BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 128 (Wolk and Monning)
Version: March 17, 2015
Hearing Date: April 7, 2015
Fiscal: Yes
Urgency: No
RD
SUBJECT
End of life
DESCRIPTION
This bill would enact the End of Life Option Act (Act) to permit
competent, terminally ill, California residents over the age of
18 who meet certain criteria to request aid-in-dying medication
to be self-administered by the individual for the purpose of
ending his or her life. This bill would establish procedures
that both seek to effectuate informed decisions and protect
individuals from obtaining such medication as a result of
coercion or undue influence.
This bill would provide the qualified individual with a broad
right of rescission; would authorize providers to decline the
patient's request, for reasons of conscience, morality, or
ethics; and would include various immunities and protections
against sanctions for participating health care providers and,
more limitedly, non-participating providers, as specified. This
bill would also include requirements for unused aid-in-dying
medications; specify the effect that participation in activities
authorized by the bill would have on wills, contracts, and
insurance policies; specify the cause of death for death
certificates; provide various reporting requirements; and create
two new felonies.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
Currently, only five states authorize what is called "death with
dignity." While Oregon and Washington both have very similar
voter initiative laws authorizing the practice, which took
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effect in 1997 and 2009, respectively, Vermont was the first
state to enact such a law by way of the legislative process in
2013. In two other states, Montana and New Mexico, judicial
decisions have effectively authorized doctors to engage in such
practices. In California, on at least six occasions, this
Legislature has considered various iterations of a death with
dignity law and those bills all died or otherwise failed passage
at various points in the legislative process. (See Prior
Legislation, below.)
This last year, the life and death of a 29-year old Californian,
Brittany Maynard, refocused significant national attention and
reignited arguments surrounding the issue of the right to die,
or the right for the terminally ill to make end of life choices.
Suffering from stage IV glioblastoma multiforme, an aggressive
form of terminal brain cancer, Ms. Maynard publically spoke of
her decision to leave her home in California for the state of
Oregon so that she could take advantage of the "Death with
Dignity Act." On November 1, 2014, Ms. Maynard died in Oregon
after taking aid-in-dying medication pursuant to Oregon's law.
Toward the end of her life, Ms. Maynard partnered with
Compassion & Choices, a supporter of this bill, to launch an
effort to expand access to this medical practice across the
country and in California. In addition to SB 128, the authors
of this bill indicate that 24 other states are considering
aid-in-dying or death with dignity related bills. Additionally,
earlier this year, the Disability Rights Legal Center filed a
lawsuit on behalf of three Californians with cancer, and three
California physicians who regularly care for terminally ill
patients to clarify that when physicians provide aid in dying to
mentally competent, terminally ill patients they do not violate
California law. (Brody v. Harris et al., San Francisco Superior
Court Case No. CGC-15-544086, Feb. 11, 2015.)
This bill, modeled largely upon the Oregon and Washington laws,
would extend the availability of aid-in-dying medication to
qualifying California residents over the age of 18, if certain
criteria are met. The bill would include various immunities and
protections against sanctions and would recognize the right of
health care providers to opt out of participating in activities
authorized by the bill.
This bill was heard by the Senate Health Committee on March 25,
2015 and was passed out on a vote of 6-2 with amendments to be
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taken in this Committee.
CHANGES TO EXISTING LAW
Existing case law provides that a competent adult has a
fundamental right to accept or reject medical treatment,
including the right to withdraw or withhold life-sustaining
treatment that may cause or hasten death. (Cruzan v. Director,
Missouri Dept. of Health (1990) 497 U.S. 261.)
Existing case law upheld a state prohibition against the aiding
of a suicide and held that prohibitions against assisted suicide
do not violate a person's fundamental rights under the Due
Process Clause. The Court held that the ban was rational in
that it furthered such compelling state interests as the
preservation of human life and the protection of the mentally
ill and disabled from medical malpractice and coercion.
(Washington v. Glucksberg (1997) 521 U.S. 702; see also Vacco v.
Quill (1997) 521 U.S. 793, 801 [a state ban on
physician-assisted suicide does not violate the Equal Protection
Clause].)
Existing law provides that one who deliberately aids, or
advises, or encourages another to commit suicide is guilty of a
felony. (Pen. Code Sec. 401.)
This bill would enact the End of Life Option Act (Act) to
authorize a person who qualifies under the requirements of the
bill to request and obtain aid-in-dying medication from his or
her attending physician pursuant to specified procedures.
This bill would authorize a competent, qualified individual who
is a terminally ill adult to make a request to receive a
prescription for aid-in-dying medication if:
1)the qualified individual's attending physician has determined the
individual to be suffering from a terminal illness;
2)the qualified individual has voluntarily expressed the wish to
receive aid-in-dying medication;
3)the qualified individual is a resident of California and is able
to establish residency through one of four specified means;
and
4)the qualified individual documents his or her request pursuant to
bill's the oral and written request requirements.
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This bill would prohibit a person from qualifying based solely
on age or disability and prohibits a request from being made on
behalf of the patient through a power of attorney, an advance
health care directive, or a conservator.
This bill would provide that a qualified individual wishing to
receive a prescription for aid-in-dying medication pursuant to
the bill must submit two oral requests, a minimum of 15 days
apart, and a written request to his or her attending physician.
The bill would require that the attending physician receive all
three requests and further provides requirements that a written
request must be in order to be valid. Among other things, the
written request must be witnessed by at least two adults who, in
the presence of the qualified individual, attest that to the
best of their knowledge and belief the qualified individual is
competent, acting voluntarily, and not being coerced to sign the
request.
This bill would limit who may serve as a witness and would
prohibit the attending physician of the qualified individual
from serving as one of the required witnesses.
This bill would require an attending physician to take specified
steps before prescribing aid-in-dying medication. Specifically,
the attending physician must:
1)make the initial determination of whether the requesting adult
is competent, has a terminal illness, has voluntarily made the
request for aid-in-dying medication pursuant to the Act's
specifications regarding oral and written requests, and is a
qualified individual, as specified;
2)ensure that the qualified individual is making an informed
decision by discussing:
the medical diagnosis and prognosis;
the potential risks of taking the aid-in-dying
medication to be prescribed;
the probable result of taking the aid-in-dying
medication to be prescribed;
the possibility that he or she may choose to obtain the
medication but not take it; and
the feasible alternatives or additional treatment
opportunities, including, but not limited to, comfort care,
hospice care, palliative care, and pain control;
1)refer the qualified individual to a consulting physician for
medical confirmation of the diagnosis, prognosis, and for a
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determination that the qualified individual is competent and
has complied with the provisions of this bill;
2)refer the qualified individual for counseling, if appropriate,
at which point no aid-in-dying medication may prescribed until
it is determined that the patient is not suffering from a
psychiatric or psychological disorder or depression causing
impaired judgment;
3)ensure that the qualified individual's request does not arise
from coercion or undue influence by another person by
discussing alone whether or not the qualified individual is
feeling coerced or undue influence by another person;
4)counsel the qualified individual about certain matters,
including, for example, notifying next of kin of his or her
request, and participating in a hospice program;
5)inform the qualified individual that he or she may rescind the
request for aid-in-dying medication at any time and in any
manner;
6)offer the qualified individual an opportunity to rescind the
request for medication before prescribing the aid-in-dying
medication;
7)verify, immediately prior to writing the prescription for
medication, that the qualified individual is making an
informed decision;
8)ensure that all appropriate steps are carried out in
accordance with this bill before writing a prescription for
aid-in-dying medication; and
9)fulfill the record documentation requirements of the bill, as
specified.
