dissenting.
Because I believe that the ballot title certified by the Attorney General to the Secretary of State substantially complies with the statutory requirements, ORS 250.035; ORS 250.039,1 would certify the ballot title certified by the Attorney General. Moreover, I am concerned that the ballot title now certified by the court departs in some respects from the arguments made by the parties. That part of the court’s decision may return one day to haunt us.
*608Appendix
THE OREGON
DEATH WITH DIGNITY ACT
SECTION I
GENERAL PROVISIONS
§ i .01 Definitions
The following words and phrases, whenever used in this Act, shall Itave the following meanings:
(1) "Adult" means an individual who is 18 years of age or older.
(2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.
(3) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.
(4) "Counseling" means a consultation between a state licensed psychiatrist or psychologist and a patient for the purpose of determining whether the patient is suffering from a psychiatric or psychological disorder, or depression causing impaired judgment.
(5) "Health care provider" means a person licensed, certified, or otherwise authorized or permitted by the law of this State to administer health care in the ordinary course of business or practice of a profession, and includes a health care facility.
(6) "Incapable" means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, a patient lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available. Capable means not incapable.
(7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:
(a) his or her medical diagnosis;
(b) his or her prognosis;
(c) the potential risks associated with taking the medication to be prescribed;
(d) the probable result of taking the medication to be prescribed;
(e) the feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.
(8) "Medically confirmed" means the medical opinion of the attending physician has been confirmed by a consulting physician v, ho has examined the patient and the patient's relevant medical records.
(9) "Patient" means a person who is under the care of a physician.
(10) "Physician" means a doctor of medicine or osteopathy licensed to practice medicine by the Board of Medical Examiners for the State of Oregon.
(11) "Qualified patient" means a capable adult who is a resident of Oregon and has satisfied the requirements of this Act in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.
(12) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six (6) months.
*609SECTION 2
WRITTEN REQUEST FOR MEDICATION TO END ONE’S LIFE IN A HUMANE AND DIGNIFIED MANNER
§ 2.01 Who May Initiate a written Request for medication
An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a mitten request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with this Act.
§ 2.02 Form of the Written Request
(1) A valid request for medication under this Act shall be in substantially the form described in Section 6 of this Act, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.
(2) One of the witnesses shall be a person who is not:
(a) A relative of the patient by blood, marriage or adoption;
(b) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or
(c) An owner, operator or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.
(3) The patient’s attending physician at the time the request is signed shall not be a witness.
(4) If the patient is a patient in a long term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the Department of Human Resources by rule.
SECTION 3 SAFEGUARDS
§ 3.0 I ATTENDING PHYSICIAN RESPONSIBILITIES
Tlie attending physician shall:
(1) Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily;
(2) Inform the patient of;
(a) his or her medical diagnosis;
(b) his or her prognosis;
(c) the potential risks associated with taking the medication to be prescribed;
(d) the probable result of taking the medication to be prescribed;
(e) the feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.
(3) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;
(4) Refer the patient for counseling if appropriate pursuant to Section 3.03;
(5) Request that the patient notify next of kin;
*610((>) Inlunn the patient that he 01 .\he has an opportunity to rescind the request at any time and m any manner, and offer the patient an opportunity to rescind at the end of the 15 day waiting period pursuant to Section 3,06;
(7) Verify, immediately prior to writing the prescription for medication under this Act, that the patient is making an informed decision:
(8) Fulfill the medical record documentation requirements of Section 3.09;
(9) Ensure that all appropriate steps are carried out in accordance with this Act prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner.
§ 3.02 Consulting Physician Confirmation
Before a patient is qualified under this Act, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision.
§ 3.03 Counseling'Referral
If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder, or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient's life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder, or depression causing impaired judgment.
§3.04 Informed decision
No person shall receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision as defined in Section 1.01(7). Immediately prior to writing a prescription for medication under this Act, the attending physician shall verify that the patient is making an informed decision.
§ 3.05 FAMILY NOTIFICATION
The attending physician shall ask the patient to notify next of kin of his or her request for medication pursuant to this Act. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason.
§ 3.06 WRITTEN AND ORAL REQUESTS
In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.
§3.07 RIGHT TO RESCIND REQUEST
A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. No prescription for medication under this Act may be written without the attending physician offering the qualified patient an opportunity to rescind the request.
*611§3.08 WAITING PERIODS
No less than fifteen (15) days shall elapse between the patient's initial oral request and the writing of a prescription under this Act. No less than 48 hours shall elapse between the patient's written request and the writing of a prescription under this Act.
§ 3.09 Medical Record Documentation Requirements
The following shall be documented or filed in (he patient’s medical record:
(1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner;
(2) All written requests by a patient for medication to end his or her life in a humane and dignified manner;
(3) The attending physician's diagnosis and prognosis, determination that the patient is capable, acting voluntarily and has made an informed decision;
(4) The consulting physician's diagnosis and prognosis, and verification that the patient is capable, acting voluntarily and has made an informed decision;
(5) A report of the outcome and determinations made during counseling, if performed;
(6) The attending physician's offer to the patient to rescind his or her request at the time of the patient’s second oral request pursuant to Section 3.06; and
(7) A note by the attending physician indicating that all requirements under this Act have been met and indicating the steps taken to cany out the request, including a notation of the medication presenbed.
§3.10 Residency Requirement
Only requests made by Oregon residents, under this Act, shall be granted.
§3.11 Reporting Requirements
(1) The Health Division shall annually review a sample of records maintained pursuant to this Act.
(2) The Health Division shall make rules to'facilitate the collection of information regarding compliance with this Act. The information collected shall not be a public record and may not be made available for inspection by the public.
(3) The Health Division shall generate and make available to the public an annual statistical report of information collected under Section 3.11 (2) of this Act.
§ 3.12 Effect on Construction of Wills, Contracts and Statutes
(1) No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end his or her life in a humane and dignified manner, shall be valid.
(2) No obligation owing under any currently existing contract shall be conditioned or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner.
§3.13 Insurance or Annuity Policies
The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner. Neither shall a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.
*612§3.14 Construction of Act
Nothing in this Act shall he construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with this Act shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.
SECTION 4
IMMUNITIES AND LIABILITIES
§4.01 Immunities
Except as provided in Section 4.02:
(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this Act. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.
(2) No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with this Act.
(3) No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of this Act shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.
(4) No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient’s request under this Act, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.
§4.02 Liabilities
(1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death shall be guilty of a Class A felony.
(2) A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient's life, or to destroy a rescission of such a request, shall be guilty of a Class A felony.
(3) Nothing in this Act limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.
(4) The penalties in this Act do not preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions of this Act.
SECTION 5 SEVERABILITY
§5.01 Severability
Any section of this Act being held invalid as to any person or circumstance shall not affect the application of any other section of this Act which can be given full effect without the invalid section or application
*613SECTION 6
FORM OF THE REQUEST
§6.01 FORM OF THE REQUEST
A request foi a medication as authorized by tins act shall be in substantially the following form:
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