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Physician Assisted Death (PAD)

Act 39: Patient Choice and Control at the End of Life

On May 20, 2013, Vermont became one of four states in the country to permit a terminally ill, capable adult to request and obtain a lethal prescription for medication to self-administer for the purpose of hastening their own death. Life-ending medication has thus become another of the many available options for patients who qualify.

There is no national consensus about this practice, known as Physician Assisted Death or "PAD" (sometimes also referred to as "Physician Aid in Dying," or "Physician Assisted Suicide.") The US Supreme Court has twice held that the US Constitution does not create a right to PAD. However, the Court left open the possibility that state law could permit the practice, and suggested that the many moral, philosophical and practical issues involved might best be worked out in the "laboratory of the states." Vermont is now part of this experiment.

Vermonters approaching the end of life deserve medical care that maximizes their comfort, respects their values, addresses their fears and concerns and continually seeks to optimize their quality of life. Goals, preference and priorities surrounding care at the end of life vary from patient to patient. When faced with life-threatening illness, some patients want aggressive life-prolonging interventions to the very end. Many want comfort measures only. Still others, seeking to control the time and manner of death, find reassurance in having a lethal prescription available, even if they choose not to use it. This divergence of goals and priorities makes it essential that throughout the course of illness, patients receive responsive care based on shared understandings, fully informed choices and repeated assessment of changing needs and concerns. Excellent palliative care (and hospice for those who choose it) remains the standard of care for patients approaching the end of life. Act 39 does not replace this standard.

The Vermont Ethics Network recognizes that while Vermonters hold a diversity of views in regard to PAD, the practice is now another legal end-of-life care option in this state. Consistent with our mission to promote understanding of ethical issues in health care, VEN encourages Vermont citizens, health care providers and facilities to thoroughly inform themselves about the new law. The materials below provide information about Vermont's new law, describe Physician Assisted Death (PAD) in general, provide some ethical perspectives, and offer both legal and historical background information regarding the major arguments for and against the practice.


Background: The Vermont Legislature has passed a new law that makes it legal for a terminally ill, capable adult patient to request and obtain a lethal prescription of a medication to be self-administered for the purpose of hastening the patient's death. (18 V.S.A. Chapter 113 § 5283)

Participation in Vermont's Patient Choice at the End of Life law is voluntary. Patients should be aware that health care facilities have the option not to participate in the law and to institute policies that would restrict physicians from participating.

Eligibility: For a physician to legally provide the requested medication, a patient must:

  • Be at least 18 years of age
  • Have a terminal condition with a life expectancy of 6 months or less
  • Be a resident of Vermont
  • Be under the care of a physician
  • Be capable of making an informed decision
  • Make a voluntary request to a physician for medication to be self-administered for the purpose of hastening their own death.

Process: The qualified patient must:

  • Make an initial voluntary oral request to the physician (in the physician's physical presence) for medication to be self-administered for the purpose of hastening their own death.
  • Make a second voluntary oral request no fewer than 15 days after the first oral request (in the physician's physical presence) for medication to be self administered for the purpose of hastening their own death. (At the time of the second request, the physician must offer the patient an opportunity to rescind the request.)
  • Make a written request for medication to be self-administered for the purpose of hastening death. The written request must be signed in the presence of two (2) witnesses who are at least 18 years of age and who sign and affirm that the patient appeared to understand the nature of the document and to be free from duress or undue influence at the time the request was signed. Witnesses can NOT be:
    • the patient's physician;
    • a patient's relative by blood, civil marriage, civil union or adoption;
    • a person who knows that s/he would be entitled, upon the patient's death, to any portion of the estate or assets of the patient under any will or trust, by operation of law, or by contract; or
    • an owner, operator, or employee of a health care facility, nursing home, or residential care facility where the patient is receiving medical treatment or is a resident.
  • Be informed by their physician of:
    • their diagnosis and prognosis, including an acknowledgement that the predicted life expectancy is an estimate based on the physician's best medical judgment, is not a guarantee of the actual time remaining in the patient's life and that the patient could live longer than the time predicted;
    • the range of treatment options appropriate for the patient and the diagnosis;
    • all feasible end-of-life services including palliative care, comfort care, hospice care and pain control;
    • the range of possible results, including potential risks associated with taking the medication; and
    • the probable result of taking the medication.
  • Be referred for a second opinion to confirm the diagnosis, prognosis, and determination that they are capable, are acting voluntarily and have made an informed decision and do not have impaired judgment.
  • Be informed that they may rescind their request at any time and in any manner.
  • Give consent for the physician to contact and inform a pharmacist of the prescription. The patient may obtain the prescription directly from the physician if the physician is licensed to dispense medication in Vermont.
  • Pick up their prescription in person or have it picked up by the patient's expressly identified agent.

