26 states are currently considering right-to-die legislative proposals… are you ready for this?
By Pam McDonald
With all the controversy surrounding passage last year of California’s assisted suicide bill, I expected it to liberally open end-of-life choices for seniors. Like most Americans, I have a deep, abiding belief that we are the master’s of our own fate and that our laws guarantee us rights to choose. This is a far cry from what actually is contained in this new law.
The measure was passed in the fall and signed by the Governor on October 5, making California the 5th state – along with Oregon (since 1997), Washington, Vermont and Montana – to protect – either by law or court order – individual’s rights to choose aid in dying.
Because Senate Bill 128 was introduced during an “extraordinary session,” it won’t take effect until 90 days after that session closes. Currently lawmakers are still in extraordinary session, but expect to wrap up this month. That would make it early May before the law can go into effect.
The public’s greater acceptance of rights to die is, no doubt, reflected in the increasing number of proposals being introduced. According to a national nonprofit organization working to improve pain reduction and expand choices at the end of life, 26 other states currently are considering similar proposals – an increase from only four states in 2014.
Despite the fact that such legislation is commonly called death with dignity, end-of-life autonomy, and expanded right-to-die choices, these titles are misleading. What California’s “End of Life Option Act” actually authorizes, according to the Legislative Counsel’s Digest, is that “an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal disease . . . to make a request for a drug prescribed . . . for the purpose of ending his or her life.”
As reported in the New York Times, Bill Monning, a California senator and sponsor of the bill, said, “We’ve crafted the strongest protections of any such law that currently exists.” So, rather than expanding end-of-life autonomy, many seniors will find the law’s process, requirements, conditions, and “safeguards” prohibitive.
Attorneys Pamela S. Kaufmann & Jillian Somers Donovan with Hanson Bridgett Senior Housing and Care Practice Group produced a fact sheet, which summarizes salient provisions in California’s law. It, like the other enacted legislation, was modeled on Oregon’s law, so stipulations are similar.
End of Life Option Act
The Act allows a physically and mentally capable California resident with a terminal illness to request and self-administer aid-in-dying drugs, under the following circumstances:
Two California physicians must be consulted, one must medically confirm that the patient is incurable with an irreversible disease that will result in death within 6 months [emphasis added]
The patient, and only they, must directly request the aid-in-dying drug; relatives, conservators, or other legally recognized health care decision makers are prohibited from making such requests
Two oral requests must be made at least 15 day apart, followed by a written request to the individual’s attending physician; this request must substantially mirror the form letter included in the law
The request must be signed and dated in the presence of two witnesses, only one of whom can be related to the patient, or the owner, operator or an employee of a health care facility where the individual resides
Patients must complete a final attestation on the form provided by their physician 48 hours prior to the self-administration of the drug
The patient may, at any time, rescind his or her request
No one except the patient, including doctors and nurses, is allowed to assist the individual in ingesting the drug (as Kaufman and Donovan noted, “a skilled nursing facility resident who has mental capacity, but a disabling condition that prevents muscle movement, cannot take an aid-in-dying drug.”)
The Act makes it a felony for anyone to coerce or unduly influence a person to request or ingest an aid-in-dying drug, conceal or destroy a withdrawal or rescission of a request, or administer the drug without the person’s knowledge or consent.
The law also protects “health care providers” from liability for participating in diagnosing or qualifying a person, providing information about the law, referring to a physician who participates, being present when an individual takes the drug, and other specific activities.
However, as Kaufman and Donovan state, the law does not mention residential care facilities for the elderly or unlicensed housing, so these communities, along with the residential portion of continuing care retirement communities and multilevel retirement communities, are not protected if they participate or refuse to participate in activities described in the statute.
This leads to a series of unanswered questions, particularly for assisted living providers, including:
Can RCFEs prohibit residents from self-administering aid-in-dying drugs on their property?
Must staff call “911” if a resident is found dying after ingesting an end-of-life drug?
Can (or should) the RCFE centrally store the drug? If it does, what security measures are required to prevent unintended access to the drug?
The New York Times carried a Centers for Disease Control and Prevention’s 2010 report that the suicide rate among all Americans was 12.4 per 100,000; among those age 65+, the rate was slightly higher at 14.9. However, among men 65 and older, the rate is 29 per 100,000, which rises to 47 per 100,000 at age 85+.
According to the article, a cluster of risk factors can increase suicides in late life. These include physical illness, pain, the inability to function in daily life, fear of becoming a burden, and social disconnection because of bereavement, retirement, and increased isolation.
A combination or any one of these circumstances could lead a person to determine that for them, “enough’s enough”. But, so far, the right-to-die laws are silent about these most common reasons seniors choose to end their lives.
I say back to the drawing boards, lawmakers! At least include rules for the social care model of senior living in your legislative proposals. And acknowledge that seniors have the ability and right to determine when to shuffle off this mortal coil. Them that don’t wanna, don’t gotta!
What do you think?