This bill would permit the attending physician to deliver the
aid in dying medication, as specified, if the conditions set
forth above are satisfied. The bill would require signature at
delivery, if delivery is made by personal delivery, United
Parcel Services, U.S. Postal Service, Federal Express, or by
messenger service.
This bill would specify that, before a qualified individual can
obtain aid-in-dying medication from the attending physician, the
consulting physician must:
1)examine the qualified individual and his or her relevant
medical records;
2)provide written confirmation of the attending physician's
diagnosis and prognosis;
3)verify, in his or her own opinion, that the qualified
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individual is competent, acting voluntarily, and has made an
informed decision; and
4)fulfill the record documentation requirements of the bill, as
specified.
This bill would require the following be documented in the
individual's medical record:
all oral and written requests for aid-in-dying medication;
specified information from the attending physician as to the
qualifications of the individual (or lack thereof) and as to
whether the qualified individual is capable, acting
voluntarily and making an informed decision;
specified information from the consulting physician;
a report of the outcome and determinations made during
counseling, if performed;
the attending physician's offer to the qualified individual to
rescind his or her request at the time of the qualified
individual's second oral request; and
a note by the attending physician indicating that specified
requirements have been met and indicating the steps taken to
carry out the request, as specified.
This bill would establish a form for aid-in-dying medication and
require a written request for aid-in-dying medication
substantially comply with that form.
This bill would generally require that the written request be
written in the same translated language as any conversations, or
consultations between a patient and his or her attending or
consulting physicians, but the bill would also permit a written
request to be prepared in English in those circumstances as long
as the form is accompanied by an interpreter's declaration that
is signed under penalty of perjury.
The bill would prohibit an interpreter from being related to the
qualified individual by blood, marriage, or adoption or being
entitled to a portion of the person's estate upon death, and
would require that the interpreter meet specified standards.
This bill would permit the attending physician to sign the
qualified individual's death certificate, unless otherwise
prohibited by law. This bill would require that the cause of
death listed be the underlying terminal illness.
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This bill would prohibit the sale, procurement, or issuance of a
life, health, accident insurance or annuity policy, health care
service plan contract, or health benefit plan, or the rate
charged for a policy or plan contract from being conditioned
upon or affected by a person making or rescinding a request for
aid-in-dying medication. This bill would provide that
notwithstanding any other law, a qualified individual's act of
self-administering aid-in-dying medication may not have an
effect upon insurance or annuity policies other than that of a
natural death from the underlying illness.
This bill would provide that to the extent that a provision in a
contract, will, or other agreement, whether written or oral,
would affect whether a person may make or rescind a request for
aid-in-dying medication, such a provision is not valid. This
bill would prohibit an obligation owing under any contract in
effect on January 1, 2016, from being conditioned or affected by
a qualified individual making or rescinding a request for
aid-in-dying medication.
This bill would provide for specified immunities from civil or
criminal liability or professional disciplinary action. The
bill would require participation in activities under this Act to
be voluntary and would permit providers to opt out of
participation as specified. If a health care provider is unable
or unwilling to carry out an individual's request under this Act
and the individual transfers care to a new health care provider,
the bill would require that the prior health care provider
transfer, upon request, a copy of the individual's relevant
medical records to the new health care provider. The bill would
also specify that its provisions do not prevent a health care
provider from providing an individual with health care services
that do not constitute participation under this Act.
This bill would preclude a request by an individual to an
attending physician or to a pharmacist to dispense or provide
aid-in-dying medication in good faith compliance with the
provisions of this Act from constituting neglect or elder abuse
for any purpose of law or providing the sole basis for the
appointment of a guardian or conservator.
This bill would prohibit a health care provider from being
sanctioned for specified acts, but would allow for sanctions for
conduct and actions not included and provided for in this Act if
the conduct and actions do not comply with the standards and
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practices set forth by the Medical Board.
This bill would create two new felonies for specified acts in
violation of the Act but the penalties would not preclude
criminal penalties applicable under any law for conduct
inconsistent with this Act, nor would they limit further
liability for civil damages resulting from other negligent
conduct or intentional misconduct by any person.
This bill would prohibit the provisions of this Act from being
construed to authorize any person or physician to end an
individual's life by lethal injection, mercy killing, or active
euthanasia and would prohibit actions taken in accordance with
this Act from constituting suicide, assisted suicide, mercy
killing, or elder abuse, for any purpose.
This bill would provide for specified reporting requirements.
This bill would specify requirements for the custody and control
of any unused aid-in-dying medication prescribed pursuant to
this Act.
This bill would provide that any governmental entity that incurs
costs resulting from a qualified individual terminating his or
her life pursuant to this Act in a public place (in violation of
the bill) has a claim against the individual's estate to recover
those costs as well as reasonable attorney fees related to
enforcing the claim.
This bill would define various terms for these purposes
including the following:
"Competent" means that in the opinion of a court or in the
opinion of an individual's attending physician, consulting
physician, psychiatrist, or psychologist, the individual has
the ability to make and communicate an informed decision (as
otherwise defined by the bill) to health care providers,
including communication through a person familiar with the
individual's manner of communicating.
"Qualified individual" means a competent adult who is a
resident of California and has satisfied the requirements of
this bill in order to obtain a prescription for medication to
end his or her life.
"Terminal illness" means an incurable and irreversible illness
that has been medically confirmed and will, within reasonable
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medical judgment, result in death within six months.
This bill includes various finding and declarations and would
provide that the provisions of this Act are severable, as
specified.
COMMENT
1. Stated need for the bill
According to the authors:
When a health care provider, as defined, makes a diagnosis
that a patient has a terminal illness, existing law requires
the health care provider to notify, except as specified, the
patient or, when applicable, the other person authorized to
make health care decisions, when the health care provider
makes a diagnosis that a patient has a terminal illness, of
the patient's and the other authorized person's right to
comprehensive information and counseling regarding legal
end-of-life care options.
Currently, in the state of California, a terminally ill
patient can find alternative ways to end his or her life but
does not have the legal right when facing death to engage in
an informed and deliberate act of self-administered life
ending prescription that can be both peaceful and
compassionate to the patient and family members without being
recognized as suicide, with all that label carries both
legally and emotionally.
SB 128 would give a terminally ill, mentally competent
California adult resident the legal right to ask and receive a
prescription for aid-in-dying medication when specified
criteria are met, adding to the End of Life Care list of
options currently existing [under California law]. Modeled on
Oregon's 1997 legislation[,] it requires two physicians to
confirm a prognosis of six months or less to live, a written
request and two oral requests to be made a minimum of 15 days
apart, and two witnesses to attest to that request. The two
physicians must also ensure that the patient has the mental
capacity to make health care decisions for him or herself. [ .
