Introduction to the Role of Mental Health Specialists in the End of Life Option Act

Eric Freitag, Psy.D., ABN

Eric Freitag, Psy.D., ABN

Imagine your long-term client, “Ray,” comes to your office to meet with you to “settle his affairs.” You have known Ray and his family for over 30 years, since he and his wife first came to you to create their estate plan. You helped Ray update this plan five years ago when he was diagnosed with colon cancer. Now Ray has come to your office to tell you that he has been told that he has less than 6 six months to live. Ray informs you that he is choosing to die on his terms and exercise his right under the California End of Life Option Act to receive medically prescribed drugs to end his life.

As his attorney, what support can you provide to Ray? Would it matter that you are aware that Ray has a history of depression for which he has received treatment in the past? Would it matter that Ray’s wife has disclosed to you that he has been showing some signs of memory loss?

While this scenario is hypothetical, such situations are to be expected with the June 2016 enactment of the End of Life Option Act, California Health & Safety Code sections 443 et seq. (“EOLA”). End of Life Option Act (SB 128). The rhetorical questions posed above (concerns about depression and memory loss) are common when determining an individual’s medical decision-making capacity. The purpose of this article is to provide the reader with a brief overview of the role of mental health professionals in relation to this new law and how attorneys can best guide their clients when concerns about decision-making capacity are present.

Mental health professionals play a prominent role in the End of Life Option Act, as only a licensed psychologist or psychiatrist can provide the specialized assessment to determine the decision-making capacity of an individual requesting to obtain aid-in-dying drugs. The law specifies that a mental health assessment is not required for all individuals, but only in cases where the attending or consulting physician determines that there are indications of a mental disorder. In these cases, the psychologist performs an assessment to determine whether the individual has the capacity to make medical decisions and that they are of “sound mind and not under duress, fraud, or undue influence.”

The actual text of the law provides reasonable guidance for determining the decision-making capacity of the requesting individual. The law specifically mandates that a doctor “discuss” with the individual their medical diagnosis, the risks and results associated with ingesting the drug(s), and the alternatives or other options for care and treatment. The law provides no specific guidance on how to determine whether a patient is able to demonstrate a reasonable understanding and appreciation of these issues in order to make an informed medical decision.

Guidance from the California Psychological Association (CPA) states that psychologists who may be called upon to perform specialist assessments should carefully ensure they are practicing within the scope of their own competence, particularly with regard to familiarity with the legal and ethical issues surrounding this law. Especially now, while this law is new, this may be a particularly difficult task as there is very little written guidance from the CPA or other state professional associations on this Act. Some other states (i.e. Oregon and Washington) and Canada have their own versions of an aid-in-dying law, and may have published information that could serve to guide California psychologists and other medical professionals in working with these patients.
There does, however, exist extensive medico-legal research to inform and guide mental health professionals in the assessment of an individual’s medical decision-making capacity. As much of this research is specific to evaluating a patient’s ability to make decisions surrounding medical care and treatment, psychologists will need to shift the scope of assessment to focus on those factors which are specifically relevant to the decision to end one’s own life.

Medical decision-making capacity assessment generally follows four dimensions or factors. These factors establish a framework through which the psychologist can competently assess a patient’s decision-making process. In this case, the factors are applied to the patient’s choices to end their life:

  1. The patient must demonstrate “Understanding” of the information being presented and can articulate the risks and benefits of exercising their rights under the law.

  2. The patient must show “Appreciation” or, more specifically, be able to apply the relevant information to self and situation. This is demonstrated by exhibiting more than just an intellectual understanding of the law, but also of how a choice to end their life will affect not only themselves but their family, friends and even community.

  3. The patient must demonstrate “Reasoning” or the ability to think about the decision in a logical and sensible way. The patient would need to show that they have evaluated the consequences and benefits of the other available options (e.g. end of life, do nothing, hospice, experimental treatment).

  4. The patient must be able to “Express” their choice; simply stated, the individual must demonstrate ability to arrive at a decision. In the case of exercising the end of life option, it is vital that the “Expression” of the patient’s choice is consistent across time and not a transient expression of a decision.

In summary, it can be anticipated that attorneys will be called upon to provide services to, and advocate for, clients who wish to exercise their rights under the End of Life Option Act. It is important that attorneys make themselves familiar with this law and that they avail themselves of the expertise provided by mental health professionals when there are concerns about an individual’s capacity to make an end of life decision.

Dr. Eric J. Freitag is a licensed clinical psychologist and a board-certified neuropsychologist. His clinical expertise includes assessment and treatment of dementia, traumatic brain injury, and sports concussion. Dr. Freitag has extensive experience as an expert witness providing services for matters related to capacity and conservatorships, personal injury, disability claims, and worker’s compensation. He is the founder and Executive Director of the Mt. Diablo Memory Center in Walnut Creek and is the Co-Director of the UCSF-Benioff Children’s Hospital Oakland Sports Concussion Program.

Bibliography
California Assembly Bill 15 [End of Life Option Act]. (2015, October 5). Sacramento.
Demakis, G. J. (2012). Civil capacities in clinical neuropsychology: research findings and practical applications. Oxford etc.: Oxford University Press.
Frankel, A. S., & Alban, A. (n.d.). Good News (Maybe) About Bad News: California joins four other states that allow terminally ill people to end their lives: what can we learn from the track records.
Palmer, B. W., & Harmell, A. L. (2016). Assessment of Healthcare Decision-making Capacity. Archives of Clinical Neuropsychology, 31(6), 530-540. doi:10.1093/arclin/acw051Winkelman, E. (2016, May 12).
The End of Life Option Act: How Will It Affect Psychologists and their Patients? Retrieved March 12, 2017, from http://cpapsych.org/

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