Death with Dignity

In late February 2010, House 1468, “An Act Relative to Death with Dignity” which would allow terminally-ill residents of Massachusetts to self-medicate with lethal medication, was heard at the State House in Boston. The bill was filed on behalf of Albert Lipkind of Stoughton who died of stomach cancer after a five year battle. Specifically, the bill proposed that anyone 18 or older, who had been diagnosed by an attending physician as terminally ill, could request of that doctor a lethal dose of medicine to take on their own. If passed, Massachusetts would follow only Oregon, Washington, and Montana in implementing similar death with dignity laws. Although the bill has not yet passed, it has sparked great bioethical and moral controversy.

Nationally, the Supreme Court of the United States first addressed the issue of the right to die in the landmark case of Cruzan v. Director, Missouri Department of Health.¹ In Cruzan, the Court held that while competent individuals had a right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights, absent “clear and convincing” evidence of their desire to die.

The Oregon legislation provides guidance as to the larger implications of legalizing the administration of lethal medications. Measure 16 of 1994 established the Death with Dignity Act of Oregon, which allows a capable adult Oregon resident diagnosed with a terminal illness (that will kill the patient within six months) to request in writing a lethal medication prescription for the purposes of ending the patient’s life.² The law protects doctors from liability for providing such lethal prescriptions, in compliance with the statute’s restrictions. According to the Death with Dignity National Center, 541 prescriptions for lethal medications were written during 1998-2007 of which 341 people died using them (compared with 85,755 Oregonians who died from the same diseases during the same period). Such a statistic reflects the relatively small percentage of individuals who actually utilized their right to die.

From a Massachusetts perspective, there is case law guidance with regards to an individual’s right to refuse unwanted medical treatment. In Superintendent of Belchertown State School v. Saikewicz, the court dealt with a terminally-ill and mentally retarded cancer patient who wished to withhold chemotherapy treatment. The court first held that the attending physician could legally withhold treatment, as the right to privacy outweighed interests in preserving life in such instances where treatment could not significantly improve the patient’s quality of life. In this way, “informed refusal” was to govern professional discretion. The court limited this holding to cases where treatment could be characterized as merely “life-prolonging,” rather than “life-saving.”³ Finally, the court determined that where a mentally incompetent person could not exercise his power to consent or refuse treatment, the physician looking for legal protection would be required to ask a court to decide what the patient would have wanted for himself: “We recognize a general right in all persons to refuse medical treatment in appropriate circumstances. The recognition of that right must extend to the case of an incompetent, as well as a competent, patient because the value of human dignity extends to both.”⁴

Later in Lane v. Candura, a 77 year old woman was permitted to refuse a life-saving amputation of her leg because “[t]he magnitude of the invasion proposed in this case is decisive in applying the balancing test.”⁵ And in the case of Commissioner of Correction v. Myers, the Massachusetts Supreme Judicial Court held that a patient could refuse life-saving kidney dialysis because such therapy was “intrusive.”⁶

Finally in Brophy v. New England Sinai Hospital, the Supreme Judicial Court of Massachusetts affirmed an individual’s right to decline extraordinary life-sustaining medical treatment.⁷ The court further respected the hospital’s right to abstain from a procedure that would ultimately lead to a patient’s death. In this way, a patient may determine his/her course of treatment when such treatment interferes with his/her right to die with dignity.

As the abovementioned cases largely focus on the refusal to undergo “intrusive” treatment, many critics of the law argue that the administration of lethal medication equates not to an individual’s right to refuse treatment but rather to physician-assisted suicide. Critics further argue the right to die is not a fundamental liberty interest protected by the Due Process Clause.⁸ Additionally, slippery slope arguments such as the involuntary euthanasia for incompetent individuals arise. From a bioethics perspective, the prohibition against killing patients is the first tenet of the Hippocratic Oath. As such the revocation of one’s consent to live does not necessarily override the physician’s obligation to his Oath. From an economic perspective, drugs for assisted suicide cost about $35 to $45, making them far less expensive than actually providing medical care.⁹ Thus, medical costs and economic incentives may dictate a patient’s right to die. Also it is recognized that physician assisted suicide will be practiced through a lens of social inequality. Thus, the costs of such prejudice being applied to euthanasia would be extreme and final.¹⁰ Finally, basic religious concerns suggest that based on a moral obligations to care for life, one must never directly intend to cause one’s own death or the death of another.

On the other hand, proponents of similar death with dignity acts suggest that the Court's decisions concerning the right to refuse medical treatment instruct that a mentally competent, terminally ill person has a protected liberty interest in choosing to end intolerable suffering by bringing about his or her own death.¹¹ Additionally, it has been suggested that “over time the Hippocratic Oath has been modified on a number of occasions as some of its tenets became less and less acceptable. References to women not studying medicine and doctors not breaking the skin have been deleted.”¹² With regards to ‘do no harm,’ does such a clause suggest that we should prolong a life that the patient sees as a painful burden? Finally in terms of potentially harming the socially disadvantaged, the Oregon law has suggested that between 1998 and 2003, those who died by physician-assisted suicide were more likely to be college graduates, Asian, younger, divorced, and have cancer. Moreover, although 2.6 percent of Oregonians are African American, no African American patients had chosen assisted suicide during that time period.¹³

Regardless of one’s stance on the right to die debate, the fact remains that issues surrounding a patient’s right to self-determination are becoming increasingly more commonplace. Further the distinctions between competent and incompetent patients and the “intrusive” nature of the treatment will likely determine such legal outcomes. At the same time, questions such as whether it is better to emphasize the provisions of excellent end-of-life care aimed at eliminating the reasons offered by persons who make such a request or whether the state has the right to deny a rational individual the opportunity to die with dignity, will remain. Perhaps we will never fully answer such pressing and ethical questions. Thus, the Courts will likely continue to try.

Namita Agarwal is AyerHoffman's Health Law & Policy Contributor. Ms. Agarwal is currently a J.D. candidate at Northeastern University School of Law where she concentrates her studies on domestic and international health care, welfare, and immigration law.