End-of-Life Choice, Palliative Care and Counseling

Baxter v Montana

Hawaii: 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.

Aid in Dying in Montana: A Watershed in the Movement for End-of-Life Choice

On New Year’s Eve 2009, Montana’s Supreme Court handed down the ruling in Baxter v. Montana and authorized the practice of aid in dying for mentally competent, terminally ill adults. The Court declared that such a patient may request medication that could be ingested to ensure a peaceful death. They ruled that a physician providing such medication does not violate public policy and is safe from prosecution.

It was a remarkable ruling in many ways. With subsequent legislative events, the Court’s findings 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.

Early in 2010 the medical practice of aid in dying began to take shape in Montana. Terminally ill patients began to ask about this option, now openly available. Willing physicians began to evaluate their requests and measure them against the qualifying standards laid out by the Court. Montana physicians sought guidance from doctors with years of experience in Oregon and Washington. The state medical society engaged counsel to explain the Court’s ruling, and received confirmation that aid in dying was a choice Montanans were entitled to make and physicians providing it were not subject to criminal prosecution. Hospices began to consider policies and practices if a patient requested life-ending medication or decided to self-administer it while under hospice care. One year later patients, families, physicians and healthcare providers across the state already had personal experience – or knew someone who had personal experience – with aid in dying.

When legislators convened in Helena in January 2011, they considered two bills related to aid in dying. One would nullify the Court’s ruling and repeal the end-of-life freedom people had come to appreciate. The other itemized the steps to evaluate a request and provided civil and regulatory immunity for following them. Neither bill passed a committee or reached the Governor’s desk.

Montana residents now enjoy the freedom of knowing one of the most important, private, intimate and meaningful decisions in life is safe from blockade or intrusion from prosecutors or authoritarian busybodies.

Here are some aspects of the ruling that will, from now on, direct the flow of liberty at life’s end:

· The Montana Supreme Court called the practice “aid in dying” and enshrined that name in a legal context. Professional associations, medical and legal scholars, and ethics publications had adopted this term for the medical practice that gives patients peace of mind and control over their dying and distinguish it from “suicide.” But never before had the term of art achieved legal authority.

· Montana 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. The Court reasoned if state law protects decisions that advance the time of death of a person no longer able to make healthcare decisions, it surely extends that protection to a contemporaneous decision by one fully capable of assessing treatment options and making a choice. Almost every state has adopted some version of this model Act creating the framework for advance directives. Other states could adopt Montana’s reasoning.

· The Court felt no need to impose additional government oversight or policing procedures on the medical practice it authorized. It trusted the oversight and policing of aid in dying to the same mechanisms that regulate every other end-of-life decision and practice, and indeed all of medical practice. These are the regulatory mechanisms that maintain accepted practice standards: medical peer review, medical licensing and disciplinary proceedings, civil remedies for negligent or reckless acts, and the police authority and criminal justice system in every community. Protected by these mechanisms of oversight, patients regularly make decisions that advance the time of death, and physicians implement those decisions. Patients discontinue life-sustaining treatments like dialysis and ventilation. They ask that cardiac pacemakers and implanted defibrillators be deactivated. And they voluntarily stop eating and drinking and receive medical comfort care as they fast. Medicine is the most regulated and supervised profession in existence, and the controls in place are able to keep aid in dying as safe as other end-of-life decisions.

In 1976 the New Jersey Supreme Court ruled that Karen Ann Quinlan had a right to refuse artificial ventilation, beginning a line of jurisprudence that protects healthcare decisions, even if they advance the time of death. (In re Quinlan) The Quinlan court imposed no extraordinary governmental policing on the newly recognized right. So it is with Baxter, and the Baxter ruling is to aid in dying what Quinlan was to withdrawal of mechanical ventilation. The Montana experience is ongoing, with aid in dying governed by standards of practice and the same regulatory procedures as all medical care. Its impact will likely reach across our nation. As our path leads forward from this point, we draw water from the streams that flow from Montana. Baxter is the watershed.

