Download Morning Keynote Speaker: Kathryn L.

Morning
Keynote
Speaker:
Kathryn L.
Tucker
19
Choices at the End of Life
New York Law School
Symposium, November 2012
Kathryn L. Tucker, JD
Director of Legal Affairs
Compassion & Choices
Adjunct Professor of Law
Loyola Law School/LA
-
Dying in America in Modern Times
For all but our most recent history,
dying was typically a brief process …
These days, swift catastrophic illness
is the exception; for most people,
death comes only after long medical
struggle with an incurable condition.
-A. Gwande, The New Yorker Magazine, Annals of Medicine, “Letting Go:
What should medicine do when it can’t save your life?”(August 2, 2010)
Choice at the End of Life
Why it Matters
We live our whole lives in the shadow of
death, we die in the shadow of our whole
lives. … we worry about the effect of life’s
last stage on the character of life as a whole,
as we might worry about the effect of a
play’s last scene or a poem’s last stanza on
the entire creative work.
- Ronald Dworkin, Life’s Dominion
Choices
Voluntarily Stopping Eating and Drinking
(VSED)
• Recognized in law and medicine, all states.
• Requires medical or hospice oversight/
continuous caregiving and/or family support
throughout the fasting process.
• Sometimes obstructed: See, Rudolph….
Choices
Refusing or Discontinuing a
Life-Prolonging Treatment
• Recognized in law and medicine, all states.
• cardiac devices, feeding tubes, ventilators,
resuscitation and/or medication.
• palliative care is provided to ensure that
discomfort is minimized.
• Family conflict?
• NY/Grace Lee; Hawaii/Okada
Choices
• Palliative Sedation(terminal sedation)
• Recognized in law and medicine, all states.
• Medication administered to induce
unconsciousness so patient with refractory
pain/symptoms no longer aware. Nutrition
and hydration withheld until death arrives.
• Multiple CPGs govern practice, e.g. AMA,
AAHPM, HPNA,NHPCO, VA.
• significant fraction of physicians fail to inform
about, leaving patients uninformed about a
potentially important option.
Choices
 Aid in Dying
Physician writes prescription
for a mentally competent,
terminally ill adult patient,
who may ingest medication
to bring about a peaceful
death if suffering unbearable.
70% of Americans support.
Broad Support for Aid in Dying
Emerges Among Medical and Health
Policy Organizations
 American Public Health Association
 American Medical Women’s Association
 American Medical Students Association
 American College of Legal Medicine
Evolution Law/Policy re: EOL Choice
• Glucksberg/Quill: SCOTUS declined to find federal
constitutional right at time, reserving possibility it
might in future, inviting ‘experimentation in
laboratory of states’; recognizing right to
palliative sedation.
• side note: Hargett v Vitas: test case regarding
palliative sedation.
• OR ‘lab’: pursuant to statute permitting aid in
dying(enacted ’94; effective 1998-present).
• OR experience: rich body of data, carefully
scrutinized, extensive analysis/ commentary.
Aid in Dying in Oregon
Use is limited: 596 in 14 years
• 98% white
• 70% college educated
• 90% enrolled in hospice
• 81% dying of cancer
7% dying of ALS
• 98% had insurance
Oregon Department of Human Services, March 2012
Aid in Dying
• Permitted by statute in OR (1994)
(the “laboratory” for the nation)
• Washington (2008)
• (Massachusetts 2012??)
• Recognized by high court in MT(2009)
• Practiced subject to best practices: Hawaii, ??
• Prohibited by statute in Arkansas, Idaho,
Georgia, Minnesota and…??
Social Change regarding Aid in Dying
Accelerates in Wake of OR Evidence
2008: WA adopts statutory permission,
begins implementation.
2009: MT Sup Ct: Aid in Dying w/in
public policy of State, not subject
to criminal prosecution (Baxter).
2011: Efforts to ban fails in MT legislature.
2012: MA adopts statutory permission?
Broad Support for Aid in Dying
Emerges Among Medical and
Health Policy Organizations
 American Public Health Association
 American Medical Women’s Association
 American Medical Students Association
 American College of Legal Medicine
Montana Board of Medical Examiners
Position regarding Aid in Dying
• A complaint related to aid-in-dying will be
evaluated on individual merits/will
consider as it would any other medical
procedure or intervention whether the
physician engaged in unprofessional
conduct. (adopted 2012)
• Reflects normalization of aid in dying
within medical practice.
Significance of Baxter
• Advocates for Aid in Dying need not
enact permission.
• Bear burden of defeating prohibition.
• Shift in burden changes game:
easier to defeat a prohibition than
enact a permission: result: expansion
in choice.
• Baxter - reach beyond Montana?
Aid in Dying Governed by Best
Practices/Standard of Care?
In states without laws affirmatively
addressing(the majority of states, not
MN) practice can/should be governed by
best practices/standard of care.
• Most medical practice so governed.
• Few medical practices subject of court
ruling or statute.
• Timely for CPGs to emerge.
Hawaii:
Best Practices Jurisdiction
Constellation of laws recognize/
respect the autonomy of patients in
their decisions over end-of-life care.
• Health-Care Decisions Act: patients
can specify if/when they wish to
refuse/withdraw life-sustaining medical
care.
• Pain Patient’s Bill of Rights.
Physicians May Provide
“Any Remedial Agent”
When a physician pronounces a
person beyond recovery …“nothing
herein shall forbid any person from
giving or furnishing any remedial
agent or measure when so
requested by or on behalf of the
affected person.”
HRS
453-1 (2011)
Aid in Dying is not “Suicide”
Mental health professionals
recognize a clear difference
between the act of “suicide” and
the choice of a terminally ill
patient to bring about a peaceful
death.
AID is not “Suicide”
“It is important to remember that the
reasoning on which a terminally ill
person (whose judgments are not
impaired by mental disorders) bases a
decision to end his or her life is
fundamentally different from the
reasoning a clinically depressed person
uses to justify suicide.”
American Psychological Association
Morris v New Mexico:
Scope of “Assisted Suicide” Statute
• Do state laws criminalizing “assisting
suicide” have anything to do with AID?
•
Choice of competent, terminally ill patient for
a peaceful death is not suicide.
• If court finds does not reach AID,
• Defend against a specific prohibition.
• Support reasonable statutory
boundaries/protections.
• w/o burdens of OR/WA scheme.
Predictions
• Choices available to terminally ill patients
will expand.
• Aid in dying will become increasingly
widely available.
• Clinical practice guidelines will be
promulgated for aid in dying, leading to
normalization of the practice w/in EOL
care.
Compassion & Choices
www.CompassionAndChoices.org
1-800-247-7421
K. TUCKER
5/8/2012 10:32 PM
9
Journal of Health & Biomedical Law, VIII (2012): 9-26
© 2012 Journal of Health & Biomedical Law
Suffolk University Law School
Aid in Dying: An End of Life-Option Governed by
Best Practices
Kathryn L. Tucker*
I. Introduction
Modern medicine can extend the dying process so long that a patient dying of a
terminal illness may feel trapped in a torturous, inexorable lingering decline. Sometimes
the process takes too long and suffering is unbearable. Some patients will want a
swifter, gentler end achieved by ingesting medications prescribed to bring about a
peaceful death. This option is known as aid in dying and refers to the practice of a
physician prescribing medication to a mentally competent terminally ill patient, which
the patient may ingest to bring about a peaceful death.1
Enacting legislation to create an affirmative permission for aid in dying is
difficult and has only been achieved to date in two states: Oregon and Washington.2
Another state has recognized that its citizens may freely choose this option through a
* Ms. Tucker has served as Director of Legal Affairs, Compassion & Choices since 1996. Prior
to that, she was in private practice with Perkins Coie in Seattle, WA. She teaches “Law, Medicine
and Ethics at the End of Life” at law schools, including the University of Washington, Seattle
University and Loyola/Los Angeles. She is a graduate of Georgetown University Law Center.
Ms. Tucker extends special thanks to summer intern Mary Anne Davies, Loyola Law School, for
assistance in preparing this article.
1 See Kathryn Tucker, At the Very End of Life: The Emergence of Policy Supporting Aid in Dying Among
Mainstream Medical & Health Policy Associations, 10 HARV. HEALTH POL’Y REV. 45, 45 (2009). This
term is increasingly widely accepted, including by the American Medical Women’s Association,
the American Medical Students’ Association, and the American Public Health Association,
among others. Id. In the past, this option was sometimes referred to as ‘physician assisted
suicide’ but that term has since been rejected as inaccurate and pejorative. But see AMA – E2.211, Physician-Assisted Suicide, AM. MED. ASS’N (Jun. 1996), https://ssl3.ama-assn.org/apps/
ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=%2fresources%2fdoc%2fPolicy
Finder%2fpolicyfiles%2fHnE%2fE-2.211.HTM.
2 See Tucker, supra note 1, at 45-46.
K. TUCKER
10
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
state Supreme Court decision, Baxter v. State of Montana.3 Two states have passed
legislation specifically outlawing aid in dying.4 In the other states, it is unclear whether
providing aid in dying exposes physicians to prosecution under criminal laws. This
paper will explore the issue with a focus on Hawaii, a jurisdiction where it appears that
aid in dying can be provided without fear of criminal prosecution, yet physicians and
patients are largely unaware of this.
In 2002, Hawaii nearly became the second state, after Oregon in 1994, to pass a
law that would have established a statutory permission to choose aid in dying.5
However, the bill was voted down by a narrow margin on the final day of the session. 6
Since the 2002 session, a proposal to establish specific statutory permission for this
choice has not received a full floor vote in the Hawaii State Legislature.7
Efforts to enact an affirmative permission for aid in dying are often politically
and emotionally charged. This is due, in part, to misinformation promoted by a wellorganized opposition, as evident in the recent consideration of Hawaii Senate Bill 803:
Death with Dignity.8 Opponents misleadingly referred to the bill as “Doctor Prescribed
Death.”9 It was evident from Hawaii’s Senate Health Committee hearing that such
tactics are effective.10 Those opposing the bill testified that a law permitting aid in dying
would lead to involuntary euthanasia and would create a culture in which there is a “duty
224 P.3d 1211, 1221 (Mont. 2009) (arguing that with aid in dying, the patient is choosing his or
her own method of dying, unsolicited by his or her physician).
4 See ARK. CODE ANN. § 5-10-106 (West 2011) (making “physician-assisted suicide a Class C
felony); IDAHO CODE ANN. § 18-4017 (West 2011) (explaining that any physician who assists
with a patient suicide is subject to a felony charge and license revocation).
5 See B.J. Reyes, Assisted Suicide Bill Stalls, HONOLULU STAR-ADVERTISER (Feb. 8, 2011),
http://www.staradvertiser.com/news/20110208_Assisted_suicide_bill_stalls.html?id=115545194
(comparing this proposed law to Oregon’s Death with Dignity Act). Repeated introductions of a
permission measure reflect the assumption that aid in dying is not currently an option that
patients can choose, nor that physicians can provide. Id. The assumption has been that
providing aid in dying would subject physicians to criminal exposure. Id. That assumption, this
paper asserts, is unfounded and erroneous. See id. (arguing that the proposed bill would shield
physicians from both civil and criminal liability).
6 See id. (noting that the Senate voted against the bill 14-11).
7 See Reyes, supra note 5.
8 S. 803, 26th Leg., Reg. Sess. (Haw. 2011).
9 Doctor-Perscribed Death SB 803, HAW. CATHOLIC TV (Feb. 2011), http://hictv.com/2011/02/
doctor-perscribed-death-sb-803/.
