David G. Jensen, JD
former Staff Attorney
The Therapist
September/October 2017

Suppose a patient calls and says he is going home to kill himself by taking a hand-full of Ativan he has been stock-piling. He called to say “Good bye” and “Thank you” because you have been a help to him since his wife’s sudden passing, which was just about a year ago. But, he cannot get over the grief and would rather be with her than here.

Then, suppose another patient calls. You know he has cancer, and you have been helping him explore existential issues. He tells you his attending physician has prescribed the “aid-in-dying drug” (“Drug”) for him to self-administer to end his own life. He also wanted to say “Good bye” and “Thank you” before going home to meet with his family and to listen to Pachelbel’s Canon a few more times before self-administering the Drug, which will end his life. Since both situations involve patients taking medications to end their lives, what are your legal and ethical obligations in each case, and are they the same?

These situations are very different. Just like a hiker needs to recognize fresh bear tracks from fresh deer tracks, psychotherapists need to recognize the differences between two similar but disparate situations: The first is a patient desiring to end his or her life by committing suicide. The second is a patient desiring to end his or her own life via compliance with California’s “End of Life Option Act” (“Act”),¹ which became law in June 2016.

With the first patient described above, the psychotherapist has a patient with very active suicidal ideation; hence, the psychotherapist’s legal obligation would necessitate taking reasonable measures to try and prevent the suicide from occurring. In a case like this, with its high degree of imminence, calling the police or the psychiatric emergency team immediately sounds very reasonable. Referring the patient to a psychiatrist for a medication evaluation does not.

The second patient’s case is different, however, because of the Act, which allows adult Californians (18 years or older) with terminal diseases to end their own lives by self-administering the Drug.² The purposes of the Act are to prevent needless suffering by patients with terminal diseases and to give them some autonomy over the timing of their own deaths. Critics of the law argue that doctors are playing God and vulnerable people will be exploited and victimized.

Hence, assuming your patient and his or her attending physician have complied with the requirements of the Act, your legal and ethical obligations with such a patient would be to honor the patient’s autonomy and not take otherwise reasonable measures to try and prevent the patient from ingesting the Drug, although this inactivity likely goes “against the grain” of your training as a psychotherapist.

The passage of the Act is a game-changer for the legal and ethical obligations of psychotherapists in California and licensed marriage and family therapists (“LMFTs”) must understand the salient points of it.

California’s End of Life Option Act
In an attempt to ensure that the decision to end one’s life by self-administering the Drug is reasonable, the Act has built into it many safeguards. To be able to obtain the Drug, among other obligations, a patient must:

1. Have the “capacity to make medical decisions,” meaning, in the opinion of the patient’s attending physician, that the patient has the ability to understand the nature and consequences of a health care decision; the ability to understand its significant benefits, risks, and alternatives; and, the ability to make and communicate an informed decision to health care providers.³
2. Have a “terminal disease,” meaning an incurable and irreversible disease that has been medically confirmed and will, within the parameters of reasonable medical judgment, result in the patient’s death within six months.⁴
3. Verbally and voluntarily request the Drug from the patient’s “attending physician,” meaning the physician who has primary responsibility for the patient and treatment of the patient’s terminal disease, and these requests must be separated by fifteen days.⁵
4. Submit a written request for the Drug to his or her attending physician. Such request must be signed and dated by the patient in the presence of two witnesses.⁶
5. Reside in California, with residency being established by some form of California-issued identification card, including a driver’s license, being registered to vote in California, owning or leasing property in California, or filing a California tax return for the most recent tax year.⁷

Once the Drug has been obtained by the patient, he or she must “self-administer” it, meaning the patient must make an affirmative, conscious, and physical act to administer and ingest it.⁸ A third person also present with the patient may prepare the Drug for self-administration so long as such person does not assist the patient in administering it. Any facts suggesting that a third party did not adhere to this process, or suggest that the self-administration of the Drug was due to the undue influence or coercion of the patient by a third party, likely triggers the reporting of suspected elder or dependent adult abuse.

Additionally, the Drug cannot be ingested by the patient in a “public place,” meaning a street, alley, park, public building, a place of business or assembly open to or frequented by the public, or any other place that is open to the public view, or to which the public has access.”⁹

By way of information, the attending physician’s responsibilities under the Act are set forth primarily in Health & Safety Code § 443.5, and before prescribing the Drug, among other obligations under the Act, the attending physician must:

1. Determine whether the patient has the “capacity to make medical decisions,” and, if there is any indication of a mental disorder affecting such ability, the physician must refer the patient to a mental health specialist, meaning a psychiatrist or a psychologist, for assessment of the patient’s capacity.
2. Determine that the patient has a “terminal disease,” meaning an incurable and irreversible one that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.
3. Determine that the patient has “voluntarily” made the verbal and written requests for the Drug.
4. Confirm the patient’s residency in California and that the patient has complied with his or her obligations under the Act.
5. Confirm that the patient is making an informed decision about ingesting the Drug.
6. Refer the patient to a “consulting physician” for confirmation of the patient’s diagnosis and prognosis, and for consideration of the patient’s “capacity to make medical decisions.”
7. Refer the patient to a “mental health specialist,” meaning a psychiatrist or a licensed psychologist, if the patient exhibits signs of a mental disorder.¹⁰
8. Confirm that the patient’s request for the Drug is not resulting from the undue influence or coercion of a third-party.
9. Inform the patient that he or she may withdraw or rescind the request for the Drug at any time and in any manner.
10. Offer the patient an opportunity to withdraw or rescind the request for the Drug before prescribing it.