Montanans’ right to ‘aid in dying’ reaffirmed

By Anders Blewett and Dick Barrett
Great Falls Tribune
May 11, 2011

Last week we celebrated the Legislature’s adjournment with great satisfaction that Montanans’ access to aid in dying had been reaffirmed. Two bills introduced in the state Senate threatened to outlaw physician aid in dying, as established by the Montana Supreme Court. A bipartisan majority of the Senate Judiciary Committee, and the full Senate, rejected the bills, thus preserving the right of terminally ill patients to make their own end-of-life decisions..

On Feb. 16, the committee voted 7 to 5 to table defeat SB116, which would have revoked the right of terminally ill patients to request aid in dying from their physicians.

Doctors, patients, family members, clergy, hospice nurses and doctors — including the Montana Medical Association and the National Association of Social Workers Montana Chapter — testified against the bill repealing physician aid in dying.

And when the sponsor of SB116 tried to bring the bill before the full Senate for consideration, lawmakers of both parties opposed it, 35 to 15.

The Judiciary Committee also defeated SB169, increasing penalties for “suicide predators,” because its ambiguous language could have created a backdoor deterrent to aid in dying.

Most of us have experienced loved ones’ deaths that were not in harmony with how they lived their lives. We think every Montanan, when approaching the end of life, should have the right to choose his or her own path.

The defeat of this these bills was a victory for individual rights over government control. These are decisions that should be — and now can continue to be — made by the terminally ill patients whose lives, deaths and suffering are at stake, based on their own religious, spiritual and family beliefs.

It now falls to Montana physicians to develop the standard of care to respect and protect their patients’ end-of-life decisions. Montana’s medical community is certainly up to the task of including aid in dying as one of the options available for patients with end-stage cancer and other terminal diseases.

Also tabled by the Senate Judiciary Committee was SB167, which would have provided specific practice guidance and immunities for physicians who honor their terminally ill patient’s’ end-of-life medical decisions.

“It is unfortunate that the Legislature did not go further to codify the court’s decision, providing physicians with additional protections for honoring patients’ decisions,” said Dr. Stephen Speckart, an oncologist from Missoula. “However, Montana’s medical community can rest assured the Senate examined this issue closely, and concluded that it is proper public policy for physicians to respect a dying patient’s decisions.”

The Montana Supreme Court Dec. 31, 2009, in Baxter vs. Montana, recognized that the statutes empowering patients to direct their end-of-life care, even when decisions may advance the time of death, reflect public policy in favor of patient autonomy.

The court recognized that Montana public policy allows competent dying patients to choose aid in dying, and established that physicians who provide aid in dying at the behest of their terminally ill patients are acting with the consent of their patients and are protected from prosecution.

Montana Committee’s Vote Preserves Right to Aid in Dying

The Montana Senate Judiciary Committee today maintained the Montana Supreme Court’s Baxter ruling. The committee voted 7 to 5 against Sen. Greg Hinkle’s bill (SB 116), that would have revoked the right of terminally ill patients to request aid in dying from their physicians. A bipartisan group of lawmakers – Sens. Augare (D), Blewett (D), Jent (D), Larsen (D), Moss (D), Peterson (R) and Vincent (R) – voted against the measure. The committee heeded testimony from doctors, patients, family members, hospice nurses and clergy, and its vote was consistent with the official positions of both the Montana Medical Association and the National Association of Social Workers Montana Chapter. The committee’s vote leaves responsibility to develop the standard of care for aid in dying with Montana’s medical community.

The Montana Supreme Court on December 31, 2009, in Baxter v. Montana, recognized that the statutes empowering patients to direct their end-of-life care, even when decisions may advance the time of death, reflect public policy in favor of patient autonomy. The court ruling recognizes that it is the public policy of Montana to protect the choice of competent dying patients to choose aid in dying, and makes clear that there is no basis to prosecute physicians who provide it. Today’s vote leaves that ruling intact.

Roberta King, of Missoula, whose father, Bob Baxter, was the lead plaintiff in the landmark case, 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.”

Missoula attorney Mark Connell, who argued the case before the Montana Supreme Court, described the decision as “a victory for individual rights over government control. These are decisions that should be – and now can continue to be – made by the terminally ill patients whose lives, deaths and suffering are at stake, based on their own religious, spiritual and family beliefs.” Connell added: “I know Bob Baxter would be very pleased that the committee declined to over-ride the court’s ruling. Doctors who practice within the clear confines of the court’s decision are protected.”

