BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 128
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|AUTHOR: |Wolk and Monning |
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|VERSION: |March 17, 2015 |
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|HEARING DATE: |March 25, 2015 | | |
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|CONSULTANT: |Teri Boughton |
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SUBJECT : End of life
SUMMARY : Permits a competent, qualified individual who is a
terminally ill adult to receive a prescription for aid in dying
medication if certain conditions are met, such as two oral
requests, a minimum of 15 days apart, and a written request
signed by two witnesses, is provided to his or her attending
physician, the attending physician refers the patient to a
consulting physician to confirm diagnosis and competency of the
patient, and the attending physician refers the patient for
counseling, if appropriate. Protects a person from civil or
criminal liability, or professional disciplinary action, for
participating in good faith compliance with this bill. Permits
a person or entity that elects, for reasons of conscience,
morality, or ethics, not to engage in activities authorized
pursuant to this bill. Makes it a felony to knowingly alter or
forge a request for medication to end an individual's life
without his or her authorization or concealing or destroying a
rescission of a request for medication if the act is done with
the intent or effect of causing the individual's death. Makes
it a felony to knowingly coerce or exert undue influence on an
individual to request medication for the purpose of ending his
or her life.
Existing law:
1.Establishes requirements for health care providers when a
provider makes a diagnosis that a patient has a terminal
illness, including that the patient has a right to
comprehensive information and counseling regarding legal end
of life options.
2.Requires the comprehensive information to include, but not be
limited to:
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a. Hospice care at home or in a health care
setting;
b. A prognosis with and without the continuation
of disease-targeted treatment;
c. The right to refuse or withdraw from
life-sustaining treatment;
d. The right to continue to pursue
disease-targeted treatment, with or without concurrent
palliative care;
e. The right to comprehensive pain and symptom
management at the end of life, including, but not
limited to, adequate pain medication, treatment of
nausea, palliative chemotherapy, relief from shortness
of breath and fatigue, and other clinical treatments
useful when a patient is actively dying; and,
f. The right to give individual health care
instruction, such as an advance health care directive,
and the right to appoint a legally recognized health
care decision-maker.
3.Provides, for purposes of a judicial determination, a person
has the capacity to give informed consent to a proposed
medical treatment if the person is able to do all of the
following:
a. Respond knowingly and intelligently to queries
about that medical treatment.
b. Participate in that treatment decision by
means of a rational thought process.
c. Understand all of the following items of
minimum basic medical treatment information with
respect to that treatment:
i. The nature and seriousness of the
illness, disorder, or defect that the person has.
ii. The nature of the medical treatment
that is being recommended by the person's health
care providers.
iii. The probable degree and duration of
any benefits and risks of any medical
SB 128 (Wolk) Page 3 of ?
intervention that is being recommended by the
person's health care providers, and the
consequences of lack of treatment.
iv. The nature, risks, and benefits of
any reasonable alternatives.
4.Provides that a person who has the capacity to give informed
consent to a proposed medical treatment also has the capacity
to refuse consent to that treatment.
5.Provides that a resident of a long term care facility lacks
capacity to make a decision regarding his or her health care
if the resident is unable to understand the nature and
consequences of the proposed medical intervention, including
its risks and benefits, or is unable to express a preference
regarding the intervention. Requires the physician, in making
the determination regarding capacity, to interview the
patient, review the patient's medical records, and consult
with facility staff, family members and friends of the
resident, if any have been identified.
6.Makes it a felony to deliberately aid, or advise, or encourage
another to commit suicide.
7.Requires licensed health care prescribers eligible to
prescribe controlled substances, and pharmacists authorized to
dispense controlled substances who dispense Schedule II
through IV controlled substances to provide the dispensing
information to the Department of Justice (DOJ) on a weekly
basis in a format approved and accepted by the DOJ, as
specified.
8.Establishes the State Public Health Officer (SPHO), who is a
California licensed physician and surgeon with demonstrated
medical, public health, and management experience, to serve as
the director of the State Department of Public Health (DPH).
Establishes the Department of Social Services (DSS) to
administer human assistance programs that provide cash aid and
services to eligible needy families, and licenses and
regulates residential care facilities for the elderly.
9.Licenses and regulates physicians and surgeons under the
Medical Practice Act by the Medical Board of California (MBC),
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within the Department of Consumer Affairs (DCA) and provides
for the licensure and regulation of pharmacies, pharmacists
and wholesalers of dangerous drugs or devices by the Board of
Pharmacy, also within the DCA.
10.Requires the physician and surgeon last in attendance, or in
the case of a patient in a long-term care at the time of
death, the physician and surgeon last in attendance or a
licensed physician assistant under the supervision of the
physician and surgeon last in attendance, on a deceased
person, to state on the certificate of death the disease or
condition directly leading to death, antecedent causes, other
significant conditions contributing to death and any other
medical and health section data as may be required on the
certificate. Requires the physician and surgeon or physician
assistant to specifically indicate the existence of any cancer
as defined, of which the physician and surgeon or physician
assistant has actual knowledge.
This bill:
1.Permits a competent, qualified individual, as defined, who is
a terminally ill adult to make a request to receive a
prescription for aid in dying medication if all of the
following conditions are satisfied:
a. The attending physician has determined the
individual to be suffering from a terminal illness;
b. The individual has voluntarily expressed the
wish to receive a prescription for aid in dying
medication;
c. The individual is a resident of California and
is able to establish residency through:
i. California driver license or other
identification issued by the State of California;
ii. Registration to vote;
iii. Evidence of property ownership or
lease; or,
iv. California tax return for the most
recent year; and,
d. The individual documents his or her request
for aid in dying medication, as specified.
2.Prohibits a person from being a "qualified individual" based
on age or disability.
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3.Prohibits a request for aid in dying medication made on behalf
of a patient through a power of attorney, an advance health
care directive, or a conservator.