LMFTs and Their Code of Ethics
The CAMFT Ethics Committee has not addressed the role of LMFTs in relation to patients who have elected to end their own lives under the Act. Obviously, the right of adult Californians to end their own lives pursuant to the Act was not on the radar when the CAMFT Code of Ethics was originally promulgated. In the absence of a specific standard we must look to other code sections for guidance.

CAMFT Code of Ethics 1.4 and 1.4.1 generally require LMFTs to “respect the right of patients to make decisions …” and to “respect patient choices and work jointly with patients to develop and review treatment plans that are consistent with patients’ goals and that offer a reasonable likelihood of patient benefit.”

The concept of “patient benefit” within the confines of standard 1.4.1, likely means a benefit that has a reasonable chance of succeeding as a result of the therapy the clinician provides. However, with a “terminal disease,” there is nothing that a psychotherapist can do to reverse the irreversible or cure the incurable. Hence, in terms of the issue of “patient benefit,” with a patient who has elected to end his or her own life under the Act, one argument is that the requisite benefit for the patient would be an end to that patient’s suffering from his or her terminal disease.

If you are philosophically, morally, or religiously opposed to the whole idea of the End of Life Option, CAMFT Code of Ethics 1.5.1 requires you to disclose such opposition to your patient, presumably so that he or she can make an informed decision about remaining in therapy with you.

How Will I Know if the Patient has Complied with the Act?
The process of ending one’s life by self-administering the Drug cannot occur overnight. This process takes weeks to play out; remember that each of the patient’s verbal requests to his or her attending physician for the Drug must be separated by at least fifteen days. The required referrals to consulting physicians and possible mental health specialists would also likely delay the process.

Additionally, competent clinicians take thorough patient histories and part of that work is inquiring about a patient’s physical condition. So, the patient’s terminal disease would conceivably be disclosed during such interview. There could also be observable signs of the disease that beg inquiry. It may also be prudent to consult with the patient’s physician about the patient’s physical condition and medical treatment plan. Although there does not seem to be a legal requirement to do so, it seems prudent to do such follow-up because of the need to differentiate the case of the suicidal patient from the case of the patient exercising his or her rights under the Act. If your patient is aware of the “End of Life Option,” you could inquire about whether they have made—or plan to make—the verbal requests for the Drug.

As opposed to a case where a patient calls you “out of the blue” in the last few months of his or her life to help “wrap –up some loose ends,” which seems unlikely, the more typical scenario might be this: You have been working with a patient for a while, and he or she is then diagnosed with a disease that, over time, becomes terminal. You could help such a patient work through interpersonal issues, whether between family members or third parties, that surface throughout the stages of the disease.

What is important to understand is that the Act now gives adult Californians with terminal diseases the right to end their own lives by self-administering the Drug; however, such action must be in accordance with the requirements of the Act. Consequently, the following words and phrases must become part of the lexicon of psychotherapists:

1. “Aid-in-dying drug”: a drug prescribed by an “attending physician” for a “qualified individual,” which such individual may choose to “self-administer” to bring about his or her death due to a “terminal disease.”
2. “Attending physician”: the physician who has primary responsibility for the health care of an individual and treatment of such individual’s “terminal disease.”
3. “Capacity to make medical decisions”: the ability to understand the nature and consequences of a health care decision; significant benefits, risks, and alternatives; and, the ability to make and communicate an informed decision to health care providers.
4. “Consulting physician”: a physician who is independent from the “attending physician” and who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual’s terminal disease.
5. “Medically confirmed”: the medical diagnosis and prognosis of the “attending physician” has been confirmed by a “consulting physician” who has examined the patient and the patient’s relevant medical records.
6. “Mental health specialist assessment”: a psychiatrist or a licensed psychologist
7. “Qualified individual”: an adult who has the capacity to make “medical decisions,” is a resident of California, and meets the requirements for receiving the “aid-in-dying drug.
8. “Self-administer”: a “qualified individual’s affirmative, conscious, and physical act of administering and ingesting the aid-in-dying drug to bring about his or her own death.
9. “Terminal disease”: an incurable an irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.

So, you have heard from your patient that he or she is “ready to die,” but the deeper question is, what is driving that desire? If it is fueled by active suicidal ideation, you must do reasonable things to try and prevent the suicide from occurring; however, if it is fueled by the pain and suffering of a terminal disease, and the patient and the patient’s physician have complied with the requirements of the End of Life Option Act, you must not interfere with the patient’s right to end his or her own life as permitted by California law.

David Jensen, JD, is a staff attorney at CAMFT. He is available to answer members’ questions regarding legal, ethical, and licensure issues

Endnotes
¹ California Health & Safety Code §§ 443, et seq.
² As of June, 2017, one hundred and eleven Californians had elected to end their lives by ingesting the “aid-in-dying” drug. Los Angeles Times. June 27, 2017.
³ California Health & Safety Code § 443.1(e).
⁴ California Health & Safety Code § 443.1(q).
⁵ California Health & Safety Code §§ 443.1(c) and 443.3.
⁶ California Health & Safety Code § 443.3.
⁷ California Health & Safety Code § 443.2.
⁸ California Health & Safety Code § 443.1(p).
⁹ California Health & Safety Code § 443.1(n).
¹⁰ If a mental health specialist assessment referral is made, no aid-in-dying drug may be prescribed until the mental health specialist determines that the patient has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.