Posts Tagged ‘Baxter v Montana’

Aug 21, 2012Assisted suicide: New Mexico court asked to redefine the term

By Diane Carman
DenverPost.com
August 19, 2012

The question before the court in New Mexico is absurdly simple and yet impossibly complex. What is the meaning of “assisting suicide”?

If a terminally ill patient refuses a ventilator or a feeding tube and the physician yields to that decision, is that assisting suicide? If the patient is in excruciating pain and requests total sedation and no nutrition or fluids, can the doctor be held accountable for his death? What if the patient seeks a prescription from her physician so that when the pain of dying is overwhelming she can seek the ultimate relief on her own?

Two oncologists from the University of New Mexico Health Science Center and a patient with advanced cancer are the plaintiffs in a lawsuit filed in New Mexico District Court designed to clarify the legal definition of assisting suicide. That decision, likely to come in the next year, could send reverberations through the medical establishment in the Rocky Mountain West and across the country.

Morris vs. New Mexico contends that the statute outlawing “assisting suicide” never was intended to apply to physicians treating patients in the late stages of terminal illnesses. The plaintiffs believe that “patients who are dying and finding themselves trapped in an unbearable dying process should be able to choose aid in the dying process,” said Kathryn Tucker, director of legal affairs for Compassion & Choices, a nonprofit organization that works to expand choices in end-of-life care. She is one of the attorneys representing the plaintiffs in the case.

Compassion & Choices advocates for physicians to be allowed to prescribe medication to mentally competent terminal patients who can administer the drugs to themselves “to bring about a peaceful death,” Tucker said.

The organization contends that it’s fundamentally different than the commonly held idea of suicide, which presumes that without the suicidal acts, the person would be able to live. Opponents say it is exactly the same, an affront to human dignity, false compassion and highly susceptible to abuse.

If anyone had asked 48-year-old Aja Riggs a year ago for her opinion on assisting suicide, chances are she would have supported it. “I would have said, ‘Sure, I think people have the right to choose at the end of their lives if they’d like a physician’s aid in dying.’ ” She’d never had a particularly keen interest in the issue, though.

That changed 11 months ago.

Now, the self-employed professional organizer from Santa Fe said, “It’s really important to me.”

Riggs was diagnosed with uterine cancer last August. Surgery in October revealed that her condition was at stage 3c, far more advanced than doctors had expected.

After she recovered from the surgery, she underwent chemotherapy, during which another tumor developed. Then she had radiation treatments and now is receiving chemotherapy again.

“When I was diagnosed, I decided I wanted the most aggressive treatment that’s going to be effective. I thought, if I can get another 20 years in this life or so, wouldn’t that be great,” she said.

But Riggs is realistic.

“If my disease progresses, more difficult individualized decisions will be coming up,” she said. “If this disease does look like it will end my life, I can’t say for sure how I will make those decisions. … I can’t tell you for sure that I would get that prescription, fill it and use it. But I absolutely want to have that choice.”

Morris vs. New Mexico is modeled on Baxter vs. Montana, which was decided by the Montana Supreme Court in 2009. In a 5-to-2 ruling, the Montana court said that physician aid in dying was protected under the law providing for living wills.The court said that the state’s Rights of the Terminally Ill Act “very clearly provides that terminally ill patients are entitled to autonomous, end-of-life decisions, even if enforcement of those decisions involves direct acts by a physician.”Laws on assisted suicide are the purview of the states. In a case challenging Oregon’s assisted suicide law, the U.S. Supreme Court ruled in 2006 that the federal government does not have the power to overrule state statutes in this area.

Colorado’s assisted suicide law states that it is considered manslaughter if a “person intentionally causes or aids another person to commit suicide.”

While the specific statutes across the country are not identical, states generally protect the rights of terminally ill patients to give advance directives and make decisions on their care at the end of life. Tucker, who was among the lead attorneys litigating Baxter vs. Montana, maintains that the long-standing statutes outlawing assisting suicide were never intended to apply to physicians providing end-of-life care for terminally ill patients.

These statutes were “enacted at a time when medicine didn’t prolong the dying process as it does today,” said Tucker. “It’s pretty clear that that was not on the minds of legislators who introduced or voted on these measures.”

Instead, the laws were aimed at people who might provide a distraught teenager with the means to end his life after a bad breakup, or the friend who helps someone make a noose after he lost his job, she said. “There is an appropriate role for these statutes, but I don’t think they have anything to do with aid in dying.”

