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What Lawyers Should Know About the End of Life Option Act

This op-ed original appeared online for the Daily Journal on December 11, 2015. 

Toni Broaddus

Toni Broaddus

When Gov. Jerry Brown signed the End of Life Option Act back in October, California became the largest state in the nationto authorize doctors to offer the option of medical aid in dying to terminally ill adults facing unbearable suffering. Since the Legislature passed the act during its special session on health care, however, the law remains in limbo. It will not take effect until the 91st day after the session ends – expected to be sometime in 2016.

Still, Californians who may want to access the law should start having conversations with their doctors now about whether they would prescribe aid-in-dying medication. Lawyers who provide elder law or end-of-life planning services are also likely to hear questions about how the act will work.

Any adult resident of California is eligible, provided they have been diagnosed with a terminal illness with a prognosis of six months or less to live. The individual must have the capacity to make an informed health care decision, as well as the mental and physical ability to self-administer the medication via a feeding tube, drinking or swallowing it.

An individual seeking aid in dying under the law must make their request for a prescription voluntarily and directly to their doctor. This means the request cannot be made by a third party (including relatives or even someone with power or attorney) and cannot be made through an advance health care directive.

In addition to giving fully informed consent, the act requires an individual to make a total of three requests (in no specific order): two oral requests 15 days apart, and one written request, using the statutory form, with witnesses. After, the individual retains the right to withdraw or rescind the request at any time, regardless of mental capacity.

Finally, the individual must complete the statutory final attestation form within 48 hours prior to ingesting the aid-in-dying drug, reiterating intent to take the medication and awareness of the consequences. This form must be returned to the attending physician after the individual’s death, for inclusion in the medical record.

The law requires at least two adult witnesses. These witnesses must attest that, to the best of their knowledge and belief, the individual has provided proof of identity (or that they know the individual), that they witnessed the individual voluntarily sign the request, and that the individual appeared to be of sound mind and not under duress, fraud or undue influence.

The witness also cannot be the attending physician, consulting physician or mental health specialist, and only one witness may be a relative or an employer of the health care facility where the qualified individual is receiving medical treatment or residing.

Opponents of the End of Life Option Act say people may take advantage of the law to coerce someone into ending their life. But the law contains both criminal and civil penalties for misusing the act.

In terms of criminal penalties, the act makes it a felony to: (1) Knowingly alter or forge a request for an aid-in-dying drug to end an individual’s life or concealing or destroying a withdrawal or rescission of a request for an aid-in-dying drug if the act is done with the intent of causing the individual’s death (or if it results in the individual’s death, regardless of the intent), or (2) knowingly coerce or exert undue influence on an individual to request or ingest an aid-in-dying drug for the purpose of ending his or her life or to destroy a withdrawal or rescission of a request, or to administer an aid-in-dying drug to an individual without his or her knowledge or consent.

The act also does not limit civil liability for conduct inconsistent with its provisions.

So how does the act affect other areas of law?

A provision in a contract, will or other agreement, that affects whether a person may make, withdraw or rescind a request for aid-in-dying drug, is invalid under the act. Further, the act prohibits an obligation under any contract from being conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug.

As for insurance, a death resulting from the self-administering of an aid-in-dying medication is not a “suicide” under the act; therefore, insurers cannot deny coverage to individuals seeking aid in dying under the act on that basis. The act also contains provisions dealing with communications between insurance companies and policy holders, prohibiting an insurance carrier from providing any information about the availability of aid-in-dying medication unless a request for information is made by the individual or the individual’s attending physician at their request. It further prohibits insurance providers from including both the denial of treatment coverage and information about coverage of medical aid-in-dying in the same communication.

Considering the impact on a life, health or accident insurance or annuity policy, a qualified individual’s act of self-administering aid-in-dying medication will be treated as a natural death from the underlying illness.

Also, under the act, an individual may not be placed under a guardianship or conservatorship solely because they make a request for aid-in-dying medication under the act.

The End of Life Option Act is overwhelmingly and consistently supported by Californians – not because they are sure to use the act, but because they want the option to be available. The state Legislature responded to voter demand by passing a thoughtful and well-researched law. The next step is to ensure that dying Californians who do want to consider this option have meaningful access to information and patient-centered health care when faced with these difficult decisions at the end of life.
Toni Broaddus is an attorney and the California campaign director for Compassion & Choices, an end-of-life choice advocacy organization and chief proponent of the End of Life Option Act. The organization’s California Access Campaign will assist Californians in understanding and accessing the End of Life Option Act.