CA 2021 SB 380 Amendments to Expansion of End of Life Option Act: Analysis
Note: The Expansion of the “End of Life Option Act” was amended by the Senate Health Committee on March 25, 2021. There may be additional amendments in the next weeks. Such information will be posted on this web page.
When the existing “End of Life Option Act” was passed, its proponents said that it contained “safeguards.”
Now those proponents are attempting to amend that law, referring to some of those existing “safeguards” as “barriers.”
In fact, in any state where such a law has been passed, there is no way to know what happens after the prescription for a lethal drug overdose is filled.
The expansion of the existing California “End of Life Option Act” bill is based on an inaccurate claim that the current law is too restrictive and that the Oregon law on which it was based has been free of abuse.
Senator Susan Eggman authored the existing “End of Life Option Act”[1] when she was in the California Assembly. The California law was modeled on Oregon’s “Death with Dignity Act.” Eggman is the coauthor of the proposed expansion to the law. She stated that “There’s been over 30* years of data from the state of Oregon that says there’s been no abuses.”[2] This is dangerously misleading.
Here is what the data from Oregon shows:
“Safeguards” are disregarded and no one has been disciplined.
Referring to assisted-suicide cases that were in violation of the law, Dr. Katrina Hedberg who was the lead author of many of Oregon’s official reports said, “[T]here have been a number over the years.”[3] Asked if complications are investigated or reported, Hedberg replied, “[W]e are not given the resources to investigate….[N]ot only do we not have the resources to do it, but we do not have any legal authority to insert ourselves.”[4]
David Hopkins, Data Analyst for Oregon’s Center for Health Statistics, said, “We do not report to the Board of Medical Examiners if complications occur; no, it is not required by the law and it is not part of our duty.”[5]
Data for reports is based on self-reporting by doctors who prescribe lethal drugs. Asked if there is any systematic way of finding out and recording complications, Hedberg replied, “Not other than asking physicians.”[6] Furthermore, Hedberg said, “After we issue the annual report, we destroy the records.”[7]
There are no penalties for non-reporting or for inaccurate or incomplete reporting. Oregon officials say that the state has no authority and no funding to examine the accuracy of the reports.[8]
The lack of sufficient information is still evident in even the most recent official Oregon report. Although the official reports indicate that complications are to be reported, complications are reported as “unknown” in 57% of deaths in the official report issued in February 2021.[9]
Once a doctor-prescribed suicide bill becomes law, there is no way to determine what happens once the prescription for the lethal drugs is filled.
As with Oregon’s law, California’s existing law does not provide any means to investigate problems or abuse.
At the time the California law went into effect, Dr. Hedberg was interviewed by the Los Angeles Times about Oregon’s law. She stated, “One thing is, the law itself writes what all the steps up to the point a prescription is written but really does not address what happens between the writing of the prescription and the time of death.”[10]
SB 380 would permit a prescription for lethal drugs to be provided within less than a week after a patient has been diagnosed with a terminal disease.
The bill would do away with a requirement that a person requesting the assisted-suicide drugs make two oral requests at least 15 days apart, followed by a written request. The amended expansion bill would permit a prescription for the drugs to be provided after a person makes two oral requests 48 hours apart and a written request.[11]
SB 380 will require doctors who are unable or unwilling to provide patients with the drugs to end their lives must inform the patients of their right to transfer care to a willing provider.
If a patient requests the drugs to cause death after being diagnosed with a terminal disease but the doctor is unable or unwilling to prescribe the lethal overdose, the patient may request their information, including their diagnosis, requests, and documented date of the requests. The requests and relevant information must be transferred to a willing provider.[12]
Such referrals have been made under the existing law.
The oral requests need not be to the doctor who prescribes the drugs.
Dr. Lonny Shavelson, ran a clinic called “Bay Area End of Life Options” for several years. The clinic was referred to as “a sort of one-stop shop for assisted death.”[13] Shavelson eventually stopped his practice, saying he did so because other doctors were using him as a kind of crutch. He explained that he often received calls from other doctors who refused to perform assisted death or who were forbidden to do them by the hospitals or hospices where they worked.[14] In a letter to other physicians, he said that by bowing out, he might force their hand to carry out the process themselves.[15]
A book titled “The Inevitable: Dispatches on the Right to Die,” described how Shavelson referred to himself when talking to his 90th assisted-suicide patient on the day of his death: “Let me help you a little bit. Do you remember that I’m the doctor who is here to help you die?”[16]
If SB 380 passes, it is likely that there will be more “one-stop shops” for assisted deaths.
Although providers are required to submit information about their provision of assisted suicide, the annual reports based on those submissions do not contain any data regarding complications, reasons for requesting the lethal drugs and, for the limited data provided. Much is listed “unknown.”
The latest California annual report, released in July 2020, reported that the characteristics of the EOLOA [End of Life Option Act] individuals following ingestion of an aid-in-dying drug were:
- Insurance status: “Unknown” for 9.9%.
- Whether the patients had hospice and/or palliative care: “Unknown” for 6.9%.
- What aid-in-dying drugs were used: “Unknown” for 14.6%
- Whether a physician or trained healthcare provider was present at ingestion: “No” for 14.3% and “Unknown” for 37.8%.[17]
Even this limited information cannot be used to uncover and investigate problems and abuses.
The existing law states that the State Department of Public Health must collect and review the data which is reported to the state after a patient dies from legally-prescribed lethal drugs, the data collected “shall not be disclosed, discoverable, or compelled to be produced in any civil, criminal, administrative, or other proceeding.”[18]
If, for example, a family member finds out that someone coerced or forced a loved one into signing an assisted-suicide request form and, when the lethal drugs were obtained, that same person forced the loved one to take them, the law prevents authorities from getting the needed data for an investigation into the loved one’s death.
