June 15, 2018: UPDATE
A California appeals court has reinstated the End of Life Option Act law, ruling that it can remain in effect, at least temporarily, while opponents’ legal challenges are considered. This means that terminally-ill Californians who meet specific requirements can once again legally obtain life-ending medications while the case works its way through the courts.
Overview of End of Life Option Act Legal Challenge
- On May 15, Riverside County Superior Court Judge Daniel A. Ottolia issued a temporary ruling that the EoLOA was invalid because of how it was passed. The law was passed in October 2015 during a special legislative session that had been called by Governor Jerry Brown to address healthcare funding issues. According to the trial court, the EoLOA is not reasonably related to the healthcare issues that were the subject of the special session.
- On May 21, California Attorney General Xavier Becerra filed an emergency appeal of the ruling and also asked that the EoLOA law be allowed to remain in effect while the matter moves through the courts.
- On May 23, Becerra’s request for an emergency stay which would allow the law to remain in effect was denied by the Fourth Circuit Court of Appeals. The plaintiffs were notified that they had 25 days to show why the appellate court should not overturn the ruling.
- On May 25, Judge Ottolia finalized his ruling that the EoLOA law is invalid because the way it was passed was unconstitutional.
- On May 30, Judge Ottolia rejected a motion filed by two people with terminal cancer and a physician to reverse his ruling, and he set a June 29 hearing to consider the motion to vacate his earlier ruling.
Judge Ottolia’s rulings, coupled with the Appeal court’s refusal to grant an emergency stay, means — for now — that the EoLOA law is suspended and cannot be enforced.
- On June 15, California’s 4th District Court of Appeals granted the state’s request to reinstate the EoLOA law while it considers the case.
The court battle over the EoLOA, and uncertainty over it’s future, will likely continue for some time and will eventually end up at the state’s Supreme Court. This could be a long process of uncertainty for everyone involved. The original case on which Ottolia ruled, Ahn v. Hestrin, has two parts. One part argues it is invalid because it was passed during a special legislative session called for a different purpose, which is unconstitutional. The second part of the argument deals with the validity of the law itself. Once the court settles the question about the process by which the law was passed, it will then take on the substance of the law.
The Coalition for Compassionate Care of California (CCCC) took no position on the EoLOA legislation.
CCCC will continue to monitor the status of the EoLOA law and post updates as information becomes available.
The Coalition for Compassionate Care of California is a neutral source for information on the End of Life Option Act.
Terms in bold are specifically defined or described within the legislation.
Overview of the Law
The End of Life Option Act is a California law that permits terminally ill adult patients with capacity to make medical decisions to be prescribed an aid-in-dying medication if certain conditions are met. Signed into law by Governor Brown in October 2015, the law went into effect on June 9, 2016. California is the fifth state to enact an aid-in-dying law. Read the full bill language here.
To be eligible to request a prescription for the aid-in-dying drugs, an individual must:
- Be an adult (18 years old or older).
- Be a California resident.
- Have a diagnosis from his/her primary physician of an incurable and irreversible disease which will, within reasonable medical judgement, result in death within six months.
- Be able to make medical decisions for themselves as determined by health professionals.
- Voluntarily request a prescription for an aid-in-dying drug without influence from others.
- Be able to self-administer (eat, drink, and swallow) the aid-in-dying drug.
The request must be made solely and directly by the patient to the attending physician, and cannot be made on behalf of the patient through a power of attorney, an advance health care directive, a conservator, health care agent, surrogate, or any other legally recognized health care decisionmaker.
Participation is voluntary for patients and health providers
Participation in the End of Life Option Act is voluntary for individual patients health providers (physicians, nurses, pharmacists, etc.) as well as health systems, HMOs, hospitals, medical offices, nursing homes, pharmacies and hospices. Insurance providers are not required to cover aid-in-dying drugs or related physician fees. Check with your health insurance company about their rules regarding costs associated with aid-in-dying drugs or related physician fees.
If the patient’s provider or the organization where the patient receives care is not participating in the End of Life Option Act, the patient may request basic information or ask for a referral.
Some providers may not be comfortable giving patients information about the Act or even providing a referral. In this case, patients may wish to consult with advocacy organizations or others who provide information about the End of Life Option Act and to find participating providers.
Prior to discussing the aid-in-dying drug, a patient and their physician should discuss:
- The patient’s understanding of his/her diagnosis and prognosis
- The patient’s hopes and fears
- The benefits of palliative care and hospice care
- Options for pain control and symptom management
The process for requesting aid-in-dying drugs
If a terminally-ill patient meets the requirements to receive the aid-in-dying drug, the patient and his or her attending physician must follow several steps which are carefully defined in the law, including:
- The patient must make two oral requests, at least 15 days apart, directly to his or her physician (the attending physician)
- The patient must also make one request in writing, using the Patient’s Request for Aid-in-Dying Drug form (PDF), which must be signed by the patient and two witnesses, and provided directly to his or her attending physician. The law does not say specifically when the written request must be made.
- The patient must discuss the aid-in-dying drug request with his/her attending physician without anyone else present (except an interpreter, if needed), to make sure the request is voluntary.
- The patient must then see a second physician (a consulting physician) who can confirm the patient’s diagnosis, prognosis, and ability to make medical decisions.
If either physician thinks the patient’s ability to make medical decisions could be impaired, the patient must also see a mental health specialist (psychiatrist or licensed psychologist) to make sure his or her judgment is not impaired.
The law requires that the patient and attending physician discuss all of the following:
- How the aid-in-dying drug will affect the patient, and the fact that death might not come immediately.
- Realistic alternatives to taking the drug, including comfort care, hospice care, palliative care, and pain control.
- Whether the patient wants to withdraw the request.
- Whether the patient will notify next of kin, have someone else present when taking the drug, or participate in a hospice program. (The patient is not required to do any of these things.)
- That the patient will not take the drug in a public location.
The physician must ensure the patient knows they do not have to take the drug, even once they have obtained the aid-in-dying drug.
If the patient still wishes to proceed and the attending physician agrees, the attending physician may provide the aid-in-dying drug by either dispensing it directly to the patient or by delivering the prescription to a participating pharmacist. By law, the physician cannot hand a written prescription directly to the patient or their representative.
The law is not specific about which aid-in-dying drug(s) can be prescribed.
Before taking the drug, the patient must sign a Final Attestation for Aid-in-Dying Drug form (PDF) which confirms they are taking the drug voluntarily, are under no obligation to take the drug, and may rescind the request at any time. The completed form is to be returned to the attending physician to be placed in the patient’s medical records.