4.Requires a qualified individual wishing to receive a
prescription for aid in dying medication to submit two oral
requests, a minimum of 15 days apart, and a witnessed written
request, as specified, to his or her attending physician.
5.Requires at least two adult witnesses who attest that to the
best of their knowledge and belief the individual is
competent, acting voluntarily, and not being coerced to sign
the request.
6.Permits one of the two witnesses to be related by blood,
marriage, or adoption; or be a person entitled to a portion of
the person's estate upon death. Permits one of the two
witnesses to own, operate, or be employed at a health care
facility where the qualified individual is receiving medical
treatment or resides. Prohibits the attending physician from
being one of the witnesses.
7.Permits a qualified individual to rescind his or her request
at any time without regard to their mental state.
8.Requires the attending physician to:
a. Make the initial determination whether the
requesting adult is competent, has a terminal illness,
has voluntarily made the request, and is a qualified
individual.
b. Ensure the individual is making an informed
decision by discussing with him or her the medical
diagnosis and prognosis, potential risks with taking
the medication, the probable result of taking the
medication, the possibility that he or she may choose
to obtain the medication but not take it, and the
feasible alternatives or additional treatment
opportunities including, but not limited to, comfort
care, hospice care, palliative care, and pain control.
c. Refer the individual to a consulting
physician, (defined as a physician who is qualified by
specialty or experience to make a professional
diagnosis and prognosis regarding the individual's
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illness), for medical confirmation of the diagnosis,
prognosis, and for a determination that the individual
is competent and has complied with this bill.
d. Refer the individual for counseling, if
appropriate. Defines counseling as one or more
consultations, as necessary, between an individual and
a California licensed psychiatrist or psychologist for
the purpose of determining that the individual is
competent and is not suffering from a psychiatric or
psychological disorder or depression causing impaired
judgment.
e. Ensure that the individual's request does not
arise from coercion or undue influence by another
person.
f. Counsel the individual about the importance of
having another person present when he or she takes the
medication and not taking the medication in a public
place.
g. Inform the individual that he or she may
rescind the request at any time and in any manner.
h. Offer the individual an opportunity to rescind
the request before prescribing the medication.
i. Verify, immediately prior to writing the
prescription for medication, that the individual is
making an informed decision.
j. Ensure that all appropriate steps are carried
out in accordance with this bill prior to writing a
prescription.
aa. Fulfill the record documentation that may be
required through regulation by DPH, in consultation
with DSS, as specified.
9.Permits the attending physician to deliver the medication in
any of the following ways:
a. Dispense directly, including ancillary
medication intended to minimize discomfort, if the
physician is authorized to dispense medicine under
California law, has a current United States Drug
Enforcement Administration certificate, and complies
with any applicable administrative rule or regulation.
b. With the individual's written consent, contact
a pharmacist, inform the pharmacist of the
prescription, and deliver the written prescriptions
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personally, by mail, or electronically to the
pharmacist, who is required to dispense the
medications to the qualified individual, the attending
physician, or a person expressly designated by the
individual and with the designation delivered to the
pharmacist in writing or verbally.
10.Permits delivery of the dispensed medication to the qualified
individual, the attending physician, or a person expressly
designated by the qualified individual to be made by:
personal delivery, United Parcel Service, United States Postal
Service, Federal Express, or by messenger service.
11.Requires, prior to a qualified individual obtaining aid in
dying medication from the attending physician, the consulting
physician to perform all of the following:
a. Examine the individual and his or her relevant
medical records;
b. Confirm in writing the diagnosis and
prognosis;
c. Verify, in the opinion of the consulting
physician, that the qualified individual is competent,
acting voluntarily, and has made an informed decision;
and,
d. Fulfill the record documentation that may be
required through regulation by DPH, in consultation
with DSS.
12.Permits the attending physician to sign the qualified
individual's death certificate unless otherwise prohibited by
law. Requires the cause of death to be the underlying
terminal illness.
13.Prohibits an individual from receiving a prescription for aid
in dying medication unless he or she has made an informed
decision. Requires the attending physician, immediately
before writing a prescription for aid in dying medication, to
verify that the individual is making an informed decision.
14.Establishes a format for the aid in dying medication request
and requires that a request be in substantially the same form.
Requires the request to be written in the same translated
language as any conversations, or consultations between a
patient and his or her attending or consulting physicians.
Authorizes a written request in English if accompanied by an
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interpreters declaration signed under penalty of perjury.
Specifies the words of the declaration. Requires the
interpreter to be qualified, as specified in Department of
Managed Health Care regulations applicable to health care
service plans and not related to the qualified individual by
blood, marriage, or adoption or be entitled to a portion of
the person's estate upon death.
15.Makes a provision in a contract, will, or other agreement,
whether written or oral, affecting whether a person may make
or rescind a request for aid in dying medication, invalid.
Prohibits an obligation owing under any contract in effect on
January 1, 2016, from being conditioned upon or affected by a
person making or rescinding a request for aid in dying
medication.
16.Prohibits the sale, procurement, or issuance of a life,
health, accident insurance or annuity policy, health care
service plan contract, or health benefit plan, or the rate
charged for a policy or plan contract from being conditioned
upon, or affected by, a person making or rescinding a request
for aid in dying medication.
17.Provides, notwithstanding any other law, that a qualified
individual's act of self-administering aid in dying medication
may not have an effect upon a life, health, or accident
insurance or annuity policy other than that of a natural death
from the underlying illness.
18.Protects a person, notwithstanding any other law, from civil
or criminal liability or professional disciplinary action for
participating in good faith compliance with this bill,
including an individual who is present when a qualified
individual self-administers the prescribed aid in dying
medication.
19.Prohibits a health care provider or professional organization
or association from censoring, disciplining, suspending, or
revoking licensure, privileges, membership, or administering
other penalty to an individual for participating or refusing
to participate in good faith compliance with this bill.
