With the enactment of the End of Life Option Act (Health & S C §§443–443.22), effective June 9, 2016, California becomes the fifth state in the nation to allow physicians to prescribe medications to end of the lives of terminally ill patients. Although suicide or attempted suicide is not a crime in California, assisting someone to commit suicide is. See Pen C §401. The Act changes the law to allow a physician to prescribe aid-in-dying drugs without worrying that doing so may subject him or her to criminal penalties. See Health & S C §443.18 ("Actions taken in accordance with [the Act] shall not, for any purposes, constitute suicide, assisted suicide, homicide, or elder abuse under the law"). Note that the Act does not authorize physicians to do more than prescribe the drug. See Health & S C §443.18 (Act does not authorize physicians "to end an individual's life by lethal injection, mercy killing, or active euthanasia"). The Act also protects physicians from professional penalties for prescribing aid-in-dying drugs. See Health & S C §§443.14(b)–(c), 443.16. It will remain in effect until January 1, 2026, unless a later enacted statute deletes or extends that date. Health & S C §443.215.
The Act contains myriad requirements and protections designed to ensure that physicians prescribe aid-in-dying drugs only in the most appropriate circumstances. To request a prescription for a aid-in-dying drug, a person must be a California resident over age 18 who has the capacity to make medical decisions and who has a terminal disease. Health & S C §443.2(a). In addition, they must meet all of the following conditions (Health & S C §443.2(a)(1)–(5)):
- The person's attending physician has diagnosed him or her with a terminal disease;
- The person has voluntarily expressed the wish to receive a prescription for an aid-in-dying drug;
- The person is a California resident and is able to establish residency (via a driver license or other state-issued identification, registration to vote in California, evidence that the person owns or leases property in California, or the filing of a California tax return for the most recent tax year);
- The individual documents his or her request for an aid-in-dying drug according to the Act's procedures in Health & S C §443.3 (see below); and
- The individual has the physical and mental ability to self-administer the aid-in-dying drug.
Significantly, the Act provides that age or disability, by themselves, may not qualify a person to get a prescription for an aid-in-dying drug. Health & S C §443.2(b).
The Act establishes a detailed procedure for requesting a prescription for an aid-in-dying drug. A person must make two oral requests for the drug at least 15 days apart as well as a formal written request. Health & S C §443.3(a). And the written request must satisfy all of the following conditions (Health & S C §§443.3(b)):
- Be in the form described in Health & S C §443.11;
- Be signed and dated, in the presence of two witnesses, by the person seeking the aid-in-dying drug;
- Be witnessed by at least two other adult persons who, in the presence of the person requesting the drug, attest that to the best of their knowledge and belief the terminally ill person (1) is known to them personally or has provided proof of identity, (2) has voluntarily signed the request in their presence, (3) is of sound mind and not under duress, fraud, or undue influence, and (4) is not an individual for whom either of them is the attending physician, consulting physician, or mental health specialist.
Then, if all of these requirements are met, the physician, before prescribing an aid-in-dying drug, must do a number of things, such as determining that the person has the capacity to make medical decisions and is making an informed decision by discussing with him or her the possible risks associated with taking an aid-in-dying drug and feasible alternatives or additional treatment options. The physician must also confirm that the person's request for the drug is not the result of coercion or undue influence by another person. In addition, the person must be seen by a consulting physician to confirm the person's diagnosis and prognosis and that the person has the capacity to make medical decisions. Finally, if there is any indication that the person suffers from a mental disorder, the physician must refer him or her to a mental health specialist for assessment, and no prescription can be prescribed until that specialist determines that the person has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder. For the full list of requirements, see Health & S C §443.5(a).
The Act also contains provisions regarding what must be documented in the person's medical record (Health & S C §443.8) and mandating that, following the writing of a prescription for an aid-in-dying drug, the physician must submit documentation to the California Department of Public Health (Health & S C §443.9).
For discussion of this and other related issues, see CEB's California Elder Law Resources, Benefits, and Planning: An Advocate's Guide.
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