Medical Aid in Dying: When Legal Safeguards Become Burdensome Obstacles


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Thaddeus Mason Pope, JD, PhD

Thaddeus Mason Pope, JD, PhD

In 2017, the District of Columbia (DC) became the seventh jurisdiction in the United States to legalize medical aid in dying,1 which gives terminally ill patients the option of how and when they die. The new DC statute is nearly identical to earlier enacted medical aid in dying statutes in California, Colorado, Oregon, Vermont, and Washington State.2 Only Montana legalized medical aid in dying through a court decision, but subsequently, proponents of the act have failed in every attempt to legalize medical aid in dying through constitutional or statutory litigation.3,4

Below, I explain the details contained in these laws, which provide that a mentally competent, terminally ill patient may request medication to be self-administered for the purpose of hastening his or her death. Note the uniformity and similarity of the six medical aid in dying statutes. They are almost indistinguishable, and this duplication persists in new statutes being considered. First, almost every bill introduced in more than 25 state legislatures, in 2017, was modeled on the already enacted medical aid in dying statutes.5 Second, all the bills (for example, in Hawaii) that are expected to pass, in 2018, are also closely patterned on the six statutes already in force.6 Since, nearly 70% of Americans and 60% of physicians support medical aid in dying,7,8 additional jurisdictions are likely to legalize the act, but do not expect much innovation or creativity anytime soon.

It is understandable why each jurisdiction that legalizes medical aid in dying enacts a virtually identical statute. Politically, it is easier to defend the legitimacy and safety of a law with a proven track record. However, political expediency does not necessarily entail ethical justifiability. The ethics of access to medical aid in dying is important to oncologists, because nearly 80% of patients using medical aid in dying have been diagnosed with cancer.9,10 Since commentators have already amply discussed the ethics of medical aid in dying itself,11,12 this article focuses on next-generation issues: the justifiability of prevailing eligibility criteria and procedural requirements.

Medical Aid in Dying Eligibility Criteria and Process Requirements

All six medical aid in dying statutes impose four eligibility conditions that limit the statute to: (1) adults; (2) with decision-making capacity; (3) who are terminally ill; and (4) residents of the state. These six statutes also impose process requirements that require, among other things, the patient self-ingest the medication and the physician sometimes refer the patient for a mental health assessment. These safeguards may be more restrictive than necessary, and in at least one important respect they may not be demanding enough.

Expanding From Adults to Mature Minors: All six statutes limit eligibility to adults 18 years of age or older, but this is unduly restrictive. Many states already allow terminally ill mature minors to withhold or withdraw life-sustaining treatment.13 If a minor is mature enough to make other life-and-death health-care decisions, then he or she is also mature enough to choose medical aid in dying.14 Notably, the Canadian government recently asked the Council of Canadian Academies to review this question.15

The ethics of access to medical aid in dying is important to oncologists, because nearly 80% of patients using medical aid in dying have been diagnosed with cancer.
— Thaddeus Mason Pope, JD, PhD

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Expanding From Contemporaneous Capacity to Advance Directives: All six statutes require that the patient concurrently have both a terminal illness and decision-making capacity. But this dual mandate excludes many patients who have no other exit option.16 For example, patients with advanced dementia will not have the capacity by the time they are terminally ill.17 For 40 years, patients have been able to complete advance directives to withhold or withdraw life-sustaining treatment. The Council of Canadian Academies is addressing how an advance request for medical aid in dying is similar or different from traditional advance directives.15

Expanding From Terminal Illness to ‘Reasonably Predictable’: All six statutes require that the patient be terminally ill. Both the prescribing and consulting physicians must determine that the patient has “6 months or less to live.” But this rigid time frame excludes patients with grievous and irremediable conditions that cause suffering intolerable to the individual. Some medical conditions may cause individuals to irreversibly decline and suffer for a long period before dying. Instead of demanding a strict temporal relationship between a medical condition and death, these statutes might be more flexible and instead require that death be “reasonably predictable.”18

