Mcle Article: the California End of Life Option Act (abx2-15)

• Jurisdiction: California,United States
• Author: By Lisa Klinger, J.D.
• Publication year: 2017
• Citation: Vol. 23 No. 1

MCLE Article: The California End of Life Option Act (ABX2-15)

By Lisa Klinger, J.D.

Lisa Klinger has been an attorney since 1984 (University of Southern California) and has always specialized in employee benefits and employment law, focusing since 2010 on the Affordable Care Act. She helps employers and their advisors understand what ACA and its regulations require. Since 2013 Lisa has been a volunteer with Compassion and Choices, and in 2016 has done many presentations on the California End of Life Option Act.

(Check the end of this Article for information about how to access 1.0 self-study bias credits.)

Effective June 9, 2015, California became the fifth state¹ to allow medical aid in dying through the signing of the California End of Life Option Act ("EOLO Act" or "Act") that was codified in California Health and Safety § 443, et seq., which allows a California licensed physician to prescribe aid-in-dying medication to adults who meet certain qualifications.

This article explains the requirements of the EOLO Act, particularly for attorneys who may be advising individuals, physicians and other health care workers, health care entities, or who simply are interested in keeping abreast of changes in California laws.

REQUEST FOR AID-IN-DYING MEDICATION

WHO can request. Under the EOLO Act, a "'qualified' individual" can request a prescription for aid-in-dying medication.² An individual may request to receive a prescription for an aid-in-dying drug if all of the following conditions are satisfied: (1) She or he must be an adult California resident³ (2) who has the capacity to make medical decisions, (3) has been diagnosed by his or her attending physician as terminally ill⁴, (4) must follow the proper procedures in requesting aid-in-dying medication, and (5) has the physical and mental ability to self-administer the aid-in-dying drug.⁵

Only the individual her- or himself can request the medication. Another person cannot request it on behalf of a spouse or a terminally ill child, nor can a request be made on behalf of a patient by a power of attorney, conservator, health care agent, surrogate, or a legally recognized health care decision maker.⁶

Even the individual her - or himself cannot obtain the aid-in-dying medication by requesting it in an advance health care directive before he or she has a terminal diagnosis and six-month prognosis, but while the person still has the mental capacity. This precludes a patient in the early stages of Alzheimer's (or with a family history of Alzheimer's) from participating under the Act by stating in an advance directive that they wish to obtain the aid-in-dying medication once the disease progresses to a specified point.

PROCEDURES to request aid-in-dying medication. An individual who wishes to use the EOLO Act must make two verbal requests for the medication and one written request. These requests must be made directly to the individual's "attending physician"⁷ although an interpreter can be used if specified legal requirements are met. The verbal requests must be at least fifteen (15) days apart, and the written request must be made using the statutory request form. The law also includes four other statutory forms, including checklists and a follow-up form physicians must use.⁸

The written request form must be signed by two adult witnesses, who must attest⁹:

• as to the identity of the patient,
• that they believe the patient is of sound mind and not under duress, fraud, or undue influence,

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• that the request was voluntary and signed in their presence, and
• that each of them is not the patient's attending nor consulting physician nor the mental health specialist.

At least one of the witnesses must not be related to the patient by blood, marriage, domestic partnership, or adoption; not be entitled to a portion of the individual's estate upon death; and not be the owner, operator, or employee of a health care facility where the patient is or resides.¹⁰

OBLIGATION OF PHYSICIANS

The EOLO Act imposes numerous obligations and documentation requirements on the "attending" physician, "consulting" physician, and "mental health specialist."

The attending physician is defined as "the physician who has primary responsibility for the health care of an individual and treatment of the individual's terminal disease."¹¹ A terminally ill patient is likely to have several physicians and more than one of them might fit this definition. For example, the family doctor may have primary responsibility for the former and the oncologist for the latter.

The "consulting physician" is one who is independent from the attending physician and is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual's terminal disease.¹² The Act does not specify what "independent from" means.

A "mental health specialist" may be either a psychiatrist or licensed psychologist.¹³

The attending physician has all of the following responsibilities, which are also listed on the Attending Physician Checklist and Follow-Up Form.¹⁴ The consulting physician's responsibilities are listed under item #3 below¹⁵and the mental health specialists' are listed under #1.e.¹⁶

1. Initial eligibility determination, whether:

1. The individual is a California resident;
2. The individual has the capacity to make medical decisions;
3. The individual has a terminal disease;
4. The individual has voluntarily made the request pursuant to Cal. Health & Safety Code 443.2 and 443.3;
5. There are indications of a mental disorder. If so, the physician must refer the individual for a mental health specialist assessment, and no aid-in-dying drugs may be prescribed until the mental health specialist determines that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.¹⁷

2. Confirm the patient is making an informed decision. The attending physician must discuss all the following with the patient to confirm s/he is making an informed decision:

1. Medical diagnosis and prognosis;
2. Potential risks associated with ingesting the aid-in-dying drug;
3. Probable result of ingesting the drug;
4. Possibility that she or he may obtain the drug but choose not to take it;
5. Feasible alternatives or additional treatment options, including but not limited to: comfort care, hospice care, palliative care, and pain control.

3. Refer to a Consulting Physician.

The consulting physician must confirm the diagnosis and prognosis and determine that the individual has the capacity to make medical decisions and has complied with the provisions of the Act. If the consulting physician believes there are indications of a mental disorder, she or he must refer the individual for a mental health specialist assessment.

4. Private consultation with patient to confirm request is voluntary.

The attending physician must meet one-on-one with the patient (unless an interpreter is required) to ensure the patient is not is feeling coerced or unduly influenced by another person. ¹⁸

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5. Counsel the Patient about the importance of all of the following:

1. Having another person present when the drug is ingested;
2. Not ingesting the drug in a public place;
3. Notifying the next of kin of the request for an aid-in-dying drug; (A physician cannot deny the request because an individual...