10 See Lee Catterall, A Matter of Life & Death, HONOLULU STAR-ADVERTISER (Feb. 13, 2011),
http://www.staradvertiser.com/editorials/20110213_A_matter_of_life__death.html?id=1161032
54 (explaining that testimony “overwhelmingly” opposed the bill).
3
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
11
to die.”11 Swayed by this testimony, legislators voted the measure down.12
Even though opponents have successfully defeated measures to specifically
permit aid in dying, using inflammatory language and conjuring frightening images, they
have not defeated broad public support for it among Hawaii residents: an overwhelming
majority supports access to aid in dying.13 Interestingly, it appears that a change in law is
not necessary for the practice to be among the range of end-of-life options available to
dying patients in Hawaii.14
Medical care is typically governed by best practices, also referred to as standard
of care, and not by statutes or court decisions that either prohibit or give affirmative
permission to provide specific types of care.15 Hawaii’s existing statutory framework
already empowers patients to make autonomous decisions regarding their end-of-life
care and treatment for pain.16 Further, Hawaii does not have a criminal prohibition
against aid in dying.17 Standard of care already accepts a variety of other life-ending
practices such as withdrawing life-sustaining treatment, stopping of all food and fluids,
and palliative sedation.18 It is reasonable to conclude, as discussed below, that amidst
Death with Dignity Legislation: Hearing on SB803 Before the S. Committee on Health, 26th Cong. 2
(2011) (statement of William D. Heagney, participant at the hearing), available at http://www.
capitol.hawaii.gov/session2011/testimony/SB803_TESTIMONY_HTH_02-07-11.pdf. “Anyone
who had done research on ‘death with dignity’ that [sic] this process quickly escalates to
euthanasia of those who don’t request it, and increases the pressure on the sickly to have a ‘duty
to die’ taking away all their dignity.” Id.
12 See Catterall, supra note 10 (noting that Senator Josh Green commented that the sentiment of
those testifying was “overwhelmingly opposed”).
13 See Qmark Research and Polling, Press Release: Death with Dignity Hawaii Gains Citizen Support:
QMark Poll is Latest Indicator of Public Demand, HAW. DEATH WITH DIGNITY SOC’Y (Jan. 2004),
http://hawaiidwdsociety.org/polls/2003_QMark_Poll_FINAL.pdf (explaining that “voters in
Hawaii support proposed Death with Dignity legislation by an overwhelming 71%”).
14 See HAW. REV. STAT. §§ 327H-1, 327E-2 (2011). Other end-of-life choices dying patients may
make which alter time of death include: refusing or directing the withdrawal of life prolonging
treatment, refusing food and fluid while receiving supportive palliative care, and aggressive pain
and symptom management, including palliative sedation. Id.
15 61 AM. JUR. 2D Physicians, Surgeons, and Other Healers § 189 (2012). “Generally, a physician is
held to the standard of care and skill of the average practitioner of the medical specialty in
question, taking into account advances in the profession, or the state of the medical profession at
the time.” Id. (footnotes omitted).
16 See infra Part II.A.
17 See infra Part II.B.
18 Authoritative medical literature also recognizes this option. See, e.g., Paul Rousseau, Palliative
Sedation in the Management of Refractory Symptoms, 2 J. SUPPORTIVE ONCOLOGY 181, 185 (2004);
Susan D. Bruce et al., Palliative Sedation in End-of-Life Care, 8 J. HOSPICE & PALLIATIVE NURSING
11
K. TUCKER
12
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
this background Hawaii is a jurisdiction in which physicians can provide aid in dying
subject to best practices.19
II. Hawaii Law Governing End-of-Life Care
A. Hawaii Law Empowers Patients to Make Autonomous End-of-Life
Treatment Decisions
Hawaii’s statutory framework recognizes and respects the autonomy of patients
in their decisions over end-of-life care. A constellation of existing laws empower
patients to ensure they are able to effectively treat their pain and to refuse or withdraw
life-sustaining treatment. Hawaii, like many states, has passed its own version of the
Uniform Health-Care Decisions Act, which allows patients to specify if and when they
wish to refuse or withdraw life-sustaining medical care.20 Additionally, in 2004, Hawaii
320 (2006), available at http://www.medscape.com/viewarticle/550666_print. See generally Nathan
I. Cherny & Russell K. Portenoy, Sedation in the Management of Refractory Symptoms: Guidelines for
Evaluation and Treatment, 10 J. PALLIATIVE CARE 31 (1994). The Supreme Court has recognized the
right of a suffering, dying patient to refuse life-sustaining medical treatment as a matter of federal
constitutional law and has acknowledged that access to palliative sedation, although it may hasten
a patient’s death, may constitute an acceptable medical practice. See Vacco v. Quill, 527 U.S. 793,
801-02 (1997). “[A] patient who is suffering from a terminal illness and who is experiencing great
pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that
suffering, even to the point of causing unconsciousness and hastening death.” Id. at 809
(O’Connor, J., concurring).
19 See infra Part II.A-B. The concept of allowing aid in dying to emerge as a practice governed by
standard of care was presented in Idaho in 2010. See Kathryn L. Tucker & Christine Salmi, Endof-Life Care in Idaho: Law, Medicine, Policy, and Geography, CRIT, Summer 2010, at 1, 3-4, 7-8 (laying
out the standard of care thesis within Idaho’s statutory scheme), available at http://
thecritui.com/wp-content/uploads/2011/01/tucker.pdf. Conservative legislators responded by
introducing and promptly enacting a prohibition of aid in dying. 2011 Idaho Sess. Laws 555
(codified at IDAHO CODE § 18-4017), available at http://legislature.idaho.gov/sessioninfo/
2011/sessionlaws_vol2.pdf. The legislative co-sponsors were comprised of three republican
senators and four republican representatives. See Senate Bill 1070, IDAHO LEGISLATURE,
http://legislature.idaho.gov/legislation/2011/S1070.htm (last visited Mar. 22, 2012) (providing
legislative co-sponsors and statement of purpose).
20 HAW. REV. STAT. §§ 327E-2, -3 (2011) (intending to have the benefits of treatment outweigh
the burdens of such treatment on the patient). Section 327E-2 defines “health care” as
any care, treatment, service, or procedure to maintain, diagnose, or otherwise
affect an individual’s physical or mental condition, including: . . . (3) [d]irection
to provide, withhold, or withdraw artificial nutrition and hydration; provided
that withholding or withdrawing artificial nutrition or hydration is in accord
with generally accepted health care standards applicable to health-care
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
13
enacted the Pain Patient’s Bill of Rights, recognizing that seriously ill patients have the
right to choose to receive as much pain medication as needed to get relief.21
Both measures contain provisions stating that the statute does not authorize
euthanasia, suicide, or mercy killing.22 These provisions could be argued to prohibit aid
in dying, however, they are common to many state statutes, and at least one state high
court has held that the terms “mercy killing and euthanasia” do not encompass aid in
dying.23 In Baxter v. State of Montana, the Supreme Court of Montana concluded that aid
in dying is a choice within the public policy of the state and that a patient’s decision to
self-administer medication to bring about a peaceful death is neither a mercy killing nor
euthanasia.24 Moreover, the court held that the Rights of the Terminally Ill Act, a
Montana statute that is comparable to the Uniform Health-Care Decisions Act, clearly
provides that terminally ill patients are entitled to autonomous end-of-life decisions,
even when a patient’s decision involves the direct act of a physician.25 Baxter suggests
that Hawaii’s Pain Patient’s Bill of Rights and Uniform Health-Care Decisions Act
should be seen as reflecting that the policy of the State of Hawaii is to support
providers or institutions.
Id. § 327E-2.
21 Id. § 327H-2. The legislature found that “[i]nadequate treatment of severe acute pain and
severe chronic pain . . . is a significant health problem.” Id. § 327H-1. The legislature then noted
that “[f]or some patients, pain management is the single most important treatment a physician
can provide; [a] patient who suffers from severe acute pain or severe chronic pain should have
access to proper treatment of pain[,]” which may include the safe administration of opiates by
“knowledgeable, ethical, and experienced pain management practitioners.” Id.
22 Id. § 327E-13(c); see id. § 327H-2(b)(3)(E).
23 Baxter v. State, 224 P.3d 1211,1219 (Mont. 2009).
24 Id. at 1217-19. The court emphasizes that “a physician who aids a terminally ill patient in dying
is not directly involved in the final decision or the final act” but rather is “only provid[ing] a
means by which a terminally ill patient himself can give effect to his life-ending decision. . . .” Id.
at 1217. Moreover, in analyzing the Montana Rights of the Terminally Ill Act, the court found no
suggestion that physician aid in dying is against public policy as homicide because of the
homicide statute’s limited scope, applying to one who “‘purposely or knowingly causes the death
of another human being. . . .’” Id. The court noted that the terminally-ill patient’s decision to
self-administer medication causing his or her own death would not cause the death of “another”
within the homicide statute but the death of oneself, which was not within the statute. Id.
Further, the court noted that the Act expressly “does not condone, authorize, or approve mercy
killing or euthanasia,” but also does not mention “physician aid in dying” in what is prohibited.
Id. at 1219. In distinguishing physician aid in dying from mercy killing and euthanasia, the court
looked to the definitions of “euthanasia” and “mercy killing,” highlighting that neither is consentbased, nor do they involve a patient’s “decision to self-administer drugs that will cause his own
death.” Id.
25 Baxter, 224 P.3d at 1217.
K. TUCKER
14
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
autonomy in medical decision making and that this reasonably extends to the choice of a
mentally competent, terminally ill patient to request medication to bring about a peaceful
death.
Hawaii law also contains a unique provision that gives physicians broad
discretion when treating terminally ill patients. Specifically, Hawaii law provides that:
[W]hen a duly licensed physician or osteopathic physician pronounces a
person affected with any disease hopeless and beyond recovery and
gives a written certificate to that effect to the person affected or the
person’s attendant nothing herein shall forbid any person from giving
or furnishing any remedial agent or measure when so requested by or
on behalf of the affected person.26
Added in 1909, the purpose of this provision was to give terminally ill patients
the option to access treatment not approved by the government.27 This provision, like
the Pain Patient’s Bill of Rights and the Uniform Health-Care Decision Act, gives
terminally ill patients significant freedom to determine their course of medical care at the
end of life.28 Interestingly, the statute also appears to encompass a patient’s choice of
aid in dying. Under the law, a physician may give or furnish any measure requested by a
patient who is “hopeless or beyond recovery.”29
With aid in dying, a physician prescribes medication that may then be ingested
by a terminally ill patient; a physician does not administer the medication.30 The clear
purpose of Hawaii Revised Statute § 453-1 was to expand, rather than restrict, a patient’s
end-of-life care options.
Finally, the Hawaii State Constitution’s explicit privacy clause is also part of the
constellation of laws reflecting that it is the policy of the State to empower its citizens
HAW. REV. STAT. § 453-1 (2011).
Paul S. Kawai, Comment, Should the Right to Die Be Protected? Physician Assisted Suicide and Its
Potential Effect on Hawai'i, 19 U. HAW. L. REV. 783, 806 (1997).
28 Id. (noting the legislature’s motivation for the provision in 1909). The legislature sought to
provide “dying patients ‘the opportunity of availing themselves of any hope of relief which might
be offered without subjecting those willing to render them aid to the indignities of prosecution
and persecution.’” Id. See also supra notes 20-22 and accompanying text (discussing the Pain
Patient’s Bill of Rights and the Uniform Health-Care Decision Act).
