Monday, January 11, 2010

Aid in Dying in Connecticut.

On the heels of the Montana Supreme Court's decision on New Year's eve that nothing in the state laws prevent the use of aid in dying comes a court case in Connecticut which challenges an aged statute that prohibits "assisted suicide."

The plaintiffs will argue that the right for a terminal, mentally sound patient to receive a lethal prescription from their doctor which they may choose to take is not "assisted suicide" but aid in dying.

The Connecticut Law Tribune writes a good summary of the case, although I wish they had distinguished the difference being made between the two terms and that aid in dying is a choice elected by the patient and self-administered:

Aid In Dying

Dennis C. is 72 and suffering from terminal lung cancer. Chemotherapy and radiation have had little effect. When not inundated with morphine or other drugs, he is in great pain.

Dennis’s doctor is a highly regarded Connecticut internist. He has watched this disease take over Dennis’s life. Yesterday, Dennis asked his doctor if he could give him something to help him die. What can his doctor legally do?

A law passed some 40 years ago states that any person who “intentionally causes or aids another person, other than by force, duress or deception, to commit suicide” is guilty of second-degree manslaughter. There is no exception for doctors.

End of story? Maybe not. Two doctors are asking a Connecticut court to rule that this statute does not necessarily prohibit “aid in dying...a recognized term of medical art,” which “may, in the professional judgment of a physician, be a medically and ethically appropriate course of treatment.”

Despite the “assisted suicide” prohibition in the Connecticut law, it is today generally accepted that a “living will” may direct a physician to withhold procedures “that would serve only to artificially prolong the dying process” and may provide that the patient “be permitted to die naturally” with only those medicines or procedures that provide comfort or alleviate pain.

Connecticut law permits doctors to follow these directives for patients in a “terminal condition.” It defines that as “an incurable or irreversible medical condition” which, in the opinion of the attending physician, “will result in death within a relatively short time period.”

Using such a definition, how different, ethically, would it be to allow a patient to further direct the use of affirmative medical procedures that would, in fact, hasten the dying process?

Whether a Connecticut court feels free to recognize an exception for “aid in dying” or simply concludes that it must follow the literal language of the assisted suicide statute remains to be seen. Should it make a difference to the court that the legislature has, in fact, confronted the issue before and refused to amend the statute? Would it be appropriate for the court to approve an exception by reasoning that if the legislature strongly objected to the judicial gloss, it could easily amend the current statute to specifically deny such an exemption or further define its permissible use?

In the event the court believes it cannot recognize a physician’s “aid to dying” as not covered by the assisted suicide statute, the legislature should itself re-examine the restrictions imposed by this statute. How might it be useful to do so?

Here is a short list of some of the many issues that the court and the legislature should consider, and some possible responses:

• What category of doctors should be allowed to decide whether to carry out a patient’s aid-in-dying request?

The doctor making the decision should be one of the treating physicians. If there are any circumstances that might compromise the decision of a treating physician, then another physician in the same specialty should be so authorized.

• When and how should the patient’s aid-in-dying request be legally recognized?

If legally competent, the patient should be able to make such a request either in a living will or through a health care representative at a later time if duly witnessed. In the absence of either the spouse or other relatives should only be allowed to request an aid-in-dying treatment under very controlled circumstances. This topic warrants another editorial.

• What other safeguards need to be provided?

A “terminally ill” patient needs to be defined, probably in terms of the current language used for living wills.

Today, doctors regularly make medical decisions based on reasonable probability. Physicians treating very ill patients are perfectly capable of determining whether patients knowingly seeking an aid to dying are “terminally ill.” Physicians having doubts can always seek a second opinion. The point is that it is in the patient’s interests, and in society’s interests, to provide trained doctors with a legally permissible means of helping terminally ill patients die with dignity, whether through affirmative or passive means. •

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