. . ]
The authors also assert that "Californians overwhelmingly
support death with dignity." Citing a survey conducted by
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Goodwin Simon Strategic Research for Compassion & Choices in
July 2014, the authors write the data shows "nearly 64 percent
of California likely 2014 voters would favor a
death-with-dignity measure. Less than a quarter (24 [percent])
would oppose the measure. Strong support (36 [percent])
outweighs strong opposition (17 [percent]) by more than a
two-to-one margin."
In support of the bill, Compassion & Choices writes that
expanded options at the end of life would provide California
citizens the autonomy they deserve. "All Californians should
have the option, in consultation with their families and
doctors, to make the end-of-life decisions that are right for
them in the final stages of a terminal illness. These should
include the option to request a prescription from their doctor
to end their dying process painlessly and peacefully. [This
bill] would give dying Californians this important option." The
American Medical Student Association (AMSA), also in support,
writes that 20 years of data collected in Oregon "demonstrates
that the law works as intended with no substantiated reports of
abuse or coercion. In fact, Oregon's law has resulted in
improved end of life pain management and increased use of
hospice for all dying patients. For many people facing the
prospect of a painful or difficult death, simply knowing the
medication is available has a palliative effect." Many other
groups the echo similar arguments support.
The Congress of California Seniors, among others, adds that
"providing terminally ill patients with this humane choice is
preferable to the desperate and covert self-help practices some
patients are currently forced to employ." The AIDS Healthcare
Foundation adds, in support of the bill that when a person with
HIV reaches the end of life with treatment options no longer
available, it is inhumane that we fail to provide them with the
choice that would bring them peace.
The Secular Coalition for California (SCCA) supports SB 128,
writing that the bill is consistent with the U.S. Constitution,
protects freedom of belief in California, insofar as it would
"enable Californians of all belief systems, both religious and
non-religious, to make certain end of life choices that are
consistent with their beliefs. Refusing to pass this bill will,
in effect, force millions of Californians to abide by religious
rules to which they do not subscribe." In contrast, SCCA
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argues, "[i]mplementing death with dignity in California would
not directly impact religious individuals."
Numerous individuals, including leaders of faith, also write in
support of the bill, at times relaying personal experiences that
have led them to support this legislation. The letters received
in response to this bill also reflects the registered support of
almost one hundred physicians, many of whom write about
witnessing patients suffer horrifically painful deaths because
the standard of care medication management and surgery is not
effective at controlling terminal pain.
2. U.S. Supreme Court cases on constitutional right to die
This bill would enact the End of Life Option Act to effectively
create a statutory right to ask for and obtain aid-in-dying
medication by certain qualifying adults, pursuant to specified
requirements and procedures. In doing so, the bill implicates
questions as to the constitutional and/or statutory rights of
individuals to obtain such medication at the end of their life.
Generally, there is a constitutional right of individuals to
refuse medical treatment. The U.S. Supreme Court has recognized
that a competent adult has a constitutional right to withdraw or
withhold life-sustaining treatment that may cause or hasten
death. (Cruzan v. Director, Missouri Dept. of Health (1990) 497
U.S. 261.) The Cruzan Court also recognized that states have an
important interest in protecting life and ensuring that a person
desired the end of life treatment before it is suspended, and
thus can require clear and convincing evidence that a person
wanted treatment terminated before it is cut off. Further, the
Court held that states can also prevent family members from
terminating treatment for another as the right to do so belongs
to the individual. (Id. at 281, 286; see Chemerinksy,
Constitutional Law Principles and Policies (2011) 4th Edition,
pp. 871-872.)
In two cases, Washington v. Glucksberg (1997) 521 U.S. 702 and
Vacco v. Quill (1997) 521 U.S. 793, the Supreme Court upheld
facial challenges to state laws that prohibited the aiding of a
suicide, drawing a distinction between refusing treatment, even
where it might hasten death, and physician assisted suicide. In
those cases, the Court held that the state laws did not violate
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either a fundamental right under the due process clause
(Glucksberg) or the equal protection clause (Vacco)-in other
words, the Court found no constitutional right to physician
assisted suicide. At the same time, the decisions left open the
possibility that legal protection could be afforded to such laws
as a matter of state law or future Supreme Court rulings. (See
Chemerinksy, Constitutional Law Principles and Policies (2011)
4th Edition, pp. 872-875.) To this end, Justice O'Conner,
joined by Justices Ginsberg and Breyer, wrote that while there
"is no generalized right to 'commit suicide,'" the Court need
not address the "narrower question whether a mentally competent
person who is experiencing great suffering has a
constitutionally cognizable interest in controlling the
circumstances of his or her death." (Glucksberg, 521 U.S. at 737
(J. O'Conner, concurring.)
Similarly, Justice Stevens, joined by Justices Souter, Ginsberg
and Breyer, wrote in his separate concurrence to specify that
there "is also room for further debate about the limits that the
Constitution places on the power of the states to punish the
practice." (Id. at 739 (J. Stevens, concurring).) The justices
recognized that "[t]he Cruzan case demonstrated that some state
intrusions on the right to decide how death will be encountered
are also intolerable" and "[a]lthough there is no absolute right
to physician-assisted suicide, Cruzan makes it clear that some
individuals who no longer have the option of deciding whether to
live or to die because they are already on the threshold of
death have a constitutionally protected interest that may
outweigh the State's interest in preserving life at all costs.
The liberty interest at stake in a case like this differs from,
and is stronger than, both the common-law right to refuse
medical treatment and the unbridled interest in deciding whether
to live or die. It is an interest in deciding how, rather than
whether, a critical threshold shall be crossed." (Id. at 745.)
While it remains to be seen whether there is in fact a more
limited, as opposed to absolute, constitutional right to die in
some limited cases, the states have the ability to decide this
issue pursuant to the political process and as a matter of a
statutory right.
To the extent that this bill would create, as a matter of state
law, a right to request and receive aid-in-dying medication, it
is arguably important that the person exercising any such right
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be the person who holds the right. (See discussion of Cruzan,
above.) At minimum, to exercise the right to request and obtain
aid-in-dying medication, the person must be at least 18 or
older, suffering from a terminal illness, competent, and able to
make voluntarily communicate this request, both oral and in
writing, to his or her attending physician. Significantly, this
bill would not only limit who may exercise this statutory right,
consistent with the state's compelling interest to preserve life
and prevent coercion, but it also would prohibit a request from
being made on behalf of the patient through a power of attorney,
an advance health care directive, or a conservator.
3. Safeguards for patients
Under this bill, to qualify for aid-in-dying medication, a
person must be a competent, terminally ill adult who (1) is a
"California resident" (2) has been determined by his or her
attending physician to be suffering from a "terminal" illness,
(3) has voluntarily expressed a wish to receive aid-in-dying
medication, and (4) has documented the request. Notably, the
bill prohibits a person from qualifying based solely on age or
disability and prohibits a request from being made on behalf of
the patient through a power of attorney, an advance health care
directive, or a conservator. The bill's safeguards include not
just initial competency determinations, but also: second
opinions; waiting periods; medical record documentation;
witnesses; counseling when appropriate; an additional
confirmation of informed decision immediately prior to the
writing of the prescription; and the mandated disposal of unused
medication.
a. Competency
First and foremost, in order to qualify to obtain aid-in-dying
medication from one's attending physician, the individual must
be competent. The bill defines "competent" to mean that, in
the opinion of a court or in the opinion of an individual's
attending physician, consulting physician, psychiatrist, or
psychologist, the individual has the ability to make and
communicate an "informed decision" to health care providers,
including communication through a person familiar with the
individual's manner of communicating.
