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

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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.

Bill 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>>