California Court Reverses Ruling Against Assisted Suicide

It’s been two years, and the assisted suicide law remains controversial

The End of Life Option Act (EOLOA) went into effect in June, 2016, and it continues to be contentious.

• Opponents argue that it is both immoral and unconstitutional, that there is too much room for abuse.
• Advocates believe that terminally ill Californians deserve the right to “choose a peaceful death, free of unbearable suffering,” as per John Kappos, who represents Compassion & Choices, a group that supports the law.

A California appeals court overturned a lower court order that had reversed the state’s assisted-suicide law. The ruling reversed the May 2018 judgment from Riverside County Superior Court Judge Daniel Ottolia that declared the law unconstitutional because it was adopted during a special legislative session that addressed improving the medical system and health of Californians.

To avoid abuse, checks and balances have been carefully built into the law

The EOLOA allows adults to obtain a prescription for life-ending drugs if a doctor finds they have six months or fewer to live. For those who want to use the EOLOA, checks and balances have been carefully built into the law.

• A patient must make two oral requests, at least 15 days apart. There must be witnesses and second opinions about their conditions.
• The process is spread over time to avoid someone’s making an impulsive decision.
• EOLOA is voluntary for both patients and healthcare providers.

Doctors failed to show they were harmed by failing to help terminally ill patients

In the Riverside ruling, the doctors failed to show they were harmed. EOLOA is voluntary for doctors–they can choose not to help terminally ill patients die.

The appellate ruling has no immediate impact on the current status of the law because the appeals court had put the trial court judgment on hold during California Attorney General Xavier Becerra’s legal challenge.

News that the lower court ruling had been reversed buoyed advocates of doctor-supported death. “Our patients will be tremendously relieved,” said Dr. Catherine Sonquist Forest, a family physician in Northern California who has six terminally ill patients considering the option. “Thousands across the state will find great solace in knowing this option is there.”

Will this law yo-yo back and forth as opponents and advocates battle it out in court?

The law may be facing another legal fight, as the ruling skirted the larger issue of whether the legislation was unconstitutional. The case was sent back to the lower court, and the lawsuit could be amended and refiled. The court spelled out how the law’s challengers might be able to show harm to plaintiffs.

The Pros . . .

Justice Marsha Slough said it was not a stretch for the Legislature to consider assisted suicide as an extension of a discussion on the efficiency of the health-care system. She said there was no reason to “drag this case out” before finding lawmakers acted within their authority.

And the Cons

The Life Legal Defense Foundation, representing the doctors, is considering its options. “Assisted suicide is not health care and places countless Californians at risk of deadly harm,” said Matt Vallière of the Patients Rights Action Fund.

In 2017, the first full year assisted suicide was legal in California, 374 terminally ill people took drugs to end their lives. The District of Columbia and six other states — Oregon, Colorado, Montana, Vermont, Washington, and Hawaii — also allow assisted suicide.

A big part of end-of-life planning is creating a Living Trust. Our comprehensive Living Trust package includes a Power of Attorney and an Advance Healthcare Directive, where you can identify an Agent who will make decisions for you if you become incapacitated. Make an appointment today by contacting us at one of our three Bay Area offices. Our dedicated team is helpful, compassionate and affordable.

Judge Overturns Doctor-Assisted Suicide Law and Reopens the Debate

On May 15, Riverside Superior Court Judge Daniel A. Ottolia declared that the California legislature violated the law by passing the End of Life Option Act (EOLOA) in 2015 during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law. "We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."

The response from California Attorney Gen. Xavier Becerra

Becerra’s response: "We strongly disagree with this ruling, and the state is seeking expedited review in the Court of Appeal." Becerra has filed an appeal.

Ruling reopens an emotionally charged issue

Judge Ottolia’s ruling reopens an emotional debate on Californians’ ability to make decisions on how they will spend their final days. John C. Kappos, an attorney representing Compassion and Choices, which advocated for the law, said he believes the passage of the law was constitutional because aid in dying is a healthcare issue. "Ultimately, we are confident an appeals court will rule the Legislature duly passed the End of Life Option Act and reinstate this perfectly valid law, which the strong majority of Californians support."
Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

One view: A short-term victory for those who object

Harry Nelson, a Los Angeles healthcare attorney thinks it's unlikely the law will be overturned permanently. He said that even if the court's decision stands, the Legislature would probably be able to reinstate the law with whatever changes the court deems necessary. "I think this is a short-term victory for people who object on religious principles to the availability of this option," said Nelson, who represents several doctors who have written prescriptions under the law. Nelson believes that Ottolia's decision to give Becerra five days to file an emergency appeal was "aggressive, leaving the attorney general's office with a really narrow window to do everything they need to do to get the court of appeals to intervene and uphold and continue the law," he said.

An opposing view: Assisted suicide advocates circumvented legislative process

"This ruling affirms that assisted suicide advocates circumvented the legislative process," Matt Valliere, executive director of the New York-based Patients Rights Action Fund, which opposes legalizing physician-assisted suicide, said in a statement. "It represents a tremendous blow to the assisted suicide legalization movement and puts state legislatures on notice regarding the political trickery of groups like Compassion and Choices."

