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California’s End of Life Option Act: A look at a law in limbo

February 18th, 2016

by John Goralka

On Oct. 5, 2015, Gov. Jerry Brown signed California’s End of Life Option Act, which authorizes adults who meet certain qualifications and whom are suffering from terminal diseases to request drugs for the purpose of ending their lives.

However, the act is not yet in effect; not until 91 days after the Legislature adjourns its special session on healthcare financing. Given that the Legislature is still in session with no set date to adjourn, it appears that the act is hanging in limbo. The act was added to the special session on financing after it was blocked by religious groups when it was proposed in the regular session. Further, according to the Los Angeles Times, the act's effective date could be pushed back as far as March 1, 2017.

In addition to opposition on religious and moral grounds, some doctors believe that the End of Life Option Act is a violation of the Hippocratic Oath they took upon entering the medical profession. However, on the other side of the issue, there are many individuals who strongly believe in a right to choose in the event of terminal illness. The issue of euthanasia was recently highlighted in an impassioned national debate when Brittany Maynard, a California resident, moved to Portland, Oregon, to end her life at age 29 under Oregon's Death with Dignity Act, which was enacted in 1997.

[More:]

A discussion of how the act works, not its morality

The End of Life Option 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 specific procedures described below function, in part, as a process to protect patients and safeguard against elder abuse. It is critical that the patients themselves are making informed decisions.

First, the individual, who must be 18 or older and a California resident, must be mentally competent or have the “capacity” to make medical decisions. The act defines "capacity" as having "the ability to understand the nature and consequences of a healthcare decision, the ability to understand its significant benefits, risks and alternatives, and the ability to make and communicate an informed decision to healthcare providers." Under the act, an “informed decision” means 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. This decision can only be made after the individual understands and acknowledges the relevant facts, which takes place after being fully informed by the attending physician (the physician with primary responsibility for healthcare and treatment) of all of the following:

  1. The individual’s medical diagnosis and prognosis
  2. The potential risks associated with taking the drug to be prescribed
  3. The probable result of taking the drug to be prescribed
  4. The possibility that the individual may choose not to obtain the drug or may obtain the drug but may decide not to ingest it
  5. The feasible alternatives or additional treatment opportunities including comfort care, hospice care, palliative care and pain control
    The act protects informed decision making at each step in the process

The process, which protects informed decision making, continues when the individual makes a written request. This request must be made personally and may not be made through a power of attorney, advance healthcare directive, conservator, healthcare agent or any other legally recognized healthcare decision maker.

An individual seeking assistance must make three separate requests directly to his or her attending physician. Two of these requests must be verbal and at least 15 days apart, and a separate written request must also be made to the attending physician. The act specifies that the form for this request must be signed and dated in the presence of two witnesses, and only one of the witnesses may be related to the individual. The attending physician, consulting physician or mental health specialist for the individual may not be a witness. 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.

The critical role of the attending physician

The attending physician plays a critical role in the process, as he or she must determine whether the individual has the legal capacity to make medical decisions. The attending physician must refer the individual to a mental health specialist for an assessment if there are any indications or symptoms of a mental disorder. Further, the attending physician must confirm that the individual is making an informed decision and must discuss with him or her the relevant medical condition, the risks associated with ingesting the aid-in-dying drug and the possibility of not using the drug even after it is requested. A second physician, who is independent from the attending physician, must corroborate the diagnosis, prognosis, mental capacity of the individual and all of the requirements of the act.

The process is completed when the attending physician provides the final attestation form to the individual. This form is to be completed by the individual within 48 hours prior to self-administering the aid-in-dying drug. There is no requirement that the individual must inform his or her family of this decision.

Regardless of one's personal views, the End of Life Option Act is with Californians at least until Jan. 1, 2026, when it is either repealed or otherwise extended. However, for now, the act remains in limbo.

Founder of The Goralka Law Firm, John Goralka assists business owners, real estate owners and successful families to better protect their assets, minimize income and estate tax, resolving messes and transitions to preserve, protect and enhance their legacy. He can be reached at (916) 440-8036 or jmg@goralkalawfirm.com.

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