20.Provides that a request by an individual to an attending
physician or to a pharmacist to dispense aid in dying
medication or to provide aid in dying medication in good faith
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compliance with the provisions of this bill does not
constitute neglect or elder abuse for any purpose of law or
provide the sole basis for the appointment of a guardian or
conservator.
21.Requires participation in activities authorized pursuant to
this bill to be voluntary. Permits a person or entity that
elects, for reasons of conscience, morality, or ethics, not to
engage in activities authorized pursuant to this bill, and
provides that a person or entity is not required to take any
action in support of a patient's decision under this bill,
except as otherwise required by law.
22.Requires, if a health care provider is unable or unwilling to
carry out an individual's request under this bill and the
individual transfers care to a new health care provider, the
prior health care provider to transfer, upon request, a copy
of the individual's relevant medical records to the new health
care provider.
23.Provides that nothing in this bill prevents a health care
provider from providing an individual with health care
services that do not constitute participation in this bill.
24.Prohibits a health care provider from being sanctioned for:
making an initial determination that an individual has a
terminal illness and informing him or her of the medical
prognosis; providing information about the End of Life Option
Act to a patient upon the request of the individual; providing
an individual, upon request, with a referral to another
physician; or, contracting with an individual to act outside
the course and scope of the provider's capacity as an employee
or independent contractor of a health care provider that
prohibits activities under this bill.
25.Provides, notwithstanding any contrary provision in this
bill, the immunities and prohibitions on sanctions of a health
care provider are solely reserved for actions taken pursuant
to this bill and those providers may not be sanctioned for
conduct and actions not included and provided for in this bill
if the conduct and actions do not comply with the standards
and practices set forth by the MBC.
26.Makes it a felony to knowingly alter or forge a request for
medication to end an individual's life without his or her
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authorization or concealing or destroying a rescission of a
request for medication if the act is done with the intent or
effect of causing the individual's death.
27.Makes it a felony to knowingly coerce or exert undue
influence on an individual to request medication for the
purpose of ending his or her life or to destroy a rescission
of a request.
28.Provides that nothing in a particular section of this bill
limits further liability for civil damages resulting from
other negligent conduct or intentional misconduct by any
person. Provides that the penalties in a particular section
do not preclude criminal penalties applicable under any law
for conduct inconsistent with the provisions of this bill.
29.Provides that nothing in this bill may be construed to
authorize a physician or any other person to end an
individual's life by lethal injection, mercy killing, or
active euthanasia. Provides that actions taken in accordance
with this bill shall not, for any purpose, constitute suicide,
assisted suicide, mercy killing, homicide, or elder abuse
under the law.
30.Requires DPH, in consultation with DSS, to adopt regulations
establishing reporting requirements for physicians and
pharmacists to determine utilization and compliance with this
bill.
31.Requires the information collected under 30) to be
confidential and collected in a manner that protects the
privacy of the patient, the patient's family, and any medical
provider or pharmacist involved with the patient.
32.Requires DPH to provide an annual compliance and utilization
statistical report aggregated by age, gender, race, ethnicity,
and primary language spoken at home and other data determined
relevant, and requires the report to be made public 30 days
upon completion.
33.Requires a person who has custody or control of any unused
aid in dying medication to personally deliver the unused
medication to the nearest qualified facility that properly
disposes of controlled substances, or if none is available,
dispose of it by lawful means.
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34.Requires any governmental entity that incurs costs resulting
from a qualified individual terminating his or her life in a
public place to have a claim against the estate of the
qualified individual to recover those costs and reasonable
attorney fees.
35.Establishes legislative findings and declarations that any
limitation in this bill to public access to personally
identifiable patient data is necessary to protect the privacy
rights of the patient and his or her family, the interests of
protecting the privacy rights of the patient and his or her
family in this situation strongly outweigh the public interest
in having access to personally identifiable data relating to
services, and the public statistical report is sufficient to
satisfy the public's right to access.
36.Makes provisions of this bill severable if any provision is
held invalid.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the authors, SB 128, the End
of Life Option Act would give qualified, terminally ill
patients in California, who have been given a prognosis of
less than six months to live, the autonomy to exercise
ultimate decision-making authority in end of life decisions.
By giving these patients the legal right to ask for and
receive a lethal prescription from his/her physician, SB 128
would provide one more option to the number of options one has
when faced with the end of life. Furthermore, there are
provisions to safeguard patients and to allow voluntary
participation by physicians, pharmacists and healthcare
facilities. This medical practice is already recognized in
five other states. Terminally ill Californians should not have
to leave the state in order to have a peaceful death. In the
end, how each of us spends the end of our lives is a deeply
personal decision. That decision should remain with the
individual, as a matter of personal freedom and liberty,
without criminalizing those who help to honor our wishes and
ease our suffering.
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2.Other States. According to the National Conference of State
Legislatures, four states currently allow a person to request
medication to end one's life, including: Montana, Oregon,
Vermont, and Washington. Montana's authorization was
determined in the 2008 case of Baxter v. State of Montana. In
January 2014, New Mexico's authorization was determined in
Morris v. New Mexico, however the New Mexico Attorney General
has appealed the district court's ruling. According to the
Albuquerque Journal News, a decision is not expected for
several months. Oregon, Vermont and Washington have
authorized the practice in statute, by voter initiative in
Oregon (passed in 1994 and enacted in 1997) and Washington (in
2008). In 2013, Vermont passed legislation to authorize
physician aid in dying. Arkansas and Idaho have enacted laws
which specifically prohibit physician aid in dying.
3.Other Countries. Belgium, the Netherlands, Luxembourg,
Switzerland and, beginning next year, Canada, allow physician
aid in dying. The Netherlands and Belgium also allow
euthanasia (medication administered by a physician). Belgium
extended its law in 2014 to include children of any age living
with terminal illness. In the Netherlands, the law is not
available to children under 12 years old and for teenagers,
the law requires parental consent.