Professor Robert Schwartz of the University of New Mexico School of Law said that the argument in the New Mexico case is that “the court should defer to physicians in defining what constitutes appropriate care.”No one is going to argue that a physician couldn’t, for example, prescribe palliative sedation. No one is arguing that a patient couldn’t decide not to take nutrition and hydration, at least under New Mexico law. That’s entirely the patient’s decision,” he said. “This is one of the arrows in the doctor’s quiver, one way to provide adequate care at the end of life.”The Colorado Medical Treatment Decision Act, signed by Gov. Bill Ritter in 2010, explicitly provides for persons to refuse medical treatment, nutrition and hydration, and to execute advance directives outlining the circumstances under which they want such measures to be taken on their behalf.

Tucker and Schwartz said that momentum for physician-assisted suicide is strong across the West. Legislation that legalized it in Oregon and Washington, along with the Montana court decision, have generated growing support for the practice, and both advocates and opponents are watching the New Mexico case closely.

The most outspoken opponents to physician-assisted suicide have been leaders in the disability rights community. Diane Coleman, president and CEO of the nationwide disability rights organization Not Dead Yet, said there already are sufficient means for terminally ill patients to end their lives without providing immunity from prosecution for physicians who prescribe lethal drugs.

“The risks to many outweigh the alleged benefit to the few,” she said. Those risks include people succumbing to coercion from heirs or other family members, or to pressure from health insurers who deny services needed to cope with limitations caused by their conditions.

Rather than assisting people in ending their lives, Coleman suggests that physicians should help patients access the support they need to live well.The public response to Aja Riggs’ stand on assisted suicide has been “overwhelmingly positive,” Riggs said. “People have said, ‘Thank you so much for speaking out on this.’”It’s important to remember, she said, that the only patients who would be allowed to obtain physician assistance in suicide would be those who are terminally ill and mentally competent.

“This is something the patient chooses and does for herself. It’s not the doctor doing it,” she said. “It’s not a choice between life and death. It’s a choice about what kind of death.”

Oct 5, 2011Hawaii: The latest state where doctors can provide aid in dying

A mile high and ten miles northeast of Lincoln, Montana, melting snow and mountain springs form the headwaters of the Blackfoot, made famous in the novella and film A River Runs Through It. Stand at the source, running icy and fast, and try to picture Hawaii. This water flows to the Pacific and could ultimately wash onto the red sand beach at Hana Bay.

Today, in Hawaii, a panel of experts convened at the state capitol. Legal, medical, elder care, legislative and end-of-life authorities concluded Hawaii law permits physicians to provide aid in dying subject to professional best-practice standards. How did they reach this conclusion? The journey begins in Montana.

The Montana Supreme Court’s ruling in Baxter v. Montana created a watershed between previous assisted-dying advocacy typified by Oregon’s Death with Dignity Act and the new era, in which patient choice becomes integral to the scope of medical practice at the end of life. Today the liberty springing from that Montana decision flows through Hawaii as newly affirmed choice at life’s end.

The Montana court recognized that requests for aid in dying were akin to other already-permissible end-of-life choices, as contemplated in the autonomy protected under the state’s Rights of the Terminally Ill Act. Hawaii law includes a version of this Uniform Health-Care Decisions Act, which allows patients to specify if and when they wish to refuse or withdraw life-sustaining medical care. Additionally, in 2004 Hawaii enacted the Pain Patient’s Bill of Rights, and in doing so recognized that inadequate treatment of pain is a significant health problem.

James Pietsch, a professor at the University of Hawaii’s Law School writing in 2004 for The Journal of Legal Medicine, noted a unique Hawaii law:

“[W]hen a duly licensed physician or osteopathic physician pronounces a person affected with any disease hopeless and beyond recovery and gives a written certificate to that effect to the person affected or the person’s attendant nothing herein shall forbid any person from giving or furnishing any remedial agent or measure when so requested by or on behalf of the affected person.”

Added in 1909, this provision aimed to give terminally ill patients the option to obtain treatment that had not yet been approved by the government. The 1909 provision, the Pain Patient’s Bill of Rights and the Uniform Health-Care Decision Act together give terminally ill patients significant freedom of choice to determine their course of medical care at the end of life and protection to physicians who provide that chosen care.