29 HAW. REV. STAT. § 453-1 (2011).
30 See Kawai, supra note 27, at 806-07.
26
27
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
15
with autonomy over medical decision making.31 Section 6 of Hawaii’s State Constitution
ensures State constitutional protection of personal privacy.32 Hawaii cases have
recognized § 6 to protect personal autonomy, which safeguards a person’s freedom to
make certain kinds of “important [personal] decisions” such as those relating to activities
in one’s own home, marriage, procreation, contraception, family relationships, and child
rearing.33 Hawaii courts have not provided much guidance about which personal
privacy interests are protected by § 6. Hawaii privacy jurisprudence recognizes the
potential that state constitutional privacy may protect a more broad scope of interests
than its federal counterpart, but only one case has actually applied the state constitution
to protect interests slightly beyond those protected by federal law.34
B. Criminal Prohibitions Governing End-of-Life Care
Hawaii’s manslaughter statute provides, in part, that an individual commits the
offense of manslaughter if, “[t]he person intentionally causes another person to commit
suicide.”35 It is critical to note that it is widely recognized by mental health professionals
that there is a clear and distinct difference between the act of “suicide” and the choice of
a terminally ill patient to bring about a peaceful death.36 Despite this clear distinction,
were a physician to be prosecuted, he or she would likely face criminal liability under the
HAW. CONST. art. I, § 6. See also Kawai, supra note 27, at 807 (noting the application and intent
of the Right to Privacy of the Constitution of Hawaii).
32 HAW. CONST. art. I, § 6. Section 6 states, “the right of the people to privacy is recognized and
shall not be infringed without the showing of a compelling state interest. The legislature shall
take affirmative steps to implement this right.” Id.
33 State v. Mueller, 671 P.2d 1351, 1359 (Haw. 1983) (discussing personal privacy rights under the
Fourteenth amendment of the United State Constitution and Section 6 of the Hawaii
Constitution).
34 State v. Kam, 748 P.2d 372, 376 (Haw. 1988) (recognizing a right to sell and distribute
pornography, extending the federally protected privacy right to merely possess pornography in
one’s own home recognized in Stanley v. Georgia, 394 U.S. 557 (1969)).
35 Offenses Against the Person, HAW. REV. STAT. § 707-702(1)(b) (2011). See Kawai, supra note
27, at 805-06. After analyzing the language of Hawaii’s manslaughter statute, the author
“physicians in Hawai'i have always been legally permitted to prescribe lethal medication to be
self-administered by the patient” because there is no ban on aiding in the statute. Id.
36 Mental health professionals recognize a distinct difference between “suicide” and the choice of
aid in dying. For example, the American Psychological Association advises: “It is important to
remember that the reasoning on which a terminally ill person (whose judgments are not impaired
by mental disorders) bases a decision to end his or her life is fundamentally different from the
reasoning a clinically depressed person uses to justify suicide.” See Rhea K. Farberman, Terminal
Illness and Hastened Death Requests: The Important Role of the Mental Health Professional, 28
PROFESSIONAL PSYCHOLOGY: RESEARCH AND PRACTICE 544 (1997); John M. Bostwick & Lewis
M. Cohen, Differentiating Suicide from Life-Ending Acts and End-of-Life Decisions: A Model Based on
Chronic Kidney Disease and Dialysis, 50 PSYCHOSOMATICS 1 (2009).
31
K. TUCKER
16
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
state’s manslaughter statute in the absence of a specific prohibition against aid in dying.37
Analysis of the statute, however, reveals that such conduct does not fall within its reach.
Under Hawaii’s manslaughter statute an individual must “cause” another to
commit suicide in order to face criminal liability.38 A physician’s role in aid in dying
could hardly be classified as “causing” a suicide because the physician, at the request of a
competent terminally ill patient, merely provides a prescription that a patient can choose,
or not choose, to take to bring about a peaceful death. Unlike Hawaii, many states
criminalize the act of “assisting suicide”39 rather than “causing” another to commit
suicide.40 While such statutes ultimately create ambiguity for the medical community,
they illustrate that Hawaii has chosen to create a higher standard by requiring an
individual be the legal cause of another’s suicide before they can be held liable for the
offense of manslaughter.41
See Maria T. CeloCruz, Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and
Physician-Committed Euthanasia?, 18 AM. J. L. & MED. 369, 372 (1992) (distinguishing suicide from
euthanasia and suggesting criminal liability for physicians engaging in euthanasia).
38 HAW. REV. STAT. § 707-702(1)(b) (2011). “A person commits the offense of manslaughter if . .
. the person intentionally causes another person to commit suicide” Id. (emphasis added).
39 See, e.g., GA. CODE ANN. § 16-5-5 (2008) (using the term “intentionally and actively assisting
suicide”); IND. CODE § 35-42-1-2.5 (2011) (using the term “assisting suicide”); N.M. STAT. ANN.
§ 30-2-4 (2011) (using the term “assisting suicide”); N.J. STAT. ANN. § 2C:11-6 (2011) (using the
term “aiding suicide”).
40 See, e.g., N.D. CENT. CODE § 12.1-16-04 (2009) (using both terms “assisting suicide” and
“causing death by suicide”); N.H. REV. STAT. ANN. § 630:4 (2011) (using the term “causing or
aiding suicide”); 18 PA. CONS. STAT. ANN. § 2505 (West 2011) (using the term “causing or aiding
suicide”).
41 Even in states where a statute criminalizes “assisting” a “suicide”, it ought not to be assumed
that such a law reaches the conduct of a physician providing aid in dying. In the Georgia
Supreme Court, State of Georgia v. Final Exit Network, the Court considered whether members of a
citizen activist group are subject to prosecution under Georgia’s assisted suicide statute for their
involvement in deaths in that state. No. S11A1960, 2012 WL 360523, at *1 (Ga. 2012). Georgia’s
Attorney General filed a brief asserting that the statute, while it reaches the defendants’ conduct,
would not reach aid in dying provided by a physician to a patient. See Brief for Appellee at 13-14,
State of Georgia v. Final Exit Network, 2012 WL 360523 (2012) (No. S11A1960). Absent a
prohibition of aid in dying, this option could be one among many that Georgia physicians make
available to their terminally ill patients. As with all medical practice, it could likely be governed by
best practices as they emerge in the physician community. The Georgia Supreme Court struck
down the statute on free speech grounds, indicating that the legislature could enact a prohibition
that would survive free speech scrutiny. Final Exit Network, 2012 WL 360523, at *3. Activists
opposed to end of life choice and the option of aid in dying are quickly responding with a
prohibition measure.
See Charlie Butts, Supreme Court ruling a blessing in disguise,
ONENEWSNOW.COM (Feb. 9, 2012, 4:15AM), http://www.onenewsnow.com/Legal/Default.
aspx?id=1532406.
37
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
17
Hawaii’s manslaughter statute also requires that an individual act with the intent
to cause another to commit suicide.42 This is an important distinction because in aid in
dying a physician provides a prescription with the purpose of providing comfort and
empowering a patient to have control over the time and manner of their death. Many
individuals who obtain a prescription choose not to ingest the medication, but derive
comfort from knowing they have the ability to exercise control over their time and
manner of death: in Oregon, more than one-third of patients who obtain a prescription
under the Dignity Act choose not to ingest the medication and die of their underlying
disease.43 The experience in Oregon illustrates that with aid in dying physicians intend
to comfort and empower their patients, not to “cause[ ] another person to commit
suicide.”44
Finding that a physician acts with the intent to cause another to commit suicide
in providing aid in dying would also potentially criminalize other forms of end-of-life
care. Practices such as palliative sedation, discontinuing life-sustaining medical care, and
providing palliative support to a patient who chooses to stop eating and drinking could
all be characterized as intending to end life. Yet, these practices are widely accepted as
intending to comfort and empower patients who wish to have a peaceful death and
these practices have not been found to be illegal or unprofessional under Hawaii law. 45
Interpreting Hawaii’s manslaughter statute to reach aid in dying would also be
incongruous with statutes such as the Pain Patient’s Bill of Rights, the Uniform HealthCare Decisions Act, Hawaii Revised Statute § 453-1, and the State Constitution’s
guarantee of privacy, all of which support a terminally ill patient’s freedom of choice to
determine their medical care in the end stages of life.46
Other than Hawaii’s manslaughter statute, there are no laws or cases that may
Offenses Against the Person, HAW. REV. STAT. § 707-702(1)(b)(2011) (indicating the statute
includes the word “intentionally”).
43 OREGON PUBLIC HEALTH DIVISION, OREGON’S DEATH WITH DIGNITY ACT – 2010 (Jan.
2011), available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationRe
search/DeathwithDignityAct/Documents/year13.pdf. The act was passed in 1994 as a ballot
measure. See OR. REV. STAT. ANN. § 127.800 (West 2011) [hereinafter Oregon’s Death with Dignity
Act – 2010].
44 HAW. REV. STAT. § 707-702(1)(b) (2011) (defining manslaughter).
45 See Uniform Health-Care Decisions Act, HAW. REV. STAT. § 327E-2 (2011) (describing when
an individual has a right to discontinue life sustaining treatment); Vacco v. Quill, 521 U.S. 793,
802 (1997) (noting that prescribing “aggressive palliative care” is accepted to treat patient pain).
46 HAW. CONST. art. I § 6 (1978) (describing the right of privacy); Uniform Health-Care Decisions
Act, HAW. REV. STAT. § 327E-1 (2011); Pain Patient Bill of Rights, HAW. REV. STAT. § 327H-2
(2011); Medicine and Surgery, HAW. REV. STAT. § 453-1 (2011) (noting that doctors may give
substantial “remedial” care).
42
K. TUCKER
18
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
possibly apply to aid in dying. Given Hawaii’s laws which seek to empower patients to
make autonomous decisions about end-of-life care and pain management, and the state’s
lack of criminal prohibitions that could reach aid in dying, it is reasonable to conclude
that Hawaii physicians can provide this intervention without fear of prosecution, subject
to best practices.47
III. Aid in Dying Should be Governed by Best Practices
Most medical care is not governed by statute or court decision, but instead by
best practices, also referred to as the standard of care.48 In Hawaii, the standard of care
is an objective one.49 A physician has a duty to have and to utilize the knowledge and
skill ordinarily possessed by a physician practicing in the same field under similar
circumstances, as established by expert testimony.50 Some jurisdictions have adopted
the “respectable minority” standard of care exception as a defense to medical
negligence.51
The exception allows a physician to engage in one of several recognized courses
of treatment, and a physician’s actions do not fall outside the standard of care merely
because he or she pursued a treatment that is followed by only a minority of
physicians.52 Hawaii has not considered the “respectable minority” rule, and therefore
But see Letter from Heidi Rian, Deputy Attorney General, to Joshua Green, Senator (Dec. 8,
2011), available at http://www.adfmedia.org/files/HawaiiAGLegalOpinion.pdf. In response to a
request from a legislator opposed to aid in dying, the Hawaii Attorney General issued a letter,
advising that a prosecution for manslaughter could be brought against a physician providing aid
in dying, so long as the physician acted with the intent to cause death. Id. This position has not
been tested in court and the analysis failed to take into account many of the arguments advanced
in this article. It remains to be seen if this advisory will deter physicians from providing aid in
dying, or if a prosecution will be filed against a physician for providing this option, or if
supporters of aid in dying will seek clarification about the reach of the criminal statute in the
courts.
