A quirk in California law means the law that Governor Jerry Brown signed with much fanfare last fall hasn't taken effect yet, even though its passage is having ripple effects.
California Governor Jerry Brown won praise last fall when he struggled with, but ultimately signed a right-to-die law, saying the “gut-wrenching” decision came after he tried to imagine himself with a terminal illness.
“I do not know what I would do if I were dying in prolonged and excruciating pain,” Brown said when he signed the bill October 5, 2015. “I am certain, however, that it would be a comfort to consider the options afforded by this bill.”
Just when Brown’s California constituents who face terminal illness will have this option remains in doubt, however. A quirk in state law means it’s unclear when the End of Life Option Act takes effect, according to a Sacramento-based estate attorney who wants to dispel myths its provisions. Published reports have said it could take effect as early as April 2016 or as late as March 1, 2017.
In an interview with The American Journal of Managed Care, attorney John Goralka explained that under California law, the Act does not go into effect until 91 days after the legislature adjourns its special session on healthcare financing. When AJMC spoke with Goralka the last week of January, the timeline for the law’s effective date was still in doubt.
That hasn’t stopped others from reacting the shift that came with California’s action—many note that soon 1 in 10 Americans will live in a state with a right to die option. Emotional testimony gripped Colorado’s capital this week, as that state weighs its own bill. And in an editorial last month in JAMA, authors Ryan P. Clodfelter and Eli Y. Adashi, MD, MS, of Brown University Medical School, wrote, “The significance of this development cannot be overstated. The most populous state in the nation resolved to replace a sesquicentennial aid-in-suicide penal code with a death-with-dignity statute.”1
Goralka understands that many people remain opposed to California’s law on religious or moral grounds. His effort is not aimed at taking sides in that aspect of the debate, but in educating people about what the law does and does not do, “so that people have a better understanding.”
In estate planning, he said, “you deal with people in all kinds of situations, including people who are in a great deal of pain.”
In the interview, Goralka addressed several issues about the new law:
1. This is Right-to-Die law, Not an Assisted Suicide law. As noted in the JAMA editorial, the notion of physicians having any role in a patient taking his own life is extremely controversial: proponents, including the American Public Health Association say it represents “compassion and beneficence”1 in the face of suffering when death is certain, while Goralka notes that some physicians see it as a violation of their Hippocratic oath. The law’s requirement that physicians can only prescribe lethal drugs, but that they must be administered by the patient, removes physicians from the act of suicide, Goralka said.
2. The Requirement for 2 Physicians Will Prevent Abuse. Goralka said several areas of the law address requirements that a patient demonstrate mental capacity, including the fact that 3 separate requests must be made to 2 physicians, including 1 in writing. Both an attending physician—the person primarily responsible for the patient’s care—and a consulting physician must agree on the patient’s diagnosis, must agree that it is terminal, and must agree that the patient has 6 months or less to live. Either physician can refer the patient to a mental health specialist for evaluation if there are concerns that the patient lacks capacity to make decisions.
3. Safeguards Exist to Keep Patients in Control. Key requirements include separate requests for the drugs in writing at least 15 days apart; the first verbal request must be to the attending physician, which is followed by a request in writing. The request must be dated, there must be 2 witnesses, and it can be withdrawn at any time. Then, there must be a separate verbal request to a consulting physician. The patient must be fully informed of all options, including palliative care. Finally, Goralka said, “The patient must be able to self-administer the drugs.”
4. The Law Will Be Restricted to California Residents. Goralka said this aspect of the law has been overlooked, but it’s important in light of its history. California’s law gained traction after the case of Brittany Maynard, a resident who moved to Oregon in 2014 to exercise her right to die under that state’s law because no option existed at home. Maynard’s public decision to die rather than suffer the continued effects of terminal brain cancer—her story was on the cover of People magazine—was a turning point in the right to die debate. Goralka points out that the residency proofs for using the right to die option are quite strict; besides a driver’s license, the person must have filed a tax return, be registered to vote or show proof of property ownership.
5. California’s Law Will Be Revisited. No matter when it takes effect, the End of Life Option Act will expire or “sunset” on January 1, 2026, unless the legislature acts to extend it or make it permanent. This step will let officials gather data on how the law has worked to make changes before it proceeds. Or, at that time, the legislature could decide to let the right-to-die law lapse.
1. Clodfelter RP, Adashi EY. The liberty to die: California enacts physician aid-in-dying law. JAMA. 2016:315(3):251-252. Doi:10.1001/jama.2015.1624.