Review of the Current “Right to Die” Statue: Are the Protections Against Undue Influence Sufficient?

On October 5, 2015, Governor Jerry Brown signed the “End of Life Option Act,” also known as ABX2-15, which provides terminally-ill patients with an estimated six months or less to live the option to self-administer prescribed life-ending drugs. Prior to its passing, high-profile cases, such as the case involving 29-year old terminally-ill patient, Brittany Maynard, who moved from California to Oregon to legally end her life, brought to the forefront the debate regarding terminally-ill patients and their right to die.

While the focus of the law is to provide terminally-ill patients with the choice to end their lives on their own terms, California’s “right to die” statute may have the potential to be abused by ill-moral family members of terminally-ill patients who see life-ending drugs as a vehicle to a quicker inheritance. While the End of Life Option Act provides protections against undue influence, are those protections enough?

Who Qualifies for Aid-in-Dying Drugs Under this Act?

The End of Life Option Act allows California residents who are terminally-ill patients with an estimated six months or less to live, to have the option to request aid-in-dying drugs. A “terminally-ill patient” is a person who has received medical confirmation that he or she is suffering from an incurable or irreversible disease with a medical prognosis of six months or less to live. The patient requesting the end of life drugs must be found to have capacity to make such a request and must be able to self-administer the aid-in-dying drugs.

Statutory Protections Against Undue Influence

Pursuant to Civil Code section 1575, “Undue influence consists 1) In the use, by one whom in confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage; 2) In taking an unfair advantage of another’s weakness of mind; or, 3) In taking a grossly oppressive and unfair advantage of another’s necessities or distress.” While it is unthinkable that a family member or friend of a terminally-ill patient could take unfair advantage of that terminally-ill patient’s weakness of mind or distress in order to benefit financially, such immoral actions are not uncommon in the probate world.

The drafters of ABX2-15 took aim against family members or friends of terminally-ill patients who may exert undue influence by including certain safeguards to help protect against such unthinkable behavior. One safeguard is the requirement that the terminally-ill patient be found to have capacity to request the end of life drug before it is prescribed. Probate Code section 4609 defines a person as having capacity when “the person has the ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” It is the terminally-ill patient’s doctor, psychiatrist or psychologist who is to make the decision as to whether the patient has capacity.

Another safeguard against the threat of undue influence is the requirement that the request for the aid-in-dying drugs be made only by the terminally-ill patient. The statute specifically prohibits a family member, an agent under a Power of Attorney or Advanced Health Care Directive or a conservator from making such a request on behalf of the patient.

Not only must the request for the life-ending drug come only from the terminally-ill patient, but the request must be communicated directly to the physician by the patient and must be requested on three separate occasions. Two of the three requests for the drug can be communicated verbally to the doctor, but the third request must be in writing and signed and dated by the patient in the presence of two witnesses. Only one of the witnesses may be related to the patient by blood, marriage, registered domestic partnership, adoption or be entitled to a portion of the terminally-ill patient’s estate. In addition, the attending doctor cannot be related to or entitled to a portion of the patient’s estate.

Finally, the End of Life Option Act requires that the prescribing doctor “confirm that the patient’s request does not arise from coercion or undue influence by another by discussing with the patient, outside the presence of any other people, whether the patient is feeling coerced or unduly influenced.” The statute makes it a felony for anyone who knowingly coerces or unduly influences another to request or ingest the aid-in-dying drug.

Does the End of Life Option Act Provide Sufficient Safeguards Against Undue Influence?

While the statute attempts to guard against undue influence, the safeguards established by the End of Life Option Act may afford insufficient protection under certain circumstances. For instance, the statute does not provide any requirement that the prescribing doctor receive any training to be able to recognize the signs of coercion or undue influence in this setting. Secondly, there is no requirement that the prescribing doctor review a copy of the terminally-ill patient’s estate planning documents in order to confirm that at least one of the witnesses to the patient’s request for life-ending drugs is not expecting to inherit money from the patient. The statute also fails to ensure that the second witness, who is supposed to be unrelated to the patient and not an heir or beneficiary of the patient’s estate, is not benefiting financially by way of a relationship with the first witness. The statute is also silent as to caretakers and whether they can fulfill the two witness requirement, despite the fact that financial abuse by caretakers is quite common. Finally, while the threat of felony prosecution may deter many law-abiding citizens, those engaged in such reprehensible conduct may not be dissuaded by future criminal consequences.

The act of unduly influencing a family member to prematurely take his or her life for ill-gotten gain is extremely serious and the safeguards to protect against such conduct should be both comprehensive and of the utmost strength. The End of Life Option Act is truly a matter of life and death; therefore, the protections it affords and the limitations of the current statute should be known and appreciated by any probate practitioner.

Moving forward, it is critical that the gatekeepers against undue influence, the prescribing doctors, uphold their responsibilities under this new law. Failure to do so and a discovery of undue influence after the fact will be too late.