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

Posts Taggedphysician aid in dying

Montana Supreme Court Upholds Right of Montanans to Aid in Dying

HELENA, MT – Montana 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 hailed the Montana Supreme Court’s ruling that terminally ill Montanans have the right to choose aid in dying under state law. There is no further appeal from this decision, as the Montana Supreme Court is the highest court available to decide State issues.

Compassion & Choices Legal Director Kathryn Tucker, co-counsel to the plaintiffs/respondents, said, “This case was about the right of mentally competent, terminally ill patients to request a prescription for medication from their doctors which they can ingest to bring about a peaceful death. The Montana Supreme Court has determined that this is a choice the public policy of Montana supports. Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice. This is the first state high court to find protection of this choice, and makes clear that in Montana, patients are able to make this choice and physicians can provide this care without risking sanction.”

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. He feared when he filed this lawsuit that he would not live long enough to benefit from it. 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.”

Dr. Stephen Speckart, a Missoula cancer specialist and a plaintiff in the lawsuit, said, “This decision affirms that a terminal patient’s fundamental right to self-determination will guide end-of-life health decisions. I regularly treat patients dying from cancer, and many of these deaths are slow and painful. Terminal patients will no longer be forced to choose between unrelenting pain and an alert mental state as they approach the end of their lives from terminal diseases. The comfort this brings to their last days can have an immeasurable benefit.”

Missoula attorney Mark Connell, who argued the case to the Supreme Court on behalf of the plaintiff physicians and patients, described the decision as “a victory for individual rights over government control.” Connell added: “The Montana Supreme Court has now recognized that, where intensely personal and private choices regarding end-of-life care are involved, Montana law entrusts those decisions to the individuals whose lives are at stake, not the government. I know Bob Baxter would be very pleased that the court has now reaffirmed that these choices should be left to the terminally ill people in our state.”

Steve Johnson, 71, of Helena, is terminally ill with brain cancer, hailed the decision and asked the Montana medical profession to provide patients like himself with aid in dying. “I approach the end of my life with a clear mind, and I would like to work with my doctor to minimize the pain and maximize the peacefulness in my dying. I would like my physician to be able to respect and honor my choice to die with dignity. Adults like myself should have the option, if terminally ill, to request physician aid in dying.
It’s only compassionate to minimize unnecessary suffering at the end of life, and to let me make the choice about how much suffering to endure, based on my own values and beliefs,” said Johnson.

Montana State Sen. Christine Kaufmann, Rep. Dick Barrett and twenty-nine other state legislators; the American Medical Women’s Association, the American Medical Students Association, and a coalition of Montana clinicians; the American College of Legal Medicine; the American Civil Liberties Union of Montana; the Montana Human Rights Network; the Northwest Women’s Law Center; terminal patients’ surviving family members; Montana religious leaders; and Montana’s leading constitutional law experts had urged the Court to find in favor of the terminal patient’s right to receive aid in dying from their physicians.

Compassion & Choices encourages terminally ill patients to call 800 247-7421 if they would like information about aid in dying, or suggestions on how to open a dialogue with their physician and loved ones.

A License to Do Whatever a “Health Care” Worker Feels Like Doing Act

A bill mislabeled the “Health Care Freedom of Conscience Act” began its journey through the Montana legislature January 23rd. This is a bad bill, with the same malevolent repercussions as the so-called “Conscience” regulations put into effect at a federal level in the waning days of the Bush administration .

If  House Bill 351  introduced by Wendy Warburton of Havre, is enacted it won’t matter to Montanans if the federal regulation is eventually reversed, we’ll have our own law “protecting” health care workers and facilities from any legal or disciplinary action if they refuse to perform a procedure or administer drugs based on their conscience. “Conscience” is defined in the bill “as the religious, moral, or ethical principles held by a health care provider or health care institution.”


We all know what this bill is really aimed at: limiting and complicating access to health care services of the most private and personal kinds. Section 2, Number 3 states, “The purpose is to protect as a basic civil right the right of all health care providers and health care institutions to decline to counsel, advise, prescribe, provide, perform, or assist in counseling, advising, prescribing, providing, or performing a health care service that violates their consciences. Health care services may include but are not limited to abortion, abortifacients, artificial birth control, artificial insemination, assisted reproduction, human cloning, euthanasia, human embryonic stem-cell research, fetal experimentation, physician-assisted suicide, and sterilization.”