4.Oregon Data. According to the Oregon Public Health Division
2013 report, from 1998 to 2013, 1,173 were prescribed aid with
dying medication and 752 deaths occurred as a result of
ingesting prescribed medications. From 1998 to 2013 the
gender break down of those who died from ingesting a lethal
dose of medication was 52 percent male and 48 percent female.
Less than 32 percent of the individuals who ingested the
medication were between ages 18-64. Almost 70 percent were
over aged 65. The race breakdown was white (97 percent),
African American (.1 percent), American Indian (.3 percent),
Asian (1.1 percent), Pacific Islander (.1 percent), other (.1
percent), two or more races (.3 percent), and Hispanic (.7
percent). Over 46 percent of those who ingested the
medication were married and the remaining 64 percent were
widowed, never married, divorced, or status was unknown (three
individuals). Less than 28 percent of those who ingested the
medication had a high school education or less and 72 percent
had some college or higher education levels (five individuals
had unknown status). Ninety percent of those who ingested the
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medication were enrolled in hospice. Sixty-three percent had
private insurance, 35 percent had Medicare, Medicaid or other
governmental insurance, and less than two percent were
uninsured (35 individuals had unknown status). Almost 80
percent of those who ingested the medication had malignant
neoplasms, seven percent had Amyotrophic lateral sclerosis,
five percent had chronic lower respiratory disease, two
percent had heart disease, one percent had HIV/AIDS and six
percent had other illnesses. Six percent of those who
ingested the medication were referred for psychiatric
evaluation. Ninety-four informed their family of their
decision. Ninety-five percent died at home, four percent died
in long-term care, and .1 percent died in the hospital.
Ninety-one percent of those who ingested the medication were
concerned about loss of autonomy, 89 percent were concerned
about being less able to engage in activities that make life
enjoyable, 81 percent were concerned about loss of dignity, 50
percent were concerned about losing bodily function, 40
percent were concerned about being a burden on family, friends
or caregivers, 23 percent were concerned about inadequate pain
control, and three percent were concerned about financial
implications of treatment. There were 22 complications of
regurgitation reported and six individuals regained
consciousness after ingesting the medications. A range of
between 15 and 1,009 days elapsed from the first request for
medication and death.
5.Brittany Maynard. According to Compassion and Choices, a
nonprofit that works to expand end of life choices, Brittany
Maynard was a California native with a terminal brain cancer
diagnosis who moved to Oregon to access its death with dignity
law. Brittany Maynard died in Oregon after taking aid in
dying medication on November 1, 2014. In the final weeks of
her life, Ms. Maynard partnered with Compassion and Choices to
launch a campaign to make aid in dying an open and accessible
medical practice in California and throughout the country.
According to Brittany Maynard, as published on CNN Opinion
Tuesday, October 7, 2014, "Because the rest of my body is
young and healthy, I am likely to physically hang on for a
long time even though cancer is eating my mind. I probably
would have suffered in hospice care for weeks or even months.
And my family would have had to watch that." After moving to
Oregon with her family, establishing the residency
requirements, and finding new physicians, Ms. Maynard obtained
aid in dying medication. "Now that I've had the prescription
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filled and it's in my possession, I have experienced a
tremendous sense of relief. And if I decide to change my mind
about taking the medication, I will not take it?..When my
suffering becomes too great, I can say to all those I love, I
love you; come be by my side, and come say goodbye as I pass
into whatever's next."
6.Seattle Program. According to an April 11, 2013, New England
Journal of Medicine article, Seattle Cancer Care Alliance
established a physician aid in dying program at a
comprehensive cancer center in Seattle that serves the Pacific
Northwest. A total of 114 patients inquired about the program
between March 5, 2009, and December 31, 2011. Of these, 44
(38.6 percent) did not pursue the program, and 30 (26.3
percent) initiated the process but either elected not to
continue or died before completion. Of the 40 participants
who, after counseling and upon request, received a
prescription for a lethal dose of secobarbital (35.1 percent
of the 114 patients who inquired about the program), all died,
24 after medication ingestion (60 percent of those obtaining
prescriptions). The participants at the center accounted for
15.7 percent of all participants in the program in Washington
(255 persons) and were typically white, male, and well
educated. The most common reasons for participation were loss
of autonomy (97.2 percent), inability to engage in enjoyable
activities (88.9 percent), and loss of dignity (75.0 percent).
Eleven participants lived for more than 6 months after
prescription receipt. The article concludes, qualitatively,
patients and families were grateful to receive the lethal
prescription, whether it was used or not, and overall, the
program has been well accepted by patients and clinicians.
7.Excluded/different provisions comparison with other States.
a. Oregon's Statute (OR) requires a physician to refer
a patient to counseling if he or she believes the patient
is suffering from a psychiatric or psychological disorder
or depression causing impaired judgment. SB 128 requires
a physician to refer to counseling, if appropriate. OR
prohibits the medication from being prescribed until the
psychologist or psychiatrist determines that the patient
is not suffering from a psychiatric or psychological
disorder or depression causing impaired judgment.
Similar provisions are in Washington's Statute (WA).
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There is no similar explicit prohibition on the
prescription until the patient is cleared by the
psychiatrist or psychologist in SB 128.
b. OR requires the attending physician to recommend
that the patient notify the next of kin but also states
that the patient's refusal to notify next of kin is not a
reason to deny the request. Similar provisions are in
WA. There is no similar provision in SB 128.
c. OR requires the physician to wait 48 hours from
receiving the written request before writing the
prescription. Similar provisions are in WA and Vermont's
Statute (VT). There is no similar provision in SB 128.
d. OR requires documentation in a patient's medical
record by the attending physician, and consulting
physician, and determinations of the counseling session,
if performed. Similar provisions are in WA and VT. There
is no similar provision in SB 128. This same requirement
existed in AB 374 of 2007.
e. OR requires annual review of a sample of records.
