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

Posts TaggedMontana Supreme Court

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.

Aid in Dying 1994 – 2011: Data from Oregon’s “Laboratory” is Complete

Seventeen years ago the people of Oregon took a bold step in end-of-life care and comfort. By citizen initiative, they adopted eligibility criteria and practice guidelines for terminally ill, mentally competent adults to obtain medication that would ensure peaceful dying. I was one of the drafters of that law, and I have stood by every word ever since. For years, when reporters asked what I would change in the law, I replied “one comma,” to clarify that impaired judgment from any type of mental dysfunction disqualifies a patient from making a request. Subsequently, we did change that comma.

Fourteen years of experience integrating aid in dying into Oregon medical practice, three years replicating that experience in Washington and two years with a different regulatory model in Montana now inform policy-makers. Our work to craft subsequent Death with Dignity Acts and aid-in-dying policies reflects the wisdom gained from practice.

Opponents believed catastrophe would befall Oregon and medical practice would suffer, but the opposite occurred: End-of-life care is robust, thriving and increasingly patient-centered in Oregon. Thousands of patients find comfort every year knowing they do not have to suffer unbearably. No evidence exists of anyone harmed. Opponents’ assertions to the contrary rely on vast conspiracy theories, fraud and cover-up by Oregon hospices and the hospice association, officials at the Department of Health, the medical disciplinary board, and police departments in communities across the state. These scary stories hold no credibility, and polling reveals a full 77% of Oregonians support their Death with Dignity Act.

Proponents believed terminally ill patients want and need assurance they can control the time and manner of their dying, and will apply profound thought and care before ever exercising this control. We believed nothing could override doctors’ drive to cure disease and prolong life, but that as death inevitably approaches, most doctors would allow qualifying patients this measure of comfort. Those beliefs have been validated.

Oregon’s data and experience has revealed other truths. We could not have predicted all of them, but they carry important lessons for our future advocacy:

1. Oregon’s Death with Dignity law says patients may express a “wish to die.” Data and experience contradict this. We now know patients approaching death and planning for peace have no wish to die. They wish only, if death is imminent, that it be as peaceful and humane as possible.

2. Oregon’s law says a physician may provide, and a qualifying individual may receive, medication “for the purpose of ending his or her life … .” Data and experience indicate this statement of purpose is inaccurate. Patients making a request want assurance, and they have made no decision about whether to ingest the medication. Fully 40% of patients who completed the entire qualifying process in 2010 either did not fill the prescription or did not take the medication. Experience teaches the purpose of the prescription usually is to provide comfort and peace of mind. The purpose is to lend substance to the fondest hope – for a peaceful death, at home with loved ones near. The purpose is to improve the quality of life for a dying person. The purpose is not to cause death, for cancer or other fatal disease is already producing that end.

3. Physicians embrace clear practice guidelines. They are eager to conform to the expectations of their peers. Many Montana physicians would have welcomed further guidance from the legislature to round out the broad aid-in-dying parameters laid out by the Montana Supreme Court. Legislators declined to adopt guidelines, so the Court’s public-policy findings guide Montana’s aid-in-dying practice, which is also informed by practice in Oregon and Washington, and relevant authoritative medical literature.

4. As much as doctors embrace practice guidelines, they do not appreciate government-required paperwork and the idea that Big Brother can intrude into the intimate and private doctor-patient relationship. For fourteen years Oregon’s medical community has been heroic and diligent in completing elaborate and duplicate forms for every completed aid-in-dying request and meeting onerous reporting deadlines. Some have faced investigation by the medical disciplinary board for minor technical omissions on these forms. These physicians endured intrusive investigations that never revealed actual violation of the law.

As the U.S. Supreme Court intended, Oregon has served as a laboratory to test the impact of a new end-of-life option on patients, physicians and end-of-life care. Washington’s data and experience reproduced the findings from Oregon. The “laboratory experiment” is complete, and the results will inform our advocacy from now on.

· We will work for policy that reflects community standards, establishes clear guidelines and guides physicians in safe and responsible aid-in-dying practice, without burdensome government reporting on every patient encounter. Bureaucratic paperwork has provided important data demonstrating the safety of aid in dying, but it is not responsible for making the practice safe. As is clear in Montana, physicians meticulously adhere to a standard of practice defined by the bounds of the Court decision, without the needless and intrusive burden of government reporting.

· We will affirm the true purpose of aid-in-dying medication is to provide comfort and improve the quality of life for dying patients. Physicians intend to comfort, and patients intend to acquire the ability to escape unbearable suffering.

As advocates we have defended the law from multiple attacks. As stewards we have guided patients, families and medical professionals through the eligibility requirements, procedural guidelines and reporting duties of aid in dying. As investigators we have observed the law’s provisions play out at countless bedsides, living rooms and kitchen tables across the state. Medical studies, state reports and our own experience inform our “post-Oregon” advocacy. We must not ignore the lessons of Oregon’s data and experience.

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>>