California’s End of Life Option Act: Key Requirements and Considerations

01 June 2016 Health Care Law Today Blog
Author(s): Claire Marblestone

On June 9, 2016, California’s End of Life Option Act (the “Act”) will go into effect.  The Act authorizes an adult who is suffering from a terminal disease and meets other qualifications to request an aid-in-dying drug that may be prescribed for the purpose of ending his or her life.  California is the fifth state to enact a form of an aid-in-dying law.  Similar laws are in place in Oregon, Washington, Montana, and Vermont.

Key Requirements and Considerations:
  • Self-Administration of the Aid-in-Dying Drug: Although other individuals may assist in the preparation of the aid-in-dying drug, the patient must self-administer the aid-in-dying drug.
  • Responsibilities of the Attending Physician: The patient’s attending physician is required to ensure that the conditions of the Act are satisfied prior to writing a prescription for an aid-in-dying drug. Participation in the Act is voluntary; the attending physician is not obligated to comply with a patient’s request for an aid-in-dying drug.  In the event the attending physician chooses to assist a patient in obtaining an aid-in-dying drug, the attending physician must determine whether the patient making the request is a qualified individual who meets the requirements set forth in the Act, and has the capacity to make medical decisions.  If there are indications that the patient has a mental disorder, the attending physician must refer the patient for a mental health specialist assessment.  In addition, the attending physician must refer the patient to a consulting physician for medical confirmation of the diagnosis and prognosis of the patient, and for a determination that the patient has the capacity to make medical decisions.
  • Documentation Requirements: Under the Act, the patient is required to submit two oral requests for the aid-in-dying drug, a minimum of 15 days apart, and a written request to his or her attending physician.  The attending physician must review the documents submitted by the patient relating to the request, and must complete additional documents demonstrating compliance with the Act.  The California Department of Public Health and California Medical Board are expected to make the requisite forms available on their respective websites.  The Act specifies the information that must be included in the patient’s medical record.
  • Opting Out: Certain health care providers, including licensed hospitals and skilled nursing facilities, may prohibit their employees, independent contractors, or other persons or entities, from participating in activities under the Act while on premises owned or under the management or direct control of the health care provider, or while acting within the course and scope of any employment by, or contract with, the health care provider.  If a health care provider chooses to prohibit participation under the Act, it must provide written notice of this policy to its employees, independent contractors, and other persons or entities.

Even if a health care provider elects to prohibit participation under the Act, it may not prohibit its employees, independent contractors, or other persons or entities from: diagnosing whether a patient has a terminal illness; informing the patient of the medical prognosis, or determining whether a patient has the capacity to make decisions; providing information to a patient about the Act; or providing a patient, upon the patient’s request, with a referral to another health care provider for purposes of participating in the activities authorized by the Act.  Furthermore, a health care provider may not prohibit its employees, independent contractors, or other persons or entities from participating in the Act while on the premises that are not owned or under the management or control of the provider, or while acting outside the course and scope of the participant’s duties as an employee or independent contractor of the health care provider.

  • Immunity from Liability: The Act provides that health care providers that participate in actions taken in compliance with the Act will not be subject to civil, criminal, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, penalty, or other liability in connection with the health care provider’s participation in actions authorized by the Act.  In addition, an individual will not be subject to civil or criminal penalty solely because he or she is present when the patient self-administers the aid-in-dying drug.
Recommended Next Steps:

Physicians and health care facilities should familiarize themselves with the requirements of the Act prior to the June 9 effective date, so that they are able to respond to patient inquiries and requests about their options under the Act.  Licensed health care facilities that permit their employees, independent contractors and other health care providers to engage in activities permitted by the Act should enact policies and procedures to ensure that requests for an aid-in-dying drug are processed in compliance with the Act.  In the event that a licensed health care facility chooses to opt out of the Act, the facility must provide notice to its employees, independent contractors, and other health care providers of its decision to opt out.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services