The Vermont Statutes Online

Title 18: Health

Chapter 113: Patient Choice at End of Life

• § 5281. Definitions

  As used in this chapter:

  (1) “Bona fide physician-patient relationship” means a treating or consulting relationship in the course of which a physician has completed a full assessment of the patient’s medical history and current medical condition, including a personal physical examination.

  (2) “Capable” means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communicating if those persons are available.

  (3) “Health care facility” shall have the same meaning as in section 9432 of this title.

  (4) “Health care provider” means a person, partnership, corporation, facility, or institution licensed or certified or authorized by law to administer health care or dispense medication in the ordinary course of business or practice of a profession.

  (5) “Impaired judgment” means that a person does not sufficiently understand or appreciate the relevant facts necessary to make an informed decision.

  (6) “Interested person” means:

  (A) the patient’s physician;

  (B) a person who knows that he or she is a relative of the patient by blood, civil marriage, civil union, or adoption;

  (C) a person who knows that he or she would be entitled upon the patient’s death to any portion of the estate or assets of the patient under any will or trust, by operation of law, or by contract; or

  (D) an owner, operator, or employee of a health care facility, nursing home, or residential care facility where the patient is receiving medical treatment or is a resident.

  (7) “Palliative care” shall have the same definition as in section 2 of this title.

  (8) “Patient” means a person who is 18 years of age or older and under the care of a physician.

  (9) “Physician” means an individual licensed to practice medicine under 26 V.S.A. chapter 23 or 33.

  (10) “Terminal condition” means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months.

  (11) “Health care services” means services for the diagnosis, prevention, treatment, cure, or relief of a health condition, illness, injury, or disease.

  (12) “Telemedicine” means the delivery of health care services such as diagnosis, consultation, or treatment through the use of live interactive audio and video over a secure connection that complies with the requirements of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. (Added 2013, No. 39, § 1, eff. May 20, 2013; amended 2021, No. 97 (Adj. Sess.), § 1, eff. April 27, 2022; 2023, No. 10, § 1, eff. May 2, 2023.)

• § 5282. Right to information

  The rights of a patient under section 1871 of this title to be informed of all available options related to terminal care and under 12 V.S.A. § 1909(d) to receive answers to any specific question about the foreseeable risks and benefits of medication without the physician’s withholding any requested information exist regardless of the purpose of the inquiry or the nature of the information. A physician who engages in discussions with a patient related to such risks and benefits in the circumstances described in this chapter shall not be construed to be assisting in or contributing to a patient’s independent decision to self-administer a lethal dose of medication, and such discussions shall not be used to establish civil or criminal liability or professional disciplinary action. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5283. Requirements for prescription and documentation; immunity

  (a) A physician shall not be subject to any civil or criminal liability or professional disciplinary action if the physician prescribes to a patient with a terminal condition medication to be self-administered for the purpose of hastening the patient’s death and the physician affirms by documenting in the patient’s medical record that all of the following occurred:

  (1) The patient made an oral request to the physician in the physician’s physical presence or by telemedicine, if the physician determines the use of telemedicine to be clinically appropriate, for medication to be self- administered for the purpose of hastening the patient’s death.

  (2) Not fewer than 15 days after the first oral request, the patient made a second oral request to the physician in the physician’s physical presence or by telemedicine, if the physician determines the use of telemedicine to be clinically appropriate, for medication to be self-administered for the purpose of hastening the patient’s death.

  (3) At the time of the second oral request, the physician offered the patient an opportunity to rescind the request.

  (4) The patient made a written request for medication to be self-administered for the purpose of hastening the patient’s death that was signed by the patient in the presence of two or more witnesses who were not interested persons, who were at least 18 years of age, and who signed and affirmed that the patient appeared to understand the nature of the document and to be free from duress or undue influence at the time the request was signed.

  (5) The physician determined that the patient:

  (A) was suffering a terminal condition, based on the physician’s review of the patient’s relevant medical records and a physician’s physical examination of the patient;

  (B) was capable;

  (C) was making an informed decision; and

  (D) had made a voluntary request for medication to hasten the patient’s own death.

  (6) The physician informed the patient in person or by telemedicine, both verbally and in writing, of all the following:

  (A) the patient’s medical diagnosis;

  (B) the patient’s prognosis, including an acknowledgement that the physician’s prediction of the patient’s life expectancy was an estimate based on the physician’s best medical judgment and was not a guarantee of the actual time remaining in the patient’s life, and that the patient could live longer than the time predicted;

  (C) the range of treatment options appropriate for the patient and the patient’s diagnosis;

  (D) if the patient was not enrolled in hospice care, all feasible end-of-life services, including palliative care, comfort care, hospice care, and pain control;

  (E) the range of possible results, including potential risks associated with taking the medication to be prescribed; and

  (F) the probable result of taking the medication to be prescribed.

  (7) The physician referred the patient to a second physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient was capable, was acting voluntarily, and had made an informed decision.

  (8) The physician either verified that the patient did not have impaired judgment or referred the patient for an evaluation by a psychiatrist, psychologist, or clinical social worker licensed in Vermont for confirmation that the patient was capable and did not have impaired judgment.

  (9) If applicable, the physician consulted with the patient’s primary care physician with the patient’s consent.

  (10) The physician informed the patient that the patient may rescind the request at any time and in any manner and offered the patient an opportunity to rescind after the patient’s second oral request.

  (11) The physician ensured that all required steps were carried out in accordance with this section and confirmed, immediately prior to writing the prescription for medication, that the patient was making an informed decision.

  (12) The physician wrote the prescription after the last to occur of the following events:

  (A) the patient’s written request for medication to hasten the patient’s own death;

  (B) the patient’s second oral request; and

  (C) the physician’s offering the patient an opportunity to rescind the request.