Forms: Patient Written Request for Medication Form

Other Considerations:

  • While not required by the statute, patients are recommended to have comprehensive discussions with their healthcare provider, family and other significant people about treatment preferences, values and goals of care. Advance directives can clarify healthcare goals, values and preferences.
  • It is also recommended that patients seeking to obtain a prescription for the purpose of hastening their own death also have a Vermont DNR/COLST form signed by their physician. This will help to ensure that the patient's preferences are respected in the event that emergency services are called.
  • All participation is voluntary. A patient who obtains a prescription for the intended purpose of hastening their death may change their mind at any time.
  • No one but the patient may participate in the act of taking the medication.

The content provided is informational only and not intended as legal advice. The Vermont Ethics Network recommends that individuals, health care providers and organizations seek legal counsel for additional questions and/or concerns.

Background: The Vermont Legislature has passed a new law that makes it legal for a terminally ill, capable adult patient to request and obtain a lethal prescription of a medication to be self-administered for the purpose of hastening the patient’s death. (18 V.S.A. Chapter 113 §5283)

Participation in Vermont’s Patient Choice at the End of Life law is voluntary. Per §5285 of 18 VSA Chapter 113, a health care facility shall not subject a physician, nurse, pharmacist, or other person to discipline, suspension, loss of license, loss of privileges or other penalty for participating in or refusing to participate in Vermont’s Patient Choice at the End-of-Life law.

Definition: Health care facility is defined as all persons or institutions, including mobile facilities, whether public or private, proprietary or not for profit, which offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any institution operated by religious groups relying solely on spiritual means through prayer for healing, but shall include but is not limited to:

  • hospitals, including general hospitals, mental hospitals, chronic disease facilities, birthing centers, maternity hospitals, and psychiatric facilities including any hospital conducted, maintained, or operated by the state of Vermont, or its subdivisions, or a duly authorized agency thereof;
  • nursing homes, health maintenance organizations, home health agencies, outpatient diagnostic or therapy programs, kidney disease treatment centers, mental health agencies or centers, diagnostic imaging facilities, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, or any inpatient or ambulatory surgical, diagnostic, or treatment center.

Health Care Facility Exemption (§5286): Under the new law, a health care facility may prohibit a physician from writing a prescription for a lethal dose of medication when all 3 of the following conditions exist:

  1. The patient is a resident in the facility;
  2. The patient intends to use the medication on that facility's premises; and
  3. The facility has notified the physician in writing of its policy in regard to prescribing medications pursuant to the new law.

Other Considerations:
The following are recommendations only and are not specifically addressed in the statute. Further, they do not represent all possible considerations for a facility. However, a facility may find it beneficial to consider them in advance so as to avoid confusion and potential conflict in the future:

  • It may be important to consider the ethical commitment of non-abandonment of patients. If a patient is receiving care from or is residing in a non-participating facility, that patient may need to be transferred to a participating facility.
  • It may be relevant to consider when to notify patients of the facility’s position on Patient Choice at the End of Life, and whether that facility is a participating one.
  • Facilities that may employ physicians from other facilities (i.e. hospitals and hospice program medical directors) may want to consider proactive discussions if the facilities have different policies in regard to participation in Vermont's Patient Choice at the End of Life law. Addressing competing policies in advance may alleviate or eliminate potential conflicts for physicians in these situations.

The content provided is informational only and not intended as legal advice. The Vermont Ethics Network recommends that individuals, health care providers and organizations seek legal counsel for additional questions and/or concerns.

Background: The Vermont Legislature has passed a new law that makes it legal for a terminally ill, capable adult patient to request and obtain a lethal prescription of a medication to be self-administered for the purpose of hastening the patient’s death. (18 V.S.A. Chapter 113 §5283)

Participation in Vermont’s Patient Choice at the End of Life law is voluntary. Per section 5285 of 18 VSA Chapter 113, a physician, nurse, pharmacist, or other person shall not be under any duty, by law or contract, to participate in the provision of a lethal dose of medication to a patient. Further, a health care facility or health care provider shall not subject a physician, nurse, pharmacist, or other person to discipline, suspension loss of license, loss of privileges or other penalty for participation or refusal to participate in Vermont’s Patient Choice at the End-of-Life law.

