A rocky period for medical aid-in-dying in California

  • Burgart, Alyssa M., MD, MA, FAAP
| Oct 01, 2018

alyssaAlthough most anesthesiologists do not deal directly with end of life issues, those of us in pain management are often an integral part of these discussions. Anesthesiologists frequently care for patients as they approach the end of their lives and many may have questions regarding current California regulations. Alyssa Burgart MD, MA, has a unique background as a pediatric anesthesiologists and a medical ethicist. She is Medical Director of Clinical Ethics at Lucile Packard Children’s Hospital, core faculty member in the Stanford Center for Biomedical Ethics, and an Assistant professor of Anesthesiology at Stanford University School of Medicine.

On May 15, 2018 a bombshell news alert popped up on my phone. Terminally ill Californians’ right to legally receive lethal drugs from their physicians was in serious jeopardy. The Riverside County Superior Court ruled that California’s End of Life Option Act may be unconstitutional and placed the law on a temporary five-day hold, pending action from the Attorney General. Two days later, my colleague and expert in medical aid-in-dying Catherine Forest, MD, and I were set to give an educational talk to a group of Stanford physicians about California’s end of life law. The controversial law passed in 2015 during a special legislative session on healthcare and conservative opponents challenged the law’s validity immediately. After being in effect for nearly two years, the challenge finally made its way to a sympathetic judge, and our lecture would take place during a state of legal limbo. 

Opponents argued that the law’s passage during a special session on healthcare was end of life act graphicproblematic, implying that end of life decision making and care doesn’t belong in discussions around health care. As a physician, I disagree and believe we need more open and honest discussion around death and dying, not less. California’s approach to medical aid-in-dying (also called physician assisted death) puts the patient in control – placing a great deal of responsibility on the dying patient to drive the process from start to finish. Detailed regulations set out by the statute attempt to safeguard patients against coercion and protects physicians with a moral objection to decline participation. It’s designed to serve as an option for the dying, rather than to usurp high-quality end of life care such as hospice and palliative care. 

Data from the California Department of Public Heath shows that in 2017, 577 Californians obtained prescriptions and 374 died after ingesting the medication, the majority of whom had cancer. Patients who have requested lethal prescriptions cite loss of joy in daily activities, loss of autonomy, and loss of dignity as motivating factors. Of the seven U.S. states to legalize medical aid-in-dying, California is the most populous and ethnically diverse. One in five Americans now lives in a state where terminally ill patients have this option. 

During the temporary hold, terminally ill patients and their physicians were forced to hover in a cloud of uncertainty. What did the ruling mean for patients and physicians? What if patients had started the application process but hadn’t finished? What if patients had gotten the prescription, but hadn’t picked it up yet? If the law was overturned, what would happen to Californians with terminal illnesses who hoped to have this option available? The law was still in effect during the hold, but on the fifth day, without further intervention would be invalidated. With such a short window for the Attorney General to act, I wasn’t particularly reassured. We scrambled to understand the consequences of the ruling and were left guessing what might happen when the hold expired.

California’s Attorney General Bercerra immediately fought to keep the law in place, but to our shock, on May 25 the law was officially overturned by the Riverside County Superior Court, making writing lethal prescriptions for the terminally ill patients illegal again in California. 

After a tense two weeks, on June 15, the 4th District Court of Appeals issued a stay on the lower court ruling. The law has been temporarily reinstated while this court considers the case. While the recent legal battle has been a source of confusion and frustration for terminally ill Californians and their physicians, the eventual fate of this law remains unresolved. Even if there are no additional attempts to invalidate the law, it will “sunset” in 2026. Without further legislative action medical aid-in-dying will disappear from California yet again. 

Legal battles are nothing new for proponents of medical aid-in-dying and conservative groups will continue to file suits fighting such legislation. Opponents remain adamant that despite safeguards, medical aid-in-dying laws put the elderly and the dying at risk for coercion to end their lives. Some groups oppose any artificial shortening of a patient’s life, no matter the reason. Others feel that an early death isn’t the answer to suffering, but that more resources for palliative care and hospice are more practical solutions. 

Since Oregon first considered its Death with Dignity legislation in the early 1990s, multiple legal standoffs have taken place in states with medical aid-in-dying laws. Such cases are time consuming, but largely unsuccessful. While most cases have been from right to life groups focused on invalidating aid-in-dying laws, a recent case against UCSF shows that legal challenges will come from multiple fronts. Despite months of expressing interest in lethal medications, Judy Dale died one day shy of meeting the law’s requirements. Her family sued UC San Francisco, arguing that the law’s allowance for physicians to refuse to participate led to their mother’s undue suffering at her death. The courts will continue to be the battleground for both sides of this controversial matter.

What it is like to be a prescribing physician? Please check out two moving stories: one from Dr. Catherine Forest, and another by geriatrician, Marina Martin, MD. For more information and annual reports on the California End of Life Option Act, check out the California Department of Public Health.

California’s law is meant to honor patients’ desires to die with dignity, allowing them to exert a little control at the end of their lives. A recent poll found that Californians overwhelmingly support access to physician aid-in-dying. Each year, more states consider their own right-to-die legislation and it seems unlikely the public opinion will turn against it. Americans have struggled for many decades to address the needs of the dying and this legislation is just one component of a holistic, patient centered approach to this important and personal healthcare matter. Dying patients deserve better than to be taken for a ride by the legal system in their final days and I hope that one day, we will have long term resolution of this law so that Californians who choose to use it may rest in peace. 

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