Under the existing End of Life Option law, assisted suicide is already considered a “medical treatment.”
Under the existing law, there is documented information about terminally ill patients in California who were denied coverage for treatment by insurance providers and, instead, were told that doctor-prescribed suicide would be covered.[19]
In California, after finding that her insurance company would not cover the chemotherapy her doctor had prescribed, a woman asked if assisted suicide was covered under her plan. She was told, “Yes, we do provide that to our patients, and you would only have to pay $1.20 for the medication.”[20]
California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[21]
The existing law states that the law will remain in effect until January 1, 2026 at which time it will be repealed by its own terms, unless further extended by the Legislature.[22]
SB 380 repeals that “sunset clause.”
If SB 380 passes, Governor Newsom’s signature on it is virtually assured.
In a November 2018 article in The New Yorker, Governor Gavin Newsom described how he and his sister had helped his mother commit suicide in May 2002 [fourteen years before the End of Life Option Act went into effect].[23]
……………………….
* Eggman was incorrect about the number of years the Oregon law has been in effect. It went into effect 24 years ago.
[1] “Senator Susan Talamantes Eggman” bio, Available at: https://lgbtqcaucus.legislature.ca.gov/senator-susan-talamantes-eggman. (Last accessed 3/13/21.)
[2] “CA Bill Would Expand Access to Aid-in-Dying Law,” Public News Service,” February 12, 2021. Available at: https://www.publicnewsservice.org/2021-02-12/health/ca-bill-would-expand-access-to-aid-in-dying-law/a73145-1. (Last accessed 3/13/21.)
[3] The testimony was published in: House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, “Assisted Dying for the Terminally Ill Bill [HL]” Volume II: Evidence. Apr. 4, 2005. (Hereafter referred to as HL) Pg. 257, Q. 555. Available at: http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86ii.pdf (Last accessed April 18, 2016).
[4] Hedberg, HL, p. 266, Q. 615.
[5] Hopkins, HL, p. 259-260, Q. 568.
[6] Hedberg, HL, p. 263, Q. 597.
[7] Hedberg, HL, p. 262, Q. 592.
[8] Hedberg, HL, pp. 259, 262 and 266.
[9] Official report for 2020 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2020 Data Summary,” pg. 12. Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year23.pdf. Pg. 12. (Last accessed 3/13/21.)
[10] Patt Morrison, “Patt Morrison Asks: Dr. Katrina Hedberg,” Los Angeles Times,” June 8, 2016. Available at: https://www.latimes.com/opinion/op-ed/la-oe-patt-morrison-aid-in-dying-20160607-snap-story.html. (Last accessed 3/13/21.)
[11] Section 443.3 (a).
[12] Section 443.14 (e) (2).
[13] Katie Engelhart, The Inevitable: Dispatches on the Right to Die, “Chapter 1: “Modern Medicine.” (New York, St. Martin’s Press, 2021.)
[14] Katie Engelhart, “I’m the Doctor Who Is Here to Help You Die,” The Atlantic, March 1, 2021. Available at: https://www.theatlantic.com/health/archive/2021/03/aid-dying-lonny-shavelson/618139. (Last accessed March 15, 2021.)
[15] Katie Engelhart, The Inevitable: Dispatches on the Right to Die, “Chapter 1: “Modern Medicine.” (New York, St. Martin’s Press, 2021.)
[16] Katie Engelhart, “I’m the Doctor Who Is Here to Help You Die,” The Atlantic, March 1, 2021. Available at: https://www.theatlantic.com/health/archive/2021/03/aid-dying-lonny-shavelson/618139. (Last accessed March 15, 2021.)
[17] “California End of Life Option Act 2019 Data Report.” (Issued July 2020) Pg. 9. Available at: https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPHEndofLifeOptionActReport2019%20_Final%20ADA.pdf. (Last accessed 3/17/21.) [18] California “End of Life Option Act,” Division 1 of the Health and Safety, Part 1.88, Section 443.19 (a). (Emphasis added.)
[19] See, for example: Bradford Richardson, “Assisted-suicide law prompts insurance company to deny coverage to terminally ill California woman,” Washington Times, October 20, 2016. Available at: http://www.washingtontimes.com/news/2016/oct/20/assisted-suicide-law-prompts-insurance-company-den. (Last accessed 2/19/21.)
[20] Bradford Richardson, “Assisted-suicide law prompts insurance company to deny coverage to terminally ill California woman,” Washington Times, October 20, 2016. Available at: http://www.washingtontimes.com/news/2016/oct/20/assisted-suicide-law-prompts-insurance-company-den. (Last accessed 2/19/21.)
[21] Kimberly Leonard, “Californians Can Choose to Die – With the Help of Taxpayers,” U.S. News & World Report, March 21, 2016. Available at: https://www.usnews.com/news/articles/2016-03-21/in-california-government-to-pick-up-the-tab-for-death-with-dignity. (Last accessed 2/19/21.)
[22] Section 443.215 of the Health and Safety Code.
[23] “In May, 2002, his mother decided to end her life through assisted suicide….The night before we gave her the drugs, I cooked her dinner, hard-boiled eggs, and she told me, ‘Get out of politics.’ She was worried about the stress on me.” Tad Friend, “Gavin Newsom, The Next Head of the California Resistance,” The New Yorker, November 5, 2018. Available at: https://www.newyorker.com/magazine/2018/11/05/gavin-newsom-the-next-head-of-the-california-resistance. (Last accessed 3/18/21.)
3/30/21
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