Under the new law, a health care facility may prohibit a physician from writing a prescription for a lethal dose of medication when all 3 of the following conditions exist:

  1. The patient is a resident in the facility;
  2. The patient intends to use the medication on that facility's premises; and
  3. The facility has notified the physician in writing of its policy in regard to prescribing medications pursuant to the new law.

Process: A physician who wishes to participate in Vermont’s Patient Choice at the End of Life law may prescribe medication to a terminally ill adult patient that will be self-administered for the purpose of hastening the patient’s death. In order to comply with the law, the physician must:

  • Determine that the patient is suffering from a terminal condition based on the physician’s physical examination of the patient and review of the patient’s relevant medical records.
  • Determine that the patient is capable.
  • Determine that the patient is making an informed decision.
  • Determine that the patient is a Vermont resident.
  • Determine that the patient is making a voluntary request for medication to hasten his or her death.
  • Determine that the patient is able to self-administer the medication requested to hasten death.
  • Inform the patient in person, both verbally and in writing of the following:
    • The medical diagnosis.
    • The prognosis, including an acknowledgment that this is a prediction of life expectancy and an estimate based on the physician’s best medical judgment, is not a guarantee of the actual time remaining in the patient’s life and that the patient could live longer than the time predicted.
    • The range of treatment options appropriate for the patient’s diagnosis.
    • If the patient is not enrolled in hospice care, all feasible end-of-life services, including palliative care, comfort care, hospice care and pain control.
    • The range of possible results, including potential risks associated with taking the prescribed medication.
    • The probable result of taking the prescribed medication.
  • Refer the patient to a second physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient is capable, is acting voluntarily, and is making an informed decision.
  • Either verify that the patient did not have impaired judgment, or refer the patient for an evaluation by a psychiatrist, psychologist, or clinical social worker licensed in Vermont for confirmation that the patient is capable and does not have impaired judgment.
  • Consult with the patient’s primary care physician, with the patient’s consent, if applicable.
  • Inform the patient of their right to rescind their request at the time that the second oral request is made (which can be no fewer than 15 days after the first oral request).
  • Ensure that all the required steps were carried out in accordance with the law and confirm, immediately prior to writing the prescription, that the patient was making an informed decision.
  • Write the prescription no fewer than 48 hours after the last of the following events:
    • The patient’s written request for medication to hasten death,
    • The patient’s second oral request (which can be no fewer than 15 days after the first oral request); or
    • The physician offering the patient an opportunity to rescind the request.
  • Dispense the medication directly (if they are licensed to dispense medication in Vermont); or contact a pharmacist (with the patient’s consent) and inform the pharmacist of the prescription, and deliver the written prescription personally, by mail or by fax to the pharmacist.
  • Promptly file a report, after writing the prescription, with the Department of Health documenting completion of all of the requirements under this statute.

Documentation: The physician must record and file the following in the patient’s medical record:

  • The date, time and wording of all oral requests of the patient for medication to hasten death
  • All written requests by the patient for medication to hasten death.
  • The physician’s diagnosis, prognosis, and the basis for the determination that the patient was capable, and was acting voluntarily and had made an informed decision.
  • The second physician’s diagnosis, prognosis and verification that the patient was capable, and was acting voluntarily and had made an informed decision.
  • The physician’s attestation that the patient was enrolled in hospice care at the time of the oral and written requests for medication, or that the physician informed the patient of all feasible end-of-life care services.
  • The physician’s verification that the patient either did not have impaired judgment or that the physician referred the patient for an evaluation and the person conducting the evaluation determined that the patient did not have impaired judgment.
  • A report of the outcome and determinations made during any evaluation which the patient may have received.
  • The date, time and wording of the physician’s offer to the patient to rescind their request at the time of the patient’s second oral request.
  • A note by the physician indicating that all requirements under the statute were satisfied, describing the steps taken to carry out the request and including a notation of the medication prescribed.

Reporting: After writing the prescription, promptly file a report with the Department of Health documenting completion of all of the requirements under this statute.

Other Statutory Obligations: Physicians have an obligation to inform patients of all available options related to terminal care pursuant to 18 V.S.A. § 1871. Patient Choice at the End of Life as outlined in 18 V.S.A. Chapter 113 is now an available option related to terminal care. In addition, pursuant to 12 V.S.A. §1909(d), a patient is entitled to a reasonable answer to any specific question about foreseeable risks and benefits of treatment.