  (13) The physician either:

  (A) dispensed the medication directly, provided that at the time the physician dispensed the medication, the physician was licensed to dispense medication in Vermont, had a current Drug Enforcement Administration certificate, and complied with any applicable administrative rules; or

  (B) with the patient’s written consent:

  (i) contacted a pharmacist and informed the pharmacist of the prescription; and

  (ii) delivered the written prescription personally or by mail or facsimile to the pharmacist, who dispensed the medication to the patient, the physician, or an expressly identified agent of the patient.

  (14) The physician recorded and filed the following in the patient’s medical record:

  (A) the date, time, and wording of all oral requests of the patient for medication to hasten the patient’s own death;

  (B) all written requests by the patient for medication to hasten the patient’s own death;

  (C) the physician’s diagnosis, prognosis, and basis for the determination that the patient was capable, was acting voluntarily, and had made an informed decision;

  (D) the second physician’s diagnosis, prognosis, and verification that the patient was capable, was acting voluntarily, and had made an informed decision;

  (E) the physician’s attestation that the patient was enrolled in hospice care at the time of the patient’s oral and written requests for medication to hasten the patient’s own death or that the physician informed the patient of all feasible end-of-life services;

  (F) the physician’s verification that the patient either did not have impaired judgment or that the physician referred the patient for an evaluation and the person conducting the evaluation has determined that the patient did not have impaired judgment;

  (G) a report of the outcome and determinations made during any evaluation which the patient may have received;

  (H) the date, time, and wording of the physician’s offer to the patient to rescind the request for medication at the time of the patient’s second oral request; and

  (I) a note by the physician indicating that all requirements under this section were satisfied and describing all of the steps taken to carry out the request, including a notation of the medication prescribed.

  (15) After writing the prescription, the physician promptly filed a report with the Department of Health documenting completion of all of the requirements under this section.

  (b) This section shall not be construed to limit civil or criminal liability for gross negligence, recklessness, or intentional misconduct. (Added 2013, No. 39, § 1, eff. May 20, 2013; amended 2021, No. 97 (Adj. Sess.), § 2, eff. April 27, 2022; 2023, No. 10, § 2, eff. May 2, 2023.)

• § 5284. No duty to aid

  A patient with a terminal condition who self-administers a lethal dose of medication shall not be considered to be a person exposed to grave physical harm under 12 V.S.A. § 519, and no person shall be subject to civil or criminal liability solely for being present when a patient with a terminal condition self-administers a lethal dose of medication or for not acting to prevent the patient from self-administering a lethal dose of medication. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5285. Limitations on actions

  (a) A physician, nurse, pharmacist, or other person shall not be under any duty, by law or contract, to participate in the provision of a lethal dose of medication to a patient.

  (b) A health care facility or health care provider shall not subject a physician, nurse, pharmacist, or other person to discipline, suspension, loss of license, loss of privileges, or other penalty for actions taken in good faith reliance on the provisions of this chapter or refusals to act under this chapter.

  (c) No physician, nurse, pharmacist, or other person licensed, certified, or otherwise authorized by law to deliver health care services in this State shall be subject to civil or criminal liability or professional disciplinary action for acting in good faith compliance with the provisions of this chapter.

  (d) Except as otherwise provided in this section and sections 5283, 5289, and 5290 of this title, nothing in this chapter shall be construed to limit liability for civil damages resulting from negligent conduct or intentional misconduct by any person. (Added 2013, No. 39, § 1, eff. May 20, 2013; amended 2021, No. 97 (Adj. Sess.), § 3, eff. April 27, 2022.)

• § 5286. Health care facility exception

  A health care facility may prohibit a physician from writing a prescription for a dose of medication intended to be lethal for a patient who is a resident in its facility and intends to use the medication on the facility’s premises, provided the facility has notified the physician in writing of its policy with regard to the prescriptions. Notwithstanding subsection 5285(b) of this title, any physician who violates a policy established by a health care facility under this section may be subject to sanctions otherwise allowable under law or contract. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5287. Insurance policies; prohibitions

  (a) A person and his or her beneficiaries shall not be denied benefits under a life insurance policy, as defined in 8 V.S.A. § 3301, for actions taken in accordance with this chapter.

  (b) The sale, procurement, or issue of any medical malpractice insurance policy or the rate charged for the policy shall not be conditioned upon or affected by whether the physician is willing or unwilling to participate in the provisions of this chapter. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5288. No effect on palliative sedation

  This chapter shall not limit or otherwise affect the provision, administration, or receipt of palliative sedation consistent with accepted medical standards. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• §§ 5289, 5290. Repealed. 2015, No. 27, § 1, effective May 20, 2015.

• § 5291. Safe disposal of unused medications

  The Department of Health shall adopt rules providing for the safe disposal of unused medications prescribed under this chapter. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5292. Statutory construction

  Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia. Action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing, or homicide under the law. This section shall not be construed to conflict with section 1553 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152. (Added 2013, No. 39, § 1, eff. May 20, 2013.)

• § 5293. Reporting requirements

  (a) The Department of Health shall adopt rules pursuant to 3 V.S.A. chapter 25 to facilitate the collection of information regarding compliance with this chapter, including identifying patients who filled prescriptions written pursuant to this chapter. Except as otherwise required by law, information regarding compliance shall be confidential and shall be exempt from public inspection and copying under the Public Records Act.

  (b) Beginning in 2018, the Department of Health shall generate and make available to the public a biennial statistical report of the information collected pursuant to subsection (a) of this section, as long as releasing the information complies with the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. (Added 2015, No. 27, § 2, eff. May 20, 2015.)