The proponents of the bill note that the intent of including
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the "manner of communicating" language above is merely to
allow accommodation for people who may communicate by ASL
(American Sign Language) or other non-verbal or assisted
language. This could include those who are unable to speak
due to the underlying condition, such as tongue or throat
cancer-such persons would be able to use the law either by
writing out their wishes in the presence of the physicians or
having someone who is familiar with their manner of
communicating interpret their speech pattern.
b. Terminal illness
As stated above, this bill would only allow for aid-in-dying
medication to be prescribed to adults who meet specified
requirements, including a requirement that the adult have been
determined by his or her attending physician to be suffering
from a terminal illness. The bill would define "terminal
illness" to mean an incurable and irreversible illness that
has been medically confirmed and will, within reasonable
medical judgment, result in death within six months.
While this bill has been substantially modeled upon the Oregon
and Washington laws, those laws use the language "terminal
disease," instead of "terminal illness." There is an argument
to be made that terminal illness is a broader term that
applies as much to the feeling of being unwell, as it does to
a diagnosable condition that is an abnormality in one's body,
such as cancer, or ALS (commonly known to as Lou Gehrig's
disease). Accordingly, amendments are suggested to bring the
bill's terminology in line with Oregon and Washington's laws
and use the more specific term of "disease" instead of the
more general term "illness."
Suggested amendments : replace references to "terminal
illness" with "terminal disease" and references to "a
terminally ill individual" with "an individual with a
terminal disease"
With regard to the definition of terminal illness, itself,
many of the bill's opponents have raised concerns about the
definition's reliance on an "arbitrary" or "unreliable" six
month life expectancy prognosis. For example, the Autistic
Self Advocacy Network (ASAN) and California Disability
Alliance (CDA) argue that doctors typically cannot make six
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month prognoses with an acceptable level of certainty and
that, in fact, the disability community is full of people who
have outlived "six month" prognoses - at times, by decades.
The Medical Oncology Association of Southern California
similarly expresses concern about this provision because "it
is notoriously difficult for physicians to know when their
patients are truly 'terminal.'" The Association of Northern
California Oncologists (ANCO) adds that data from Oregon finds
that many patients who have been prescribed life-ending
medications due to their "terminal" diagnosis have lived more
than a year after the prescription has been filled.
In response to these concerns, proponents point out that six
months corresponds with the Medicare requirement for one to
enroll in hospice-accordingly, it is usual and customary for
physicians to make these determinations. In addition, it was
reasoned by a proponent of the bill that most of the patients
requesting aid-in-dying would enroll in hospice, which they
argue has proven to be true. "In Oregon, 93 percent of the
patients who use the law are enrolled in hospice at the time
they consume the lethal dose of medication, which is almost
twice the percentage of hospice penetration in Oregon."
Moreover, others proponents argue that studies show that even
though prognoses are often inaccurate, they are overwhelmingly
inaccurate in overestimating, not underestimating the time of
death. Accordingly, if a doctor makes a six month prognosis,
they believe it usually means death will occur within a
shorter time frame.
c. Written requests and witness requirements of the bill
The bill requires that the qualified individual not only make
two oral requests that are 15 days apart, but that he or she
also provide his or her attending physician with a written
request that meets certain criteria. In order for a written
request to be valid, it must not only be provided
substantially in the same form as the statutory form
prescribed in the bill, but it must be signed and dated by the
individual seeking the medication, and be witnessed by at
least two other adult persons. Namely, the witnesses must
attest that to the best of their knowledge and belief, the
qualified individual is: (1) competent; (2) acting
voluntarily; and (3) not being coerced to sign the request.
Only one of those individuals may be either: (1) related to
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the qualified individual by blood, marriage, or adoption or
entitled to a portion of the person's estate upon death; or
(2) own, operate, or be employed at a health care facility
where the qualified individual is receiving medical treatment
or resides.
While Vermont, the only state to have legislatively enacted an
end of life or death with dignity statute, does not permit for
either of the witnesses to be "interested witnesses," the
proponents argue that such a restriction against interested
witnesses altogether would be unduly burdensome on qualified
individuals. The proponents further argue that the ability
for one witness to be an "interested witness" has benefits in
rural areas (many times in rural areas the patient may not be
able to find two people outside of the family who are willing
and able to be witnesses), and helps protect the patient's
privacy by making it less likely that others outside of the
patient's inner circle will find out that the patient is
considering the use of aid-in-dying medication. It could also
be argued that it helps increase the chance that someone in
the patient's family is aware of the patient's decision.
4. Immunities and protections against sanctions
This bill includes various protections against civil and
criminal liability, as well as professional disciplinary actions
or sanctions for those who participate in activities authorized
under the bill. The bill also includes limited protections for
those who opt to exercise their right to not participate in the
bill.
a. Immunity from civil and criminal liability and
professional disciplinary actions
While immunity provisions generally raise policy questions
because they preclude injured parties from seeking redress for
their injuries, it is arguable that this bill would be
rendered ineffective absent protections that would assure
providers that they will not be subjected to civil or criminal
liability, or professional discipline. Arguably, this is
particularly true given that perception of the physician's
legal and ethical duty to this subset of terminal patients in
regard to this specific type of end of life care is one that
is still shifting within the medical community itself, and
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given that the existing anti-suicide statute in the Penal Code
(providing that every person who deliberately aids, or
advises, or encourages another to commit suicide, is guilty of
a felony) might deter participation as well. (Pen. Code Sec.
401.) Accordingly, the bill would provide that a person shall
not be subject to civil or criminal liability or professional
disciplinary action for participating in good faith compliance
with this Act, including an individual who is present when a
qualified individual self-administers the prescribed
aid-in-dying medication.
In opposition to the bill, Dignity Health (among others)
questions the use of a good faith standard in limiting civil
and criminal liability, instead of requiring that people
strictly follow the requirements of the Act. In particular,
they believe that by inserting the good faith standard, SB 128
makes a de facto change to current criminal law (the
anti-suicide statute referenced above). They argue that good
faith is "something nearly impossible to disprove, making all
of the other requirements unenforceable. Once the patient
obtains the lethal dose of drugs under SB 128, there is
absolutely no transparency on the appropriate use of these
drugs by the patient or others. It would be extremely
difficult to prove any wrongdoing when the only reliable
witness to a potential felony is now deceased and others
present will not discuss what occurred."
Staff notes, however, that good faith is a common, fact
specific, standard that the courts are well versed in applying
in cases, even in complex areas such as commercial law. The
author further notes that:
Physicians are trusted to dispense and prescribe lethal
doses of medications all the time - Oxycodone, Oxycontin,
Fentanyl patches, etc., with physicians and pharmacists
providing directions on how to take the medications and
they do so without being required to stand over the
patients to make certain they take them properly. Adding
the stricter provisions will make physicians less likely to
participate knowing that the medical standards are greater
than any other part of their practice and the risk is too
great to take.
