California is the fifth state in the United States to legalize aid-in-dying through a law called the End of Life Option Act.
This law permits a competent, terminally-ill patient to request a prescription for a drug that can be used to end his or her life. Participation in the law is entirely voluntary for physicians, patients, pharmacists and others. Patients and physicians who choose to participate must carefully follow the steps set forth in the law in order for their actions to be considered lawful and appropriate.
The purpose of this writing is not to take a position, either in favor of the Act or against the Act. The sole purpose is to objectively explain the California End of Life Option Act law (the “Act”) that was signed October 5, 2015, and became operative on June 9, 2016.
California’s new End of Life Option Act allows terminally ill patients to obtain a prescription from their attending physician for medication to end their life. The patient then administers the medication themselves.
To be eligible for medical aid in dying under California’s law, an individual must be:
- An adult: a person 18 years of age and older;
- Terminally ill: an incurable and irreversible disease that has been medically confirmed and is expected to result in death within six months; and
- Mentally capable of making their own healthcare decisions.
- Further, to be eligible, an individual must also be
- A resident of California;
- Acting voluntarily;
- Making an informed decision that includes being given information about all other end-of-life options;
- Informed that they may choose to obtain the aid-in-dying prescription but not take the medication; and
- Capable of self-administering and ingesting the aid-in-dying medication.
In addition to the requirements listed above, certain steps must be followed in order for a person to qualify for aid-in-dying medication. It is estimated that the average length of time between requesting and receiving a prescription will between 15 days and three months and requires at least two doctor visits.
Two California physicians must agree that a person is eligible to use the Act. One physician prescribes the medication, and the other physician gives the consulting opinion.
If either physician is unable to determine a persons’ mental capacity in making the request, a mental health professional (psychiatrist or psychologist) must evaluate the person to ensure that the person is capable of making his or her own healthcare decisions.
The Act sets forth steps that both the patient and his or her physician must follow.
The following is a summary of the key steps and is not intended to be a complete restatement of the Act.
- The patient must consult with his or her attending physician (the physician who has primary responsibility for the patient’s healthcare and treatment of the terminal illness) who must determine if the illness is terminal, meaning that the patient cannot be cured or the illness reversed and that death will likely result within six months, and that the patient has capacity to make medical decisions.
- The patient must make two oral requests, at least 15 days apart, to the attending physician, as well as one written request. This written request must be on a form as set out in the Act. The written request must be witnessed by two persons (one of whom must be a non-relative of the patient) and signed by the patient. The patient must discuss the request with his or her physician with no one else present (except an interpreter, if necessary) to be certain that the request is voluntary.
- The patient must then be seen by a second physician (a consulting physician) for that physician to confirm the patient’s diagnosis, prognosis, and ability to make medical decisions. If either physician questions the patient’s mental condition, the patient must then be seen by a mental health specialist to confirm that the patient has the capacity to make medical decisions.
The patient and the physician must discuss each of the following:
- The aid-in-dying drug, how it will affect the patient and the fact that death might not be immediate.
- Realistic alternatives to the aid-in-dying drug, including comfort care, hospice care, palliative care, and pain control.
- Whether the patient wants to withdraw the request.
- Whether the patient will notify next of kin, have someone else present when taking the drug, or participate in a hospice program, although the patient is not required to do any of the three things.
- Ensure the patient knows that he or she does not have to take the drug, even though they have filled the prescription.
- Once all of the above have occurred, if the patient still wishes, the physician can write a prescription for the drug.
- Before taking the drug, the patient must sign a form as set out in the Act, that states that the drug is being taken voluntarily. The patient must take the drug himself or herself. While others may assist in preparing the medication, the patient must self-administer the drug.
- The participation of the physician is absolutely voluntary, as is that of the patient.
- Lethal injection, mercy killing, or active euthanasia remain a crime in California.
How does the Act affect the patient’s insurance, will, or other contracts?
The Act protects patients in that they cannot be denied life or health insurance or annuities based on requesting or taking an aid-in-dying drug. A health insurer cannot tell a patient an aid-in dying drug is covered by insurance unless the patient asks.
A health insurer cannot refuse treatment for the illness at the same time that it offers coverage for aid in dying. A will, a contract, or other agreement cannot require a patient to receive aid in dying or prevent a patient from doing so.
For additional information, please refer to the Act, Senate Bill 128/Health and Safety Code Section 443 et. seq. or contact the author.