How about physician-assisted health instead?

Tom Dooling

Spring 2009

Disability Rights Montana’s (DRM’s) commitment to personal rights of choice, privacy, autonomy and dignity would seem to predict that we would embrace the First Judicial District Court’s recent decision in Baxter v. State of Montana.

The Court has found that a competent, terminally ill person has a constitutional right to receive prescribed medication with which to end his or her own life. However, the decision is flawed, and it is in the wrong place at the wrong time. Consequently, DRM is opposed to the decision and will submit to the Montana Supreme Court an amicus curiae, or “Friend of the Court” brief explaining that opposition.

First, and overwhelmingly most important: if there is a constitutional right to receive medical assistance to end one’s life, the time in our society to talk about it is after we have established that there is a constitutional right to receive medical assistance to go on living. A substantial percentage of our population receive either no medical care or less than complete medical care because they can’t afford it and die prematurely because they can’t get the medications that would give them not only continued life but continued health.

Second, DRM has learned over the past three years how the Montana Uniform Rights of the Terminally Ill Act, intended to allow terminally ill people to opt out of intrusive medical attempts to prolong life, has been turned on its head for people with disabilities.

While the “right to die with dignity” is, and should be, an intensely personal and private choice, many people living with cognitive disorders are deprived of life support and often die prematurely in Montana hospitals because a third party, often a stranger, can decide that these patients’ lives “are not worth living”  and life support, including nutrition and medication, is withdrawn from hospital patients who have no identifiable terminal disease, unless poverty and disability are considered terminal diseases.

Third, DRM is aware that the misapplication of the Uniform Rights of the Terminally Ill Act, and the premature application of Do Not Resuscitate orders and the withholding of life support are far cheaper than providing intensive care.

Similarly, influencing a patient to opt for suicide is far cheaper than long term care for their terminal illness, and the possibility of undue influence or even coercion is always possible. Many people with depression and feelings of low self-esteem and the sense that they are a “burden on others” opt for suicide already, and making it cheaply and easily available can only increase that number.

While no ethical doctor would try to persuade a patient with a disability to commit suicide, it is poorly recognized that many people with disabilities have lived their entire lives under the subtle but unremitting message from most of the community that their lives are without value. Fourth, DRM, in its long-term study of the premature withdrawal of medical help from people with disabilities, has become aware that the decision-making process is seriously flawed by failure to document and report how and by whom the decision was made.

If we are to legislate or decide judicially that there is a constitutional right to commit suicide, a number of protections must be put in place and rigorously enforced. First, we must find a definition of the term  “terminal illness” that works. Second, we must put into place a process to determine whether the decision is in fact “competent” or whether it stems from real or perceived coercion, despair or depression. Third, we must assure that the physician is fully trained in palliative care, alternative resolutions, the disease alleged to be terminal and the special concerns of people with disabilities.

The decision or the statute must absolutely forbid surrogate decision-making under any circumstances. There should be no good-faith immunity for physicians who write such prescriptions negligently.

Finally, all cases must be fully documented and reported in detail, with penalties for failure to comply, and an appropriate state agency should be authorized and funded to oversee, investigate and report on all instances of physician-assisted suicide.

It would be preferable, however, to make physician-assisted health a constitutional right, instead of a privilege afforded to those who can afford insurance or the astronomical costs of comprehensive health and hospital care.

Tom Dooling is a former staff attorney for Disability Rights Montana.

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