COMPASSIONATE AID IN DYING ACT

PHYSICIAN ASSISTED SUICIDE COMES KNOCKING AGAIN

Henry C. Luthin, Attorney at Law© Henry C. Luthin, 2013 1

This Bill, House Bill No. 1998 (the Bill), would accomplish what last year’s ballot question on Physician Assisted Suicide attempted to do:

Allow any adult resident of Massachusetts suffering from a condition which is presumed to cause death within six months to request from his or her attending physician medication which would end the patient’s life in a “humane and dignified manner.”

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Like the Ballot Question, the Bill mandates that the patient be:

An adult (18 years of age or older); Resident of Massachusetts; Suffering from a terminal disease or

condition which “can reasonably be expected to cause death within six months”; and

Requires a written request witnessed by two persons

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Like the Ballot Question, the Act states that one of the witnesses may not be someone entitled to a share of the person’s estate at the time the written request is made.

This means, of course, that one witness may be entitled to a share in the estate. So, a person entitled to inherit and his or her significant other could be the two witnesses to the written request.

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Like the Ballot Question, the bill requires that the attending physician must inform the patient of: The medical diagnosis The prognosis The potential risks of taking the medication The probable result of taking the medication The feasible alternatives , including hospice

care, comfort care and pain control

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Also, like the Ballot Question, some other parts of the Bill remain.

The definition of “Self Administer” again states that it is the “act of ingesting” the medication.

“Act of ingesting” is not defined.

So, the patient need not take the prescription himself, but only “ingest” the medication, which can be administered by a third party.

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The definition of “capable” remains the same, namely:

…having the capacity to make health care decisions and to communicate them to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.

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Incompetent patients will most likely be able to be subject to physician-assisted suicide because under Massachusetts law, incompetent persons have the same rights as competent persons. See Patricia E. Brophy v. New England Sinai Hospital,Inc. 398 Mass. 417 (1986).

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This is true even if there is a law requiring written informed consent to exercise rights. See In the Matter of Mary Moe, 385 Mass. 555 (1982), where in spite of a law requiring written informed consent of a person to be sterilized, the Supreme Judicial Court allowed a guardian to petition the probate court to authorize the sterilization of her incompetent ward

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There are some important differences between the Bill and the Ballot Question.

The preamble to the Bill, Section 1, states:

Recognizing the importance of individual dignity, informed consent, and the right to bodily self-determination at the end of life, it is hereby declared that the Commonwealth of Massachusetts affirms the existing right of capable, terminally ill patients to request compassionate aid in dying and obtain medication from a physician meeting medical best practices that the patient can choose to self-administer bring about a humane and dignified death.

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Note that obtaining drugs to kill oneself would now be a pre-existing right that the law is recognizing.

The Ballot Question defined a procedure. The Bill defines a right which the procedure will help you to exercise.

But the “right” only inheres if a patient is “capable” and “terminally ill”.

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The Ballot Question had at least some protections:

The prescription could not be written sooner than 15 days after a written request and forty-eight hours after an oral request.

The Bill eliminates the waiting period and the oral request.

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The Ballot Question required a consulting physician to examine the “patient and his or her relevant medical records and confirmed, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verified that the patient is capable, is acting voluntarily, and has made an informed decision. “

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Like the Ballot Question, under the Bill a Consulting Physician must:

Examine the patient and his or her medical records;

Confirm in writing the Attending Physician’s diagnosis that the patient is suffering from a terminal condition;

AND

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Verify that the patient isCapableActing voluntarilyHas made an informed decision

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The Bill allows the Attending Physician to waive the requirement of examination by a Consulting Physician. One of two reasons is necessary for such a waiver (See Section 7(2)).

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1. If such an examination would result in undue hardship to the patient because the terminal condition is sufficiently advanced that confirmation of the illness is not necessary

OR

2. An appointment with a Consulting Physician cannot be made within a reasonable amount of time or with a physician who is within a reasonable distance from the patient’s residence

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Who determines reasonableness? The Attending Physician.

If confirmation of the terminal condition may be used as a reason to waive the need for a Consulting Physician, why should the Consulting Physician, if one is used, verify that the patient is capable, acting voluntarily, and has made an informed decision?

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Like the Ballot Question, the Bill specifically does not require a patient’s family to be notified that the patient has requested the fatal medication. (Section 10).

Like the Ballot Question, the Bill does not require the patient to be referred for psychological or psychiatric counseling, except of the Attending Physician believes the patient to be suffering from a disorder or depression causing impaired judgment. (Section 8).

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Like the Ballot Question, the Bill requires the falsification of the death certificate, “which SHALL list the underlying disease as the cause of death.” (Section 6(2)).

Like the Ballot Question, the Bill has a bare requirement that unused medication “shall be disposed of by lawful means”, with no safeguards in place. (Section 15(4)).

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Unlike the Ballot Question, conscience protections for institutions, such as religious health care facilities, are weakened. (Section 15).

The Ballot Question allowed institutions to prohibit doctors from engaging in assisted suicide on their grounds. The Bill contains no such protection for institutions regarding doctors who prescribe for aid in dying.

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The Bill further requires Health Care Facilities which recuse themselves from “Aid in Dying” to create a “consumer disclosure” which will:

Identify the services in which they refuse to participate;

Clarify differences between institution-wide objections and those “that may be raised by individual licensed providers who are employed by or who work on contract with the provider”;

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“Describe the mechanism the provider will use to provide patients a referral to another provider or provider in the provider’s service area who is willing to perform the specific health care service”;

“Describe the provider’s policies and procedures relating to transferring patients to other providers who will implement the health care decision”;

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Inform consumers that the cost of transfer will be borne by the transferring provider;

Describe the internal and external consumer complaint processes available to persons affected by the provider’s objections.

(201G:15)

Clearly, this increases the burden on institutions which object to providing “Aid in Dying”.

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Finally:

Section 14(5): “STATE REGULATIONS, DOCUMENTS AND REPORTS SHALL NOT REFER TO THE PRACTICE OF AID IN DYING UNDER THIS CHAPTER AS ‘SUICIDE’ OR ‘ASSISTED SUICIDE.’

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Why is this man smiling?

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