48 61 AM. JUR. 2D Physicians, Surgeons, and Other Healers § 189 (2011).
49 Hirahara v. Tanaka, 959 P.2d 830, 834 (Haw. 1998). The Hawaii standard is well established as
one where a “question of negligence must be decided by reference to relevant medical standards
of care.” Id. (quoting Craft v. Peebles, 893 P.2d 138, 149 (Haw. 1995)).
50 See id.; Haw. Civil Jury Instr. 14.2; Haw. Civil Jury Instr. 14.3.
51 Borja v. Phoenix Gen. Hosp., Inc., 727 P.2d 355, 358-59 (Ariz. Ct. App. 1986); see Chumbler v.
McClure, 505 F.2d 489, 492 (6th Cir. 1974); Schwab v. Tolley, 345 So. 2d 747, 753 (Fla. Dist. Ct.
App. 1977); Hood v. Phillips, 537 S.W.2d 291, 294 (Tex. Civ. App. 1976), aff'd, 554 S.W.2d 160
(Tex. 1977).
52 See Chumbler, 505 F.2d at 492.
47
Where two or more schools of thought exist among competent members of
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
19
has neither embraced nor rejected the rule.53 Aid in dying certainly qualifies as a
“recognized course of treatment,” as the practice has become increasingly accepted
among medical and health policy organizations.54 Surely, a respectable minority of
Hawaii physicians who provide end-of-life care would provide aid in dying if they felt
safe doing so.55
As discussed supra, Hawaii’s statutory framework empowers patients to make
autonomous decisions regarding their end-of-life care. Under this framework a standard
of care has already begun to emerge in which physicians engage in other potentially lifeending practices for terminally ill patients. For example, physicians can provide
palliative support to patients who choose to stop eating and drinking.56 Physicians can
the medical profession concerning proper medical treatment for a given
ailment, each of which is supported by responsible medical authority, it is not
malpractice to be among the minority in a given city who follow one of the
accepted schools.
Id.
53 Searches in 2012 on westlaw.com produced no Hawaii cases concerning the “respectable
minority” rule.
54 See Kathryn L. Tucker, At the Very End of Life: The Emergence of Policy Supporting Aid in Dying
Among Mainstream Medical & Health Policy Associations, 10 HARV. HEALTH POL’Y REV. 45, 46
(2009). Organizations with policies supportive of aid in dying include the American Medical
Women’s Association (“AMWA”), the American Medical Student Association (“AMSA”), the
American College of Legal Medicine (“ACLM”), and the American Public Health Association
(“APHA”). See Advocacy - Position Statements: American Medical Woman’s Association, AM. MED.
WOMEN’S ASS’N (2012), http://www.amwa-doc.org/page3-8/PositionStatments; Constitution &
Bylaws, AM. MED. STUDENT ASS’N (2012), http://www.amsa.org/AMSA/Home page/About/
AMSAConstitution.aspx; AM. COLL. OF LEGAL MED., ACLM POLICY ON AID IN DYING (Oct. 6,
2008), available at http://www.aclm.org/resources/amicus_briefs/ACLM %20Aid%20in%20
Dying%20Policy.pdf; Policy Statement Database, AM. PUB. HEALTH ASS’N (Oct. 28, 2008),
http://www.apha.org/advocacy/policy/policysearch/default.htm?id=1372 (providing Policy No.
20086 of the American Public Health Association, which is entitled “Patients’ Rights to SelfDetermination at the End of Life”). The U.S. Supreme Court has recognized aid in dying as a
legitimate medical practice. See also Gonzales v. Oregon, 546 U.S. 243, 267-68 (2006); Kathryn L.
Tucker, U.S. Supreme Court Ruling Preserves Oregon’s Landmark Death with Dignity Law, 2 NAT’L
ACAD. OF ELDER L. ATT’YS J. 291, 291–301 (2006).
55 See Barbara Coombs Lee, Hawaii: The latest state where doctors can provide aid in dying, COMPASSION
AND CHOICES BLOG (Oct. 5, 2011), http://blog.compassionandchoices.org/?cat=5. Indeed, the
existence of a physicians’ advisory group for aid in dying reflects this. See id. The group, known
as the Hawaii Medical Advisory Council for End-of-Life Choices, was founded by three of
Hawaii’s most prominent end-of-life care providers. Id.
56 See HAW. REV. STAT. § 327H-2 (2011) (permitting physicians to prescribe pain medication to
patients suffering acute pain, “provided that it is not ‘causing, or assisting in causing, the suicide,
euthanasia, or mercy killing of any individual’”).
K. TUCKER
20
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
also discontinue life-sustaining treatment such as pacemakers, dialysis, and medication
for patients who wish to end life-prolonging interventions.57 Physicians in Hawaii have
already witnessed the emergence of a standard of care that respects a patient’s autonomy
and accepts potentially life-ending practices. These practices demonstrate that
physicians may receive requests from mentally competent, terminally ill patients for a
prescription to bring about a peaceful death. For those physicians who believe such care
is medically appropriate, a standard of care for aid in dying will also emerge.58
IV. Aid in Dying in Other States
A. Aid in Dying in Oregon
Oregonians approved the passage of its law permitting aid in dying, the Death
with Dignity Act, in 1994;59 aid in dying began to be provided in an open manner in
1998.60 The act allows a mentally competent, terminally ill patient to request from his or
her physician a prescription to bring about a peaceful death.61 Oregon’s experience,
now spanning fourteen years, has shown that when aid in dying is an available option it
does not harm vulnerable patients.62 In the face of overwhelming evidence, even
See HAW. REV. STAT. § 372E-2-3 (2011) (describing an individual’s right to discontinue life
sustaining treatment so long as it is “in accord with generally accepted health care standards”);
Rachel Lampert et al., HRS Expert Consensus Statement on the Management of Cardiovascular Implantable
Electronic Devices (CIEDs) In Patients Nearing End of Life or Requesting Withdrawal of Therapy, 7 HEART
RHYTHM 1008, 1010 (2010), available at http://www.hrsonline.org/ClinicalGuidance/upload/
ceids_mgmt_eol.pdf.
58 See supra note 45.
59 OR. REV. STAT. § 127.800-127.897 (2011).
60 Or. Health Auth., Death with Dignity Act, OREGON.GOV, http://public.health.oregon.gov/
ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx
(last visited Mar. 24, 2012). The Act requires the Oregon Health Authority to collect information
about the patients and physicians who participate in the Act and publish an annual statistical
report, which is available on Oregon’s government website. Id. Participants in Oregon’s Death
with Dignity Act have moderately increased since 1998. Or. Pub. Health Div., Oregon’s Death with
Dignity Act – 2010, OREGON.GOV, http://public.health.oregon.gov/ProviderPartnerResources/
EvaluationResearch/DeathwithDignityAct/Documents/year13.pdf (last visited Mar. 24, 2012).
61 OR. REV. STAT. § 127.805 (2011).
62 See Margaret P. Battin et al., Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence
Concerning the Impact on Patients in “Vulnerable” Groups, 33 J. MED. ETHICS 591, 594-97 (2007)
(concluding there is no current evidence that legalized euthanasia will have disproportionate
impact on vulnerable groups); Joseph B. Straton, Physician Assistance with Dying: Reframing the
Debate; Restricting Access, 15 TEMP. POL. & CIV. RTS. L. REV. 475, 480-81 (2006) (stating Oregon’s
Dignity Act successfully permits assisted suicide for those whom a hastened death is appropriate);
Timothy E. Quill & Christine K. Cassel, Professional Organizations' Position Statements on PhysicianAssisted Suicide: A Case for Studied Neutrality, 138 ANNALS OF INTERNAL MED. 208 (2003) (stating
57
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
21
opponents recognize that opposition to the Dignity Act can only be based on personal
moral or religious grounds.63
Despite the speculations and conjecture of those opposed to aid in dying, once
available none of the dire predictions of harm raised by opponents have been realized.
The Oregon data shows that aid in dying is rare: In 2010, only ninety-seven prescriptions
were written under the Dignity Act and of those only sixty-five patients died from
ingesting the medication.64 Since access began in 1998 only 596 patients have chosen to
utilize aid in dying to bring about a peaceful death.65 Most of the patients who have
chosen aid in dying were Caucasian, well educated, insured, and suffering from
cancer66—contrary to fears that the act would lead to involuntary euthanasia of the poor,
undereducated, and disadvantaged.67 No abuses have occurred.68
Since its enactment, the law has had benefits for patients and physicians alike; a
fact that has been recognized by outside observers. A Task Force in the State of
Vermont thoroughly examined Oregon’s experience and concluded that it is “qui[te]
apparent from credible sources in and out of Oregon that the Death with Dignity Act
has not had an adverse impact on end-of-life care and in all probability has enhanced the
other options.”69 The passage of the Dignity Act led to a greater effort by physicians
data from Oregon suggests physician-assisted suicide is used by small number of patients and
associated with improved hospice and palliative care); Linda Ganzini et al., Oregon Physicians'
Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death with Dignity Act,
285 J. AM. MED. ASSOC. 2363, 2364-66 (2001) (concluding most Oregon physicians who care for
terminally ill patients have made efforts to improve their ability to care for these patients);
Melinda A. Lee & Susan W. Tolle, Oregon's Assisted Suicide Vote: The Silver Lining, 124 ANNALS OF
INTERNAL MED. 267, 268-69 (1996) (emphasizing improvement of end of life care due to
Oregon’s policies).
63 See Daniel E. Lee, Physician-Assisted Suicide: A Conservative Critique of Intervention, 33 THE
HASTINGS CTR. REP. 17, 17-19 (2003) (expressing strong moral and religious opposition to
physician-assisted suicide).
64 OREGON PUBLIC HEALTH DIVISION, OREGON’S DEATH WITH DIGNITY ACT – 2011 (2011),
available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/
DeathwithDignityAct/Documents/year14.pdf.
65 Id. at 2.
66 Id. As in previous years, in 2010 most participants “were white (95.6%), well-educated (48.5%
had a least a baccalaureate degree), and had cancer (82.4%).” Id.
67 See Steven H. Aden, You Can Go Your Own Way: Exploring the Relationship Between Personal and
Political Autonomy in Gonzales v. Oregon, 15 TEMP. POL. & CIV. RTS. L. REV. 323, 338-39 (2006)
(discussing opposition to Oregon’s Death with Dignity Act).
68 See Battin et al., supra note 62, at 594-97 (concluding availability of aid in dying has not created
a heightened risk for vulnerable groups).
69 ROBIN LUNGE ET AL., OREGON’S DEATH WITH DIGNITY LAW AND EUTHANASIA IN THE
K. TUCKER
22
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
and hospice care professionals to ensure adequate pain control.70 Because physicians no
longer face a professional and legal deterrent against the use of palliative care, physicians
can adequately treat pain without fear of prosecution and patients experience better endof-life care.71 Since the passage of the Dignity Act, Oregon’s physicians have worked to
improve end-of-life care, improving their knowledge of the use of pain medication for
the terminally ill, their ability to recognize depression and other psychiatric disorders,
and more frequently refer patients to hospice care.72
B. Aid in Dying in Washington
In 2008, Washington voters approved a law specifically permitting aid in dying
nearly identical to Oregon’s, through the initiative process.73 The positive experience in
Oregon proved to be influential in the campaign to pass the Washington measure.74
Washington began implementing its law in March 2009 and gathers and publishes data
NETHERLANDS: FACTUAL DISPUTES (The Vermont Legislature, Legislative Reports and
Publications 2004), available at http://www.leg.state.vt.us/reports/04Death/Death_With_Dignity
_Report.htm.
