Chapter 5

Chapter 5.B (or 3.B) Physician Aid in Dying

Physician Aid in Dying

Note 1

On June 3, 2011, Jack Kevorkian died of natural causes at the age of 83. Keith Schneider, Doctor Who Helped End Lives, N.Y. Times, June 4, 2011, at A1.

Note 2

Through December 31, 2011, physicians had written 935 prescriptions under Oregon's Death with Dignity Act. Of the 935 patients, 596 died after ingesting the prescribed medication (64%), a small number were still alive, and the rest died of their illnesses. Between one-fifth of one percent and one-fourth of one percent of deaths in Oregon now result from aid in dying. Eighty-one percent of the 596 had cancer, and 90 percent were enrolled in hospice care. For more information about the patients, click here.

For commentary on the implementation of the Oregon statute, see an article by Kathryn Tucker and a co-authored piece by Herbert Hendin and Kathleen Foley in the June 2008 issue of the Michigan Law Review.

For an empirical analysis of the Oregon experience, as well as the Netherlands experience with euthanasia and aid in dying, see Jackson Pickett, "Can Legalization Improve End-of-Life Care? An Empirical Analysis of the Results of the Legalization of Euthanasia and Physician-Assisted Suicide in the Netherlands and Oregon," 16 Elder L.J. 333 (2009).

Note 10

States have begun to recognize a right to palliative care in their legislatures and courts. California in 2008 and New York in 2010 passed statutes requiring physicians to advise terminally ill patients of their options for end-of-life care, including hospice care, and treatment to relieve pain and other symptoms. Cal. Health& Safety Code § 442.5; N.Y. Pub. Health Law § 2997-c. In one important difference between the two statutes, the duty to provide information is not triggered in California until the patient requests information. In addition to these statutory rights, patients have received damages awards from doctors and other health care providers for the failure to provide adequate pain relief. Tolliver v. Visiting Nurse Ass’n of Midlands, 771 N.W. 2d 908 (Neb. 2009); Ben Rich, Physicians’ Legal Duty to Relieve Suffering, 175 Western J. Med. 151 (2001). But see McGregor v. Hospice Care of La. in Baton Rouge, 2009 WL 838621 (La. Ct. App. 2009) (rejecting breach of contract claim for failure to provide a pain-free death).

For commentary on Abigail Alliance, see the November-December 2006 issue of the Hastings Center Report for articles by Rebecca Dresser and John Robertson and the January 10, 2007 issue of JAMA for an article by Peter Jacobson and Wendy Parmet.

Note 15

In the fifth paragraph of the note, second line, it should say that "physicians have become more reluctant to employ those practices."

Dutch patients who request aid in dying or euthanasia are more likely to be depressed than comparable patients who do not make such a request. However, doctors refuse the requests most of the time for depressed patients, and the prevalence of depression among those who receive aid in dying or euthanasia is no higher than among similar patients who do not request aid in dying or euthanasia. Ilana Levene & Michael Parker, Prevalence of Depression in Granted and Refused Requests for Euthanasia and Assisted Suicide: A Systematic Review, 37 J. Med. Ethics 205 (2011).

In 2007, euthanasia in Belgium accounted for 0.5 percent of all deaths, with most of the patients terminally ill from cancer and experiencing unbearable physical suffering. Tinne Smets, et al., Legal Euthanasia in Belgium: Characteristics of All Reported Euthanasia Cases, 48 Med. Care 187 (2010).

In June 2012, a trial court in British Columbia concluded that an absolute ban on aid-in-dying contravened the Canadian Charter of Rights and Freedoms. The decision reopens a question that had been addressed in 1993 by the Supreme Court of Canada, which found no breach of the Canadian Charter. The BC court stayed its decision for one year to allow the Canadian Parliament a chance to respond, but gave plaintiff Gloria Taylor permission under specified conditions to seek aid in dying. The Canadian government announced its plans to appeal the decision to the British Columbia Court of Appeal, and the issue could be heard ultimately by the Supreme Court of Canada. For more information, click here.

Concerns have been raised by the practice of “suicide tourism” in which individuals from other countries where physician aid in dying is illegal travel to Switzerland to end their lives. For further discussion, see Alan Meisel & Kathy L. Cerminara, The Right to Die §12.07[B] (3d ed. 2011 Supp.).

Note 17

In May 2013, Vermont became the third state to enact an aid in dying statute and the first state to do so by legislative action.

Washington became the second state to permit physician aid in dying in November 2008. A voter initiative--the Washington Death with Dignity Act--that was patterned on the Oregon Death with Dignity Act passed with 58 percent support. For the text of the act, click here. For commentary, see Robert Steinbrook, "Physician-Assisted Death--From Oregon to Washington State," 359 New Eng. J. Med. 2513 (2008).

The Washington statute took effect on March 5, 2009, and the state's Department of Health has issued annual reports on the state's experience with the law between enactment and December 31, 2011. During that period, medication was dispensed to 265 individuals. As with Oregon, a substantial number of patients died without using their prescriptions. In 2011, for example, 103 prescriptions were reported, with 70 deaths by ingestion of the prescribed medication, 19 deaths without ingestion of the medication and 5 deaths of person whose ingestion status was not known. Among those who have died, whether by taking the prescribed medication or not, nearly 80 percent had a diagnosis of cancer, and loss of autonomy and dignity were more common concerns than inadequate pain control. For the annual reports, click here.

In February 2012, the Georgia Supreme Court struck Georgia's aid in dying ban down. Since 1994, Georgia's law prohibited the public promotion and provision of aid in dying services, but did not reach the private decision of patient and physician to choose physician aid in dying. The court rejected the law on first amendment grounds--since it targeted those who publicly advertised or offered services but not others. Interestingly, even while the law has been in force, there have not been any reports that physicians have misused their freedom to provide physician aid in dying suicide privately.

In December 2009, the Montana Supreme Court held that physician aid in dying is permissible under Montana law. Baxter v State, 224 P.3d 1211 (Mont. 2009). The trial court had recognized a right to physician aid in dying under the Montana constitution, but the supreme court vacated the constitutional ruling and rested its holding on Montana statutory law. According to the supreme court, "a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician." For more information, see Compassion & Choices.

Note 18

For commentary on the Supreme Court's decisions in Glucksberg and Quill, see a June 2008 symposium in the Michigan Law Review, Glucksberg and Quill at Ten

Return to home page.