WA requires an annual review of all records. SB 128 says
a physician is required to report if DPH requires it
through regulations.
f. OR allows a health care provider to prohibit another
provider from participating on the premises of the
prohibiting provider if the policy has been disclosed to
the provider. It also allows for sanctions if the
prohibited provider violates the policy. Similar
provisions are in WA. There is no similar provision in SB
128.
8.U.S. End of Life Care. A 2014 publication of the Institute of
Medicine (IOM), Dying in America: Improving quality and
Honoring individual preferences near the end of life. the IOM
Committee on Approaching Death: Addressing Key End-of-Life
Issues (committee) identified persistent major gaps in care
near the end of life that require urgent attention.
Understanding and perceptions of death and dying vary
considerably across the population and are influenced by
culture, socioeconomic status, and education, as well as by
misinformation and fear. Engaging people in defining their own
values, goals, and preferences concerning care at the end of
life and ensuring that their care team understands their
wishes has proven remarkably elusive and challenging. While
the clinical fields of hospice and palliative care have become
more established, the number of specialists in these fields is
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too small, and too few clinicians in primary and specialty
fields that entail caring for individuals with advanced
serious illnesses are proficient in basic palliative care.
Often, clinicians are reluctant to have honest and direct
conversations with patients and families about end of life
issues. Patients and families face additional difficulties
presented by the health care system itself, which does not
provide adequate financial or organizational support for the
kinds of health care and social services that might truly make
a difference to them. The committee believes a
patient-centered, family-oriented approach to care near the
end of life should be a high national priority and that
compassionate, affordable, and effective care for these
patients is an achievable goal.
9.Death Certificate. According to the MBC newsletter (Summer
2014), physicians are advised not to put mechanisms of death
on the death certificate (such as cardiopulmonary arrest)
because mechanisms are not the cause of death. Instead, the
newsletter suggests the physician use the condition that
immediately led to the death, for example, Arteriosclerotic
Cardiovascular Disease or Hypertensive Health Disease. If the
decedent has significant medical history, which did not cause
the death, but likely contributed to the poor health and
subsequent death, the death certificate allows those
conditions to be listed. A physician must attest death
certificates within 15 hours. Any person required to fill out
a certificate of death who fails, neglects, or refuses to
perform such duty is guilty of a misdemeanor.
10.Evidence of Problems? An article published in the Michigan
Law Review in June of 2008, referenced by opponents of the
bill, examines the Oregon Death with Dignity Act, drawing from
case studies and information provided by doctors, families and
other care givers. The article concludes that seemingly
reasonable safeguards for the care and protection of
terminally ill patients written into the Oregon law are being
circumvented. The article indicates that the Oregon Public
Health Division does not collect the information it would need
to effectively monitor the law. The article draws on six
cases (four with independent information from more than one
source, and one with information provided by an opponent of
aid in dying and another with information provided by a
proponent). The case studies present examples of situations
where a prescribing physician regretted not discussing the
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case with the patient's regular physician, a psychologist
cleared a patient based on the results of a test administered
by her family and without seeing the patient, a physician
declined a request, did not refer the patient to counseling
and the patient committed suicide the next day, a
psychological evaluation suggested possible coercion by the
family but aid in dying medication was prescribed, aid in
dying was prescribed after a patient made a request to two
different physicians instead of two requests to the same
physician, and a patient with a history of depressive disorder
may have delayed aid in dying by a year and reconnected with
family because of support provided by a volunteer. Another
document provided by the Disability Rights Education and
Defense Fund describes a situation where a patient's caretaker
was prosecuted by federal investigators for real estate fraud
and mistreatment of the patient after his death by physician
aid in dying. This document also describes a situation where
a family member helped a patient take the medication rather
than through self-administration.
11.Role of Pharmacist. According to a 2011 article in the
American Journal of Health System Pharmacists, based on
experience in Washington and Oregon, physicians issuing
prescriptions to be dispensed at a pharmacy must notify the
pharmacist in advance. The physician must either deliver the
written prescription personally or mail it to the pharmacist.
Once the prescription is filled, it may be obtained by the
physician, the patient, or an agent of the patient (e.g.,
family member). Oral medication counseling must be offered to
the patient or patient's agent and provided in person,
whenever practical, and in a private area; the pharmacist can
offer to provide counseling over the telephone. Secobarbital
is the medication most commonly prescribed for physician
assisted suicide, followed by pentobarbital. The lethal dose
prescribed is typically 9 grams of secobarbital in capsules or
10 grams of pentobarbital liquid, to be consumed at one time.
The contents of the secobarbital capsules or the pentobarbital
liquid should be mixed with a sweet substance such as juice to
mask the bitter taste. Until the time of use, the medication
must be stored out of reach of children and kept away from
others to prevent unintentional overdose or abuse. The
pharmacist or physician should instruct patients to take the
lethal dose on an empty stomach to increase the rate of
absorption. The typical dose of pentobarbital as an oral
hypnotic for adults is 100-200 milligrams at bedtime, and that
SB 128 (Wolk) Page 18 of ?
of secobarbital is 100 milligrams orally at bedtime. Patients
receiving the lethal dose of secobarbital or pentobarbital
should be instructed to take an antiemetic (e.g.,
metoclopramide) about one hour before ingesting the
barbiturate to prevent nausea and vomiting. Cases of vomiting
after taking an antiemetic have been reported~ in the event of
vomiting after medication ingestion, patients should be
instructed to have a family member contact the attending
physician to determine the course of action. Patients should
be instructed that if12. they decide not to end their life
after ingesting the medication, they must contact emergency
medical services to begin lifesaving measures.
13.Unused Medication Disposal. As referenced in the 2011
American Journal of Health System Pharmacists article,
patients need to be informed of appropriate disposal methods
in case the medication is not taken~ the Food and Drug
Administration provides guidance on that issue. Secobarbital
and pentobarbital are not among the medications recommended
for disposal by flushing, and they should be placed in the
household trash after mixing with14. an unpalatable substance
such as coffee grounds. Unused medications also can be brought
to a drug "take back" program involving law enforcement
personnel. Patients are not permitted to return controlled
substance medications to a pharmacy.