To require more than a good faith standard would
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criminalize minor technical omissions, like not checking a
box on a form, or falling short by a few hours in the
duration of a waiting period. Physicians will not
participate if these sorts of minor technical errors would
deprive them of the safety of the safe harbor and expose
them to criminal penalties. In Oregon minor technical
errors are reported to the board of medical examiners. They
conduct an investigation and measure physician compliance
against a good faith standard."
b. Protections against sanctions for specified activities
This bill prohibits a health care provider from being
sanctioned for various actions taken pursuant to this Act,
including: (1) making an initial determination pursuant to the
standard of care that an individual has a terminal illness and
informing him or her of the medical prognosis; (2) providing
information about the End of Life Option Act to a patient upon
the request of the individual; and (3) providing an
individual, upon request, with a referral to another
physician. The bill also includes a provision that seeks to
protect doctors who are employed or contracted as an
independent contractor with a religious hospital that has
opted out of participation in the activities authorized by
this Act, when they are not acting within the scope of their
employment contracts and duties (i.e. off hours, off site, not
on call). The following amendment would revise the sanction
to clearly protect those health care providers.
Suggested amendment :
On page 12, line 28, strike "(d)" and insert "(b) A health
care provider that prohibits activities under this part in
accordance with subdivision (e) of Section 443.12 may not
sanction an individual health care provider for contracting
with a qualified individual to engage in activities
authorized by this part if the individual health care
provider is acting outside of the course and scope of his
or her capacity as an employee or independent contractor of
the prohibiting health care provider."
c. Outstanding issue on provider sanctions
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While this bill is modeled largely upon the Oregon and
Washington laws, one of the bigger discrepancies between this
bill and the Oregon and Washington laws is that those laws
allow for a provider to prohibit activities on its premises by
those physicians acting in the course and scope of employment
as an employee of that provider. More specifically, both of
those states generally allow a health care provider to
prohibit another provider from participating in activities
authorized by the death with dignity laws of those states, if
the policy has been disclosed to the provider. This issue was
also raised by the Senate Health Committee analysis, and
subsequently the California Hospital Association (CHA)
provided language to the authors and committee to address this
issue.
The CHA proposed language would allow a provider to have a
policy prohibiting its employees, independent contractors, and
others (including physicians) from participating in activities
authorized under the bill while (1) on premises owned or under
the management or direct control of the prohibiting provider
or (2) while acting within the course and scope of their
employment by, or contract with, the prohibiting provider.
According to CHA, this second circumstance would address
hospital staff, such as home health workers, whose employment
with the hospital involves work outside the facility. Similar
to Oregon, the language seeks to allow a provider to take
adverse action (such as suspension, loss of privileges, etc.)
against an individual who violates the policy, but only if
certain procedures are adhered to, including providing written
notice of the policy before the violation occurs.
Notably, the language narrowly defines the activities that may
be prohibited by such a policy, and would make it possible for
an individual provider, while on a prohibiting provider's
premises or while acting within the course and scope of their
duties to a prohibiting provider, to have a discussion with a
patient in which they reach an agreement that the provider
will participate in activities under the bill outside of their
work hours/off the premises of the prohibiting provider.
Staff notes that, arguably, this would be consistent with that
physician's duty to discuss legal end-of-life options with a
terminal patient. (See Health & Saf. Code Sec. 442.5.) At
the same time, the CHA proposal ensures that, in the event
that a provider takes adverse action against a physician or
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other licensed professional for violating its policy against
participating in activities authorized by the bill, such
action is not reportable as a medical disciplinary cause or
reason under specified sections of the Business & Professions
Code.
The authors are taking the following amendment to incorporate
provider sanction language in the bill, based largely on the
CHA proposal (with some technical and clarifying
modifications):
Author's amendment:
On page 12, after line 11, before the start of current
subdivision (e), insert "(e)(1) Subject to subparagraph
(e)(2), notwithstanding any other provision of law, a
health care provider may prohibit its employees,
independent contractors, or other persons or entities,
including other health care providers, from participating
in activities under this part while on premises owned or
under the management or direct control of that prohibiting
health care provider or while acting within the course and
scope of any employment by, or contract with, the
prohibiting health care provider.
(2) A health care provider that elects to prohibit its
employees, independent contractors, or other persons or
entities, including health care providers, from
participating in activities under this part, as described
in paragraph (1), shall first give notice of the policy
prohibiting participation in this part to the individual or
entity. A health care provider that fails to comply with
this paragraph, shall not be entitled to enforce such a
policy.
(3) Subject to compliance with subparagraph (e)(2), the
prohibiting health care provider may take action including,
but not limited to the following, as applicable, against
any individual or entity that violates this policy.
(A) Loss of privileges, loss of membership, or other action
authorized by the bylaws or rules and regulations of the
medical staff.
(B) Suspension, loss of employment, or other action
authorized by the policies and practices of the prohibiting
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health care provider.
(C) Termination of any lease or other contract between the
prohibiting health care provider and the individual or
entity that violates the policy.
(D) Imposition of any other non-monetary remedy provided
for in any lease or contract between the prohibiting health
care provider and the individual or entity in violation of
the policy.
(4) Nothing in this subdivision shall be construed to
prevent, or to allow a prohibiting health care provider to
prohibit any other health care provider, employee,
independent contractor, or other person or entity from any
of the following:
(A) Participating, or entering into an agreement to
participate, in activities under this part, while on
premises that are not owned or under the management or
direct control of the prohibiting provider or while acting
outside the course and scope of the participant's duties as
an employee of, or independent contractor for, the
prohibiting health care provider.
(B) Participating, or entering into an agreement to
participate, in activities under this part as an attending
physician or consulting physician while on premises that
are not owned or under the management or direct control of
the prohibiting provider.
(5) In taking actions pursuant to subparagraph (e)(3), a
health care provider must comply with all procedures
required by law, its own policies or procedures, or any
contract with the individual or entity in violation of the
policy, as applicable.
(6) For purposes of this subdivision:
(A) "Notice" means a separate statement in writing advising
of the prohibiting health care provider's policy with
respect to participating in activities under this part.
(B) "Participating, or entering into an agreement to
participate, in activities under this part" means doing or
entering into an agreement to do any one or more of the
following: performing the duties of an attending physician
specified in Section 443.5; performing the duties of a
consulting physician specified in Section 443.6; delivering
the prescription for, dispensing, or delivering the
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dispensed aid-in-dying medication pursuant to Section
443.5(b)(2) and (c); or being present when the qualified
individual takes the aid-in-dying medication prescribed
pursuant to this part. "Participating, or entering into an
agreement to participate, in activities under this part"
does not include means doing or entering into an agreement
to do any of the following:
(i) Making an initial determination that a patient has a
terminal illness and informing the patient of the medical
prognosis;
(ii) Providing information to a patient about the End of
Life Option Act.
(iii) Providing a patient, upon the patient's request, with
a referral to another health care provider for the purposes
of participating in the activities authorized by End of
Life Option Act.
