On October 5, 2015, Governor Brown signed California's End of Life Option Act (the "Act"). The Act can be found at Part 1.85 (commencing with Section 443) of the Health and Safety Code. While signed by the Governor, the Act actually does not go into effect until 91 days after the Legislature adjourns its special session on health care financing. The Legislature remains in session with no set date to adjourn. If the session ends in January 2016, then the law will not go into effect until April 2016. The effective date could be pushed back as far as March 1, 2017, according to the Los Angeles Times.[i]
Some doctors believe that the Act is a violation of the Hippocratic Oath they took upon entering the medical profession. Many individuals and religious organizations oppose the Act on moral grounds. On the other hand, many people believe in a right to choose in the event of terminal illness. This issue was recently in the news when Brittany Maynard, a California resident, moved to Oregon to end her life under Oregon's law, which was enacted in 1997. The purpose of this article is not to address the morality of the Act, but to address how it would work.
Understanding What This Means for You
The Act is often erroneously referred to as Physician-Assisted Suicide. While the Act provides a mechanism for a physician to prescribe drugs, those drugs must be self-administered. The physician may not assist with administering these drugs. The Act provides a process for a qualified individual to receive a prescription for an aid in dying drug. The term "aid in dying drug" is defined as a drug that may be self-administered to bring about his or her death due to a terminal illness.[ii]
The individual must be mentally competent or have the "capacity" to make medical decisions. The Act defines that having the ability to "understand the nature and consequences of a health care decision, they understand its significant benefits, risks and alternatives."[iii]The Act is based upon the individual's ability to make and communicate an informed decision to health care providers. The act defines an "informed decision" as a decision by an individual with a terminal disease to request and obtain a prescription for a drug that may be self-administered to end the individual's life.[iv] That decision can only be made after being informed of the relevant facts by the attending physician (the physician with primary responsibility for health care and treatment) which must include all of the following:[v]
- The individual's medical diagnosis and prognosis.
- The potential risks associated with taking the drug to be prescribed.
- The probable result of taking the drug to be prescribed.
- The possibility that the individual may choose not to obtain the drug or may obtain the drug but may decide not to ingest it.
- The feasible alternatives or additional treatment opportunities, including, but not limited to, comfort care, hospice care, palliative care, and pain control.
An individual with capacity as defined above with a terminal disease may request to receive a prescription for an aid in dying drug if the attending physician has diagnosed him or her with a terminal disease and that individual voluntarily expressed his or her wish to receive that prescription.[vi]
The individual must be a California resident.[vii] The Act defines a resident as having:
- Possession of a California driver license or other identification issued by the State of California.
- Registration to vote in California.
- Evidence that the person owns or leases property in California.
- Filing of a California tax return for the most recent tax year.
The individual must personally make a written request. That request may not be made through a power of attorney, advance health care directive, conservator, health care agent or any other legally recognized health care decision maker.
Making a Request to a Physician
An individual seeking assistance must make three (3) separate requests directly to his or her attending physician. Two (2) of the requests are to be verbal, at least 15 days apart. A separate written request must also be made to the attending physician. The physician must personally receive the requests and may not use a designee.[viii] Section 443.11 of the Health and Safety Code provides the form for the request. The request must be signed and dated in the presence of two (2) witnesses. Only one (1) of the witnesses may be related to the individual or own, operate or be employed by the health care facility in which the individual resides or provides treatment.[ix] The attending physician, consulting physician or mental health specialist for the individual may not be a witness. Each witness must indicate to the best of their knowledge and belief that (1) the individual is personally known by them or was provided proof of identity, (2) that the request was voluntarily signed and (3) that the individual was under sound mind and not signing under duress, fraud or under the influence.[x] While the individual must be mentally competent to make the request, the request may be withdrawn at any time without regard to the individual's mental state.[xi] A copy of the request form is as follows:[xii]
REQUEST FOR AN AID-IN-DYING DRUG TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER I, ......................................................, am an adult of sound mind and a resident of the State of California.
I am suffering from ................, which my attending physician has determined is in its terminal phase and which has been medically confirmed.
I have been fully informed of my diagnosis and prognosis, the nature of the aid-in-dying drug to be prescribed and potential associated risks, the expected result, and the feasible alternatives or additional treatment options, including comfort care, hospice care, palliative care, and pain control.
I request that my attending physician prescribe an aid-in-dying drug that will end my life in a humane and dignified manner if I choose to take it, and I authorize my attending physician to contact any pharmacist about my request.
INITIAL ONE:.......I have informed one or more members of my family of my decision and taken their opinions into consideration.
.......I have decided not to inform my family of my decision.
.......I have no family to inform of my decision.
I understand that I have the right to withdraw or rescind this request at any time.