15.Double referral. This bill is double referred. Should it
pass out of this committee, it will be referred to the Senate
Committee on Judiciary.
16.Related legislation.
a. SB 19 (Wolk) establishes the Physician Orders for
Life Sustaining Treatment (POLST) registry. SB 19 is
currently pending in the Senate Health Committee.
b. SB 149 (Stone), SB 715 (Anderson) and AB 159
(Calderon) permits a manufacturer of an investigational
drug, biological product, or device to make the product
available to eligible patients with terminal illnesses,
and authorizes a health plan to provide coverage for any
investigational drug, biological product, or device made
available pursuant to these provisions. The bill also
prohibits the MBC and the Osteopathic Medical Board of
California from taking any disciplinary action against
the license of a physician based solely on the
SB 128 (Wolk) Page 19 of ?
physician's recommendation to an eligible patient
regarding, or prescription for or treatment with, an
investigational drug, biological product, or device,
provided that the recommendation or prescription is
consistent with medical standards of care. SB 149 and SB
715 are scheduled to be heard in the Senate Health
Committee on April 15, 2015. SB 159 is pending in the
Assembly Health Committee.
c. AB 637 (Campos) allows nurse practitioners and
physician assistants acting under the supervision of the
physician and within the scope of practice authorized by
law to sign a POLST form. AB 637 is currently pending in
the Assembly Judiciary Committee.
17.Prior legislation.
a. AB 2139 (Eggman), Chapter 568, Statutes of 2014
requires a health care provider, when making a diagnosis
that a patient has a terminal illness, to notify the
patient of his or her right to comprehensive information
and counseling regarding legal end-of-life options.
Extends the right to request information to a person
authorized to make health care decisions for the patient
and specifies that the information may be provided at the
time of diagnosis or at a subsequent visit with the
health care provider.
b. SB 1357 (Wolk), would have established a Physician
Orders for Life Sustaining Treatment registry at the
California Health and Human Services Agency. SB 1357 was
held on the Senate Appropriations suspense file.
c. AB 2747 (Berg), Chapter 683, Statutes of 2008,
facilitates end-of-life care communication between
doctors and their patients by enacting the California
Right to Know End-of-Life Act of 2008 to ensure that
health care providers provide critically-needed
information in carefully-circumscribed instances.
d. AB 3000 (Wolk), Chapter 266, Statutes of 2008,
creates POLST in California, which is a standardized form
to reflect a broader vision of resuscitative or life
sustaining requests and to encourage the use of POLST
orders to better handle resuscitative or life sustaining
SB 128 (Wolk) Page 20 of ?
treatment consistent with a patient's wishes.
e. AB 374 (Berg), of 2007, would have enacted the
California Compassionate Choices Act, which would
authorize competent adults who have been determined by
two physicians to be suffering from a terminal disease to
make a request for medication to hasten the end of their
lives in a humane manner. AB 374 was moved to the
inactive file on the Assembly Floor without a vote
recorded.
f. AB 651 (Berg), of 2006, would have established a
procedure for a competent adult person who is terminally
ill and expected to die within six months to obtain from
his or her physician a prescription for medication that
he or she may self-administer in order to end his or her
life. AB 651 failed passage in the Senate Judiciary
Committee.
g. AB 654 (Berg), of 2005, would have enacted the
California Compassionate Choices Act, which would
authorize competent adults who have been determined by
two physicians to be suffering from a terminal disease to
make a request for medication to hasten the end of their
lives in a humane and dignified manner. AB 654 was moved
to the inactive file on the Assembly Floor without a vote
recorded.
h. AB 891 (Alquist), Chapter 658, Statutes of 1999,
streamlined and updated the provisions governing health
care decisions for adults without decision-making
capacity. Specifically, this bill repealed the
provisions governing durable powers of attorney for
health care and the Natural Death Act, and revised and
recast these provisions as part of a new Health Care
1.Support. Compassion and Choices writes that too many suffer
needlessly at the end of life, too many endure unrelenting
pain and other symptoms, and too many turn to violent means at
the end of life when medical aid could help them die
peacefully. This bill is modeled after legislation in Oregon
and other states where aid in dying has been proven to be good
policy and safe medical practice. California voters support
the medical option of aid in dying by more than two to one
margin (64 percent support compared to 24 percent oppose).
SB 128 (Wolk) Page 21 of ?
Studies show patients who receive counseling about end of life
choices score higher on quality of life and mood measures than
patients who do not. Courts have upheld this right. In 1997,
the United States Court of Appeals for the Ninth Circuit
upheld Oregon's first-in-the-nation Death With Dignity Act
(passed by ballot in 1994). On December 31, 2009, Montana
Supreme Court ruled in a 5-2 vote that terminally ill
Montanans have the right to choose aid in dying under state
law. In January 2014, New Mexico Second Judicial District
Judge Nan Nash issued a landmark decision that terminally ill,
mentally competent adults have a fundamental right to aid in
dying under the substantive due process clause of the New
Mexico State Constitution. On February 6, 2014, the Canada
Supreme Court ruled that prohibition of assisted dying
violates the right to life, liberty and security of the person
and is not in accordance with principles of fundamental
justice.
The AIDS Healthcare Foundation writes that when a person with
HIV reaches the end of life with treatment options no longer
available, it is inhumane that we fail to provide them with
the choice that would bring them peace. The Secular Coalition
for California supports the development of new public policy
based on science and reason and indicates that the benefits of
this bill are supported by extensive scientific study and
data. They strongly encourage policymakers to base their
decisions regarding this legislation on sound, tested
evidence, not superstition and unsubstantiated fear-mongering.