Prescribing and consulting physicians have referred only 5% of medical aid in patients who are dying.
— Thaddeus Mason Pope, JD, PhD

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Expanding From Self-Ingestion to Physician Administration: Under the six statutes, the physician writes the prescription but may not administer the medication. The patient must self-administer and ingest the medication.19 Although this requirement may help assure voluntariness, it has significant drawbacks. First, it excludes patients who lose the ability to self-administer before they otherwise become eligible.20 Second, self-ingestion is associated with complications. For example, around 3% of these patients had difficulty ingesting or regurgitated the medication. Other patients regained consciousness after ingestion.9,10 Such complications may rise as clinicians increasingly use less-tested, lower-cost medications.21 In contrast, Canadian patients avoid all these problems, because physicians usually administer the medication. As a result, only 5 of more than 2,000 Canadian patients who used medical aid in dying self-ingested the lethal medication.22

Strengthening Mental Health Assessments

Although the four points previously discussed concern relaxing some eligibility conditions and procedural requirements, other safeguards may not be strong enough.12 For example, all six statutes require that the prescribing or consulting physician refer the patient “for a mental health specialist assessment” if “there are -indications of a mental disorder.”23 Yet prescribing and consulting physicians have referred only 5% of medical aid in patients who are dying.9,10 Leading experts argue that this rate is probably too low relative to the expected rate of impaired judgment.24 Others are “surprised by how rarely the prescribing or consulting physicians refer patients for a psychiatric consultation.”25,26 Institutions cannot go below the “floor” set by law, but they can go above it by strengthening the mental health assessment.27

Closing Thoughts

More states are legalizing medical aid in dying. Societal and professional deliberation must now extend beyond the basic threshold question of whether to permit medical aid in dying to more fine-grained implementation issues. Oncologists must grapple with the precise conditions and circumstances under which medical aid in dying will be available to their patients. 

Although ASCO has taken no official position on medical aid in dying, in a 1998 position statement on high-quality end-of-life care, which neither supported nor condemned the practice, the Society recommended physicians engage their patients in discussions about their concerns regarding how they might die; explain what comfort care will be provided; and assure patients they will not be abandoned.28 

Editor's Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.

DISCLOSURE: Dr. Pope reported no conflicts of interest.

Dr. Pope is Director of the Health Law Institute and Professor of Law at the Mitchell Hamline School of Law in Saint Paul, Minnesota (www.thaddeuspope.com).

REFERENCES

1. D.C. Act 21-577, D.C. Law L21-0182, 64 D.C. Reg. 2691 (March 17, 2017).

2. Spence RA, Blanke CD, Keating TJ, et al: Responding to patient requests for hastened death: Physician aid in dying and the clinical oncologist. J Oncol Pract 13:693-699, 2017.

3. Myers v Schneiderman, 30 N.Y.3d 1, 85 N.E.3d 57 (NY 2017).

4. Morris v Brandenburg, 376 P3d 836 (NM 2016).

5. Death With Dignity: Death With Dignity Around the U.S. Available at https://www.deathwithdignity.org/take-action. Accessed December 11, 2017.

6. Hawaii S.B. 1129 (2017).

7. Wood J, McCarthy J: Majority of Americans remain supportive of euthanasia. Gallup News (June 12, 2017). Available at news.gallup.com/poll/211928/majority-americans-remain-supportive-euthanasia.aspx. Accessed December 11, 2017.

8. Compassion & Choices: Polling on voter support for medical aid in dying for terminally ill adults. Available at https://www.compassionandchoices.org/wp-content/uploads/2016/07/FS-Medical-Aid-in-Dying-Survey-Results-FINAL-1.18.17-Approved-for-Public-Distribution.pdf. Accessed December 11, 2017.

9. Oregon Health Authority: Oregon Death With Dignity Act Data Summary 2016 (Feb. 10, 2017). Available at http://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year19.pdf. Accessed December 11, 2017.

