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DEAR READERS: In lieu of my regular Q & A legal column, this month I have been asked to comment on the new End of Life Option Act, recently signed by Governor Jerry Brown. Keep sending your questions to me via email, though, for future columns. (This Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.)
Options. I think we would all agree that our lives are richer with them than without them. Brittany Maynard, the 29-year old Californian who died from incurable brain cancer didn’t have many. So, she moved to Oregon where a doctor can legally prescribe a lethal dose of an aid-in-dying drug. Thanks to the brave efforts of Brittany, followed by the long and arduous battles by her champion parents and our elected officials, California has now joined Oregon, Washington, Vermont, New Mexico, and Montana in offering similar options to terminally ill adults.
On October 5, 2015, Governor Jerry Brown signed into law the “End of Life Option Act” (codified in Section 443 et. seq. of the CA Health and Safety Code). However, it may be as late as Fall 2016 before the law becomes effective because of the operative language in the law.
Already there are misconceptions about what this new law is...and is not. First, it is unfair to classify it as an “assisted suicide” law. There are no Dr. Kevorkian’s lethal injection chambers or the like. The 26 pages of the new law that I read and analyzed is very precise and measured, as it should be. Specific requirements must be met to trigger it, plus the patient and the doctors have to jump through many, many hoops. Below is a summary of the key components:
• The Patient must be over 18 years, prove that they are a California resident, and have an incurable and irreversible disease with the life expectancy of six months or less.
• Once the Patient determines that they wish to pursue a prescription for a “magic pill” or aid-in-dying drug, they must submit two oral requests (15 days apart) and one written request to their attending physician. The written request must be witnessed by two witnesses (only one witness can be related to the Patient).
• Not only does the attending physician have to review and approve the request, but a second consulting physician must do the same.
• The attending physician and consulting physician must also complete separate forms, which are designed to motivate a discussion between the doctors and patient on specific issues, such as the Patient’s state of mind, the option to obtain the drug but not take it, the importance of securely storing the drug and having another person present upon ingestion, and the necessity to participate in feasible alternatives, such as hospice care, a palliative care program and pain control.
• The new law also addresses “residual” impacts, such as: i) the Patient’s exercise of this option is not considered suicide and thus an insurer cannot deny life insurance benefits; ii) reporting requirements by the attending physician to the State Department of Health; iii) exemption from civil or criminal liability of the person who may be present with the Patient at the time of death, as long as that person does not help the Patient ingest the lethal drug; and iv) mandatory reporting and posting of certain “vital statistics” by the State Department of Health on their Internet Web site, on or before July 1, 2017 and each year thereafter.
birth and death. Philosophically, we may ask ourselves, when it is our time, assuming we even have the blessing or the curse of advance notice, should death be controlled by us, or should it be left to a Higher Power or destiny.
[Note: To read the full version of the new law, go to www.legislature.ca.gov. Click Bill Information. Enter ABx2 15 as the Bill Number, and download the chaptered version of the law.]
Even Jerry Brown struggled with the underlying moral issues of this new law. Our Governor best summed up the sentiments of this inner conflict when he quipped, with pen in hand, “In the end, I was left to reflect on what I would want in the face of my own death”. Perhaps that is why he activated that pen and signed the bill. Options. Choices. We cherish them in life. Why not offer them in death?
Already the new law has ignited controversy. A state ballot measure to oppose and invalidate the new law was swiftly filed by a group called “Seniors against Suicide”. How catchy. Not very accurate considering what the new law is trying to accomplish, in my mind.
Granted, this is a deep and personal issue. It is compounded by the fact that our culture is a bit clumsy when talking about death. We ignore it. We cast it in terms of religious or spiritual doctrines, hoping to give us some framework to understand the inevitable. Yet, sometimes that framework separates us, instead of helping us find common ground on the one thing we have in common —
Debra A. Newby is a resident of Monte Rio and has practiced law for 33 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents,
dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email(debra@newbylawoffice.com), phone (707-526-7200), or fax (526-7202).
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