Equality California indicates that this issue is particularly
important to them because of its impact on the lesbian, gay,
bisexual, and
transgender community. The roots of the "death with dignity"
movement owe much to mothers of men dying painfully during the
early days of the AIDS epidemic.
Almost one hundred physicians have registered their support
for this bill. Many write about witnessing patients suffer
horrifically painful deaths because the standard of care
medication management and surgery is not effective at
controlling terminal pain. Pain medication can cause
disabling side effects. One physician writes that providing
terminally ill patients with this humane option is preferable
to the desperate and covert self-help practices some patients
are currently forced to employ. Providing this autonomy and
choice to the vulnerable and dying is one of the last
SB 128 (Wolk) Page 22 of ?
comforting things we can do for our fellow humans. Another
physician writes that patients and families have asked for
relief from suffering but he has been unable to provide this
which he believes is his role as their physician. A physician
and cancer patient indicates he has urged the California
Medical Association (of which he is a member) to take a
neutral position on this bill. He asserts that palliative
sedation is a poor substitute to offer as an alternative, and
he would not want to rely on a doctor sedating him into
unconsciousness in preference to having the key to exit in his
own possession.
2.Opposition. The California Disability Alliance indicates it
has a broad agenda for promoting health, independence and full
community inclusion of persons with disabilities but is
convinced that legalizing physician assisted suicide or
euthanasia in the present environment of increasingly
cost-driven health care budgeting decisions will adversely
affect their efforts to achieve these goals and will result in
unnecessary deaths among people in poverty, people with
disabilities, and elderly people. California Family Alliance
states there is no true way to protect against undue influence
for those who seek to profit from a patient's early death.
The California Family Alliance writes the true compassionate
approach is to provide terminal patients with a variety of
viable life-affirming options, including physical, mental and
emotional support. The California Foundation for Independent
Living Centers believes that people with disabilities and
their families will still face more subtle, behind-the-scenes
forms of persuasion coercion. The disability community is
convinced that the perception that death is preferable to
living with a disability is still pervasive. The Arc and
United Cerebral Palsy California Collaboration opposes this
bill based on a long and shameful history and on recent
experience, people with developmental disabilities and their
families simply do not believe that any regulations and
safeguards will actually protect them adequately from being
pressured or even forced into ending their lives prematurely.
The Association of Northern California Oncologists opposes this
bill because it is contrary to a physician's oath and primary
responsibility to do no harm, legalizing physician-assisted
suicide undermines the valuable and overwhelmingly successful
work of hospice and pain and palliative care colleagues, and
SB 128 (Wolk) Page 23 of ?
the legislation is based on a common misunderstanding that it
is easy to determine when a patient is terminal.
Hematologists/oncologists are the first to recognize that it
is notoriously difficult for physicians to know when their
patients are terminal. Data from Oregon finds that many
patients have been prescribed life-ending medications and have
lived more than a year after the prescription has been filled.
The Agudath Israel of California, a Jewish advocacy group, is
concerned because of California's diversity and more advanced
medical system with many more large and advanced medical
centers that they are not sure the same results would be seen
here as in Oregon. The Alliance of Catholic Health Care
(Alliance) indicates that California law already gives every
patient the right to refuse extraordinary end of life
treatment. Both the Alliance and the California Hospital
Association are opposed to this bill not allowing sanctions on
health care providers who participate in aid in dying contrary
to a hospital's policy. The Alliance also fears that if aid
in dying becomes a legal right or "settled law," it will be
extremely difficult to limit it to a small group of terminal
patients. Additionally, the Alliance is concerned that once a
patient obtains a lethal dose of drugs there is no
transparency and cites a quote associated with the Oregon
Department of Human Services "?the reporting requirements can
only ensure that the process for obtaining lethal medications
complies with the law." The Alliance states that we cannot
determine whether physician-assisted suicide is being
practiced outside the framework of the Death with Dignity Act.
The Alliance also refers to a Yale study of the Netherlands
that indicated in 18 percent of the cases there were
complications and the physician intervened and ended the life
of the patient. The Alliance also raises concerns that there
is no definition of active euthanasia. Several thousands of
individuals registered their opposition including some
physicians. One physician writes that the bill wrongly
assumes all physicians are ideal moral agents. Physicians are
under increasing stress, workloads and cost pressures. It
takes no great skill and very little time to write a lethal
prescription and it takes consummate skill and lots of effort
to provide good end of life care.
3.Concerns. The California Medical Association expresses
concerns that physician assisted suicide would undermine trust
in the physician-patient relationship, as patients may fear or
suspect that a physician will steer them toward physician
SB 128 (Wolk) Page 24 of ?
assisted suicide rather than pursing a more difficult course
of treatment. CMA is also concerned that some patients may
feel pressured or coerced to accept physician assisted
suicide, particularly if the patient feels obligated to
relieve their loved ones of the burden of caring for them.
CMA writes that the right to fatal, life-ending medications
would become an expectation, and ultimately a duty, fueled by
those members of society whose existence is expensive or
otherwise could be considered burdensome.
4.Policy Comments.
a. Oregon as a Model. Some of the provisions contained
in the laws in Oregon, Washington and Vermont identified
in comment 7 could be argued are safeguards that have
contributed to the successful implementation in those
states. The authors may wish to reconsider their
inclusion in SB 128.
b. Reporting Agency. SB 128 requires the DPH, in
consultation with DSS, to establish reporting
requirements for physicians and pharmacists. As noted at
a recent Senate Budget Subcommittee on Health and Human
Services hearing, on March 3, 2015, the State Auditor
notified the Legislature that DPH remains a high-risk
agency due to weakness in program administration and
because it has been slow to implement recommendations,
especially those that have a direct impact on public
health and safety. DPH delivers a broad range of public
health programs. Some of these programs complement and
support the activities of local health agencies in
controlling environmental hazards, preventing and
controlling disease, and providing health services to
populations who have special needs. Others are solely
state-operated programs, such as those that license
health care facilities. Given the challenges at DPH the
authors may wish to reconsider giving DPH this reporting
responsibility. Additionally, it is not clear why DSS
has been included as a consulting agency. If DPH remains
as the reporting agency, the authors may wish to consider
adding a deadline on when the regulations should be
promulgated and when first report and annual reports are
expected. It is also not clear what action DPH can take
if the physicians and pharmacists do not comply with the
reporting requirements.
