Judge rebuffs effort to restore access to lifeending drug
The terminally ill patients who call Berkeley physician Dr. Lonnie Shavelson are reconciled to waiting for death.
But now they must wait for something else, too: The slow wheels of justice, delivering a court decision that determines whether or not they’ll have access to life-ending medication.
A Riverside Superior Court judge on Wednesday morning rebuffed an effort to restore California’s End of Life Options Act, which gives dying patients the right to end life on their own terms.
So the state must try again. The next motion — urging the judge to cancel a ruling last week invalidating the law — is set for June 29, a month from now.
Meanwhile, major hospital systems such as Stanford, Kaiser Permanente, UC-San Francisco and California Pacific Medical Center are suspending access to the medication, which has been legal for the past seven months.
“For families affected, this brings up so much trauma,” said VJ Periyakoil, director of Stanford’s Palliative Care Education and Training Program and the Stanford Hospice and Palliative Medicine Fellowship Program. “They thought it was legal, and now they’re back again in a period of uncertainty.”
While doctors will continue to offer the best possible support, “At this point, Stanford doctors are not going to be writing any new prescriptions, while we all wait for the final judgement on this Act,” she said.
At UCSF, “We are going to suspend prescriptions of the drug,” said Susan Penney, executive director of Risk Management for UCSF Health. “We will continue to support all of our patients at the end of life and with end-of-life counseling. Physicians who participate in the Act will continue with the process, with the exception of prescription of the drug, until this matter is resolved legally.”
At Sutter Health — which owns the large network of hospitals including Eden Medical Center, Santa Rosa Regional Hospital and Novato Community Hospital — doctors have been
alerted that activities authorized by the Act may not take place “without further guidance from the courts,” said Emma Dugas of Sutter Health.
Hospices are also suspending their programs. “For the time being, I do not believe we can participate in any additional End of Life Option Act activities until the court addresses this latest decision,” according to Dwight Wilson, executive director of the San Mateo-based Mission Hospice & Home Care.
Dr. Shavelson’s practice, Bay Area End of Life Options, extends from Yuba City to Santa Cruz. He consults not only with physicians and hospitals, but also with patients themselves, offering care to patients who choose him as their “attending physician” when they can’t find a local doctor to help.
When a dying cancer patient from San Jose called Shavelson on Wednesday to seek end-of-life medication, the Berkeley physician helped with everything that is legally possible: Engage in deep conversation, make a care plan, review medical records, a schedule home visits and start a 15-day waiting period.
But the most important step — prescribing the drug, to ease suffering and death — is out of reach. He is advising patients who already have prescriptions that the decision is theirs whether to take the medication or not.
“We are not sure if the cessation of the Act applies retroactively — and allows those patients to take their medications, since those patients fulfilled all aspects of the Act before the law went down,” he said. “Or, the law invalidates their ability to now take the medication, and they run the risk of having their deaths declared suicides and all who help them can be accomplices to suicide.” Polls show that California voters overwhelmingly support the state law, called the End of Life Options Act, with 65 percent favoring the law compared with 28 percent who are opposed. Support cut across all political party and ethnic lines, and varied little among genders and age groups, among the voters polled,
But it is vulnerable because of the way it was passed in 2015 — in a special legislative session to fix health care funding for the poor, and then signed into law by Gov. Jerry Brown. The gambit allowed the bill’s supporters to bypass opponents, but has landed them in court.
Riverside Judge Daniel A. Ottolia judge has ruled in favor of opponents who say the state Constitution requires legislators to stick to the topic and agenda of a special session. “We are deeply disappointed that the court ruled against us, but we thank Attorney General Becerra for defending the law,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices, an advocate for the Act, in a prepared statement.
“But the one month delay until the hearing is unacceptable,” he said, “because in the meantime the law is not in effect and terminally ill Californians now are left without the option of medical aid in dying to peacefully end unbearable suffering.”
Plaintiff Joan Nelson, an 82-year-old resident of Marin County with a rare terminal cancer called leiomyosarcoma, requested and received a prescription for medical aid in dying drugs before the judgment invalidated the law — but now fears the legal ramifications of taking the medication.
“This ruling leaves me with uncertainty about whether I can legally use my aid-in-dying medication and whether my passing will be considered a ‘suicide,’ rather than death from leiomyosarcoma, as it should be considered,” she wrote in her petition to the court.