Gov. Jerry Brown signed California Senate Bill 128 on October 5, 2015. It will take effect sometime in 2016, barring referendum efforts.
An adult who is age 18 years or older who has a terminal disease. A terminal disease is defined under the bill as an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six (6) months.
The person would need to have the mental capacity to make an informed medical decision for himself or herself about the end of his or her life. An informed medical decision means a decision to request and obtain a prescription for a drug that the individual may give to himself or herself which is based on the person’s understanding of the potential risks associated with taking the prescribed drug; the probable result of taking the drug; the possibility that the person may choose not to obtain the drug, or if he or she got a prescription for it, could choose later not to take it; and the feasible alternatives to obtaining the drug which the doctor has discussed with the individual.
HOW IS THIS DONE?
A qualified individual seeking to obtain a prescription for an aid-in-dying drug is required to submit TWO oral requests, a minimum of fifteen (15) days apart, and a written request to his or her doctor. The doctor must receive these requests directly from the patient. At this time, the patient cannot designate someone else to make this request on his or her behalf.
The written request must be dated and signed in the presence of two (2) witnesses each of whom makes a statement regarding the patient’s acting voluntarily, having the capacity to make this kind of decision, and lack of coercion or undue influence to make this request. One of the witnesses must also state that they are not related to the patient by blood, marriage, registered domestic partnership, or adoption. This requirement is similar to the requirement for witnesses to the Advance Health Care Directive (“Directive”) under current California law.
IMPACT OF MENTAL INCAPACITY
If the doctor determines that the patient is incapacitated or has a mental disorder, the doctor is required to refer the patient to a mental health specialist for an assessment. No aid-in-dying drug will be prescribed if the mental health specialist determines that the patient does not have the capacity to make the request for the drug or is suffering from impaired judgment because of the mental disorder.
ADVICE FOR THE PATIENT
Under the bill, a patient who seeks to obtain a drug to end his or her life is to be advised of all of the following:
- To have another person present when the patient takes the drug.
- To take the drug in a private place and not in public.
- To tell the patient’s next of kin that he or she requested a prescription for the drug.
- To participate in a hospice program.
- To keep the drug in a safe and secure location until the time comes that the patient takes it.
The doctor is to not only examine the patient, but to document the patient’s medical record to confirm the diagnosis of a terminal illness, confirm that the patient had the mental capacity to make the decision to request the drug, that no mental disorder exists which prevents the patient from requesting the drug, that the patient complied with the law in requesting the drug, that the advisories were given, and that the patient make the request directly and personally and not through another person.
The person who participates, in good faith, in a patient’s request for the drug, including being the person who is present when a qualified individual self-administers the drug is protected from civil, criminal, and other liability or disciplinary actions for his or her participation. The bill also notes that participation in the activities described are voluntary and that people may refuse to participate for reasons of conscience, morality, or ethics.
IMPACT ON ESTATE PLANNING
Wills created after that date may NOT have a provision that affects whether a person may make a request for an aid-in-dying drug, or whether a person may withdraw or rescind that request.
A conservator or guardian for a person may not seek court appointment using the patient’s request for the drug as the sole basis for seeking appointment.
A person who takes actions that comply with the bill, if it’s enacted as written, shall not have those actions used as a cause of action for neglect or elder abuse lawsuits.