, terminally ill people in Colorado still do not have that sort of control. That could change in November as the result of a ballot initiative that is two years in the making.

There are statutory schemes in four states that provide a terminally ill person the right to end his or her life through the self-administration of lethal medications prescribed by a physician. Oregon was the first state to enact this sort of legislation in 1997. Washington (2008), Vermont (2013), and California (2015) followed. In 2009, the Montana Supreme Court issued a ruling predicated upon that state’s Rights of the Terminally Ill Act that held that there was nothing in the state’s laws that prohibited a physician from honoring a terminally ill, mentally competent patient’s request by prescribing medication in a lethal dose in order to hasten death. The ruling provides a defense to physicians who might otherwise potentially be charged with murder for assisting a patient who wishes to end his life, but does not equate to a comprehensive statutory scheme. A District Court in New Mexico ruled in a similar fashion in 2014 but has since been overruled by the New Mexico Court of Appeals in 2015. There is currently a pending appeal of that decision in the New Mexico Supreme Court.

The movement in Colorado started with an open letter to Colorado Legislators published in the opinion section of the Denver Post on February 27, 2014. The article was titled “Please, I Want to Die.” It was a plea to lawmakers to enact legislation that would permit the author, my friend’s father, to end his life on his terms. He cited the laws in other states and asked for thoughtful review of the policy and purpose and the passage of a law that would effectuate his wish. He said he was not unique among terminally ill patients and suggested that there would be support. He died seven days after writing the letter, having chosen to end his life through the refusal of nutrition.

A legislator responded to the open letter with proposed legislation in the 2014/2015 legislative session. It did not pass. She tried again in the most recent session and the legislation failed to pass again. Understanding the complex political machinations of getting sensitive legislation touching on issues of privacy and firmly held moral and religious beliefs is beyond the scope of this article. The fact of the matter is that this sort of legislation is loaded with emotional baggage and divisive in a way that makes it particularly ill-suited to the current political climate. Needless to say, this sort of legislation has plenty of detractors and the opposition is formidable.

With the failed attempts at legislation over the last two years crowding her rear-view mirror and her father’s legacy in mind, my friend has proposed a ballot initiative. She is taking her earnestly held belief in this movement to the people. Or, at least she is trying to. As of the writing of this article, proponents of the Colorado legislation are attempting to gather the 98,500 valid signatures required to place the initiative on the November ballot.

Oregon pioneered the statutory scheme for what has become widely known as “death with dignity” legislation and is the wizened elder of the states that allow the terminally ill to end their lives under certain very controlled and specific circumstances. The states that have followed Oregon have all enacted statutory schemes with varying similarity to Oregon’s. The legislation proposed over the past few years in Colorado is not dissimilar.

The framework for the ballot initiative patterns the legislation that has twice failed in the Colorado Legislature. It is a statutory scheme, rather than a constitutional amendment, and it will be known as the “Colorado End of Life Options Act.” The framework is as follows: A person diagnosed with a terminal illness with a prognosis of six months or less who has mental capacity and has voluntarily expressed the wish to receive a prescription for medical aid-in-dying medication may make a request to receive such medication from a physician. In order to receive aid-in-dying medication, the person must make two such requests separated by fifteen days along with a valid written request, witnessed by two people who believe the person to be mentally capable and acting voluntarily without coercion, to his or her physician. The person must be able to self-administer the medication. There are other requirements, from Colorado residency to the relationships between the terminally ill person and the witnesses, to a lengthy list of the attending physician’s responsibilities, including a second opinion, full disclosure, referral to a mental health professional if there is doubt about mental capacity, and counseling regarding the practicalities of self-administering the aid-in-dying medication. The proposed legislation does not mandate action; neither patient nor physician is required to participate.

A significant commonality among the statutes of the various states that have enacted death with dignity or end of life options legislation is a provision that draws a clear distinction between the statutory method of hastening death and what is commonly known as suicide. The ballot initiative that Colorado voters may see in November handles it with the following provision:

(1) Unless otherwise prohibited by law, the attending physician or the hospice medical director shall sign the death certificate of a qualified individual who obtained and self-administered aid-in-dying medication.
(2) When a death has occurred in accordance with this article, the cause of death shall be listed as the underlying terminal illness and the death does not constitute grounds for post-mortem inquiry under section 30-10-606(1).

For those who support this sort of legislation, calling it “suicide” or “physician assisted suicide” is anathema. For those who oppose it, calling it “suicide” is both logical and tactically important.

It will be interesting to see whether my friend’s proposed legislation makes the ballot. She and a team of supporters are working on getting the requisite signatures. There is no doubt that the opposition is preparing for a battle in the coming months.

Whatever your thoughts on the issue right now, I recommend that you spend some time with the proposed statute and decide how to vote in November.

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