70 Courtney S. Campbell, Ten Years of “Death with Dignity,” 22 NEW ATLANTIS 33, 40-41 (2008)
available at http://www.thenewatlantis.com/docLib/20081016_TNA22Campbell.pdf.
71 See id. at 41.
72 See Timothy E. Quill & Christine K. Cassel, supra note 59, at 208-09; see also Linda Ganzini et
al., Oregon Physicians’ Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon
Death With Dignity Act, 285 J. AM. MED. ASSOC. 2363, 2363–69 (2001) (reporting post-1994, 76%
of Oregon physicians who care for terminally ill patients have improved their own knowledge of
use of pain killers and a 30% increase in referrals to hospice); M.A. Lee & S.W. Tolle, Oregon’s
Assisted Suicide Vote: The Silver Lining, 124 ANNALS OF INTERNAL MED. 267, 267–69 (1996); J.
Straton, Physician Assistance with Dying: Reframing the Debate; Restricting Access, 15 TEMP. POL. & CIV.
RTS. L. REV. 475, 480-82 (2006) (discussing what the Oregon law requires of doctors); Kathryn
A. Smith, Elizabeth R. Goy, Theresa A. Harvath, & Linda Ganzini, Quality of Death and Dying in
Patients Who Request Physician-Assisted Death, 14 J. PALLIATIVE MED. 445 (2011) (describing the
views of people who have family members with chronic, terminal illnesses).
Indeed, one of the unexpected yet undeniable consequences of Oregon’s
Death with Dignity Act permitting physician aid in dying is that ‘many
important and measurable improvements in end-of-life care’ occurred
following the Act’s implementation. Rather than becoming the brutal abattoir
for hapless patients that some critics predicted, the state is a leader in
providing excellent and compassionate palliative care.
Lawrence J. Schneiderman, Physician-Assisted Dying: The Case for Palliative Care and Patient Choice, 293
J. AM. MED. ASSOC. 501, 501-XX (2005) (book review).
73 Compare WASH. REV. CODE § 70.245.010 (2011) with OR. REV. STAT. § 127.800-127.897 (2011)
74 See supra notes 66-69 and accompanying text.
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
23
collected from health care providers.75 As in Oregon, most who choose aid in dying
under Washington’s law are Caucasian, well educated, and suffering from cancer.76
Since the law went into effect, a total of 152 patients have received prescriptions and of
those patients, eighty-seven chose to ingest the medication.77
C. Aid in Dying in Montana
A 2009 decision by the Montana Supreme Court recognizes the right of its
citizens to freely choose aid in dying. In Baxter v. State of Montana, Robert Baxter, a
seventy-five-year-old patient dying of lymphocytic leukemia, sued the State of Montana
to establish his right to choose aid in dying.78 Baxter argued (1) Montanans have a right
to aid in dying protected by the Montana State Constitutional guarantees of privacy and
individual dignity;79 (2) and, alternatively, physicians who provide aid in dying could not
be subject to prosecution under the state’s consent as a defense doctrine to the Montana
homicide statute.80
The Montana Supreme Court declined to reach the constitutional issues and
instead resolved the case on the alternative ground under the consent defense to the
homicide statute.81 The court held that Montana statutes vest patients with broad
autonomy over medical decision making reflecting the policy of the state to leave these
decisions to the individual and that aid in dying is not against the state’s public policy.82
Death with Dignity Act - Washington State Dept. of Health, WASH. STATE DEPT. OF HEALTH,
http://www.doh.wa.gov/dwda/ (last visited Mar. 24, 2012).
76 WASH. STATE DEPT. OF HEALTH, WASHINGTON STATE DEPARTMENT OF HEALTH 2010
DEATH WITH DIGNITY ACT REPORT: EXECUTIVE SUMMARY, 5 (2010), available at
http://www.doh.wa.gov/dwda/forms/DWDA2010.pdf; see Or. Pub. Health Div., Oregon’s Death
with Dignity Act – 2010, OREGON.GOV, http://public.health.oregon.gov/ProviderPartner
Resources/EvaluationResearch/DeathwithDignityAct/Documents/year13.pdf (last visited Mar.
24, 2012).
77 See WASH. STATE DEPT. OF HEALTH, supra note 76, at 4-5. The report notes that there was a
two person error and consequently, of the 152 patients, between 87 and 89 decided to ingest the
pill. Id at 3-4.
78 Baxter v. State, 224 P.3d 1211, 1214 (Mont. 2009). Additional plaintiffs included Mr. Baxter’s
four Montana physicians who treat his terminal illness and Compassion & Choices, the national
non-profit organization that advocates to protect and expand the rights of the terminally ill. Id.;
Compassion & Choices, COMPASSION & CHOICES: CHOICE & CARE AT THE END OF LIFE,
http://www.compassionandchoices.org/page.aspx?pid=235 (last visited Mar. 8, 2012).
79 Baxter, 224 P.3d at 1214.
80 Id.; see MONT. CODE ANN. § 45-2-211(1) (2009). The statute provides that the “consent of the
victim to conduct charged to constitute an offense or to the result thereof is a defense.” Id.
81 Baxter, 224 P.3d at 1215-1216.
82 Id. at 1215.
75
K. TUCKER
24
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
Accordingly, no prosecution of a physician providing aid in dying would be proper. 83
Under this ruling, physicians can provide aid in dying to mentally competent, terminally
ill patients without fear of prosecution.84 Montana physicians are not subject to the
statutory frameworks that govern the practice in Oregon and Washington.85 Although
the limitations provided by the Dignity Acts in Oregon and Washington do not apply to
Montana physicians, the Montana Supreme Court recognized certain boundaries which
are similar to the Oregon and Washington requirements: a patient must be terminally ill,
mentally competent, and the physician is limited to providing a prescription which a
patient may choose to ingest.86 In Montana, beyond the bright lines established in
Baxter, the practice of aid in dying will develop in end of life care practice, subject to
best practices.
V. Aid in Dying Can and Should Emerge as an End-of-Life Option in Hawaii
Governed by Best Practices
For over a decade, Hawaii engaged in efforts to create an affirmative statutory
permission to choose aid in dying. Beginning in 1997, then Governor Benjamin
Cayetano established a “Blue Ribbon Panel on Living and Dying with Dignity” to study
end-of-life issues, including aid in dying.87 A majority of the Panel, comprised of
eighteen leading members of Hawaii’s medical, legal, and religious communities,
recommended enacting legislation to create an affirmative right to aid in dying.88 A
majority of the panel recognized that the benefits of aid in dying outweighed any
potential risks.89
Id.
Id. at 1222. Physicians need not fear disciplinary action either, at least no more than in case of
providing any other medical procedure or intervention. See Physician Aid in Dying, MONTANA
BOARD OF MEDICAL EXAMINERS, http://bsd.dli.mt.gov/license/bsd_boards/med_board/
pdf/Final%20Draft%20Physician%20Aid%20in%20Dying%20Statement.pdf (last visited Mar.
24, 2012). The Montana Board of Medical Examiners adopted a position statement on aid in
dying in January 2011, clarifying this position. Id. The Board will treat complaints regarding aid
in dying as it would any other complaint reflects that the practice is becoming normalized and
governed as all other medical practice. Id.
85 See supra notes 57 and 70 and accompanying text.
86 Baxter, 224 P.3d at 1217.
87 Lindsay N. McAneeley, Comment, Physician Assisted Suicide: Expanding the Laboratory to the State of
Hawaii, 29 U. HAW. L. REV. 269, 284-285 (2006); see also James H. Pietsch, Health Care Decision
Making and Physician-Aid-in-Dying In Hawaii, 25 J. LEGAL MED. 303, 325 (2004).
88 McAneeley, supra note 84, at 284-85.
89 See id. at 285; see also Pietsch, supra note 84, at 325. Eleven members of the panel voted to
legalize patient aid with required safeguards, including written request from the patient, a twoweek waiting period after which the patient must reaffirm their decision, and consultations with
83
84
K. TUCKER
2012
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
25
Following the Blue Ribbon Panel’s findings, supporters attempted to pass
legislation similar to Oregon’s Death with Dignity Act in 2002.90 The measure received
strong support from organizations including the Hawaii State Commission on the Status
of Women, ACLU of Hawaii, National Association of Social Workers, and Planned
Parenthood.91 The measure ultimately failed on a close vote in the Senate.92 Since then,
supporters of aid in dying have made multiple attempts to enact an affirmative
permission to aid in dying, but have not been successful.93 The arguments raised in
opposition have been disproved by the experiences in Oregon, Washington, and
Montana, yet, legislators have been reluctant to address a hot button issue particularly
during elections years.94 Attempts to pass legislation to create an affirmative permission
to aid in dying lead to community dialogue and raise awareness of the issue, but such
measures are unnecessary in the absence of a prohibition against aid in dying.
End of life medical practice with aid in dying in Oregon, Washington, and
Montana, and a growing number of medical and health policy organizations with policy
supportive of aid in dying, demonstrate that this choice is increasingly accepted.95 The
emergence of these polices and the practice in Oregon, Washington, and Montana will
certainly influence best practices elsewhere, including in Hawaii.
Against this backdrop, the time is ripe for the practice to emerge in Hawaii as an
end-of-life option governed by best practices. The thirteen years of positive outcomes
in Oregon, strong public support of aid in dying, the recent adoption of aid in dying by
both Washington and Montana, and the trend of many major national medical and
health policy groups to adopt policy supportive of the intervention, combined with the
existing statutory landscape which vests patients with great autonomy in end-of-life
decisions and has no prohibitory measure that could reach the practice, all support the
conclusion that aid in dying can emerge within end-of-life medical practice governed by
best practices. This would extend an important additional choice to mentally
competent, terminally ill Hawaii residents who confront a dying process that they find
another physician, psychiatrist, social worker and/or pain management specialist. Pietsch, supra
note 84, at 325.
90 See McAneeley, supra note 84, at 286; see also H.R. 2487, 21st Leg., Reg. Sess. (Haw. 2002).
91 McAneeley, supra note 84, at 287.
92 See HAWAII STATE LEGISLATURE, DEATH WITH DIGNITY; TERMINAL ILLNESS, S. 2002HB2487 HD1, 1st Sess., at 1 (July 23, 2002), available at http://www.capitol.hawaii.gov/
session2002/status/HB2487.asp.
93 See McAneeley, supra note 84 at 287-88 (addressing the house bills presented in 2003 and 2005
which ultimately failed).
94 See id. at 287; see also supra notes 73-81 and accompanying text.
95 See Tucker, supra note 51, at 45-47.
K. TUCKER
26
5/8/2012 10:32 PM
JOURNAL OF HEALTH & BIOMEDICAL LAW
VOL. VIII NO. 1
unbearable.
VI. Conclusion
It is timely for aid in dying to be governed as is all other medical practice:
subject to professional practice standards. End-of-life choice can be expanded to include
aid in dying in Hawaii, and in other states where public support for the option is strong,
there is no statutory prohibition of the practice, and existing law vests citizens with
significant autonomy over medical decision-making.
