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At Your Defense

At Your Defense

Aid-in-Dying Law Creates Pitfalls for EPs

Reyes, Carlo MD, JD

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doi: 10.1097/01.EEM.0000490518.46022.03

    ‘This is 435 to base. We have a 53-year-old man at home, unresponsive, and there's an empty bottle of Seconal. He has agonal breathing, and his brother is telling us to “do everything,” but his wife is telling us to let it happen. It's physician-assisted suicide! He's still breathing. And vomiting. What should we do?”

    California's End-of-Life Option Act, otherwise known as the Aid-in-Dying law, took effect June 9, allowing terminal patients to obtain a prescription to self-administer and cause death. Divided opinion among physicians aside, California became the fifth state to allow physician-assisted death, after Oregon, Washington, Vermont, and Montana.

    California's citizens have spoken, and California physicians now must decide whether they should prescribe a lethal dose of a medication if terminally ill patients ask for it. More importantly for emergency physicians and first responders is what to do when they are called to treat a patient who was prescribed or has just taken an aid-in-dying drug.

    Capacity and Judgment

    To qualify under the law, a patient must have a terminal condition with a life expectancy of less than six months, have the capacity to make the decision, and be able to self-administer a lethal dose of medication by ingestion. He must make two oral requests 15 days apart, and submit a written request for a lethal prescription to his physician; the patient cannot delegate these requests to a family member or legally recognized decision-maker.

    The law also carefully circumscribes an outpatient physician's lawful participation, which is voluntary. The treating physician must confirm the patient's capacity to make a request under the law, obtain another physician's confirmation of the terminal condition, and refer the patient to a psychiatrist if a mental disorder may be impairing the patient's judgment. Once the psychiatrist attests that the patient's judgment is not impaired, the physician may inform the patient about the law's requirements, document the two oral requests, file the written request, and abide by the law's public health reporting requirements.

    The aid-in-dying/ act also has important restrictions for physicians:

    • They should not offer to prescribe a lethal medication to patients; patients must ask for it.
    • Physicians cannot delegate any requirements under this act to a nurse practitioner, physician assistant, or employee.
    • A hospital provider can prohibit its physicians from participating, including evaluating, consulting, or prescribing an aid-in-dying drug on its premises.

    The EP's Role

    Frustratingly, the law provides little guidance for emergency physicians and first responders in certain critical situations. To illustrate, should first responders and emergency physicians deliver resuscitative measures when a patient:

    • Is brought into the ED after ingesting a lethal medication if he has conflicting documentation (e.g., a POLST revealing full treatment)?
    • Has a life-threatening condition before he has the opportunity to ingest the prescribed medication?
    • Has lost capacity after being prescribed the lethal medication and presents to the ED after ingesting it?
    • Changes his mind after he has taken the medication and then requests full resuscitation?

    The act fails to address these conflicts. The first two could be circumvented if the law required patients who request a lethal prescription medication to affirm DNR/comfort measures by completing a POLST form, or better yet, to enter hospice to prevent unnecessary transfers for emergency services. The third conflict is less likely to occur because the act requires the physician to give a final attestation form that the patient must execute 48 hours prior to self-administering the lethal drug (although patients may fail to execute the form and proceed to ingest the drug).

    The last conflict, although unlikely, may arise because the act allows patients to rescind his request for the drug or decide not to ingest it, but does not address what happens when a patient changes her mind after taking the medication. It remains to be seen if these end up being hypotheticals. The act should have addressed them given the history of conflicting circumstances arising from outpatient DNRs and POLST.

    Law Alters Medicine

    My classmates and I were proud to recite the Hippocratic Oath when we graduated from medical school 18 years ago (gulp). We equated the oath with affirming that we would “do no harm.” Medicine's definition of harm, however, has evolved. I was trained to do everything in my power to save lives, and emergency medicine has allowed me to engage in extraordinary measures to do so. But I have come to realize that much of what we do to prevent death in our patients actually causes more harm than good.

    Repeated rounds of chemotherapy with its harsh side effects may inflict unintended, unnecessary harm if the treatment does not improve quality of life. Patient harm also occurs when EPs deliver futile resuscitative treatment to a bedridden, terminally ill nonagenarian whose heart suddenly stops because her physician failed to counsel the family about palliative care options. These patient harms arise from physician neglect.

    California's aid-in-dying law dramatically alters societal expectations of medicine's involvement at the end of life. It changes the way we understand patient harm, restores and liberalizes patient autonomy, and alters the scope of the healing practice of medicine. Despite these revolutionary changes, EPs and first responders will ironically face the same challenges we do when treating patients at the end of their lives. We will still feel frustrated when terminally ill patients are still brought into the ED by distraught family members, and we will struggle to find documentation that identifies patients who have legally obtained aid-in-dying drugs. We will be forced to have uncomfortable medical-legal, ethical, and moral discussions about the law with disapproving family members, and be subject to the pain, anguish, and anger that families feel. And we will fear making a critical error, whether it is resuscitating someone who did not want it or failing to when we should.

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