On October 5, 2015, Gov. Jerry Brown approved California Assembly Bill ABX2-15, making California the latest state to enact some form of legislation allowing an individual the ability to self-administer prescribed drugs aimed to bring about the individual’s death, and setting forth guidelines under which a medical professional or other person assisting the individual in accomplishing this act may escape liability for providing the requested assistance. This law will be known and cited as the “End of Life Option Act” (“the Act”) and will be added to the California Health and Safety Code as Section 443. Unless later extended, the Act will expire on January 1, 2026.
Pursuant to the terms of the Act, an adult individual (18 or older) with the capacity to make an informed decision and who has a terminal disease, defined as an incurable and irreversible disease that has been medically confirmed and that will, within reasonable medical judgment, result in death within six months, may request and be given an “aid-in-dying” drug, which is a prescribed, lethal dose of one or more drugs specifically designed to end the person’s life, if the individual meets the following criteria:
- A physician has diagnosed the individual with a terminal disease;
- The individual has voluntarily expressed the wish to receive a prescription for the drug;
- The individual is a resident of California;
- The individual documents his or her request pursuant to the requirements set forth in Health and Safety Code §§443.3, which require the individual to make the request orally to the same attending physician at least twice, each oral request being made a minimum of 15 days apart, and once in writing in the format set forth in 443.11 (including the signatures of two witnesses); and
- The individual has the physical and mental ability to self-administer the aid-in-dying drug.
- These requirements and the remaining provisions of the Act provide some interesting limitations on the type of individual that may qualify under the Act. First, old age and disability, on their own, are not terminal diseases. An elderly or disabled person nearing the end of life, regardless of quality of life and pain, will not be able to hasten the process without a diagnosis of an incurable and irreversible disease.
Additionally, the individual must not only have the mental capacity to request the prescription, and do so multiple times, but must also be able to physically and mentally self-administer the drug. The request may not be made in an advance health care directive or other power of attorney, and may not be requested by an agent appointed under these instruments, an appointed conservator, surrogate, or any other legally appointed health care decision maker. The request must be made directly by the individual to his or her attending physician, and the individual must fully understand the nature and consequences of his or her decision. The Act places substantial requirements on the physician to inform the individual of alternatives, to assess the mental health of the requesting individual and refer the patient to mental health professionals for assessment, and to make sure that the individual knows that the request may be withdrawn or rescinded at any time. It is clear that this will not be an easy prescription to obtain.
Once the drug is obtained, the individual must also be able to mentally comprehend the nature of the act at the time of taking the drug, and must be able to physically administer the drug to himself or herself. A third-party may assist in preparing the drug to be administered, and be present when the individual takes the drug, but the third-party faces potential felony liability for actually assisting the qualified person in ingesting the drug. The Act does not specifically define where the line between assisting in the preparation of the drug and assisting in the ingestion of the drug is drawn. This presents some interesting practical and legal questions, particularly regarding physically disabled individuals who require assistance ingesting medication but otherwise meet every other qualification. For instance, would a third-party that prepared a liquid form of the drug and presented the concoction to the individual through a straw escape liability if the individual could physically and mentally perform the act of swallowing? At first glance this would seem to be clearly assisting the qualified individual in ingesting the aid-in-dying drug, subjecting the third-party to liability, but these are the sorts of questions that will undoubtedly be addressed in California Courts in the next few years.There are a couple other provisions of the Act that I found interesting. First, the death of an individual choosing to die under the specific provisions of the Act is not legally considered a suicide, and therefore health and insurance coverage and policies will not be exempted, denied or otherwise effected by the means of death. It shall be treated as a natural death from the underlying disease.
The Act also provides an “out” for health care providers that object, for any reason, to participating in the rights afforded by this Act. The Act makes participation voluntary, and no health care provider or other individual shall be criminally or civilly liable for failing to participate in the Act, for refusing to inform a patient of his or her rights under the Act, or for refusing to refer the individual to a health care provider that chooses to participate. A health care provider may also prohibit its employees and independent contractors from providing services under this Act under certain situations. This post was intended to be a brief overview of the new law, and to highlight some of the points of the law that I found interesting or widely applicable. If you have more specific questions please feel free to call or e-mail me with questions, or even better, speak with your attending physician. If you would like to read the text of the bill in its entirety, you can find it here: https://leginfo.legislature.ca.gov(search “ABX2-15″ in the upper right hand corner).