Immunity: Physicians shall not be subjected to any civil or criminal liability or professional disciplinary action if the physician prescribes to a patient with a terminal condition medication to be self-administered for the purpose of hastening the patient’s death and affirms by documenting in the patient’s medical record that the necessary steps were followed. (18 VSA Chapter 113 §5283 (a))

Recommendations:

  • While not required by the statue, it is recommended that physicians have comprehensive discussions with patients about their goals for care and their treatment preferences, and that they assist patients, if needed, in completing advance directives documenting the patient’s health care goals, values and preferences.
  • It is also recommended that physicians complete a Vermont DNR/COLST order for patients who have obtained a lethal prescription for the purpose of hastening their own death. This will help to ensure that the patient's preferences are respected by responding emergency personnel in the event that emergency services are called.

The content provided is informational only and not intended as legal advice. The Vermont Ethics Network recommends that individuals, health care providers and organizations seek legal counsel for additional questions and/or concerns.

Background: The Vermont Legislature has passed a new law that makes it legal for a terminally ill, capable adult patient to request and obtain a lethal prescription of a medication to be self-administered for the purpose of hastening the patient's death. (18 V.S.A. Chapter 113 § 5283)

Participation in Vermont's Patient Choice at the End of Life law is voluntary. Per § 5285 of 18 VSA Chapter 113, a physician, nurse, pharmacist, or other person shall not be under any duty, by law or contract, to participate in the provision of a lethal dose of medication to a patient. Further, a health care facility or health care provider may not penalize a physician, nurse, pharmacist, or other person based on their participation or refusal to participate in the law.

However, the new law does not alter the rights and duties existing under Vermont's Patient's Bill of Rights, 18 V.S.A. § 1871, or under 12 V.S.A. § 1909 regarding informed consent.

Legal References

18 V.S.A. § 5282 Right to Information:

"The rights of a patient under Section 1871 of this title to be informed of all available options related to terminal care and under 12 V.S.A. § 1909(d) to receive answers to any specific question about the foreseeable risks and benefits of medication without the physician's withholding any requested information exist regardless of the purpose of the inquiry or the nature of the information. A physician who engages in discussions with a patient related to such risks and benefits in the circumstances described in this chapter shall not be construed to be assisting in or contributing to a patient's independent decision to self-administer a lethal dose of medication…."

18 V.S.A. § 1871. Patient's bill of rights for palliative care and pain management:

  • A patient has the right to be informed of all evidence-based options for care and treatment, including palliative care, in order to make a fully informed patient choice.
  • A patient with a terminal illness has the right to be informed by a clinician of all available options related to terminal care; to be able to request any, all, or none of these options; and to expect and receive supportive care for the specific option or options available.
  • A patient suffering from pain has the right to request or reject the use of any or all treatments in order to relieve his or her pain.

12 V.S.A. § 1909. Limitation of medical malpractice action based on lack of informed consent:

  • A patient shall be entitled to a reasonable answer to any specific question about foreseeable risks and benefits, and a medical practitioner shall not withhold any requested information.

Recommendations for Consideration:

  • While not required by the statue, it is recommended that physicians have comprehensive discussions with patients about their goals for care and their treatment preferences, and that they assist patients, if needed, in completing advance directives to document the patient's health care goals, values and preferences.
  • Complete DNR/COLST orders as appropriate.
  • The new Patient Choice law, when read with the language of 18 V.S.A. § 1871 and 12 V.S.A. § 1909, raises questions about the duty of non-participating physicians to refer a patient who requests a lethal dose of medication to a participating physician or to an advocacy organization which is able to make such a referral. This issue may benefit from clarification through individual provider and facility policies and procedures.

The content provided is informational only and not intended as legal advice. The Vermont Ethics Network recommends that individuals, health care providers and organizations seek legal counsel for additional questions and/or concerns.

See the Vermont Department of Health's FAQ list pertaining to Act 39: The Patient Choice and Control at End of Life Act.

Terminology surrounding various means of ending life is confusing. Terms that describe very different acts and practices are often used as if they were interchangeable. It is important to use commonly accepted terminology when discussing issues concerning the ending of life, as the different acts have vastly different moral, ethical and legal implications.

The table below describes some of the different practices.1

Term Definition
Physician Aid in Dying (a/k/a Physician Assisted Death or Physician Assisted Suicide, "PAD") Physician prescribes drug(s) to a competent terminally ill patient, upon the patient's request, with the understanding that the patient intends to use them to end his or her own life.
Voluntary Active Euthanasia Intentional, direct administration of drugs or other interventions to cause the death of a competent adult patient when the patient has explicitly requested and consented to it.
Involuntary Active Euthanasia Intentional, direct administration of drugs or other interventions to cause a patient's death over the patient's objection.
Non-Voluntary Active Euthanasia Intentional, direct administration of drugs or other interventions to cause a patient's death when the patient is incompetent and incapable of explicitly requesting or consenting to it (e.g., patient is in a coma).

