In talking with personal friends and professional peers, you may have frequently heard that people do not fear death itself but rather what they may have to endure in the death process. The experience we call death occurs when the body completes its natural process of shutting down, and when the spirit completes its natural process of reconciling and finishing. These two processes need to happen in a way appropriate and unique to the values, beliefs, and lifestyle of the dying person.
Unfortunately, unless vehicles of advance directive are executed or the family had previously held open and sincere discussions about individual end of life wishes, we are often left to the protocols of first responders and emergency rooms. In extreme cases, the issues of end-of-life are settled in a courtroom, even though one does not need to be a legal scholar to understand the issue. Rather, it is one that is deeply personal and rooted in individual belief systems. Everyone faces this issue without regard to gender, state of health, or religious persuasion. The basics of any discussion about the right to die begins with respect for the person. At the core of all medical decision making is the person’s autonomy or right to self-determination.
California End-of-Life Option Act
Oregon, Washington, and Vermont have passed right-to-die legislation, and now California has even passed right-to-die legislation similar to the legislation passed in Oregon in 1997. Historically, in California, such legislation failed in 2005 and again in 2007, but has returned with a lot of safe-guards as well as a sunset provision, which allows this law to expire in 10 years unless the legislature votes to extend it. The End-of-Life Option Act, signed into law by Governor Jerry Brown on October 5, 2015, allows an individual to seek “aid-in-dying” if they have two (2) different physicians attest in writing that there is six months or less to live.
The California End-of-Life Option Act allows a “qualified individual” to request a prescription for an aid-in-dying drug. This request may only be made by the individual diagnosed with the terminal disease. No one can make this request on behalf of a terminal individual including through a power of attorney, conservator, health care agent, surrogate, or any other legally recognized health care decision maker.
The qualified individual must make a request for this prescription drug twice orally, a minimum of 15 days apart, and then a written request must also be made to the attending physician. The attending physician must receive these requests, oral and written, directly and not through any designee. The law is very explicit about the conditions of the written request and the written request must be witnessed by two individuals.
Before the attending physician writes this prescription there is a checklist the attending and consulting physician must ensure is completed. The essential elements of this checklist are also contained in the language of the law. Additionally, the law includes an informed consent clause. This informed consent again, is very specific for this law. SNFs need to understand that their current informed consents used for chemical/physical restraints are not adequate for this situation.
The qualified individual is not obligated to use the aid-in-dying drug once the prescription has been filled by a pharmacist. Neither is taking the aid-in-dying drug considered suicide.2
How Will This Affect SNFs?
Currently, federal regulations require a skilled nursing facility (SNF) to allow a resident to formulate advance directives. The formulation of advance directives is a resident right and is a discussion that usually takes place during the admission process. SNFs may want to consider if they are going to participate with qualified individuals admitted to their facility or assist them in identifying alternative placement, since participation in this program is mandatory. Additionally, it may be necessary for SNFs to have policies and procedures in place more specific to the End-of-Life Option Act. The policies and procedures ideally should include whether the facility chooses to participate in the End-of Life Option Act. A facility will want to include policies that give direction to the attending physicians as well if they choose to participate in the act. By being able to exercise their ultimate autonomy in how they choose to experience the end of life, people can die a gentle, dignified death.