August 01, 2016 Feature

Physician-Assisted Dying: Developments in State Law

Michael H. White

California Governor Jerry Brown signed the End of Life Option Act on October 5, 2015, authorizing physician-assisted dying in the state. The statute, which went into effect on June 9, 2016, tripled the number of competent, terminally ill adults in the United States who are lawfully permitted to ask a physician for help in dying.

The California statute is modeled after the Oregon statute that has been available for 18 years to Oregon residents. It is also similar to the law in effect in Washington, both of which statutes became law by passage of voter initiatives. The California statute, like that which has been enacted in Vermont, is the product of the state legislative process. Montana permits physician aid in dying based on a successful lawsuit in that state.

The new California act permits a terminally ill person, defined as a person likely to die of a disease within six months, to request that a physician prescribe lethal medication for self-administration. The act does not permit a physician or any other person to engage in active participation in the administration of the lethal drug.

Although the act is favored by a majority of Californians, opposition remains to the implementation of the act. A recent effort to repeal the act by the referendum process failed because opponents were unable to gather sufficient signatures to place the measure on the ballot in the next election. Also, litigation is pending in California courts challenging the statute as interfering with the physician-patient relationship.

Key to passage of physician aid-in-dying legislation has been inclusion of “safeguards” to ensure that the patient’s request for assistance in dying is voluntary. For some who oppose physician aid in dying, there never can be sufficient safeguards. For others, the California statute increases those safeguards enacted in other states, thereby raising even higher the hurdles that must be managed before the dying patient may lawfully end his or her life.

In addition to the opinions of two independent physicians confirming a terminal diagnosis, the requesting patient must make not less than two oral requests for the lethal prescription 15 days apart and a written request witnessed by two persons, no more than one of whom may be related to the patient.

The patient’s attending physician must make a determination of mental competence, and, if there is a question of a mental disorder, the physician must order a mental health assessment to be made by a specialist to determine that the patient is not suffering from impaired judgment. The statute is so specific that it lists the subjects that the physicians must discuss and document in the patient’s records.

The statute specifies what the mental health professional must discuss with patients in terms of risks—they might die, for example—as well as substantial consequences for those who interfere with the process. A provision of the act provides that the request for aid in dying may not be used by insurance companies to deny benefits and may not be held to be suicide.

Persons unable to self-administer medications to end their lives will not benefit from the End of Life Option Act, nor will those who are incompetent, owing either to mental infirmity or age (those under 18 years do not qualify).

Whether the governor, serving his fourth term, would sign the statute was not a certainty when the state legislature passed the bill. He was opposed to taking up the statute in the special legislative session and is known to have been educated as a seminarian in the Catholic tradition.

Brown said in his letter to the California State Assembly on the day he signed the bill into law, “I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I won’t deny that right to others.”

Governor Brown’s message aligns with the view of those who support the legalization of physician aid in dying, recognizing that such a law substantially reduces anxiety among terminally ill persons who fear suffering in the dying process whether or not they ultimately seek assistance in dying.

Enactment of the statute in California adds a fifth state to those permitting physician aid in dying. It completes a process that was started in the state more than 30 years ago. An effort was made to place the matter on the ballot by initiative; although not successful in 1986, the matter was on the general election ballot in 1992. Defeated in California that year, even though it was supported in pre-election voting polls by a substantial majority of California citizens, it was successful in Oregon in 1994.

Oregon Right to Die, now known as the Death with Dignity National Center, has continued to work actively to advance physician-assisted dying throughout the country. Oregon has provided a safe and lawful option for terminally ill patients to self-determine when and how life will end. Oregon was able to implement its law in 1998 after four years of challenges in the courts. A total of 1,327 people have had prescriptions written, and 859 patients have died from ingesting medications prescribed under the Oregon Death with Dignity Act (Oregon Public Health Division, DWDA Report 2014).

Enactment of the End of Life Option Act was sparked in 2014 by widespread publicity about the move of 29-year-old Brittany Maynard to Oregon to take advantage of its aid-in-dying law. She was a California resident with terminal brain cancer.

Michael H. White

Michael H. White is an attorney/mediator based in Los Angeles, California, and a faculty member of St. Francis College of Law. In 1992 he co-authored the Death with Dignity Act (California Proposition 161) with Robert L. Risley. White is a founding director of the Death with Dignity National Center.