I understand the full import of this request and I expect to die if I take the aid-in-dying drug to be prescribed. My attending physician has counseled me about the possibility that my death may not be immediately upon the consumption of the drug.
I make this request voluntarily, without reservation, and without being coerced.
DECLARATION OF WITNESSES
We declare that the person signing this request:
(a) is personally known to us or has provided proof of identity;
(b) voluntarily signed this request in our presence;
(c) is an individual whom we believe to be of sound m
ind and not under duress, fraud, or undue influence; and
(d) is not an individual for whom either of us is the attending physician, consulting physician, or mental health specialist.
..............Witness 1/Date ..............Witness 2/Date
NOTE: Only one of the two witnesses may be a relative (by blood, marriage, registered domestic partnership, or adoption) of the person signing this request or be entitled to a portion of the person's estate upon death. Only one of the two witnesses may own, operate, or be employed at a health care facility where the person is a patient or resident.
The written language of the request shall be written in the same translated language as any conversations, consultations, or interpreted conversations or consultations between a patient and his or her attending or consulting physicians.[xiii] The written request may be prepared in English even when the conversations or consultations or interpreted conversations or consultations were conducted in a language other than English if the English language form includes an attached interpreter's declaration that is signed under penalty of perjury. The interpreter's declaration shall state words to the effect that:[xiv]
I, (INSERT NAME OF INTERPRETER), am fluent in English and (INSERT TARGET LANGUAGE).
On (insert date) at approximately (insert time), I read the "Request for an Aid-In-Dying Drug to End My Life" to (insert name of individual/patient) in (insert target language).
Mr./Ms. (insert name of patient/qualified individual) affirmed to me that he/she understood the content of this form and affirmed his/her desire to sign this form under his/her own power and volition and that the request to sign the form followed consultations with an attending and consulting physician.
I declare that I am fluent in English and (insert target language) and further declare under penalty of perjury that the foregoing is true and correct.
Executed at (insert city, county, and state) on this (insert day of month) of (insert month), (insert year).
X______Interpreter printed name
An interpreter whose services are provided pursuant to paragraph (2) shall not be related to the qualified individual by blood, marriage, registered domestic partnership, or adoption or be entitled to a portion of the person's estate upon death. An interpreter whose services are provided pursuant to paragraph (2) shall meet the standards promulgated by the California Healthcare Interpreting Association or the National Council on Interpreting in Health Care or other standards deemed acceptable by the department for health care providers in California.[xv]
Physician Must Certify That the Requestor Meets Certain Requirements
The attending physician determines whether the individual has the legal capacity to make medical decisions. Before prescribing, the attending physician shall do all of the following:[xvi]
Make the initial determination of all of the following:
(A) (i) Whether the requesting adult has the capacity to make medical decisions.
(ii) If there are indications of a mental disorder, the physician shall refer the individual for a mental health specialist assessment.
(iii) If a mental health specialist assessment referral is made, no aid-in-dying drugs shall be prescribed until the mental health specialist determines that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.
(B) Whether the requesting adult has a terminal disease.
(C) Whether the requesting adult has voluntarily made the request for an aid-in-dying drug pursuant to Sections 443.2 and 443.3.
The attending physician must also confirm with the individual that he is making an informed decision by discussing the following:
Whether the requesting adult is a qualified individual pursuant to subdivision (o) of Section 443.1.
Confirm that the individual is making an informed decision by discussing with him or her all of the following:
(A) His or her medical diagnosis and prognosis.
(B) The potential risks associated with ingesting the requested aid-in-dying drug.
(C) The probable result of ingesting the aid-in-dying drug.
(D) The possibility that he or she may choose to obtain the aid-in-dying drug but not take it.
(E) The feasible alternatives or additional treatment options, including, but not limited to, comfort care, hospice care, palliative care, and pain control.
Refer the individual to a consulting physician for medical confirmation of the diagnosis and prognosis, and for a determination that the individual has the capacity to make medical decisions and has complied with the provisions of this part.
Confirm that the qualified individual's request does not arise from coercion or undue influence by another person by discussing with the qualified individual, outside of the presence of any other persons, except for an interpreter as required pursuant to this part, whether or not the qualified individual is feeling coerced or unduly influenced by another person.
The individual should understand and be advised by the attending physician the importance of the items listed above and the following:[xvii]
(A) Having another person present when he or she ingests the aid-in-dying drug prescribed pursuant to this part.
(B) Not ingesting the aid-in-dying drug in a public place.
(C) Notifying the next of kin of his or her request for an aid-in-dying drug. A qualified individual who declines or is unable to notify next of kin shall not have his or her request denied for that reason.
(D) Participating in a hospice program