CHEST
Medical Ethics
Aid in Dying
Guidance for an Emerging End-of-Life Practice
Kathryn L. Tucker, JD
Patients approaching death because of terminal illness may find themselves trapped in a dying
process they find unbearable, even with excellent pain and symptom management. Some will
want the option of aid in dying. Aid in dying is the practice of a physician writing a prescription
for medication for a mentally competent, terminally ill patient that the patient may ingest to
bring about a peaceful death. The practice is increasingly accepted by physicians, and it is likely
that a growing population of patients will inquire about it. Data from states that give terminally
ill patients a statutory right to aid in dying demonstrate that the practice improves end-of-life
care. Therefore, it is timely for clinical practice guidelines to emerge to offer guidance to physicians willing to provide aid in dying.
CHEST 2012; 142(1):218–224
Abbreviations: AMWA 5 American Medical Women’s Association; HRS 5 Heart Rhythm Society
medicine can extend the dying process so
Modern
long that some terminally ill patients may find
the process unbearable and will want to precipitate
a peaceful death by ingesting medication for that
purpose. Aid in dying is the practice of a physician
writing a prescription for medication for a mentally
competent, terminally ill patient that the patient may
ingest to bring about a peaceful death. The American
Medical Women’s Association (AMWA), for example,
adopted a policy in 2007 that stated the following:
AMWA supports the right of terminally ill patients to hasten what might otherwise be a protracted, undignified, or
extremely painful death. AMWA believes the physician
should have the right to engage in practice wherein they
may provide a terminally ill patient with, but not administer, a lethal dose of medication and/or medical knowledge,
so that the patient can, without further assistance, hasten
his/her death. This practice is known as Aid in Dying.1
In the past, this practice was often referred to as
“physician-assisted suicide,”2 but the term has been
Manuscript received January 6, 2012; revision accepted May 10, 2012.
Affiliations: From Legal Affairs, Compassion & Choices,
Denver, CO, and Loyola Law School, Los Angeles, CA.
Correspondence to: Kathryn L. Tucker, JD, Legal Affairs,
Compassion & Choices, PO Box 101810, Denver, CO 80250;
e-mail: [email protected]
© 2012 American College of Chest Physicians. Reproduction
of this article is prohibited without written permission from the
American College of Chest Physicians. See online for more details.
DOI: 10.1378/chest.12-0046
rejected as inaccurate and pejorative by a growing
number of medical and health policy organizations.3
Many physicians who care for dying patients have
participated in aid in dying.4-8 However, the understanding of the practice varies. Studies show that
many physicians are uncomfortable with having conversations that address end-of-life choices, including how to respond to requests for aid in dying. It is
timely for clinical practice guidelines to emerge to
give guidance to physicians willing to provide this
option to their patients.
The goals of this article are as follows:
1. To raise clinician awareness of the legal, ethical, and medical principles pertaining to aid in
dying.
2. To highlight the importance of proactive communication in order to minimize suffering as the
end of life nears.
3. To encourage the promulgation of clinical practice guidelines for responding to patient requests
for aid in dying.
Basic Principles: Ethical and Legal
Principles and Precedents
Some basic principles and precedents are pertinent.9
• A patient with decision-making capacity has the
legal right to refuse or request the withdrawal
218
Downloaded From: http://journal.publications.chestnet.org/ by a American College of Chest Physicians User on 07/11/2012
Medical Ethics
•
•
•
•
of any medical treatment or intervention, regardless of whether he or she is terminally ill and
regardless of whether the treatment prolongs
life and its withdrawal results in death.
A patient with decision-making capacity has the
legal right to request and receive as much pain
medication as necessary for relief, even if it
advances the time of death.
Principles of autonomy that underlie respecting
patient rights to refuse or direct withdrawal of
life-prolonging interventions or to request pain
medication even if it advances time of death
support the choice for aid in dying. Aid in dying
is increasingly accepted in law and medicine in
the United States.
Provision of aid in dying does not constitute
assisting a suicide or euthanasia. Aid in dying is
a practice with growing support in the public
and medical and health policy communities3,10
and is likely to become more widely requested
in the future.
A clinician cannot be compelled to provide treatment that conflicts with his or her personal values.
In these circumstances, the clinician cannot abandon the patient but should refer the patient to a
colleague who is willing to provide the service.
Four prima facie principles have been used to characterize most ethical concerns in medicine: respect
for patient autonomy, beneficence, nonmaleficence,
and justice. Respect for patient autonomy refers to
the duty to respect patients and their rights of selfdetermination; beneficence refers to the duty to promote patient interests; nonmaleficence refers to the
duty to prevent harm to patients; and justice refers,
in part, to the duty to treat patients and distribute
health-care resources fairly.11 When applied to the
care of an individual patient, however, these principles may conflict with one another. For example, a
patient’s values, preferences, and goals may be at
odds with a clinician’s perception of how best to help
and not harm the patient. Clinical ethics identify, analyze, and provide guidance on how to resolve these
conflicts.12
Informed Consent and the
Right to Refuse Treatment
Informed consent derives from the ethical principle
of respect for persons; autonomy is maximized when
patients understand the nature of their condition and
treatment options and participate in decisions about
their care. Clinicians are ethically and legally obligated to ensure that patients are informed and allowed
to participate in decision making regarding their treatment options.13
journal.publications.chestnet.org
DownoladedFromh:tpjo/:urnap.lubcilaotincs.hestneot.rgb/yaAmercianCoelgeoC
fheP
sthyscianU
sseorn071/12/012
Elements of informed consent include information,
patient voluntariness, and patient decision-making
capacity. “Decision-making capacity” is a clinical term
that refers to a patient’s ability to make informed
health-care-related decisions. Clinicians determine
decision-making capacity by whether a patient is able
to (1) make and communicate choices, (2) understand
relevant information, (3) appreciate the clinical situation and its consequences, (4) manipulate information
rationally, and (5) make a decision that is consistent
with the patient’s values and goals.14,15 Clinicians should
not presume incapacity in patients who make decisions contrary to the clinicians’ recommendations.
In contrast, “competence” is a legal term and is
determined by the courts.14,15 In most situations, it is
acceptable to act on the physician’s determination of
capacity without formal legal declaration of incompetence.14,15 Most patients who lose decision-making
capacity because of illness are not declared incompetent by courts. With few exceptions (eg, emergencies),
a clinician may not treat a patient until the clinician
has given the patient (or his or her surrogate) information about the proposed treatment, alternatives,
and risks and benefits of each. The patient (or surrogate) then has the right to agree, accept an alternative,
or refuse treatment.16
A corollary to informed consent is informed refusal.
A patient has the right to refuse any treatment. This
is true even if the treatment would prolong life and
death would predictably follow a decision to refuse
or have direct withdrawal of treatment. A patient also
has the right to direct the withdrawal of a previously
consented treatment if the treatment no longer meets
the patient’s health-care goals, if those goals have
changed (eg, from prolonging life to minimizing discomforts), or if the perceived burdens of the ongoing
treatment now outweigh the perceived benefits of
that treatment (eg, quality of life)17-19; honoring these
decisions is an integral part of patient-centered care.
If a clinician initiates or continues a treatment that
a patient (or his or her surrogate) has refused, then
ethically and legally, the clinician is committing battery, regardless of the clinician’s intent.16,20
It is well settled in the law that patients have the right
to make decisions about medical treatments, grounded
on both common law (derived from court decisions)
respecting bodily integrity and self-determination and
constitutional guarantees of privacy and liberty.21,22
Courts have consistently upheld a patient’s right to
refuse treatment. In the landmark case involving Karen
Quinlan, the Supreme Court of New Jersey ruled that
the patient had both common law and constitutional
rights to refuse continued ventilator support, even
though it was likely that she would die without it.22
In the seminal case involving Nancy Cruzan, the US
Supreme Court confirmed that patients have the
CHEST / 142 / 1 / JULY 2012
219
right to refuse all life-sustaining treatments, including food and fluids.21 In the case of Terri Schiavo, the
courts recognized, again, that adult patients have a
constitutional right to refuse any treatment, including life-sustaining treatment, and that there is no legal
difference between withdrawing treatment and not
starting treatment in the first place.23
Aid in Dying in the Law
In a pair of well-known cases, Washington v
Glucksberg and Vacco v Quill, the US Supreme Court
recognized that dying patients have the right to as
much pain medication as needed, even if it is likely
to advance the time of death.24,25 In these cases, the
court declined to recognize a federal constitutional
right to choose aid in dying, carefully reserving the
possibility it might do so in the future, and left the
question of aid in dying to the states.24-28 The regulation of the practice of medicine is primarily a matter
of state law.29-31
Principles that animate respecting the autonomy
of patients so they are empowered to refuse or direct
withdrawal of life-prolonging interventions, even if
death is the anticipated result, also support respecting
the wishes of dying patients who want to truncate
their suffering and achieve a peaceful death through
aid in dying. Support for aid in dying is growing,
including among physicians (eg, a 2005 Finkelstein
Institute national survey of physicians showed that
57% believe it ethical to provide aid in dying,32 and
a 2011 poll of physicians in Vermont found that
59% support aid in dying as an end-of-life option33)
and medical and health policy professional organizations. Many such organizations have adopted policies
supportive of the practice, including the American
Public Health Association, the AMWA, the American
Medical Student Association, and the American College of Legal Medicine.3,10
The practice currently is regulated by statute in
two states, Oregon and Washington,34,35 and is protected by a state supreme court decision in one state,
Montana.36,37 Two states, Idaho and Arkansas, prohibit the practice.38,39 The status in other states is
unclear; certainly, some empower their citizens with
broad autonomy over medical and end-of-life decisionmaking, and absent a prohibition, the practice in
these states can proceed subject to best practices
and an emerging standard of care. An example of
such a jurisdiction is Hawaii.40 It has been widely
assumed that aid in dying might expose physicians to
prosecution for assisting suicide under state criminal
statutes; however, that assumption lacks foundation
and is rebutted by the recognition that the choice of
a dying patient for a peaceful death is starkly and fundamentally different from suicide.3,41,42 A careful con-
sideration of the law of each state and the possible
reach of such a statute in that state should govern
practice in any individual state.
A tremendous amount is known about who chooses
aid in dying, the reasons patients elect this option,
whether it poses risks to patients, and how it affects
end-of-life care because Oregon investigators have
been collecting and publishing data for . 14 years
about the practice in Oregon. The data have been
closely examined and discussed in a plethora of publications.43-48 Those examining Oregon’s experience
have concluded that it is quite “apparent from credible sources in and out of Oregon that the Death
With Dignity Act has not had an adverse impact on
end-of-life care and in all probability has enhanced
the other options.”49
The consensus emerging from the consideration of
the evidence in Oregon is that the availability of aid
in dying has not put patients at risk, has prompted
improvements in end-of-life care for all patients, and
has increased the options available to dying patients
who are suffering.43-49 This evidence supports the
adoption of the policies by medical and health policy
groups, as noted previously.3
Rights and Responsibilities of the
Clinician for Whom Aid in Dying Is
Counter to Personal Beliefs
Clinicians’ personal values and beliefs may lead
them to prefer not to participate in aid in dying. In
this situation, the clinician should inform the patient
of his or her preference not to provide aid in dying as
soon as the patient inquires, even in a general way.
The clinician should not impose his or her values on
the patient and should state his or her unwillingness
to participate in a way to avoid causing the patient
emotional distress.50,51 Further, the clinician must not
abandon the patient but, rather, should refer the
patient to a clinician who is willing to provide aid in
dying.13,50 The willingness of the initial clinician to
help to resolve the issue, even if he or she has moral
objections to providing aid in dying, would absolve
the clinician of any accusation of obstruction. If a
clinician knows that he or she may have objection to
aid in dying, he or she should address this in a timely
fashion so that transfer to a new clinician can take
place.
