Jim Porter: A look at the End of Life Option Act (opinion)
June 3, 2016
California is at the forefront of attempts to legalize physician aid-in-dying. For two decades, the Legislature has intermittently attempted to make it legal for doctors to aid in allowing their patients to die with dignity.
Several terminally ill patients sued the State asking that their doctors be allowed to prescribe pills they could take to end their lives.
The case Christy Lynne Donorovich-Odonnell, et al. v. Kamala D. Harris is the backdrop to today's discussion of this controversial and sensitive topic.
Suicide a Crime?
Most states, including California, do not classify suicide or attempted suicide as a crime; however, California and other states impose criminal liability on a person aiding and abetting suicide.
Penal Code Section 401, in effect since 1873 provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony." The crime is punishable by a state prison term of up to three years and a fine of $10,000.
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Aiding Suicide a Felony
Our three terminally ill plaintiffs sued to challenge Section 401, claiming it violated state constitutional rights of privacy and liberty and equal protection laws.
Their doctor, in fear of prosecution, refused to write a prescription for medication to allow the patients to self-administer a drug, which the doctor considered "a compassionate and ethical choice in appropriate circumstances."
Cutting to the chase, the Fourth District Court of Appeal ruled against the patients writing: "We have great compassion for plaintiffs, but we conclude their statutory unconstitutional arguments lack merit. We agree with defendants that physician aid-in-dying and attendant procedures and safeguards against abuse, are matters for the Legislature."
In fact, the California Legislature had already enacted the End of Life Option Act, but the new law would not become effective in time to help these plaintiffs.
End of Life Option Act
On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act, which authorizes a terminally ill patient with the capacity to make medical decisions to request a prescription for a lethal dose of drugs, insulates a prescribing physician from criminal liability, and sets forth rigorous procedures and safeguards to protect against abuse. The new law, effective June 9, 2016, Assembly Bill 15, is Health and Safety Code 443.
Some of the safeguards of AB 15 include: A terminally ill patient must submit two oral requests to his or her physician, a minimum of 15 days apart, before obtaining a prescription for a lethal dose of drugs, and a written request that meets specified criteria, including the signature of two witnesses.
Before issuing a prescription, a physician must adhere to numerous requirements, including determining whether the patient has the capacity to make medical decisions, whether the patient has a terminal illness, whether the request is voluntary, and whether the patient is making an informed decision.
The physician must inform the patient of his or her diagnosis and prognosis, the potential risks of ingesting the drug, and feasible alternatives for additional treatment options, including comfort care, hospice, palliative care and pain control.
AB 15 specifies that a qualified individual's act in self-administrating an aid-in-dying drug shall not have an effect upon a life, health or annuity policy other than that of a natural death from the underlying disease.
Opponents of AB 15 failed to qualify a referendum to challenge the bill, so it is good law as of this week.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.