SB 128 (Wolk) Page 25 of ?
c. Hospice. As indicated in the IOM report, hospice is
an important approach to addressing the palliative care
needs of patients with limited life expectancy and their
families. For people with a terminal illness or at high
risk of dying in the near future, hospice is a
comprehensive, socially supportive, pain-reducing, and
comforting alternative to technologically elaborate,
medically centered interventions. In fact, the director
of the Seattle Cancer Care Alliance, Dr. Anthony Back,
indicates in a September 24, 2014, Medscape interview,
that hospice is especially for patients who have the
option for dying at home. "Hospice mobilizes all those
resources and helps organize them and helps connect them
to the team and the clinic or the hospital. That's part
of showing patients that we can provide this continuous
care that flows from the hospital to the clinic to the
home. So palliative care and hospice are linchpins. It
would be weird to have some kind of protocol for assisted
suicide if you didn't have really good palliative care in
place." Vermont requires the physician to record in the
patient's medical record an attestation that the patient
was enrolled in hospice care at the time of the patient's
oral and written requests for medication to hasten his or
her death or that the physician informed the patient of
all feasible end-of-life services. The authors may wish
to consider a requirement that the patient is receiving
either hospice or palliative care at the time of the
request for aid in dying medication. This would ensure
that the patient has access to pain management and
emotional support at the time of the request.
d. Model notice. Opponents have referred to two Oregon
patients with terminal cancer who were sent notifications
by an Oregon health plan (the equivalent of a Medi-Cal
managed care plan) that denied cancer treatment but
offered coverage for end-of-life care including physician
aid in dying. The authors may wish to consider
amendments to ensure that notifications from health plans
regarding aid in dying coverage are carefully crafted to
not convey a message that a person may interpret as being
pressured by the plan to end his or her life earlier than
through the natural progression of the terminal illness.
This could be accomplished by the development of a focus
tested model notice by health insurance regulators in
consultation with interested stakeholders.
SB 128 (Wolk) Page 26 of ?
5.Technical and clarifying amendments.
a. The bill requires an interpreter to be qualified as
described in subparagraph (H) of paragraph (2) of
subdivision (c) of Section 1300.67.04 of Title 28 of the
California Code of Regulations. It is not clear what
qualifications are being required. The regulation refers
to health plan standards. Since aid in dying is not
guaranteed to be a covered benefit, it is not appropriate
to reference the plan standards. However, the regulation
also references standards promulgated by the California
Healthcare Interpreters Association or the National
Council on Interpreting in Healthcare. The authors may
wish to amend this bill to reference these standards
directly.
b. Opponents have raised a concern that the law could
be interpreted to allow a patient to get around the two
requests at least 15 days apart requirement. The concern
is that if a physician declines the request, upon
requesting consideration by a second physician, the two
requests within 15 days would be met even though the two
requests were not made to the same provider. The authors
may wish to make it clear that the requirements under
443.3 must be made to the same attending physician.
SUPPORT AND OPPOSITION :
Support:
AIDS Healthcare Foundation
Alameda County Board of Supervisors
American Federation of State, County and Municipal Employees,
AFL-CIO
American Medical Student Association
American Medical Women's Association
California Council of Churches IMPACT
California Primary Care Association
California Senior Legislature
Compassion & Choices
Conference of California Bar Associations
Congress of California Seniors
County of Santa Cruz, Board of Supervisors
Death with Dignity National Center
SB 128 (Wolk) Page 27 of ?
Democratic Party of Orange County
Democratic Party of Santa Barbara County
Equality California
Gay and Lesbian Medical Association
Gray Panthers of Long Beach
Hemlock Society of San Diego
I Care for Your Loved One: Compassionate Senior Services
Insurance Commissioner Dave Jones
Laguna Woods Democratic Club
Lompoc Valley Democratic Club
National Center for Lesbian Rights
National Council of Jewish Women California
Older Women's League of San Francisco
Progressive Democrats of America, California
San Francisco for Democracy
San Mateo County Democracy for America
Secular Coalition for California
Sonoma County Democratic Party
Trinity County Progressives
U.S. Senator Dianne Feinstein
Thousands of individuals
Oppose:
Agudath Israel of California
Alliance of Catholic Health Care
Arc and United Cerebral Palsy California Collaboration
Association of Northern California Oncologists
Autistic Self-Advocacy Network
California Catholic Conference
California Disability Alliance
California Family Alliance
California Foundation for Independent Living Centers
California Hospital Association
California Nurses for Ethical Standards
California ProLife Council
Calvary Chapel Golden Springs
Capitol Resource Institute
Concerned Women for America
Dignity Health
Disability Rights Education and Defense Fund
Faith and Public Policy (Ministry of Calvary Chapel Chino Hills)
International Life Services
Life Legal Defense Foundation
SB 128 (Wolk) Page 28 of ?
Life Priority Network
Medical Oncology Association of Southern California
Mission Hospital (St. Joseph Health)
Mission Hospital Laguna Beach
National Right to Life Council
North Orange County ProLife Chapter
Pajaro Valley Senior Coalition
Petaluma Valley Hospital
Providence Health and Services
Queen of the Valley Medical Center
Redwood Memorial Hospital
San Joaquin ProLife Council
Santa Rosa Memorial Hospital
Scholl Institute of Bioethics
Sisters of Social Service of Los Angeles
St. Joseph Hospital, Eureka
St. Joseph Hospital, Orange
St. Mary Medical Center
Thousands of individuals
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