Communication About End-of-Life
Options, Including Aid in Dying
Communication about end-of-life options should
be a part of a larger conversation about patients’ goals
of care. The role of the clinician is to help patients to
220
Downloaded From: http://journal.publications.chestnet.org/ by a American College of Chest Physicians User on 07/11/2012
Medical Ethics
determine how the benefits and burdens of various
options align with their desired outcomes for their
health care.
• Communication about end-of-life options is an
ongoing process that should begin soon after
diagnosis of terminal illness and continue over
time as the patient’s health status changes.
• Although the role of the clinician is to advise and
assist the patient and family, the ultimate decisionmaking authority rests with the patient.
• Multiple options are available to patients
approaching the end of life because of terminal
illness, including forgoing or withdrawing lifeprolonging treatment; voluntarily stopping intake
of food and fluid; aggressive pain and symptom
management; palliative sedation26-28; and aid in
dying.
Timely and effective communication among patients,
families, and health-care providers is essential to
ensure informed consent. Effective communication
includes taking a proactive role in determining the
patient’s goals of care, helping the patient weigh the
benefits and burdens of various options as his or her
clinical situation changes, and clarifying the consequences of each. These conversations improve outcomes for both patients and their families.52 They
should begin at the time of terminal prognosis and
should continue over the course of the patient’s illness as part of ongoing patient education. As illness
progresses, the patient’s preference for outcomes
and the level of burden acceptable to a patient may
change.53,54 Few patients understand their end-of-life
care options.55 Surveys demonstrate that although
physicians believe that they should engage in these
types of conversations with patients, they rarely do.56,57
Discussion of Aid in Dying in the
Context of Overall Goals of Care
Communication techniques used to discuss endof-life options need to move from treatment-directed
conversations to goal-directed conversations. These
conversations should include a discussion of quality
of life, functional status, what elements are important
to the patient regarding control and dignity, and current and potential future symptoms because each
element can influence how patients set goals for their
health care, and all have been described by patients
as priorities in end-of-life care.58
Role of Palliative Care Specialists
Palliative care aims to relieve suffering and improve
quality of life for patients with advanced illness and
journal.publications.chestnet.org
their families.59-61 In addition to symptom management, palliative care clinicians are experienced in
the complex conversations surrounding progressive
illness and changing goals of care.59 Studies show that
patients who receive palliative care are more likely
to have their treatment wishes followed and have
better quality of life at the end of life.62-65 Studies
demonstrate that patients and families desire conversations about end-of-life care.65 Palliative care can
transition smoothly to hospice care, which is available
to patients with a prognosis of 6 months or less.60
Patients approaching death because of terminal illness and considering end-of-life options may benefit
from having a palliative care specialist on their team
of providers, especially if they are not in the care of
an intensivist who is knowledgeable about palliative
care.
It Is Timely for Clinical
Practice Guidelines to Emerge
Governing Aid in Dying
In order for clinicians to provide their patients with
the best care possible, they must keep current with
evolving and emerging practices so that they may
combine knowledge of such with their own clinical
experience and the preferences of their patients.66
Clinical practice guidelines facilitate this. It is timely
for clinical practice guidelines to be promulgated for
aid in dying for two reasons: First, as noted previously, the practice is increasingly accepted by physicians and can be expected to be inquired about by
a growing population of patients, and second, significant experience exists in providing this option.
This experience can and should inform the development of guidelines that are useful to the provider
community.67-71
The Institute of Medicine recently formed the
Committee on Standards for Developing Trustworthy
Clinical Practice Guidelines. The task of the committee was to identify “the best methods used in
developing clinical practice guidelines in order to
ensure that organizations developing such guidelines
have information on approaches that are objective,
scientifically valid, and consistent.”72 The committee
defined clinical practice guidelines as “statements
that include recommendations intended to optimize
patient care that are informed by a systematic review
of evidence and an assessment of the benefits and
harms of alternative care options.”72 Guidance recently
published by the Heart Rhythm Society (HRS) regarding the deactivation of cardiovascular implantable
electronic devices serves as a good example of such
guidelines.9 Although most clinicians who care for
patients with cardiovascular implantable electronic
devices have participated in the deactivation of the
CHEST / 142 / 1 / JULY 2012
Downloaded From: http://journal.publications.chestnet.org/ by a American College of Chest Physicians User on 07/11/2012
221
devices, understanding of device deactivation among
clinicians varies, and many feel uneasy about discussing device management as their patients approach
the end of life.9 In response to such uncertainties,
the HRS, with other professional organizations and
experts in geriatrics, palliative care, psychiatry, pediatrics, nursing, law, ethics, and divinity, published guidance on deactivation.9 The HRS guidance is a valuable
tool in ensuring appropriate response to a request
for deactivation, improving patient care, and making
it more likely that patients seeking deactivation will
have their request honored.
Similar uncertainties and uneasiness exist among
clinicians who treat terminally ill patients in general.
For a number of reasons, clinicians avoid discussing
end-of-life options with terminally ill patients. Some
clinicians believe that discussing end-of-life options
may extinguish a patient’s optimistic expectations73 or
force patients to endure distress that may arise from
a discussion of such a sensitive subject.74 Others may
avoid such discussions because they view death as an
enemy to be defeated74 or believe that their patients
would not consider such options.75 However, these
concerns should not prevent clinicians from discussing end-of life-options with their patients, including
aid in dying, at least in jurisdictions where the practice has not been explicitly prohibited. As noted previously, only two states at present, Arkansas and Idaho,
appear to have specific prohibitions directed at the
practice. There is no evidence indicating that providing information about end-of-life care options results
in loss of hope or harm to the patient.76,77 Clinicians
are in a unique position to counsel patients knowledgeably about end-of-life options and the expected
burdens and benefits of each.73 Studies also show that
clinicians’ perceptions of their patients’ beliefs and
how they affect their health-care decisions are inaccurate.78 Avoiding end-of-life discussions with patients
deprives them of valuable information that is essential to preserving their autonomy and dignity and can
result in patients receiving unwanted treatment. To
improve clinicians’ ability to discuss end-of-life options,
particularly aid in dying, it is timely for clinical practice guidelines to be promulgated.
To ensure that clinical practice guidelines are trustworthy, the committee suggests that they (1) be based
on a systematic review of the existing evidence; (2) be
developed by a multidisciplinary panel of experts who
are knowledgeable about the subject matter as well
as representatives from groups that will likely be
affected; (3) consider important patient subgroups
and patient preferences; (4) be based on an explicit
and transparent process that minimizes distortions,
biases, and conflicts of interest; (5) provide a clear
explanation of the logical relationships between alternative care options and health outcomes and provide
ratings of both the quality of evidence and the strength
of the recommendations; and (6) be reconsidered
and revised when important new evidence warrants
modifications of recommendations.72
As discussed previously, 14 years of data regarding
aid in dying are available from Oregon, demonstrating
the benefits of the availability of this end-of-life option.
Many patients have chosen aid in dying, and many
physicians have provided it. Therefore, in jurisdictions that do not prohibit aid in dying, clinical practice
guidelines should be developed and adopted for this
practice. A recent survey of physicians in Hawaii indicated that 83% of those responding to the survey
believe that the medical community, not the government, should establish practice guidelines governing aid in dying.79 Guidelines will assist clinicians in
responding to requests for aid in dying, providing
assurance that their practice is consistent with best
practices, and will improve patient access to this endof-life option.
Conclusion
Aid in dying is an end-of-life option with growing
support, including among medical and health policy
professionals and their organizations. It is a compassionate option that does not put patients or vulnerable populations at risk. It is likely to be considered
by an increasing population of patients. In jurisdictions where aid in dying is permitted by statute or
court decision or is subject to best practices in jurisdictions that empower patients with autonomy over
medical and end-of-life decision making and have no
explicit prohibition, clinicians can provide aid in dying
to patients who request it. It is timely for clinical
practice guidelines on aid in dying to be promulgated
in order to offer guidance to clinicians who receive
requests for and are willing to provide this option to
their patients.
Acknowledgments
Financial/nonfinancial disclosures: The author has reported to
CHEST that no potential conflicts of interest exist with any companies/organizations whose products or services may be discussed
in this article.
Other contributions: I thank Jacquelyn Baylon, Loyola Law
School, Los Angeles, Juris Doctor candidate, May 2012, for her
able assistance with this article.
References
1. American Medical Women’s Association. American Medical
Women’s Association Position Paper on Aid in Dying. American
Medical Women’s Association website. http://www.amwa-doc.
org/cms_files/original/Aid_in_Dying1.pdf. Accessed April 11,
2012.
222
Downloaded From: http://journal.publications.chestnet.org/ by a American College of Chest Physicians User on 07/11/2012
Medical Ethics
2. Quill TE, Cassel CK, Meier DE. Care of the hopelessly
ill. Proposed clinical criteria for physician-assisted suicide.
N Engl J Med. 1992;327(19):1380-1384.
3. Tucker K. At the very end of life: the emergence of policy
supporting aid in dying among mainstream medical &
health policy associations. Harv Health Policy Rev. 2009;10:
45-47.
4. Quill TE. Physician-assisted death in the United States: are
the existing “last resorts” enough? Hastings Cent Report.
2008;38(5):17-22.
5. Slome LR, Mitchell TF, Charlebois E, Benevedes JM,
Abrams DI. Physician-assisted suicide and patients with
human immunodeficiency virus disease. N Engl J Med.
1997;336(6):417-421.
6. Kohlwes RJ, Koepsell TD, Rhodes LA, Pearlman RA.
Physicians’ responses to patients’ requests for physicianassisted suicide. Arch Intern Med. 2001;161(5):657-663.
7. Emanuel EJ, Fairclough DL, Emanuel LL. Attitudes and
desires related to euthanasia and physician-assisted suicide
among terminally ill patients and their caregivers. JAMA.
2000;284(19):2460-2468.
8. Guglielmo WJ. Choices: assisted suicide? Pain control?
Where’s the line? Med Econ. 2002;79(19):48-49, 53-54, 59.
9. Lampert R, Hayes DL, Annas GJ, et al; American College of
Cardiology; American Geriatrics Society; American Academy
of Hospice and Palliative Medicine; American Heart Association; European Heart Rhythm Association; Hospice and
Palliative Nurses Association. HRS expert consensus statement on the management of cardiovascular implantable
electronic devices (CIEDs) in patients nearing end of life
or requesting withdrawal of therapy. Heart Rhythm. 2010;
7(7):1008-1026.
10. American Public Health Association. Policy statement database: patients’ right to self-determination at the end of life.
American Public Health Association website. http://www.
apha.org/advocacy/policy/policysearch/default.htm?id51372.
Accessed May 22, 2012.
11. Beauchamp TL. Principles of Biomedical Ethics. 6th ed. New
York, NY: Oxford University Press; 2009.
12. Jonsen AR, Siegler M, Winslade WJ. Clinical Ethics: A
Practical Approach to Ethical Decisions in Clinical Medicine.
6th ed. New York, NY: McGraw-Hill; 2006.
13. American Medical Association. Code of Medical Ethics of the
American Medical Association: 2010-2011: Council on Ethical
and Judicial Affairs, Current Opinions and Annotations.
Chicago, IL: AMA Press; 2010.
14. Snyder L, Leffler C; Ethics and Human Rights Committee;
American College of Physicians. Ethics manual: fifth edition.
Ann Intern Med. 2005;142(7):560-582.
