End of Life Option Act

Last fall, the governor signed California’s “End of Life Option Act,” making California the fourth state to pass such a law. However, due to a quirk of legislative procedure, it was uncertain until recently exactly when the new law would take effect. Due to the recent end of the “extraordinary session” of the legislature, we now know that the answer is June 9, 2016.

California’s law was modeled somewhat on Oregon’s, but contains even more safeguards against abuse. The law itself is quite specific, and forms which may be used by physicians will outline the necessary procedures. What follows is only a brief summary.

The law allows (under specified conditions) a patient to request, and a physician to prescribe, drugs intended to end the patient’s life. It provides protection against prosecution for the patient, physician, and others, if the terms of the law are followed. No contracts, and in particular no insurance contracts, can be conditioned on choosing to use or not use this law.

In order to make a request under this new law, the patient must:

• Be an adult
• Have the capacity to make medical decisions
• Have a terminal disease which is expected to result in death within six months
• Voluntarily express a wish to receive an aid-in-dying drug
• Be a resident of California
• Document the request for an aid-in-dying drug by:
  • o Making two oral requests, at least 15 days apart
  • o Making a separate written request, on a prescribed form, signed by the patient and two witnesses.
    • § The witnesses must attest that the person is known to them or provided proof of identity; voluntarily signed the request form, in their presence; and appears to be of sound mind and not under duress, fraud, or undue influence.
    • § The attending physician, consulting physician, or mental health specialist may not be a witness. Only one of the two witnesses may be related to (or otherwise entitled to inherit from) the patient.
  • o Signing a “final attestation” form within 48 hours of ingesting the drugs
• Have the physical and mental capacity to self-administer the drug

Requests for aid-in-dying drugs must be made by the individual patient, so cannot be made by an agent under a health care directive.

The physician must make several determinations, including the diagnosis of a terminal illness, the patient’s capacity, and the voluntary nature of the request. A second, consulting physician must confirm both the diagnosis and the patient’s compliance with the terms of the Act, and if either physician believes the patient may have mental health issues, a third mental health specialist must make a determination whether the patient has capacity and is not suffering from impaired judgment.

Finally, the aid-in-dying drugs must in fact be self-administered, meaning that the patient must make an “affirmative, conscious, and physical act of administering and ingesting” the drugs.

As with any new law, there are some unknowns regarding how it will be implemented. The legislature itself recognized the experimental nature of this law, by providing that it will expire (unless further legislation is passed) at the end of 2025.