As in Montana, new law explicitly governing aid in dying was not necessary to enable dying patients to openly ask their physicians for aid in dying and for physicians to openly provide it. Most medical care is not governed by law, but by professional standards. Doctors may discontinue life-sustaining treatment such as respiratory support, pacemakers, dialysis and medication at the request of their patients.

Physicians in Hawaii have already witnessed an emerging standard of care that respects a patient’s autonomy and accepts life-ending practices.

The Hawaii Public Health Association (HPHA) along with the American Public Health Association (APHA) assert that people in Hawaii deserve a full range of options for palliative care and end of life, including aid in dying. That’s why the HPHA co-sponsored the panel discussion today. HPHA President Deborah Zysman says, “With proper safeguards in place, we believe that aid in dying poses no public-health risk, and that a mentally competent, terminally ill adult should be allowed to control the time, place and manner of his or her impending death.” Other major medical organizations also support open access to aid in dying: the American Medical Women’s Association (AMWA), the American Medical Student Association (AMSA) and the American College of Legal Medicine (ACLM). The American Academy of Hospice and Palliative Medicine (AAHPM) has shifted its stand from oppositional to neutral.

The lawyers and legislators on today’s panel concurred nothing in Hawaii law currently prohibits aid in dying. Patients and their doctors may make decisions governed by best medical practice, allowing them the opportunity to explore a range of patient-directed end-of-life choices. This is the model set by the Montana court in its watershed ruling. The liberty epitomized by the clear-flowing Blackfoot River gives hope to Hawaii residents facing their final days. They will soon have the same broad spectrum of end-of-life choices enjoyed by the people in Montana, Oregon and Washington.

Jul 8, 2010Bill by Montana Representative Will Implement Aid in Dying

Representative Dick Barrett of Missoula announced today he has asked the Montana Legislative Services Division to draft a bill to implement the Montana Supreme Court’s ruling in the Baxter case late last year allowing physicians to provide aid in dying when requested by terminally ill patients.

The Baxter v. Montana case confirmed the right of mentally competent, terminally ill Montanans to request a prescription for medication from their doctors which they can ingest to bring about a peaceful death. Missoula attorney Mark Connell, who argued the case to the court on behalf of the plaintiff physicians and patients, described the decision as “a victory for individual rights over government control.”

“I believe that the Supreme Court ruled correctly in this case,” Barrett said. “In Montana we respect the right of individuals, in consultation with their physicians, to make decisions, such as refusing treatment, that will hasten their deaths. A majority of Montanans believe that we should also respect the right of terminally ill patients to avoid unnecessary suffering and to choose for themselves the time and circumstances of their deaths by taking medications provided by a doctor.”

Survey results released in April confirmed that majority opinion. “Three in five (60%) of voters said they support end-of-life choices, while only 24% said they oppose,” said public opinion survey expert David Binder . “There is even greater support (63%) for the recent Supreme Court ruling, and nearly two in three voters (64%) want their own personal doctor to be able to comply with their end-of-life choices.”

Voters strongly oppose the State Legislature overturning the Supreme Court decision
When asked about the possibility of the State Legislature overturning the Supreme Court decision, voters are overwhelmingly opposed, with only one in four saying they want the State Legislature to overturn the Court’s ruling. Seven in ten voters do not want the Legislature to reverse the decision. The plurality of voters (39%) want the Legislature to allow the decision to take effect as written, while another 31% want it to take effect, with some additional safeguards.

Critics of aid in dying have expressed concern that some vulnerable individuals may be unduly influenced to request such assistance by family members or caregivers. “The evidence from Oregon,” Barrett said, “where physician assistance in dying has been available for many years, is that that concern is unfounded. But Oregon provides a number of safeguards to make sure that only willing patients request aid in dying.” Barrett said one of the major purposes of his bill will be to provide similar safeguards “that meet the particular needs of Montana patients and doctors.”

A second purpose of the bill will be to provide protection from civil liability or professional sanctions to physicians who wish to honor patients requests under the standards of practice called for in the bill. “It’s important to note too that the bill will clarify that no doctor, hospital or other health care provider will be required to provided assistance in dying,” Barrett said, adding that he is working with doctors, patients and their advocates to draft a bill to fit Montana’s specific needs.

Roberta King, of Missoula, the daughter of plaintiff Bob Baxter, said, “My father died without the peace and dignity he so dearly wanted for himself and others. I’m sure he would be deeply gratified that other terminally ill Montanans will have the choice and comfort that aid in dying affords them.”