15. Ganzini L, Volicer L, Nelson WA, Fox E, Derse AR. Ten
myths about decision-making capacity. J Am Med Dir Assoc.
2004;5(4):263-267.
16. Annas GJ. The Rights of Patients. 3rd ed. New York, NY: New
York University Press; 2004.
17. Annas GJ, Densberger JE. Competence to refuse medical
treatment: autonomy vs. paternalism. Univ Toledo Law Rev.
1984;15(2):561-596.
18. Pellegrino ED. Decisions to withdraw life-sustaining treatment: a moral algorithm. JAMA. 2000;283(8):1065-1067.
19. Rhymes JA, McCullough LB, Luchi RJ, Teasdale TA, Wilson N.
Withdrawing very low-burden interventions in chronically
ill patients. JAMA. 2000;283(8):1061-1063.
20. Schloendorff v Society of the New York Hospital, 211 NY 125,
105 NE 92 (1914) (NY Ct App).
21. Cruzan v Director, Missouri Department of Health, 497 US
261, 88-1503 (1990).
22. In re Quinlan, 70 NJ 10, 355 A2d 647 (1976) (NJ Sup Ct).
journal.publications.chestnet.org
23. Annas GJ. “Culture of life” politics at the bedside—the case
of Terri Schiavo. N Engl J Med. 2005;352(16):1710-1715.
24. Vacco v Quill, 521 US 793 (1997).
25. Washington v Glucksberg, 521 US 702 (1997).
26. National Ethics Committee; Veterans Health Administration.
The ethics of palliative sedation as a therapy of last resort.
Am J Hosp Palliat Care. 2006; 23(6):483-491.
27. Schuman ZD, Abrahm JL. Implementing institutional change:
an institutional case study of palliative sedation. J Palliat Med.
2005;8(3):666-676.
28. Lo B, Rubenfeld G. Palliative sedation in dying patients.
JAMA. 2205;294(14):1810-1816.
29. Oregon v Ashcroft, 192 FSupp2d 1077, 1092 (D Or 2002),
aff ’d, 368 F3d 1118 (9th Cir 2004), aff ’d sub nom.
30. Gonzalez v Oregon, 546 US 243 (2006).
31. Tucker KL. U.S. Supreme Court ruling preserves Oregon’s
landmark Death With Dignity law. Natl Assoc Elder L
Attorneys J. 2006;2:291.
32. Louis Finkelstein Institute. End of life issues: Terri Schiavo
case. The Jewish Theological Seminary website. http://www.
jtsa.edu/JTS_in_Your_Community/Louis_Finkelstein_Institute_
for_Religious_and_Social_Studies/Public_Interest_Surveys/
End_of_Life_Issues_The_Terri_Schiavo_Case.xml. Accessed
May 22, 2012.
33. Till G. Physician survey 2011. Representative George Till
website. http://georgetill.com/PHYSICIAN-SURVEY-2011.
php. Accessed May 22, 2012.
34. Or Rev Stat Ann § 127.800 (2011).
35. Wash Rev Code Ann § 70.245.010 (2011).
36. Baxter v State of Montana, 224 P3d 1211, 1219, reh’g denied
(2010).
37. Montana Board of Medical Examiners. Physician aid in dying.
Montana state website. http://bsd.dli.mt.gov/license/bsd_
boards/med_board/pdf/Final%20Draft%20Physician%20
Aid%20in%20Dying%20Statement.pdf. Accessed May 22,
2012.
38. Ark Code Ann §5-10-106 (1987).
39. Idaho Code Ann §18-4017(2011).
40. Tucker KL. Aid in dying: an end of life option governed by
best practices. J Health Biomed Law. 2012;8:9-26.
41. Faberman RK. Terminal illness and hastened death requests:
the important role of the mental health professional. Prof
Psychol Res Pr. 1997;28:544-547.
42. Bostwick JM, Cohen LM. Differentiating suicide from lifeending acts and end-of-life decisions: a model based on chronic
kidney disease and dialysis. Psychosomatics. 2009;50(1):
1-7.
43. Battin MP, van der Heide A, Ganzini L, van der Wal G,
Onwuteaka-Philipsen BD. Legal physician-assisted dying
in Oregon and The Netherlands: evidence concerning the
impact on patients in “vulnerable” groups. J Med Ethics.
2007;33(10):591-597.
44. Ganzini L, Nelson HD, Lee MA, Kraemer DF, Schmidt TA,
Delorit MA. Oregon physicians’ attitudes about and experiences with end-of-life care since passage of the Oregon Death
With Dignity Act. JAMA. 2001;285(18):2363-2369.
45. Lee MA, Tolle SW. Oregon’s assisted suicide vote: the silver
lining. Ann Intern Med. 1996;124(2):267-269.
46. Straton JB. Physician assistance with dying: reframing the
debate. Temp Pol Civ Rts L Rev. 2006;15:475.
47. Smith KA, Goy ER, Harvath TA, Ganzini L. Quality of death
and dying in patients who request physician-assisted death.
J Palliat Med. 2011;14(4):445-450.
48. Campbell CS. Ten years of “death with dignity.” New Atlantis.
2008;22(33):40-41.
49. Lunge R, Royle M, Slater M. Oregon’s death with dignity law
and euthanasia in The Netherlands: factual disputes, 2004.
CHEST / 142 / 1 / JULY 2012
Downloaded From: http://journal.publications.chestnet.org/ by a American College of Chest Physicians User on 07/11/2012
223
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
Vermont State Legislature website. http://www.leg.state.
vt.us/reports/04Death/Death_With_Dignity_Report.htm.
Accessed August 5, 2011.
Council on Ethical and Judicial Affairs. Physician Objection
to Treatment and Individual Patient Discrimination: CEJA
Report 6-A-07. Chicago, IL: American Medical Association;
2007:1-4.
May T. Bioethics in a Liberal Society. Baltimore, MD: Johns
Hopkins University Press; 2002.
Wright AA, Zhang B, Ray A, et al. Associations between
end-of-life discussions, patient mental health, medical care
near death, and caregiver bereavement adjustment. JAMA.
2008;300(14):1665-1673.
Fried TR, Bradley EH, Towle VR, Allore H. Understanding
the treatment preferences of seriously ill patients. N Engl
J Med. 2002;346(14):1061-1066.
Fried TR, Byers AL, Gallo WT, et al. Prospective study
of health status preferences and changes in preferences
over time in older adults. Arch Intern Med. 2006;166(8):
890-895.
Silveira MJ, DiPiero A, Gerrity MS, Feudtner C. Patients’
knowledge of options at the end of life: ignorance in the face
of death. JAMA. 2000;284(19):2483-2488.
Golin CE, Wenger NS, Liu H, et al. A prospective study of
patient-physician communication about resuscitation. J Am
Geriatr Soc. 2000;48(suppl 5):S52-S60.
Hoffman JC, Wenger NS, Davis RB, et al; SUPPORT Investigators. Patient preferences for communication with physicians about end-of-life decisions. Study to Understand
Prognoses and Preference for Outcomes and Risks of
Treatment. Ann Intern Med. 1997;127(1):1-12.
Singer PA, Martin DK, Kelner M. Quality end-of-life care:
patients’ perspectives. JAMA. 1999;281(2):163-168.
Morrison RS, Meier DE. Clinical practice. Palliative care.
N Engl J Med. 2004;350(25):2582-2590.
National Consensus Project for Quality Palliative Care.
Clinical practice guidelines for quality palliative care. 2nd ed.
National Consensus Project for Quality Palliative Care
website. http://www.nationalconsensusproject.org. Accessed
May 22, 2012.
National Quality Forum. A National Framework and
Preferred Practices for Palliative and Hospice Care Quality.
A Consensus Report. Washington, DC: National Quality
Forum; 2006.
Brody JE. In cancer therapy, there is a time to treat and a
time to let go. New York Times. August 19, 2008:F7.
Connor SR, Pyenson B, Fitch K, Spence C, Iwasaki K.
Comparing hospice and nonhospice patient survival among
patients who die within a three-year window. J Pain Symptom
Manage. 2007;33(3):238-246.
Temel JS, Greer JA, Muzikansky A, et al. Early palliative
care for patients with metastatic non-small-cell lung cancer.
N Engl J Med. 2010;363(8):733-742.
Wright AA, Ray A, Zhang B, et al. Medical care and emotional distress associated with advanced cancer patients’
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
end-of-life discussions with their physicians [Abstract]. J Clin
Oncol. 2008;26(suppl):6505.
Turner T, Misso M, Harris C, Green S. Development of
evidence-based clinical practice guidelines (CPGs): comparing approaches. Implement Sci. 2008;3:45.
Washington State Psychological Association. The Washington
death with dignity act: WSPA guidelines for mental health
professionals. Washington State Psychological Association
website. http://www.wapsych.org/associations/2046/files/
DWD%20Guidelines%206-3-09.pdf. Accessed May 22, 2012.
The Task Force to Improve Care of Terminally-Ill Oregonians.
The Oregon death with dignity act: a guidebook for health
care professionals. Oregon Health & Science University
website. http://www.ohsu.edu/xd/education/continuing-education/
center-for-ethics/ethics-outreach/upload/Oregon-Death-withDignity-Act-Guidebook.pdf. 2008. Accessed May 22, 2012.
Werth JL, Benjamin GA, Farrenkopf T. Requests for physicianassisted death: guidelines for assessing mental capacity and
impaired judgment. Psychol Public Policy Law. 2000;6(2):
348-372.
Jamison S. Factors to consider before participating in a hastened death: issues for medical professionals. Psychol Public
Policy Law. 2000;6(2):416-433.
Farrenkopf T, Bryan J. Psychological consultation under
Oregon’s 1994 Death With Dignity Act: ethics and procedures. Prof Psychol Res Pr. 1999;30(3):245-249.
Committee on Standards for Developing Trustworthy Clinical
Practice Guidelines; Board on Health Care Services; Graham
R, Mancher M, Wolman DM, Greenfield S, Steinberg E, eds.
Clinical Practice Guidelines We Can Trust. Washington DC:
National Academies Press; 2011.
Gawande A. Letting go. The New Yorker website. http://
www.newyorker.com/reporting/2010/08/02/100802fa_fact_
gawande. Accessed May 22, 2012.
Morrison MF. Obstacles in doctor-patient communication
at end of life. In: Steinberg MD, Youngner SJ, eds. End-ofLife Decisions: A Psychosocial Perspective. Washington, DC:
American Psychiatric Press; 2005:109-136.
Desharnias S, Carter RE, Hennessy W, Kurent JE, Carter C.
Lack of concordance between physician and patient: reports
of end-of-life care discussions. J Palliat Med. 2007;10(3):
728-740.
Harrington SE, Smith TJ. The role of chemotherapy at the
end of life: “when is enough, enough?” JAMA. 2008:299(22):
2667-2678.
Tucker KL. The campaign to deny terminally ill patients
information and choices at the end of life. J Leg Med.
2009;30(4):495-514.
Street RL Jr, Haidet P. How well do doctors know their
patients? Factors affecting physician understanding of patients’
health beliefs. J Gen Intern Med. 2011:26(1):21-27.
Qmark Research. Hawaii physicians attitudes toward aid in dying.
Compassion & Choices website. http://compassionandchoices.
org/document.doc?id51122. January 2012. Accessed May 22,
2012.
224
DownloadedFrom:http://journal.publications.chestnet.org/byaAmericanCollegeofChestPhysiciansUseron07/11/2012
Medical Ethics