Dolan: ‘Right to die’ bill grants certain protections

This week’s question comes from Nestor in Hayward, who asks:

Q: “My uncle has end-stage cancer and is in pain. He is in hospice right now and has maybe two months to live. He doesn’t want to live the rest of his life suffering in pain. I hear there was a law that would allow someone to talk to their doctor and get assistance in ending their life. Is this true?”

A: Nestor, my heart goes out to you and your uncle. I had a woman who was like my mother that died slowly of cancer. She talked about taking control of her death, but she couldn’t because it was illegal for her doctor to even discuss “suicide” with her, much less help her. As of Oct. 5, 2015, your uncle has options in taking control of his death, as Gov. Jerry Brown has signed into law ABx-15, the End of Life Option Act.

In summary, the End of Life Option Act authorizes a terminally ill adult — after meeting certain criteria and being deemed by her/his attending physician to be terminally ill (incurable, irreversible and fatal within 6 months) — to make a request for a drug that would allow them to end their life.

There are a number of criteria that your uncle will need to meet before he can obtain aid in dying. First, he must have the capacity to make the decision, meaning he needs the ability to understand the nature and consequences of his actions. He must make three requests to his attending physician, two orally 15 days apart and one in writing. The handwritten request must be on a specific form, signed in the presence of two witnesses who must attest that they know the signatory, that the signatory is of sound mind and not under duress, fraud or undue. The attending physician can not be one of the signatories. He or she must also demonstrate they are resident of the state of California. Only one witness may be related by blood, marriage, domestic partnership, adoption or own or operate the health care facility where the patient resides.

A physician must discuss with the patient: His/her diagnosis and prognosis; treatment options such as pain medicine, comfort care and/or hospice; the risks associated with the drug; the patients right to obtain but not use the drug; the right to a second opinion; and the right to rescind the request. If there is evidence of a mental disease or disorder, the patient’s physician must make a referral to a mental health specialist for assessment.

A number of forms must be completed by the physician, including a physician checklist. The patient must fill out a final attestation form 48 hours before ingesting the drug. The physician must file these forms with the State Department of Public Health within 30 days of prescribing the drug.

A doctor may administer the drug at the patient’s request, including other drugs designed to sedate the patient, or she may provide the patient with a prescription to obtain the drug from a pharmacy.

If the discussions concerning the decision to receive aid in dying are in a language other than English, the request should be written in the same language as the discussions or the English language form must be accompanied by a declaration by an interpreter that the patient understood the contents of the request.

If these conditions are met, the self inducement of the aid in dying drug does not constitute suicide, so an insurance company can not deny life insurance payments based on a suicide exemption.

Physicians are not required to participate in this process and they may prohibit their employees from doing so. Any physician who chooses to provide such assistance, has followed the protocol, is present at he time of administration, or has assisted in the preparation of the drug (but who has not administered it) shall be immune from criminal prosecution or censure. Likewise, a compliant physician is immune from a medical malpractice action or a claim for elder or dependent abuse.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

Christopher B. Dolan
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Christopher B. Dolan

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