(7) Any action taken by a prohibiting provider pursuant to
this subdivision shall not be reportable under Sections
800-809.9 of the Business and Professions Code. The fact
that a health care provider participates in activities
under this part shall not be the sole basis for a complaint
or report by another health care provider of unprofessional
or dishonorable conduct under Sections 800-809.9 of the
Business and Professions Code."
5. Interpreters
While this bill would generally require that the person seeking
to exercise their right to request and obtain aid-in-dying
medication modeled upon the Oregon and Washington laws, the bill
differs from those other states' laws in that this bill would
generally require that the written request be written in the
same translated language as any conversations, or consultations
between a patient and his or her attending or consulting
physicians. The bill would permit a written request to be
prepared in English in those same circumstances as long as the
form is accompanied by an interpreter's declaration that is
signed under penalty of perjury. Notably, the bill would not
only require that the interpreter meet standards promulgated by
the California Healthcare Interpreters Association or the
National Council on Interpreting in Healthcare (organizations
that seek to promote and enhance language access, and to improve
the quality of language services, in the delivery of health
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care), but would also prohibit the interpreter from being
related to the qualified individual by blood, marriage, or
adoption or being entitled to a portion of the person's estate
upon death.
6. Death certificates
The bill would require that the cause of death listed on the
death certificate of an individual who uses aid-in-dying
medication be the underlying terminal illness. Some opponents,
including the Disability Rights Education & Defense Fund, have
raised the issue that listing the cause of death as the
underlying illness and not the ingestion of lethal drugs
(aid-in-dying medication) is misleading and causes doctors to
falsify death certificates.
The authors argue that a similar practice has worked in Oregon
without a problem. Moreover, this practice removes the stigma
and potential conflict with insurers over the use of "suicide,"
as well as prevents fueling the misnomer of
physician-assisted-suicide. Most importantly, the alternative
would skew terminal disease and suicide statistical data. Other
proponents of this bill add that this language was included to
protect the privacy of the individual and the surviving family
members. Many times death certificates are sent to financial
institutions, the Department of Motor Vehicles, other family
members, and so forth. The recipients of these certificates may
object to aid-in-dying, thus, potentially causing additional
grief for surviving family members at the hands of outsiders who
criticize them. For other family members who did not know the
decedent died using the law, it may also cause them unnecessary
grief or anger.
7. Reporting requirements as a mechanism of oversight
This bill would require that the State Public Health Officer
annually review a sample of records maintained pursuant to the
medical documentation requirements of the bill and to adopt
regulations establishing additional reporting requirements, as
specified, for physicians and pharmacists pursuant to this Act.
The bill mandates that the information collected be confidential
and be collected in a manner that protects the privacy of the
patient, the patient's family, and any medical provider or
pharmacist involved with the patient under the provisions of
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this Act. Based on that information collected, the department
would then be required to provide an annual compliance and
utilization statistical report aggregated by age, gender, race,
ethnicity, and primary language spoken at home and other data
that the department deems relevant.
A concern has been raised by opposition as to the inadequacy of
reporting requirements in other states, such as Oregon. What is
important, some opposition feels, is not just what the data
shows, but what it does not show. For the Disability Rights
Education & Defense Fund (DREDF), the concern is multifaceted:
any reporting requirement lacks teeth; non-compliance is not
monitored; important questions go unasked; there is no
investigation of abuse; there are no autopsies (which would open
the door for "another Dr. Krekorian"); and the falsification of
death certificates effectively removes transparency. A major
element of concern for opposition is that there is potentially
no way of knowing for certain if a person was coerced or unduly
influenced to ask for this medication, or if the medication was
forced on them (as opposed to being self-administered). The
perhaps biggest contributor to this problem is lack of an
oversight authority or mechanism by which suspected abuses can
be reported.
Staff notes that the authors may wish to explore the possibility
of adding a mechanism by which suspected abuses could be
reported to appropriate authorities, and to grant a state agency
or local entities with the power to investigate potential abuses
of this Act.
8. Concerns regarding insurance
Opponents have referred to two Oregon patients with terminal
cancer who were sent notifications by an Oregon health plan that
denied cancer treatment but offered coverage for end-of-life
care, including physician aid-in-dying. The Senate Health
Committee suggested that the authors consider amendments to
ensure that notifications from health plans regarding
aid-in-dying coverage are carefully crafted to not convey a
message that a person may interpret as being pressured by the
plan to end his or her life earlier than through the natural
progression of the terminal illness. While that committee
suggested this could be accomplished by the development of model
notice, it could also be beneficial to include a prohibition
against directly connecting a denial of coverage for treatment
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to the option of obtaining aid-in-dying medication.
Accordingly, the following amendment would effectively prohibit
any insurance provider from denying coverage of treatment in the
same letter that it discusses the possibility of covering
aid-in-dying medication for the patient by ensuring that such
information is only provided if requested directly by the
individual, the individual's doctor at behest of the individual,
or the individual's designee.
Suggested amendment :
On page 11, after line 23, insert "(c) An insurance carrier
shall not provide any information in communications made to an
individual about the availability of aid-in-dying medication
absent a request by the individual, the individual's doctor at
behest of the individual, or the individual's designee. Any
communication shall not include both the denial of treatment
and information as to the availability of aid-in-dying
medication coverage. For the purposes of this subdivision,
"insurance carrier" means a health care service plan pursuant
to Section 1345 or a health insurer pursuant to in Section 106
of the Insurance Code."
9. Oregon
The authors provide this Committee with information that one in
six dying Oregonians have considered requesting aid-in-dying
prescription seriously enough to discuss it with their families,
with the most common category of patients considering the
prescription being those with cancer and ALS (commonly known as
Lou Gehrig's disease). Reportedly, the top three concerns given
by terminally ill patients requesting the medication from their
doctors are: (1) loss of autonomy; (2) inability to participate
in activities that make life enjoyable; and (3) loss of dignity.
According to family members of Oregonians formally requesting
the medication, the top concerns for the requesting patients are
being able to control the circumstances of death, wanting to die
at home, and fearing loss of dignity. That being said, for
every 1,000 Oregonians who die, just 0.2% use aid-in-dying
medication. Of 1,173 people who received aid-in-dying
prescriptions between the passage of the law and 2013, only 752
have ingested it. Of those consuming the medication, 98 percent
are in hospice.
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The authors argue that state-held department records confirm
that no instances of abuse or coercion have occurred under
Oregon's death-with-dignity law. In fact, the authors write,
"[e]nd of life care is overall improved in Oregon since the
law's implementation, in part due to the dialogue the death with
dignity law encourages and mandates between physicians and
patients. Hospice referrals are up, as is the use of morphine
for palliative care. Oregon now has the lowest rates of
in-hospital deaths and the highest rates of at-home deaths in
the nation.
