QUARTERLY INSIGHTS FOR CLIENTS: California End of Life Option Act

On October 5, 2015, Governor Brown signed the End of Life Option Act authorizing a California resident over the age of 18 with a terminal illness to request a prescription drug for the purpose of ending his or her life. The law is effective for ten years only, beginning June 9, 2016 and ending December 31, 2025.¹

Over the years, a number of our clients have expressed their desire to have end of life options that allow them to take control of their own deaths  – and now they have one.

The End of Life Option Act in California allows an individual under carefully prescribed circumstances to request life ending prescription medication and to administer that medication himself or herself. Under the law, such an act is not deemed suicide, and a doctor’s assistance in providing the medication is not deemed assisted suicide or homicide. In an effort to insure that an individual is not coerced by others into making an end of life decision, or that the decision is not made rashly, the law sets out a series of requirements which must be carefully followed. Here is how it works:

1.  An individual must be over 18 years of age.
2.   An individual must be a California resident, and must prove residency (through a California driver’s license, proof of voter registration in California, evidence that the person owns or rents California property, or a copy of a California tax return for the most recent tax year).  There is no time requirement that must be satisfied for an individual to meet the residency requirement.
3.   The individual must have capacity to make a medical decision. Accordingly, if an individual has Alzheimer’s or any form of dementia, he or she cannot take advantage of this law.
4.   The individual must have been diagnosed with a terminal disease by his or her attending physician. A terminal disease is incurable and irreversible, and one that the physician has determined in his or her reasonable medical judgment will result in the individual’s death within six months.
5.   The individual must voluntarily express his or her wish to receive a prescription for a drug which, upon ingestion, will cause his or her death. This request must be made solely by the individual, and not by someone on his or her behalf. A health care agent under a durable power of attorney may not make the request on behalf of the individual.
6. The individual must have the physical and mental ability to take the drugs himself or herself.  This means that if an individual cannot move his or her arms or cannot swallow, he or she cannot take advantage of this law.
7.   The individual must submit two oral requests to his or her attending physician, a minimum of 15 days apart, followed by a written request in a form prescribed by the statute. The written request must be witnessed by two adults, one of whom may be a family member.  The witnesses must attest to the individual’s capacity to make medical decisions, that the person is acting voluntarily and not is not being coerced to sign.
8.   The attending physician has a significant role in this process. The attending physician must:
   • Determine whether the individual has capacity to make medical decisions, and if the attending physician questions whether the individual has capacity, the attending physician must refer the individual to a mental health specialist (defined as a psychiatrist or licensed psychologist) to determine if the individual has mental capacity to make medical decisions.  If the mental health specialist determines that the individual does not have mental capacity, then the process ends and the individual may not receive the prescription for drugs to end his or her life. (Question whether an attending physician would ever agree to this process without an independent mental health evaluation.)
   • Determine whether the individual has a terminal disease.
   • Determine whether the individual’s request is voluntary and confirm that the request was not coerced. The statute provides that the attending physician is to meet with the individual without the presence of others in the room to ascertain that the individual has not been unduly influenced by others.
   • Confirm that the individual is making an informed decision by discussing the diagnosis and prognosis, potential risks and results of ingesting the life-ending drugs, the possibility that while the individual may request and receive the life-ending drugs, he or she does not have to take them, feasible alternatives or treatment options (comfort care, hospice care, palliative care, pain control).
   • Counsel the individual that he or she should have someone with him or her when he or she ingests the life-ending drugs, that the individual should not take the drugs in a public place, that the individual should notify his or her family of the request for the life-ending drugs, that the individual may participate in a hospice program, that the life-ending drugs should be properly secured until ingested, that the individual may withdraw the request before the prescription is written.
   • Refer the individual to a consulting physician for confirmation of the diagnosis, prognosis, and for a separate determination of capacity to make the decision to end his or her life. The consulting physician has a number of steps that he or she must satisfy as part of the process, including confirming the attending physician’s diagnosis and prognosis and determining whether the individual has capacity to make a medical decision.
   • Confirm that all requirements are satisfied before writing a prescription for the life-ending drugs. The attending physician will have a checklist and forms to file with the State Department of Public Health.
   • Provide the individual with a statutorily required form that is to be filled out by the individual within 48 hours prior to the individual administering the life-ending drugs.
9.  If all of the conditions are satisfied, the law provides that the attending physician may arrange for the life-ending drugs to be delivered to the individual. The method of delivery is described in significant detail, including identifying acceptable mail delivery services.
10.   The statute requires detailed reporting requirements for all physicians involved, and sets out the information that must be included in the individual’s medical files. Within 30 days of writing a prescription for life-ending drugs, the attending physician must provide the State Department of Public Health with certain information regarding the individual’s request and all steps taken under the statute.
11.   Importantly, a person who is present when the individual administers the life-ending drugs has no civil or criminal liability, nor is there liability if the person assists in preparing the life-ending drugs. However, the person may not assist the individual in ingesting the drugs.

The statute provides that a physician is not required to participate in this process, and that medical facilities may prohibit their physicians from participating.

This new act in California will have a profound impact on the lives of terminally ill patients and their families. Even if patients never request life-ending drugs, they know that they may have the right to do so. And if they receive the drugs, they may never use them. Under Oregon’s law, which was enacted in 1997, requests for life-ending drugs over 18 years totals 1327, while the number of deaths during that same period from taking life-ending drugs totals 859. In 2014, there were 155 requests and 105 deaths. This was the highest number during the entire 18 year period.

It is apparent from these numbers that the existence of the law does not result in a surge in deaths.  Perhaps the requirements are too difficult to meet.  The individuals who have the right to act under this law must have a terminal illness, likely cancer.  Whatever the malady that exists, it cannot impact the individual’s mental capacity to make the decision to end his or her life. It may be that by the time someone could actually benefit from this law, mental incapacity of some kind has set in and the opportunity to take advantage of the law is no longer available.  Perhaps it is difficult to find doctors who will participate.

Nonetheless, this is important and groundbreaking legislation that for the first time allows an individual to participate in end of life decisions. There is much to learn about this process as California embraces this new legislation.

¹ California joins Oregon, Washington, Montana and Vermont in providing this right.  The laws of each state are virtually identical, although only the California and Vermont  laws were approved by the legislature and signed into law by the governor.  The laws in Washington and Oregon were approved by voter referendum, and the law in Montana was established by judicial rulings.

The adoption of the law in each state, including California, has been controversial. It has been opposed by many in religious communities and by activists who express concern that seniors or patients with disabilities or dementia could be forced by others into taking their own lives. It has been applauded by those who view the law as giving autonomy and dignity to terminally ill individuals who now have the right to make their own end of life decisions. The recent case of terminally ill 29-year old Brittany Maynard, who lived in California and moved to Oregon to take advantage of Oregon’s Death with Dignity law, may have been a “tipping point” in the movement to allow terminally ill patients to take control of their own deaths.  Compassion & Choices, a non-profit organization (www.compassionandchoices.org) with a mission to insure that individuals have choices in their end of life decisions, reports that 27 legislatures are currently considering “aid in dying” legislation.