“The people of Montana strongly support the Baxter decision,” said Sen. Anders Blewett. “I have heard from many elderly Montanans who live in my district on this issue. They are proud of their independence, and believe the power to make their own end-of-life decisions belongs to them, in consultation with their doctor, not to the State of Montana, nor to any organization or institution.”

“The committee’s votes leave the Montana Supreme Court’s decision in place,” said Dr. Stephen Speckart, an oncologist from Missoula. “It now falls to Montana physicians to develop the standard of care to respect and protect their patients’ end-of-life decisions. Montana’s medical community is certainly up to the task of including aid in dying in the options available for patients with end-stage cancer and other terminal diseases.”

The committee also voted last week to table Sen. Blewett’s bill (SB 167), deciding not to adopt specific practice guidance and immunities.

“It is unfortunate that the committee did not go further to codify the court’s decision, providing physicians with additional protections for honoring patients’ decisions,” said Dr. Speckart. “However, Montana’s medical community can rest assured the Senate Judiciary committee examined this issue closely, and concluded that it is proper public policy for physicians to respect a dying patient’s decisions.”

Steve Johnson, a Helena brain cancer patient, said, “I think I should have something to say about my ending. I want my physician to be able to respect and honor my choice to die with dignity. I don’t know whether I would ultimately take medication to end my life peacefully, but I’d like to have the choice.”

Dying With Dignity

By Roberta King of Missoula, Montana. Roberta is the daughter of Bob Baxter, who fought in the Montana courts to have the legal right to aid in dying. (This is the second article in a three part series. The first article can be read here.)

My dad called me the summer before he died and told me he had purchased a gun and was going to end his life. He had gone to court to seek a legal right to aid in dying but it was taking a long time and his aggressive cancer was progressing fast.

When he told me his plans, I scolded him for being selfish and informed him that my mother would have that violent death as her memory of his passing. We argued about the court case. I was hoping it would resolve before long and I of course, being the child, didn’t think he would leave so soon. He was only 76 years old. Dad never mentioned it again; he sucked it up and hung on as long as he could.

During the last few months of his life, my father’s disease progressed to the stage where he suffered a great deal and was in a constant state of misery. His symptoms included severely swollen glands; constant pain and aching that made it extremely difficult for him to sit up; problems breathing; chronic fatigue and weakness; persistent infections; inability to sleep; loss of appetite; weight loss; and horrible episodes of alternating sweating and cold. He had lost about 30 pounds from his thin frame by the time he died.

My Dad was a very proud man. As his disease progressed, his ability to do things for himself decreased. He lost the ability to drive; this was crushing to him. He had been a truck driver for most of his life and now he couldn’t even drive himself to his Dr. appointments. He had to rely on my mother for everything.

Dad went on Hospice November 1st and I went to Billings to see him. I spent the whole drive thinking about what was coming. Once again, selfishly, I didn’t think he would leave so soon. He was so sick and miserable. From statements he made to me and other members of our family, it is clear my father would have availed himself of aid in dying if that choice had been legal in Montana and available to him. But we had heard nothing from the court.

I saw him again three weeks later, the week before he died. When I first saw him, I saw a skeleton of the man I knew. He was so thin his glasses wouldn’t stay on his face. I immediately burst into tears and dad had to comfort me. He asked me how long I thought he would have to endure before he finally died. I couldn’t tell him. I spent those few days trying to find things to comfort him: a pillow so he could sit, something to keep his glasses up. When my husband and I left, he said goodbye to me and meant it. I didn’t say my final goodbyes because I thought I would see him again.

On December 5, 2008, I was packing to come back to Billings to see him again. That was the day Judge McCarter issued her ruling. She wrote, “The Montana constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent terminally [ill] patient to die with dignity. . . . The patient’s right to die with dignity includes protection of the patient’s physician from liability under the State’s homicide statutes.” My father was sleeping when the news came that he had won his case. He never woke up.

Opponents of letting people make this choice themselves quickly attacked the judge’s ruling. Montana’s Attorney General announced he would appeal the decision to the Montana Supreme Court. We knew the people of Montana agreed terminally ill patients should have the choice my dad wanted and Judge McCarter said the constitution agreed. Now we would have to see what the Supreme Court and then the legislature would have to say.