See the Press Release from Rep. Dick Barrett here>>

Jun 11, 2010Montana Opponent Could Not Be More Wrong

A story in the June 10th issue of The Missoula Independent talks about the effort by Sen. Greg Hinkle, R-Thompson Falls, to overturn the 2009 court decision that opened the door to aid in dying for Montanans.

Legislators on both sides are eager to clarify the Montana Supreme Court’s December ruling that gave physicians a legal defense in prescribing life-ending medication to terminally ill, mentally competent patients. Proponents point to legislation already on the books in Oregon and Washington that provides strict criteria for the practice—psychiatric evaluations, written consent observed by an impartial witness, etc.—as a good starting point for building on the court’s decision.

Hinkle’s talking points are, shall we say, less researched. He’s claimed for weeks that physician-assisted suicide will wrongfully endanger patients who might actually survive their illness. Even patients with stable HIV and years to live could receive a prescription, he says, and he’s gone on record stating that once medication is prescribed, a patient’s life is out of his or her hands. Death is under the control, he says, of a doctor or family member.

Hinkle couldn’t be more wrong.

Read the full story here>>

Jun 7, 2010Doctors, Patients Disappointed in Court Decision

Connecticut physicians, terminally ill patients and Compassion & Choices, the nation’s largest and oldest nonprofit organization working to improve care and expand choice at the end of life, today expressed disappointment with the recent Blick et al v. Connecticut court decision. On June 2, 2010, Judge Julia Aurigemma ruled to dismiss a case that sought to clarify the ability of mentally competent, terminally ill patients to obtain aid in dying from their physician if they find their dying process unbearable. Attorneys for the State of Connecticut filed a motion to dismiss the case, which asked whether a physician providing aid in dying is subject to criminal prosecution under an old nonspecific statute that makes it a crime to aid another to ‘commit suicide’.

“We are disappointed that the court dismissed this important case,” said Kathryn Tucker, Director of Legal Affairs for Compassion & Choices and co-counsel to the plaintiff physicians. “The court reached the ultimate issue in the case at the motion to dismiss stage, denying plaintiffs the opportunity to make their case. We are considering all options including appeal, hoping the higher court may permit a full review of the merits. It is essential for Connecticut physicians to know whether providing aid in dying subjects them to criminal prosecution. At present it is not clear and this creates an environment of uncertainty, leaving patients unsure if they will be able to access aid in dying if they find themselves confronting an unbearable dying process.”

Sheldon Smith, an 86-year old terminally ill Bethany man with Stage IV abdominal cancer, said, “I’ve had three years now to consider the effects of my cancer, and to prepare for the end of my life due to this terminal disease. However, I’m quite concerned about how the very end of my life will unfold. I know the type of pain that abdominal cancer can cause, and I’d like a physician to be able to prescribe medication that I could consume to bring about a peaceful death if my dying process becomes intolerable. I want to leave this world with the same dignity with which I’ve lived my life.”

Norwalk infectious disease specialist Dr. Gary Blick and Greenwich primary care internist Dr. Ron Levine, the plaintiffs in Blick, asserted that the choice of a mentally competent, terminally ill patient for a peaceful death is not ‘suicide’ and therefore a physician providing such a patient with a prescription for medication the patient can ingest to achieve a peaceful death is not subject to the law. The Montana Supreme Court recently decided a similar case, Baxter v. Montana, in physicians’ and patients’ favor.

Dr. Blick is the Medical and Research Director of CIRCLE Medical, LLC in Norwalk, Ct. His specialty is in infectious disease and treatment of HIV/AIDS. Dr. Blick was a Resident at Yale University School of Medicine and Greenwich Hospital in Greenwich, CT. He was both an attending and consulting physician at Greenwich Hospital and was the Founder and Chairman of the Greenwich Hospital AIDS Task Force.

Dr. Levine is a primary care internist in Greenwich. He served his internship and residency at Albert Einstein College of Medicine, Montefiore Medical Center in New York. Dr. Levine is both an Attending Physician and a Clinical Instructor at Greenwich Hospital in Connecticut. He is also a Clinical Instructor at Albert Einstein College of Medicine, Montefiore Medical Center in New York.

The physician plaintiffs are represented by Compassion & Choices Legal Director Kathryn Tucker, Connecticut appellate specialist Dan Krisch and noted Connecticut civil-rights attorney Jamie L. Mills.

The Complaint and the court’s decision can be viewed here.

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