PAIGE ARMSTRONG, J.
This article discusses Colorado’s End-of-Life Options Act and addresses legal and medical issues resulting from its implementation.
On November 8, 2016 Colorado voters passed Proposition 106 (commonly known as the End-of-Life Options Act (EOLA)) with 65% of voters in favor of the legislation. The law became effective on December 16, 2016.2 In passing Proposition 106, Colorado became the sixth state—behind Oregon, Washington, Vermont, Montana, and California—to pass medical aid in dying (MAID) laws or other legal protections allowing terminally ill patients to end their lives.3
EOLA allows an eligible terminally ill individual with a prognosis of living six months or less to request and self-administer MAID medication to voluntarily end his life. To request MAID medication in Colorado, the individual must:
■ be a Colorado resident who is at least 18 years old;
■ have a terminal illness with a prognosis of living six months or less; and
■ have mental capacity and voluntarily make the request.5
The use of MAID medication is not suicide, assisted suicide, or euthanasia.6 Although both MAID medication and euthanasia are used to induce a peaceful death, the difference lies in who administers the medication.7 Euthanasia is administered by a person other than the dying person; in contrast, MAID laws require that the patient self-administer the medication and therefore always remain in control.8
The American Psychological Association has found that the terms “MAID” and “suicide” have “profound psychological differences” on patients.9 People who pursue the MAID option “want to live but are stricken with life-ending illnesses” and are generally deeply offended when MAID is referred to as “suicide.”10 Euthanasia and assisted suicide are both illegal in states where MAID is authorized.11 Colorado law specifically does not allow a physician to end a requesting individual’s life through lethal injection, mercy killing, or euthanasia.12
How to Request MAID Medication
To receive a prescription for MAID medication, an individual must make two oral requests, with a minimum of 15 days separating each request.13 In addition, the individual must make a valid written request under CRS § 25-48-112 to her attending physician, which must be witnessed by at least two people.14 One of the witnesses cannot (1) be related to the requesting individual; (2) be entitled to a portion of the requesting individual’s estate; or (3) own, operate, or be employed at the healthcare facility where the individual is a resident or receives medical treatment.15 Further, neither the individual’s attending physician nor a person authorized a s the individual’s qualified power of attorney or durable medical power of attorney can serve as a witness for the written request.16
An individual who requests MAID medication may withdraw the request at any time.17 In fact, a physician cannot write a prescription for a MAID medication unless he offers the individual an opportunity to rescind the request.18
The Physician’s Role
An attending physician is defined as having primary responsibility for the care and treatment of a terminally ill individual requesting MAID medication.19 The attending physician must make the initial determination of whether the requesting individual has a terminal illness, has a prognosis of living six months or less, has mental capacity, is making an informed decision, and has made the request for MAID medication voluntarily.20 After making this initial determination, the attending physician must refer the requesting individual to a consulting physician to confirm the patient’s diagnosis and prognosis and to determine whether the patient is mentally capable, is making an informed decision, and is acting voluntarily.
To ensure that the patient is fully informed, the attending physician must discuss the individual’s diagnosis and prognosis of living six months or less and feasible alternatives or additional treatment opportunities such as comfort care, palliative care, hospice care, and pain control.22 Moreover, the attending physician must consult with the patient about potential risks in taking MAID medication, the probable result if it is taken, and the possibility of obtaining the medication, but then choosing not to use it.23
An individual has mental capacity if her attending or consulting physician, psychiatrist, or psychologist believes that she has the ability to make and communicate an informed decision to health care providers.24 If either the attending or consulting physician believes that the requesting individual may not be mentally capable of making an informed decision regarding the request for MAID medication, the physician must refer the individual to a licensed mental health professional for evaluation.25 The mental health professional must then send the attending physician his conclusions regarding whether the requesting individual has mental capacity to make informed decisions.26
If the licensed mental health professional determines that the requesting individual is not mentally capable of making informed decisions, the attending physician cannot prescribe the MAID medication.After confirming that the individual has mental capacity to request the medication, the attending physician must still conform that the request for medication is not due to coercion or undue influence by another person by discussing the decision alone with the requesting individual.28
Further, the attending physician is directed to counsel the requesting individual about:
■ the importance of having another person present when the individual self-administers the medication,
■ not taking the medication in a public place,
■ how to properly safeguard and dispose of the medication, and
■ the importance of notifying next of kin of the medication request.29
However, the attending physician cannot require the individual to alert his family or anyone else of the medication request.30
After prescribing the medication, the physician may either dispense the medication directly to the individual or deliver the prescription to a licensed pharmacist, who will then dispense the medication to the individual, the attending physician, or the individual’s agent.31 The attending physician must document the dates of the individual’s oral and written requests for the medication; the individual’s diagnosis, prognosis, and mental capacity; the date the medication was prescribed; and confirm that all legal requirements have been satisfied.32 Any health care provider who dispenses MAID medication must file a copy of a dispensing record with the Colorado Department of Public Health and Environment (Department).33
Duties of Health Care Providers
Health care providers can choose whether to participate in providing MAID medication.34 Health care facilities are required to notify their physicians and patients in writing of their policy in regard to prescriptions for MAID medication, and if a facility fails to do so, it cannot enforce its policy against its physicians or patients.35 However, Colorado law does not state how the advance notice must be given to patients or physicians.
If a health care provider opts out of providing MAID medication and the requesting individual transfers her care to a new provider, the prior provider must transfer a copy of the individual’s medical records to the new health care provider upon request.36 In addition to deciding whether they will participate in EOLA, health care facilities can prohibit their physicians from writing or prescribing MAID medication for qualified individuals who intend to use the medication on the facility’s premises.
Approximately one-third of Colorado’s hospitals (many of them religiously affiliated) have opted out of providing MAID medication to patients.38 For example, in Colorado, Centura Health, SCL Health, and HealthOne do not offer MAID prescriptions to their patients.39 Health care systems that do offer MAID in Colorado include UCHealth and Kaiser Permanente.40
Physicians and other health care providers such as nurses and pharmacists do not have to prescribe or help carry out a request for MAID medication—participation is voluntary.41 If medical staff choose to help patients lawfully obtain MAID medication, their actions, by law, do not constitute suicide, assisted suicide, mercy killing, or elder abuse.42 Health care providers and professional organizations cannot discipline an individual for participating in, or refusing to participate in, MAID...