Right to die in California

The End of Life Option Act went into effect on June 9, 2016, authorizing the prescription of medication under certain conditions for the purpose of ending a life. Specific qualifications and procedures are included that must be followed in order comply with the law.

The Patient

In order to request an “aid-in-dying drug”, the patient must be “qualified”: He or she must (1) be a resident of California (and provide proof of residency), (2) be an adult who has capacity to make medical decisions, (3) have a terminal diagnosis that is expected to result in death within six months, and (4) have the physical and mental ability to self-administer the drug.

The law specifically provides that the request for an aid-in-dying drug must be made “solely and directly” by the patient, and cannot be made on behalf of the patient by an agent under a power of attorney or advance health care directive, or by a conservator.

The Request Procedure

The patient must make two oral requests for the aid-in-dying drug directly to his or her doctor a minimum of 15 days apart, and must also submit a written request on a special form to the same doctor which is signed by two witnesses. The witnesses must attest that they know the patient or have seen proof of identity, the patient signed the request voluntarily and in their presence, and that the individual is of sound mind and not under duress, fraud or undue influence. Only one of the witnesses can be related to the patient or entitled to a portion of his or her estate upon death, or be employed at the medical facility where the patient is receiving care.

The doctors involved in making the terminal diagnosis, consulting in regard to the request or prescribing the drug cannot be witnesses.

The Doctor

Before prescribing the aid-in-dying drug, the doctor must do all of the following:

  1. Determine that the adult patient has the capacity to make medical decisions (and must refer the patient for a mental health assessment if there are indications of mental illness);
  2. Determine that the patient has a terminal illness;
  3. Determine that the request for the drug was voluntary and that the patient followed the proper procedures;
  4. Confirm that the patient is making an “informed decision” (which is defined by statute and requires a discussion about a number of specifically listed topics, including feasible alternatives and additional treatment options);
  5. Refer the patient to a consulting doctor for confirmation of the diagnosis and prognosis, and for a determination that the patient has the capacity to make medical decisions and has followed the proper procedures;
  6. Discuss the request with the patient out of the presence of any other persons (except an unrelated and qualified interpreter if necessary) to confirm that the patient has not made the request as a result of coercion or undue influence;
  7. Counsel the patient about having another person present when he/she ingests the drug, not ingesting the drug in public, notifying family of the request for the drug, participating in hospice, and maintaining the drug in a safe and secure location until it is ingested;
  8. Inform the patient that he/she can withdraw or rescind his/her request at any time in any manner, and offer the patient the opportunity to withdraw or rescind the request;
  9. Fulfill documentation requirements and complete a checklist and compliance form which must be sent to the California Department of Public Health;
  10. Give the patient a final attestation form to be filled out and executed 24 hours before self-administering the aid-in-dying drug.

Once all of these procedures have been followed, the doctor can either provide the drug to the patient directly (if properly authorized to dispense drugs by the state and the US Drug Enforcement Agency) or deliver a prescription to a pharmacist to dispense to the patient. There are additional reporting requirements that the doctor must satisfy after the drug has been dispensed.

Administration of the Aid-in-Dying Drug

The law is clear that the aid-in-dying drug must be “self-administered” – the patient must ingest the drug under his or her own power. Although another person cannot be prosecuted for being present when the drug is ingested or for assisting with the preparation of the drug, they can still be criminally liable if they assist in the administration of the drug.

It is also very clear that the aid-in-dying drug must not be ingested in a public place (i.e. any place open to public view or accessible to the public). The law states that a claim can be made against the patient’s estate by “any governmental agency that incurs costs” as a result of the ingestion of the drug in a public place.

Choosing Not to Provide Aid-in-Dying Services

A doctor does not have to provide aid-in-dying services, and cannot be sanctioned or disciplined, or held liable for refusing to provide services or to refer a  patient to another doctor for such services. Moreover, if any health care provider (doctor’s office, hospital, clinic, etc.) does not want it’s employees to provide such services, it can have policy in place prohibiting employees from providing such services while acting within the scope of employment, but there are specific steps the health care provider must take for such a policy to be enforceable.

Insurance Policy Provisions

The law provides that the sale of life, health or annuity policies, or health care benefit plans cannot be “conditioned upon or affected by” a person making or rescinding a request for an aid-in-dying drug. Additionally, the self-administration of an aid-in-dying drug is not suicide if the proper procedures are followed, and cannot be treated as anything other than a natural death from the underlying terminal disease.

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