10. Washington State Department of Health: Washington State 2016 Death With Dignity Act Report (Sept. 2017). Available at https://www.doh.wa.gov/Portals/1/Documents/Pubs/422-109-DeathWithDignityAct2016.PDF. Accessed December 11, 2017.

11. Ward J: Physician aid in dying: Caught between the extremes. J Oncol Pract 13:667-669, 2017.

12. Peled H, Bickel KE, Puchalski C: Enhancing informed consent for physician aid in dying: Potential role of handout on possible benefits of palliative care. J Oncol Pract 13:e838-e843, 2017.

13. Hickey K: Minors’ rights in medical decision making. JONAS Healthc Law Ethics Regul 9:100-106, 2007.

14. Canadian Paediatric Society: Position statement: Medical assistance in dying: A paediatric perspective (Oct. 26, 2017). Available at https://www.cps.ca/en/documents/position/medical-assistance-in-dying. Accessed December 11, 2017.

15. Council of Canadian Academies: Medical Assistance in Dying. Available at http://www.scienceadvice.ca/en/assessments/in-progress/medical-assistance-dying.aspx. Accessed December 11, 2017.

16. Quill TE, Ganzini L, Truog RD, et al: Voluntarily stopping eating and drinking among patients with serious advanced illness: Clinical, ethical, and legal aspects. JAMA Intern Med. November 6, 2017 (early release online).

17. Schwarz JK: Alzheimer’s disease and written directives to withhold oral feedings: Clinical challenges in New York State. Seattle J Soc Just 15:741-777, 2017.

18. Canadian Association of MAID Assessors and Providers: Clinical practice guideline: The clinical interpretation of ‘reasonably foreseeable’ (June 2017). Available at http://www.camapcanada.ca/cpg1.pdf. Accessed December 11, 2017.

19. Thyden AM: Death with dignity and assistance: A critique of the self-administration requirement in California’s End of Life Option Act. Chapman Law Rev 20:421-445, 2017.

20. Ouellette A: Barriers to physician aid in dying for people with disabilities. Laws 6(23), 2017.

21. Offord C: Accessing drugs for medical aid-in-dying. The Scientist, August 17, 2017. Available at https://www.the-scientist.com/?articles.view/articleNo/49879/title/Accessing-Drugs-for-Medical-Aid-in-Dying/. Accessed December 11, 2017.

22. Health Canada: 2nd Interim Report on Medical Assistance in Dying in Canada (Oct. 2017). Available at https://www.canada.ca/content/dam/hc-sc/documents/services/publications/health-system-services/medical-assistance-dying-interim-report-sep-2017/medical-assistance-dying-interim-report-sep-2017-eng.pdf. Accessed December 11, 2017.

23. Cal. Health & Safety Code §§ 443.5 & 443.6.

24. Ganzini L: Legalised Physician-Assisted Death in Oregon. QUT Law Rev 16:76-83, 2016. Available at https://lr.law.qut.edu.au/article/view/623/580. Accessed December 11, 2017.

25. Cavallo J: Examining the impact of ‘death with dignity’ legislation: A conversation with Charles D. Blanke, MD, FACP, FASCO. The ASCO Post 8(5):88-90, 2017.

26. Nelson R: Physician aid in dying: Oncologists grapple with new law. Medscape, April 5, 2016. Available at https://www.medscape.com/viewarticle/861481. Accessed December 11, 2017.

27. Petrillo LA, Dzeng E, Harrison KL, et al: How California prepared for implementation of physician-assisted death: A primer. Am J Public Health 107:883-888, 2017.

28. [No authors listed]: Cancer care during the last phase of life. J Clin Oncol 16:1986-1996, 1998.

Law and Ethics in Oncology explores the legal and ethical issues oncologists must be aware of in this era of precision medicine and changing health-care policy, both to protect patients’ rights and to safeguard against potential legal jeopardy.


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