CALIFORNIA END OF LIFE OPTION ACT

The CALIFORNIA END OF LIFE OPTION ACT was signed into law on October 5, 2015 and just went into effect on June 9, 2016. With this Act, California becomes the fourth state to have a “right to die” statute, joining Oregon (Oregon Death with Dignity Act, 1997), Washington (Washington Death with Dignity Act, 2008) and Vermont (Patient Choice and Control at the End of Life Act, 2013). The CALIFORNIA END OF LIFE OPTION ACT allows for a “Qualified Patient” to ask his or her primary physician for a prescription for a lethal dose of medication (typically sleeping pills), without the physician being deemed to have committed a crime. The Act provides that death by the self‑administration of an aid‑in‑dying drug in compliance with the provisions of the Act is not to be considered suicide and, therefore, cannot be used as a basis for denying a life insurance or health insurance claim. During the long debate over the “right to die,” issues were raised over the possibility that patients might kill themselves while suffering from only a temporary depression over their medical condition or over the financial cost of their medical care. Concerns were also raised that patients might be coerced to kill themselves by greedy relatives with a vested interest in inheriting the person’s estate or claiming life insurance proceeds. In response, the Act includes numerous procedural requirements and safeguards which some may actually find somewhat onerous and which may, in many circumstances, actually prevent patients from utilizing the Act to end their lives.

The California End Of Life Option Act defines a “Qualified Patient” as a person who: i) is a Resident of California (with state issued ID, documents showing rent or property ownership in the state; state voter registration, or recent tax return); ii) is 18 years or older; iii) has the ability to understand the nature and consequences of a health care decision (including the benefits, risks, and alternatives) and; iv) has been diagnosed with a terminal illness that is reasonably likely to lead to death within six months.  Although residency is a requirement, there is no minimum length of residency required under the Act. Whether a patient is qualified or not under “iii” and “iv” above lies in the unanimous opinion of the patient’s treating physician and a consulting physician. A patient interested in exercising his or her right to die under the California End of Life Option Act, must make three separate requests to the attending physician. The second request must be made at least 15 days after the first request. The third request must be in writing and be witnessed by two witnesses who are not related to the patient, a medical provider, or anyone who would inherit from the patient. (The Act includes an optional form that can be used for the witnessed written request.) The request may only come from the patient personally and cannot be made by an agent acting under a power of attorney, advanced health care directive, a conservator, a surrogate or any other health care decision maker. The patient’s attending physician must comply with a series of requirements before prescribing the lethal dose of medicine, including: informing the patient of his or her other options, confirming that the request is not the result of coercion or undue influence, insuring the safekeeping of the aid-in-dying drug after the prescription has been filled, and requesting that the patient notify the patient’s next of kin of the request.

The attending physician must then send the patient to a consulting physician who must confirm the patient’s diagnosis, the prognosis that the patient is likely to die within six months and the patient’s mental competence. The Act requires that the attending physician complete a special End Of Life Option Act checklist and note the patient’s request in the patient’s file. The physician is also required to submit the patient’s written request within 30 days to the State Department of Public Health, along with the completed checklist and compliance form, and the consulting physician’s compliance form. Within 30 calendar days after the patient’s death, whether from the aid-in-dying drug or any other cause, the attending physician must file a follow-up form to the State Department of Public Health. Assuming that all of the other procedural requirements are met, the patient must be physically able to administer the medication himself or herself. It is recommended that the patient include family members in the decision making process and the physician is required to encourage the patient to ingest the aid-in-dying drug with someone else present. The patient must complete and sign a prescribed final attestation form within 48 hours prior to self-administering the aid-in-dying drug. Doctors and hospitals are not required to participate in a patient’s decision to end the patient’s life under the Act. They are not required to inform a patient of the patient’s rights under the End of Life Option Act and are not required to refer an individual to another physician who is willing to assist the patient in exercising the patient’s rights under the Act. Health care providers may prohibit their employees from participating, but only while on their premises or in the scope of their duties with the health care provider. They cannot prevent a physician from assisting outside of the scope of their position with the health care provider.

According to the Desert Sun, all three Palm Springs hospitals have indicated that they will be exercising their right to refuse to honor any patient requests for end-of-life relief under the California End Of Life Option Act. In Los Angeles, Kaiser Permanente and UCLA Medical Center have indicated that they will permit their physicians to assist their patients in exercising their rights under the Act, but will allow physicians to individually opt-out based upon the physician’s personally held beliefs. While there is no requirement that a physician must participate in the California End of Life Option Act, patients have the right to seek out another doctor who is willing to participate in the process and can request that copies of their medical files be shared with the new physician for that purpose. This is a brand new law in California. Both patients and the medical community need education as to their respective rights and responsibilities under the Act. If a treating physician or medical facility will not cooperate with a patient, or if the patient or the patient’s doctor has questions or concerns regarding the patient’s rights or regarding the somewhat lengthy and detailed legal requirements for exercising those rights, we encourage them to seek the counsel of an attorney who is familiar with the Act.

Jacquelynn N. Remery, Esq., is an estate planning and elder law attorney with The Remery Law Firm in Glendale, California. She is licensed to practice in California, Massachusetts and New York. For more information on Jacquelynn N. Remery or the Remery Law Firm, Visit them in the WELLNESS VILLAGE.