End-of-Life Choice, Death with Dignity, Palliative Care and Counseling

Posts TaggedJudge McCarter

What’s Next for Montana?

It is currently legal for terminally ill, adult, competent Montana residents to seek the aid of a physician to hasten death and a physician can legally provide that aid. Meanwhile, District Court Judge Dorothy McCarter’s December 2008 determination that Montanans have this right has been appealed to the Montana Supreme Court. The Court is expected to issue its ruling sometime in this year. If the court affirms McCarter’s ruling, the right to a physician’s aid in dying (PAD) will become a permanent part of Montana’s legal framework. Overturning it would require passage of a constitutional initiative. While I never say “never,” it is difficult, in a state whose population fiercely values individual autonomy and independence, to envision voters taking away the right for a terminally ill adult to seek aid in dying.


If the Supreme Court rules in our favor, what’s next for Montana? The next step will be legislative, most likely during the 2011 legislative session. It will be incumbent upon that legislature to codify the right to PAD in a regulatory framework that defines terms such as “terminal”, “competent” and “resident.” Until this is done, it will be primarily a physician’s responsibility to define these terms. This does not provide as much leeway as may be supposed. When there are “gray” areas, medical providers are ethically bound to provide care that is in line with what their peers and society view as prudent and reasonable. Thus, until Montana has specific regulations in place defining terms, Montana physicians can be expected to follow the guidelines and definitions in Oregon’s Death with Dignity regulations.


Whether the 2011 Montana legislature will undermine the spirit of this right through draconian legislation or work in good faith to provide regulatory oversight protecting vulnerable populations from abuse while providing terminally ill patients with the necessary flexibility to use this right remains to be seen. If history is any example we will be treated to both behaviors. It will be up to us, as citizens, to make sure the latter prevails.  



A Reassuring Decision

            On December 8, 2008 District Court Judge Dorothy McCarter’s issued the decision that it is legal for a physician to prescribe a lethal dose of drugs to a competent, terminally ill Montanan who requests it. Two days later, the state attorney general’s office asked the judge to freeze her decision until the Montana Supreme Court could rule on the case.


            Judge McCarter’s response on January 8, 2009 was an unequivocal, “No!” She reasoned it could take months or years before the case is heard by the Supreme Court. Meanwhile, the constitutional rights of dying Montanans would be violated.


            Montanans owe a great deal of gratitude to this courageous judge. It would have been easy for her to retreat at this critical juncture. Instead, as I see it, she reaffirmed that our right to make choices at the very nexus of life and death is of critical importance to an individual’s dignity. In essence she said that dying Montanans are worthwhile, fully functioning humans who deserve every consideration and whose constitutional rights are worth protecting even in their last moments.


            There is a propensity to think that humans who are near death are too weak or too fragile to make decisions for themselves. This is augmented by a subtle feeling among the healthy that the rights of the dying are not as important as their own; “it really doesn’t matter much, after all, they will soon be gone.” Judge McCarter understands that the dying are vital human beings who are least able among us to wait for or fight for their rights.


            By denying to put a hold on her decision she affirmed that the most vulnerable Montanans are protected under the state constitution; that the rights of those of us whose deaths are imminent will not be ignored and that Montanans who find themselves in this situation before the appeal is heard deserve to have their rights protected as much as anyone.


            What this means to all of us is that our rights to dignity and privacy are of great consequence no matter what phase of life we are in; that our rights must be protected every moment of our lives. Of course this is as it should be, but it is remarkable to think about none the less. It is also reassuring.