Assaying The New End-Of-Life Law

There are few decisions more personal than choosing to end one’s life.  And few things more controversial than whether or not a person has a legal right to do so.

Effective January 1, 2016, with the passage of the End of Life Option Act, an adult suffering from a terminal illness, and who meets a litany of qualifications, may request an aid-in-dying drug from a physician.  With this legislation, California joins five other states in allowing medically assisted death.

Granted, the law is controversial.  In signing the Act, Gov. Jerry Brown wrote in a letter addressed to state lawmakers, that “…it would be a comfort to be able to consider the options afforded by the bill.  And I wouldn’t deny that right to others.”  However, concern was voiced by Californians Against Assisted Suicide, an alliance opposed to the measure, that low-income people would be adversely affected arguing that the “choice” of whether or not to obtain and take end-of-life drugs would, “push people into cheaper lethal options.”

The Act spells out the precise requirements and circumstances under which a mentally competent, terminally ill adult can request, and a physician can provide, the necessary lethal drug.  However, in addition to the patients and physicians, hospital chief executive officers must be mindful that it impacts hospitals and health systems as well.  What are a few of the questions raised for those health care providers?   

Must hospitals participate in the Act?  No.  They may choose, for religious, ethical or other reasons, to prohibit their employees, independent contractors, -- even physicians -- from participating  “while on premises owned or under the management or direct control” of the hospital.  In order for this policy to be effective, a hospital must provide written notice, in a separate statement.  Failure to do so will preclude that hospital from enforcing the policy.  Action may be taken against anyone in violation, including loss of membership or privileges, suspension or loss of employment.  (Other consequences may include termination of lease or contract and specified non-monetary remedies.)    

What can the policy prohibit? The policy can prohibit a person from performing the functions of a defined attending or consulting physician, or a defined mental health specialist, delivering a prescription for, dispensing, or delivering the dispensed aid-in-dying medication and being present when the patient takes it. 

What can’t the policy prohibit?   The policy cannot prohibit participating in the law’s activities if they are performed outside the hospital.  Any participation by an employee or independent contractor outside their scope of employment or contract cannot be curtailed.

The law does prohibit ingesting an aid-in-dying drug in a “public place.”  Is a hospital or skilled nursing facility considered such a place?  It appears this is not the case.  The “attending physician follow-up form” includes assisted living residences, nursing homes and in-patient acute care hospitals as options for where the lethal dose of the aid-in-dying drug was ingested.

An attorney specializing in healthcare law would be able to assist your facility/organization with changes and/or additions to policies and procedures, bylaws, rules and regulations and contracts in order to be in compliance with, and protected by, the new law.  

The passage of any new legislation, especially one as complex as this, is certain to challenge the way patients, physicians and hospitals view terminal illness.   It should be the responsibility of hospitals to lead the way in establishing protocols to implement the law.   

Abbie P. Maliniak is an attorney specializing in healthcare law.  She is a member of the Board of Directors of the California Society for Healthcare Attorneys and the Joint Committee on Biomedical Ethics of the Los Angeles County Medical Association.