The possibility for mayhem this bill opens up is endless. Is a health care worker a vegetarian for ethical reasons? If this bill passes he can refuse to serve patients meals that include meat. The worker is completely within his “rights.”  Rushed to an emergency room needing an immediate blood transfusion? Oops! The doctor on duty is a Jehovah’s Witness. This bill would protect her “right” to refuse to order a life-saving transfusion based on her religious beliefs. Want a job at Planned Parenthood but don’t believe minors should have access to birth control? Planned Parenthood can’t use that “excuse” not to hire you. Discrimination in hiring based on “conscience” would be specifically prohibited.


HB 351 is nonsense. The fact that an elected official dreamed it up and it’s getting a hearing is scary. The highest calling for health care workers and facilities is to provide the best care legally possible. If a worker does not wish to be involved in contraceptive or end of life issues then they have no business working for a facility that does. End of story….I wish.





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.

A Gift from the Heart

Mom died three and ½ years ago from “complications” of Alzheimer’s. Compassion and Choices, the Hemlock Society, Washington Death with Dignity, Oregon Death with Dignity, and several other organizations devoted to giving people more choices in how they died counted her as a member. I grew up listening to her say adults should be able to make their own choices about how and when their life ends.


Her sister in law died the slow death of Alzheimer’s and she did not want it for herself. She watched in horror as my aunt and her good friend of 50 years lay curled in a frozen fetal position while people spent hours poking miniscule amounts of food down her. “If other people want that, ‘fine’ but I don’t!” She sought assurance that I would “just kill her if she didn’t know enough to take care of herself.” I couldn’t make that promise of course. But in 1997 we did sit down together while she wrote a living will aimed at truncating her life as soon as possible if she was struck with Alzheimer’s.


As she wrote, I questioned her about exactly what she meant, “What do you mean by ‘care for yourself’?, But what if you only need someone to help for an hour a day?, Mom, that’s illegal, you can’t ask me to do that!” The result was the following living will.


Eileen Tucker’s Living Will


I, Eileen Tucker, being of sound mind, do hereby declare that if I become physically or mentally incapable of making decisions about my medical care, that the following instructions be followed:


            1. No resuscitation*, medical intervention*, or nursing care* unless I can reasonably be expected to recover and return to the functioning level I was at in 1997 within six months of the resuscitation, medical intervention or need for nursing care.


            *I define resuscitation, medical intervention and nursing care to include:

                        a) tube feeding

                        b) dialysis

                        c) assisted breathing with a respirator

                        d) surgery

                        e) hand feeding

                        f) medication, including antibiotics


            I wish to have the above only if they are employed to keep me comfortable and free from pain and not to extend my life, unless, as noted in #1, I can reasonably be expected to return to my physical and mental functioning of 1997.


            2. In the event that I am not expected to be able to recover and return to the functioning level I was at in 1997, I wish only to receive the care necessary to keep me clean and comfortable and to be kept free of pain and discomfort to the maximum extent possible, even if it causes premature death.


            3. If I become permanently incapacitated mentally, I wish to be restrained only if I am endangering other people’s lives or property, and not to protect me from endangering my own.


            4. In the event that my mental health gradually deteriorates, and if it is legal, I request that I be euthanized at the point that I require more than 5 hours of assistance with personal care (meal preparation, planning, bathing, oversight, etc./day). If it is not legal, I wish to receive the minimum amount of care required by law.


            I have discussed my desires fully with my daughter Patricia A. Tucker and appoint her to make decisions on any details that are unclear or are omitted from the above.


            This living will is in addition to my durable power of attorney for health care.


            I make this will of my own free will, under no undue influence on this 23rd day of July, 1997.


It was not perfect. I was still forced to make many difficult decisions without direction. Yet, despite its limitations, it proved immensely helpful and reassuring to me as we wound our way through her final years months, weeks, days, hours and minutes. I will be forever grateful that she was willing to communicate, in detail, what she wanted.


Obviously not everyone wants what she wanted. The beauty of choice is that, as individuals, we can determine what we want. I share it with you, not to copy, but to give each of us the courage and foresight to write our own, in our own words that spells out to the extent possible exactly what it is that we want our caretakers to do if we are not capable of making decisions for ourselves. I share this story with you to encourage you to initiate the discussion with family members about what they want for themselves. It may turn out to be the best, most enduring gift we can give each other this holiday season.