What are the obligations of an attending physician?
Under the law, an attending physician is the physician who has primary responsibility for:
- The health care of the requesting patient AND
- Treatment of the requesting patient's terminal disease
Before prescribing medical aid-in-dying drugs, an attending physician must make an initial determination of whether a patient is qualified to receive medical aid-in-dying drugs.
New in 2022, physicians who do not participate in the End of Life Option Act are required to tell the patient they do not participate and transfer the patient’s medical records to another provider at the patient’s direction. Providers are prohibited from engaging in false, misleading, or deceptive practices relating to their willingness to qualify an individual or provide a prescription for medical aid-in-dying drugs to a qualified individual. Physicians may document the patient’s first oral request in the medical record, but this provision in the law will not be enforced, due to a lawsuit that successfully argued that such documentation could constitute “participation” in the Act.
Finally, healthcare entities are required to provide their institutional policies regarding medical aid in dying to all contracted and employed professionals on contract or employment and annually, and to post their current policy regarding medical aid in dying on their public-facing website.
On receiving a request for medical aid-in-dying drugs, the attending physician must first determine that the individual is eligible under the law. The physician must determine that the individual:
- Is an adult (18 years of age or older)
- Is a California resident (CA driver’s license or other state-issued ID, proof of ownership or lease of property in CA, CA voter registration, prior year CA income tax return)
- Has an incurable and irreversible terminal disease with a prognosis of 6 months or less
- Has the capacity to make medical decisions
- Is making an informed decision
- Is making a fully voluntary request for medical aid-in-dying drug, without coercion or undue influence
- Is physically and mentally able to self-administer medical aid-in-dying drugs, meaning a conscious and physical act of administering and ingesting the drugs to bring about death
- Has submitted the signed, dated, witnessed request form
The attending physician must receive two oral requests from the patient directly and not through a designee, a minimum of 48 hours apart, and the written request. The law does not specify when the written request should be submitted.
All written and oral requests must be recorded in the patient’s medical record. (There is no specific language required in the documentation.)
The attending physician must refer the patient to a consulting physician.
The attending physician must refer the patient to a mental health specialist if indicated.*
The attending physician must counsel the patient about the importance of:
- Having another person present when the medical aid-in-dying drugs are ingested
- Not ingesting the drugs in a public place or place open to public view or access
- Notifying next of kin of their request for medical aid-in-dying drugs (such notification is not required)
- Participating in a hospice program
- Maintaining the medical aid-in-dying drugs in safe and secure location until self-administered
*A mental health specialist assessment is indicated for the purpose of determining that the patient has the capacity to make medical decisions and is not suffering from impaired judgement due to a mental disorder. Under the law, a mental health specialist is defined as a psychiatrist or psychologist.
At the time of counseling, the attending physician must remind the patient that they may rescind their request for medical aid-in-dying drugs at any time in any manner.
To confirm that the patient is making an informed decision, the attending physician must discuss the following with the patient:
- The patient’s diagnosis and prognosis
- The risks associated with taking the medical aid-in-dying drugs
- Probable result of taking the medical aid-in-dying drugs
- The possibility that the patient may at any time choose not to obtain the medical aid-in-dying drugs or may obtain the drugs and choose not to take them
- Feasible alternatives or additional treatment options, e.g., comfort care, hospice care, palliative care, pain control
The attending physician must comply with all documentation requirements and submit all necessary forms.
In addition, the attending physician must:
- Offer the patient an opportunity to withdraw/rescind the request before prescribing the drug
- Verify the patient is making an informed decision immediately before prescribing the medical aid-in-dying drugs
- Confirm all requirements are met and that appropriate steps are carried out before prescribing the medical aid-in-dying drugs
- Fulfill all documentation requirements
- Complete the Attending Physician Checklist & Compliance Form, obtain the Consulting Physician Compliance Form, and a report from the Mental Health Specialist if consulted, place the forms in the patient’s medical record, and submit copies of the forms and report, if submitted, and the Patient’s Written Request to the California Department of Public Health (CDPH) within 30 days of writing the prescription
The Attending Physician Follow-Up Form must be completed within 30 calendar days of the patient’s death. A copy of the form must also be submitted to CDPH. This form must be completed and signed by the attending physician.