10. California Medical Association letter of concern
The California Medical Association (CMA) does not take an
official position on SB 128 but has expressed concern that
physician assisted suicide contravenes the fundamental principal
of the medical profession: "Do no harm." CMA believes that
allowing physicians to prescribe fatal medications in this
fashion would undermine trust in the doctor-patient
relationship, as patients may fear or suspect that physicians
will steer them toward physician-assisted suicide rather than
pursing a more difficult course of treatment to relieve
suffering and allow the natural dying process to occur. CMA
also expresses concern that some patients may feel pressured or
coerced to accept physician assisted suicide, particularly if
the patient feels obligated to relieve their loved ones of the
burden of caring for them. Such pressure and coercion would
eviscerate true informed consent and leave physicians with the
difficult task of detecting and determining such coercion.
Further, CMA writes that legalizing this practice would include
potential for abuse. Namely, that a "right" to fatal,
life-ending medications would become an expectation, and
ultimately a duty, fueled by those members of society whose
existence is expensive or otherwise could be considered
burdensome.
11. Other opposition arguments
Many groups in opposition, such as the Medical Oncology
Association of Southern California (MOASC), Association of
Northern California Oncologists (ANCO), California Disability
Alliance (CDA), California Nurses for Ethical Standards, Dignity
Health, and the Alliance of Catholic Health Care (as well as
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many individual doctors) echo some, if not all, of the concerns
listed by the California Medical Association (CMA) in Comment 10
above. MOASC and ANCO add that they believe legalizing
physician assisted suicide will undermine the valuable and
overwhelmingly successful work of its colleagues in hospice and
pain and palliative care fields. In addition to these
ethical-based objections, some opponents, such as the Concerned
Women for America, also raise religious or moral-based
objections.
Others, such as the Autistic Self Advocacy Network (ASAN), the
California Foundation for Independent Living Centers (CFILC),
and CDA, raise concerns specific to people who are aging, ill,
or disabled. These organizations argue that it is dangerous to
enact such a bill in a society where pervasive stigmas persist
about living a life with a disability. Some individuals also
write in opposition out of particular concern for persons with
disabilities. One individual expresses concern that this will
prey on the state's "most vulnerable citizens" without
sufficient safeguards to prevent abuse. The individual believes
the bill will lead to death of disabled patients without their
consent through mistake, patient coercion, or abuse. Another
individual writes that while he believes in choice, choice can
be eliminated among a lack of alternatives and services.
CFILC also expresses concern that there are many patients who do
not have a terminal condition, but have a serious illness and a
disability who can still qualify under the proper circumstances
to receive those lethal prescriptions even when there are
alternatives such as hospice and palliative care that would ease
their pain and discomfort while dying. Additionally, CFILC
writes that it is concerned that the dangers and misdiagnoses
and premature physician assisted suicide will only increase as
California's population ages. It expresses concern that such
problems are exacerbated by mandatory managed care plan systems
where achieving cost savings is imperative to keep the managed
care system operation and authorized health care services are
limited. Similarly, Faith & Public Policy emphasizes a concern
that costly care will lead to patients feeling obligated to opt
for the minimal cost of the lethal drug versus thousands of
dollars for long-term care. This, it believes, will cause the
poor to suffer under this legislation. Disability Rights
Education & Defense Fund (DREDF) warns that combining a broken,
profit-driven healthcare system with doctor-prescribed suicide
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will result in a deadly mix.
DREDF argues also that the bill is ripe for elder abuse: "Where
assisted suicide is legal, an heir or abusive caregiver can
steer someone towards it, witness the request, pick up the
lethal does, and even, in the end, given the drug-because no
witnesses are required at the death, so who would know?" DREDF
lists a host of other potential concerns about doctor shopping,
misdiagnoses, harm to depressed people, family pressures, flawed
oversight, and more.
Many opponents, including CFILC, ASAN, and the Queen of the
Valley Medical Center, believe the better approach would be to
give individuals diagnosed with terminal illness better access
to quality palliative care, in-home supports, counseling, and so
forth. ASAN raises concerns that in 2013, only two of the 71
Oregonians who died under the death with dignity law in that
state were referred for a formal psychiatric or psychological
evaluation. ASAN argues that like Oregon's law, SB 128 fails to
require accurate information on pain management and long-term
supports or referrals to services such as peer counseling or
mental health screening. Sharing concerns about how the bill
would impact persons with disabilities, and particularly
developmental disabilities, Arc and United Cerebral Palsy
California Collaboration writes that people with developmental
disabilities and their families do not believe that any
regulations and safeguards will actually protect them adequately
from being pressured or even forced into ending their lives
prematurely.
Opponents such as DREDF and Capitol Resource Institute warn of a
slippery slope, citing countries such as the Netherlands or
Belgium, where, in the latter case, physician assisted suicide
laws have seemingly been "expanded to lift[ ] all age
restrictions to [allow] children of any age, Alzheimer's
patients and even disabled persons-the deaf and blind-to be
euthanized." Alliance of Catholic Health Care similarly raises
the concern that what is voluntary today may be mandated
tomorrow, and that limits on eligibility will be challenged.
Agudath Israel of California writes that while concerns over
slippery slopes and a perceived "duty to die" have not come to
fruition in Oregon, Washington, or Vermont, California is a much
different state and it is therefore not clear that Californians
can expect the same result here.
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California Catholic Conference (Conference) writes that the
safeguards in this bill are neither responsible nor enforceable,
and rejects the argument that the experience in the other states
with death with dignity laws should alleviate concerns here.
The Conference notes that there is no oversight, no enforcement,
and no funding to investigate or enforce the law. Dignity
Health and others, such as DREDF (see Comment 7), raise concerns
as well about a lack of oversight. Dignity Health and
Providence Health & Services further raise concerns about SB
128's silence about what constitutes active euthanasia-both in
terms of a definition and in terms of a penalty. "As written,
SB 128 has no safeguards to ensure that others present in the
room at the time of the attempted suicide do not cross the line
and actively end the life of the patient." Similarly these
groups raise concerns about the fact that SB 128 does not
require that the medication be taken in the presence of the
attending physician. At the same time, they question what a
person is supposed to do if in the room with the patient and the
patient does not die and/or has problems after taking the lethal
drugs.
Some of the opposition, including the Alliance of Catholic
Health Care and the California Hospital Association, question
the necessity for this bill, pointing out that California
already has tools in place to allow a patient, individual or in
consultation with his or her physician, to express and record
their end-of-life health care wishes, including foregoing
measures that will extend the patient's life. These include
Advance Health Care Directives and Physician Orders for Life
Sustaining Treatment (POLST).
12. Technical and clarifying amendments
The following amendments are suggested to ensure consistency and
add clarity.
Suggested amendments :
On page 5, line 36, after "The request shall be signed and
dated" insert ", in the presence of two witnesses in
accordance with paragraph (3),"
On page 7, line 2, strike "medication" and insert
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"aid-in-dying medication"
On page 7, line 5, strike "diagnosis, prognosis" and insert
"diagnosis and prognosis,"
On page 7, line 22, strike "medication" and insert
"aid-in-dying medication"
On page 7, line 25, strike "medication" and insert
"aid-in-dying medication"
On page 8, line 35-36, strike "on an individual's death
certificate who uses aid in dying medication" and insert "on
the death certificate of an individual who uses aid-in-dying
medication"
On page 11, line 12, after "in effect on" insert "or after"
On page 11, line 32-33, strike "for participating or refusing
to participate in good faith compliance with this part" and
insert "for participating in good faith compliance with this
part or for refusing to participate in accordance with
subdivision (d) of this section."
