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In 1987, the Massachusetts Supreme Court rendered the landmark decision in Brophy v. New England Sinai Hospital.  This closely watched court case established the legal principle that an individual had the right to refuse medical treatment even if the refusal of such treatment would inevitably lead to death.  The family of Paul Brophy had sought permission to have a feeding tube removed from his abdomen which would discontinue the sustenance that was maintaining his existence in a persistent vegetative state.  Over the next decade, most states also recognized this right by statute or judicial decisions.    Providers and caregivers involved in the care and treatment of the terminally ill have implemented policies and practices recognizing the right of the individual to refuse treatment while striving to ease the pain and suffering surrounding their passing.

 

There is a new healthcare issue being placed before the voters by Question 2 on the Massachusetts ballot on November 6, 2012.  The ballot question is entitled: an act relative to death with dignity.  If the ballot question passes, Chapter 201G will be added to the General Laws of the Commonwealth.  Section 1 of this Chapter reads:


IT IS HEREBY DECLARED THAT THE PUBLIC WELFARE REQUIRES A DEFINED AND SAFEGUARDED PROCESS BY WHICH AN ADULT MASSACHUSETTS RESIDENT WHO HAS THE CAPACITY TO MAKE HEALTH CARE DECISIONS AND WHO HAS BEEN DETERMINED BY HIS OR HER ATTENDING AND CONSULTING PHYSICIANS TO BE SUFFERING FROM A TERMINAL DISEASE THAT WILL CAUSE DEATH WITHIN SIX MONTHS MAY OBTAIN MEDICATION THAT THE PATIENT MAY SELF ADMINISTER TO END HIS OR HER LIFE IN A HUMANE AND DIGNIFIED MANNER.  IT IS FURTHER DECLARED THAT THE PUBLIC WELFARE REQUIRES THAT SUCH A PROCESS BE ENTIRELY VOLUNTARY ON THE PART OF ALL PARTICIPANTS, INCLUDING THE PATIENT, HIS OR HER PHYSICIANS, AND ANY OTHER HEALTH CARE PROVIDER OR FACILITY PROVIDING SERVICES OR CARE TO THE PATIENT.  THIS ACT, BEING NECESSARY FOR THE WELFARE OF THE COMMONWEALTH AND ITS RESIDENTS, SHALL BE LIBERALLY CONSTRUED TO EFFECT THE PURPOSES HEREOF. 

 

The Act requires that the person making this decision have the capacity to make health care decisions and that the decision be informed.  “Informed decision” is defined as:

 A DECISION BY A QUALIFIED PATIENT, TO REQUEST AND OBTAIN A PRESCRIPTION FOR MEDICATION THAT THE QUALIFIED PATIENT MAY SELF-ADMINISTER TO END HIS OR HER LIFE IN A HUMANE AND DIGNIFIED MANNER, THAT IS BASED ON AN APPRECIATION OF THE RELEVANT FACTS AND AFTER BEING FULLY INFORMED BY THE ATTENDING PHYSICIAN OF:

(A) HIS OR HER MEDICAL DIAGNOSIS;

(B) HIS OR HER PROGNOSIS

(C) THE POTENTIAL RISKS ASSOCIATED WITH TAKING THE MEDICATION TO BE PRESCRIBED;

(D)THE PROBABLE RESULT OF TAKING THE MEDICATION TO BE PRESCRIBED; AND

(E)  THE FEASIBLE ALTERNATIVES INCLUDING, BUT NOT LIMITED TO, COMFORT CARE, HOSPICE CARE AND PAIN CONTROL.

 

 

Oregon was the first state to adopt a similar statute in 1997.  The Oregon Health Authority issued a comprehensive update on the law's application since that time.  Washington has a similar statute and this practice was allowed in Montana by a judicial opinion.  On the other hand, Maine voters rejected a similar ballot question in 2000

 

As one might expect with such a controversial proposal, there are interest groups and individuals for and against its adoption.   The different names given to the proposal by advocates on either side tends to highlight their differences:  those in favor refer to the measure as an Act to Allow for Death with Dignity while those opposed refer to it as the Legalization of Physician Assisted Suicide.

The Massachusetts Medical Society opposes (click here) passage of the ballot question and issued the following statements:

  • Assisted suicide is not necessary to improve the quality of life at the end of life.  Current law gives every patient the right to refuse lifesaving treatment, and to have adequate pain relief, including hospice and palliative care.
  • Doctors should not participate in assisted suicide.
  • The proposed safeguards against abuse are insufficient.

 

The Massachusetts Academy of Family Physicians and the Massachusetts Osteopathic Society also oppose passage of the ballot question. 

 

On the other hand, Marcia Angell, a former editor of the New England Journal of Medicine who lectures in the department of Social Medicine at Harvard Medical School, as well as several other prominent healthcare policy makers are  strong supporters of the initiative.  Dr. Angell was quoted as saying that “I believe it is wrong to require dying patients, against their wishes, to continue on a downhill path of suffering.”  “Nearly everyone knows someone who had died a slow, difficult death, and there is a natural desire to try to give patients more control over how they die.” (Click here).  And Steve Crawford, spokesman for the Massachusetts Death with Dignity Coalition, has stated: “The act gives patients dignity, control and peace of mind during their final days with their families and loved ones.  These are very intimate personal choices that should remain in the hands of the individual and not the government."  (Click here).

 

Whichever way the voting goes on this ballot question, the decision will likely reverberate around the country.  California and Massachusetts have long defined the path of medical ethics when considering end of life care and will likely continue to do so with the current debate.


Death with Dignity or Physician Assisted Suicide

by Attorney Frank E. Reardon

September 2012

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