This article was written by Chris Dolan and published by The San Francisco Examiner. Click here to read more of Chris Dolan’s biweekly legal articles at SFExaminer.com.
This week’s question comes from Phyllis G. in Marin who asks: “I was reading about the young woman in Oregon with a terminal brain cancer who decided to end her life. It said she had to move to Oregon from California because physician assisted suicide is unlawful here. What is the law in California?”
Phyllis, although California patients are able to instruct their physicians, in writing, to withdraw or withhold “life sustaining support” in instances of terminal illness, California law does not permit doctors to provide active aid or assistance in dying such as the prescription or administration of one or medications which can facilitate death
California has a 23 year history of debating what has become known as “death with dignity” laws. In 1992, Proposition 161 authorizing mentally competent adults to request, in writing “aid in dying,” was placed before California voters. Prop 161 would have permitted terminally ill patients, within six months of their death, to ask for, and obtain, assistance from a willing doctor to provide reasonable and humane assistance in hastening their death. Under Prop. 161 a terminally ill patient seeking assistance in ending their life would have to demonstrate their mental competence and execute a written directive, witnessed by two people, not related by blood or marriage, and with no interest in the estate of the patent, directing their physician to assist them in death. A hospital, doctor, nurse, or other health care provider could refuse to execute the directive based on religious, moral or ethical reservations. The law would also have protected participating physicians from criminal or civil prosecution. Proposition 161 failed with the no vote carrying 54% of the vote.
In 1994, Oregon passed a death with dignity act which was subsequently challenged in court. The National Right to Life Ninth Committee challenged Oregon’s law blocking its implementation until the Ninth District Court of Appeals (in San Francisco) dismissed the challenge. California considered adopting a death with dignity law in 1997 and, again, in 2006 both attempts failed.
California has made some progress in providing terminal patients with self determination. In September of 2008, Governor Schwarzenegger signed Ab 2747, the Terminal Patients’ Right to Know End-of-Life Options Act (California Health and Safety Act 442.5). The Act, while not permitting assisted suicide, preserved the right of all terminally ill patients to have access to information about a full range of end-of-life choices accepted in law and medicine. This includes the right to know about; their prognosis with and/or without treatment; the right to refuse or withdraw from life-sustaining treatment; pain management options; the right to execute an advanced care directive; appoint a health care decision maker and; the right to hospice care.
The issue of death with dignity has come to the forefront again, recently, with the case of 29 year old Brittany Maynard, a Bay Area resident and Berkeley graduate who was diagnosed with an aggressive form of terminal brain cancer. Ms. Maynard was precluded, by California law, which currently makes it a felony to help someone end their life, from receiving physician prescribed medication to allow her to end her life so she and her husband moved to Oregon, where it is legal. Ms. Maynard died in the presence of her family after taking a lethal dose of medications on November 1, 2014 .
On January 21, 2015, Senate Bill 128, sponsored by Democratic Senators Bill Monning and Lois Wolk, and supported by Ms. Maynard’s husband, was introduced in the California Senate. Much like Prop. 161 in 1992, SB 128 would allow a patient who is terminally ill (within 6 months of death), to request, and receive, a prescription for medications to use in ending her/his life so long as they are deemed to be mentally competent. Ab 128 would require that any patient seeking aid in dying first be provided information regarding alternatives such as other forms of treatment, pain management, hospice, etc. Those wishing to proceed will need to make one written and two oral requests at least fifteen days apart before they could receive assistance. Like Prop. 161, there are religious, moral and ethical exemptions, as well as protections against criminal and civil penalties, for doctors. The bill has just begin its long legislative life cycle and we wont know until early fall whether, and in what form, it will become law.