On page 11, strike lines 34-39, and instead after "(c)" insert
"(1) A request by a qualified individual to an attending
physician to provide aid in dying medication in good faith
compliance with the provisions of this part shall not provide
the sole basis for the appointment of a guardian or
conservator.
(2) A request by an individual to a pharmacist to dispense
aid-in-dying medication in good faith compliance with the
provisions of this part shall not constitute neglect or elder
abuse for any purpose of law."
On page 12, line 6, strike "otherwise required by law" and
insert "required by Sections 442 - 442.7"
On page 12, line 8, strike "an individual's" and insert "a
qualified individual's"
On page 12, line 8, strike "individual" and insert "qualified
individual"
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On page 12, line 10, strike "an individual's" and insert "the
qualified individual's"
On page 12, line 12 strike "(e)" and insert "(f)"
On page 12, line 15, insert "(a)" before "A health care
provider"
On page 12, lines 17, 20, 22, and 24, renumber "(a)," "(b),"
and "(c)," to "(1)," "(2)," and "(3)" respectively
On page 12, line 28, renumber "(e)" to "(c)"
On page 12, line 36, strike "medication" and insert
"aid-in-dying medication"
On page 12, line 38, strike "medication" and insert
"aid-in-dying medication"
On page 13, line 2, strike "medication" and insert
"aid-in-dying medication"
On page 13, strike lines 7-9, inclusive, and insert "(d)
Nothing in this section shall be construed to limit civil
liability."
13. Author's amendments
This bill was approved by the Senate Health Committee on March
25, 2015. Due to procedural timing constraints, the author
committed to taking the following amendments in this Committee
to:
(1)Clarify that the attending physician must receive all three
requests (2 oral and 1 written).
(2)Prohibit aid-in-dying medication from being prescribed until
the person performing the counseling determines that the
patient is not suffering from a psychiatric or psychological
disorder or depression causing impaired judgment.
(3)Ensure that the individual and physician have a discussion
about coercion and undue influence alone and without other
family or caregivers present.
(4)Require the attending physician to counsel the individual
about notifying next of kin.
(5)Require the attending physician to counsel the individual
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about participating in hospice.
(6)Require the physician to comply with record documentation
requirements similar to Oregon.
(7)Require a signature when dispensed medication is mailed or
delivered by courier.
(8)Explicitly specify interpreter standards.
The author's amendments also include technical clarifying
changes to what was agreed to in Senate Health Committee.
Support : AIDS Healthcare Foundation; AIDS Project Los Angeles
(APLA); Alameda County Board of Supervisors; American Civil
Liberties Union of California (ACLU); American Federation of
State, County and Municipal Employees (AFSCME) AFL-CIO; American
Medical Student Association (AMSA); American Medical Women's
Association (AMWA); California Church IMPACT; California Primary
Care Association (CPCA); California Senior Legislature (CSL);
Cardinal Point at Mariner Square Residents' Association; City
Council of Cathedral City; Civil Rights For Seniors; Compassion
& Choices; Conference of California Bar Associations (CCBA);
Congress of California Seniors (CCS); County of Santa Cruz,
Board of Supervisors; Dave Jones, Insurance Commissioner; Death
with Dignity National Center; Democrats of the Napa Valley Club;
Democratic Party of Orange County; Democratic Party of Santa
Barbara County; Democratic Women of Santa Barbara; Desert
Stonewall Democrats; Diane Feinstein, United States Senator;
Equality California; GLMA: Health Professionals Advancing LGBT
Equality; Hemlock Society of San Diego; Gray Panthers of Long
Beach; Laguna Woods Democratic Club; Lampoc Valley Democratic
Club; Libertarian Party of Orange County; Los Angeles LGBT
Center; Napa County Democratic Central Committee (NCDCC);
National Association of Social Workers, California Chapter
(NASW-CA); National Center for Lesbian Rights (NCLR); National
Council of Jewish Women California (NCJW CA); Older Women's
League-SF; Progressive Democrats of America (PDA) California;
San Francisco AIDS Foundation; San Francisco for Democracy; San
Mateo Democracy for America; Secular Coalition for California;
Sierra County Democratic Party; Shared Crossing Project; Social
Action and Missions Team of Bloom in the Desert Ministries
United Church of Christ, Palm Springs, California; Sonoma County
Democratic Party; South Orange County Democratic Club (SOCDC); I
Care For Your Loved One: Compassionate Senior Services; Trinity
County Progressives; thousands of individuals
SB 128 (Wolk and Monning)
Page 33 of ?
Opposition : Agudath Israel of California; Alliance of Catholic
Health Care; ARC and United Cerebral Palsy California
Collaboration; Arroyo Grande Community Hospital; Association of
Northern California Oncologists (ANCO); Autistic Self Advocacy
Network (ASAN); California Catholic Conference, Inc.; California
Disability Alliance (CDA); California Family Alliance;
California Foundation for Independent Living Centers (CFILC);
California Hospital Association (CHA); California Nurses for
Ethical Standards; California ProLife Council; California Right
to Life Committee, Inc.; Calvary Chapel Golden Springs; Capitol
Resource Institute; Concerned Women for America; Dignity Health;
Disability Rights Education & Defense Fund (DREDF); Faith &
Public Policy (ministry of Calvary Chapel Chino Hills; Life
Legal Defense Foundation; Life Priority Network; International
Life Services; Medical Oncology Association of Southern
California (MOASC); Mission Hospital; Mission Hospital Laguna
Beach; National Right to Life Committee; North Orange County
ProLife Chapter; Pajaro Valley Senior Coalition; Petaluma Valley
Hospital; Providence Health & Services; Queen of the Valley
Medical Center; Redwood Memorial Hospital, Fortuna; San Joaquin
ProLife Council; Santa Rosa Memorial Hospital; Scholl Institute
of Bioethics; Silicon Valley Independent Living Center; Sisters
of Social Service of Los Angeles; St. Joseph Hospital, Eureka;
St. Joseph Hospital, Orange; St. Jude Medical Center; St. Mary
Medical Center; thousands of individuals
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 374 (Berg, 2007) would have enacted the California
Compassionate Choices Act to authorize a terminally ill adult
who meets certain criteria to request medication prescribed
pursuant to this bill. The bill died on the Assembly Floor
Inactive File.
AB 651 (Berg, 2006), substantially similar to the above, failed
passage in this Committee.
SB 128 (Wolk and Monning)
Page 34 of ?
AB 654 (Berg and Levine, 2005), substantially similar to the
bills above, died on the Assembly Floor Inactive File.
AB 1592 (Aroner, 1999) was almost identical to the Oregon
initiative. The bill died on the Assembly Appropriations
Suspense File.
AB 1310 (Mazzoni, 1995), like AB 1080, was modeled upon the
Oregon initiative. The bill died in the Assembly Judiciary
Committee.
AB 1080 (Martinez, 1995) was modeled on the Oregon initiative.
The bill died in the Assembly Judiciary Committee.
Prior Vote :
Senate Health Committee: (Ayes 6, Noes 2)
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