EOLOA: A look back and a look forward

• California’s End of Life Option Act was signed into law in 2015, and the law went into effect on June 9, 2016.
• In the first six months, more than 100 people used the law to end their lives.
• California's data from the law's first six months show that 173 physicians wrote 191 prescriptions statewide.
• The law allows patients with fewer than six months to live to request end-of-life drugs from their doctors.
• The law’s passage was controversial and it has remained a divisive issue. Conservatives argue that the limits on euthanasia gradually erode, and that the law endangers the weak and marginalized. In the years since the law went into effect, groups opposing assisted suicide have continued to lobby for its repeal.
• Writing the lethal prescriptions is voluntary for doctors and medical facilities in California; some, including all Catholic and church-affiliated hospitals, have not allowed their physicians to prescribe such medicines.

For those who want to use the EOLOA, checks and balances are carefully built into the law. A patient must make two oral requests, at least 15 days apart. There must be witnesses and second opinions about their conditions. The process is spread over time to avoid someone’s making an impulsive decision.
Becerra is expected to file an appeal to a higher court, but he is yet to do so. Experts believe it is unlikely that the decision will affect assisted suicide in California in the long term. Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

Creating an Advanced Healthcare Directive

End-of-life care options can be detailed in an Advanced Healthcare Directive that is part of our comprehensive Living Trust package. Contact California Document Preparersat one of our three Bay Area offices to get started today. Our dedicated team is helpful, compassionate and affordable.

New ‘Instructions’ Could Let Dementia Patients Refuse Spoon-Feeding

June marks the two-year anniversary of California’s End of Life Options Act (EOLA). Between June 9 and December 31, 2016, 111 patients were reported to have died following ingestion of aid-in-dying drugs prescribed under EOLA.

While controversial, the law has stringent controls

The law has been extremely controversial, opposed by many groups who argue that it creates too many opportunities for abuse. Yet the law, as it is structured, has stringent controls. Those with fatal, debilitating diseases who wish to take their own lives must get their doctor’s order and an opinion from a second doctor about the severity of their conditions. The act must be carried out within a certain time frame. The fact that there have been relatively few assisted suicides in California since the law was passed indicates to many that the law is fair and is working.

AHD: The legal document that allows people to detail how they want to die

At California Document Preparers, our Living Trust package includes an Advance Healthcare Directive (AHD). It is this document in which people can detail their final wishes about how they will die—if they want nursing care or prefer to die at home. If they want to be surrounded by their families or if they prefer to enlist the care of hospice and refuse artificial efforts to be kept alive. AHDs are the legal documents that record the ability to halt interventions, treat the patient’s pain and allow them to die as peacefully as possible. An AHD includes patients diagnosed with progressive dementia who can make end-of-life decisions before the disease robs them of their ability to sign legal documents. This practice has not included provisions to refuse food and fluids offered by hand—until now.

Washington state has new end-of-life guidelines for dementia patients

A Washington state agency, End of Life Washington (EOLWA), advocates for medical aid in dying and has created guidelines for dementia patients who don’t want to be spoon-fed at the end of life. The group helps people using the state’s 2009 Death with Dignity Act, recently posted new Instructions for Oral Feeding and Drinkingon its website.

The guidelines are directed at those with Alzheimer’s diseaseand other progressive forms of dementia. It instructs caregivers not to provide oral food or fluids under certain circumstances. “These instructions are groundbreaking for patients who fear losing control not only of their faculties but of their free will to live and die on their terms”, said Sally McLaughlin, executive director of EOLWA. “We get calls from people with concerns about their loved ones with dementia feeling like they’re being force-fed. Those with dementia understand that as they stop eating, they would like no one else to feed them.”

The new guidelines have both their critics and proponents

As with the death with dying law before it, these new guidelines have their share of critics who have concerns about potential mistreatment of vulnerable patients. They fear that these guidelines could be used essentially to starve the elderly or incapacitated. Proponents welcome the new guidelines, believing that they help define the uncertainties surrounding assisted feeding at the end of life.

Guidelines target those who show signs of not wanting food

The guidelines do not apply to people with dementia who still get hungry and thirsty and want to eat and drink, the authors note. “If I accept food and drink when they’re offered to me, I want them,” the document states. But if the person appears indifferent to eating, or shows other signs of not wanting food, turning away, spitting food out, coughing or choking, according to the guidelines, this is when attempts to feed should be stopped, and it’s at this point that caregivers should respect those actions.

“No matter what my condition appears to be, I do not want to be cajoled, harassed or forced to eat or drink,” the document states.

The new guidelines are not legally or ethically binding. It’s important to keep in mind that these are guidelines; they are neither legally nor ethically binding. They do, however, bring increased visibility to an issue that we likely will hear more about as the baby boomer population ages. Nearly two dozen states have laws that address assisted feeding, including many that prohibit withdrawing oral food and fluids from dying people.

An Advance Healthcare Directive is part of our Living Trust package

An AHDis part of our Living Trust package. If you need to create or update your Trust, contact California Document Preparersat one of our three Bay Area offices todayto schedule an appointment.Our dedicated team is helpful, compassionate and affordable.