Involuntary and Non-Voluntary euthanasia are considered murder and are illegal everywhere in the U.S. Involuntary euthanasia is regarded as morally wrong because it violates a patient's right not to be killed. Non-voluntary euthanasia is considered morally wrong because it might be applied selectively to the disadvantaged and the vulnerable.2

Voluntary active euthanasia is also illegal everywhere in the U.S. The key difference between physician aid in dying and voluntary active euthanasia as defined above is in who acts to end the patient's life. In physician aid in dying, the physician prescribes the lethal drug, but the patient decides when and whether to self-administer it. In voluntary active euthanasia, a third party directly administers the drug or other intervention that ends the patient's life.

Some other practices that should be distinguished from physician aid-in-dying include:

Withholding/Withdrawing Life-Sustaining Treatments

Every competent adult has the right to refuse unwanted life-sustaining treatment (respirators, feeding tubes, etc). There is consensus in state law, in health care ethics and in the medical profession that the patient's decision should be respected.

Pain Medication that May Hasten Death

Sometimes a terminally ill, suffering patient may require dosages of pain medication that have side effects (e.g., suppressing respiration) that could hasten death. This is generally considered to be justifiable under the ethical concept of double effect since the primary goal and intention of administering these medications is to relieve suffering. The secondary outcome of potentially hastening death is accepted by the patient (or proxy) as a proportionally acceptable side-effect. It should be noted that used appropriately, pain medication is very unlikely to hasten death.3

Palliative Sedation

This refers to the practice of sedating a terminally ill patient, sometimes to the point of unconsciousness, in order to treat pain and suffering that has been refractory (resistant) to traditional medical management. Most position statements require that such patients be imminently dying, usually hours or days from death, before palliative sedation is used. In the rare instances when pain and suffering is refractory to treatment even with expert clinical management, palliative sedation may legally be employed.

1Adapted from Emanuel, Ezekiel, "Euthanasia: Historical, Ethical, and Empiric Perspectives," Arch Intern Med (9/12/94): 154, quoted in Report of the Vermont Legislative Council's Office, Oregon's Death with Dignity Law and Euthanasia in the Netherlands: Factual Disputes (2004) http://www.leg.state.vt.us/reports/05death/death_with_dignity_report.htm
2Lo B. Resolving Ethical Dilemmas: A Guide for Clinicians. 4th ed. Philadelphia, PA: Lippincott Williams & Wilkins; 2008
3NP Sykes, "Morphine kills the pain, not the patient," Lancet 369 (2007): 1325-6

Common Arguments in Support of Physician Aid in Dying (PAD):1

Respect for autonomy: Decisions about time and circumstances of death are personal. Competent adults should have the right to choose the timing and manner of death.

Justice: Justice requires us to "treat like cases alike." Competent, terminally ill patients have the legal right to accept or refuse treatment that will prolong their deaths. For patients who are terminally ill but who are not dependent on life support, refusing treatment will not bring death quickly. To treat these patients equitably, we should allow physician assisted death as it is their only option to hasten death.2

Compassion: Suffering means more than pain. There are other physical, spiritual, existential, social and psychological burdens such as the loss of independence, loss of sense of purpose and meaning, and functional capacities that some patients feel jeopardize their dignity. It is not always possible to relieve suffering. Thus PAD may be a compassionate response to unremitting suffering.

Individual liberty vs. state interest: Though society has a strong interest in preserving life, that interest lessens when a person is terminally ill and has a strong desire to end life. A complete prohibition against PAD excessively limits personal liberty. Therefore PAD should be allowed in certain cases.

Honesty and transparency: Some acknowledge that assisted death already occurs, albeit in secret. The fact that PAD is illegal in most states prevents open discussion, in which patients and physicians could engage. Legalization of PAD would promote open discussion and may promote better end-of-life care as patients and physicians could more directly address concerns and options.

Common Arguments Against Physician Aid in Dying (PAD):3

Protection of life: Religious and secular traditions upholding the sanctity of human life would be diminished by PAD. In addition, government has a strong interest in the preservation of human life.4 This interest is particularly strong in regard to preventing suicide. Depression is a significant issue for many terminally ill patients, and often very difficult to diagnose. Requests for PAD may be withdrawn if pain and depression are adequately treated.

Passive vs. active distinction: There is an important difference between passively "allowing to die" and actively "killing." It is a patient's right to refuse any medical treatments (including food and hydration) at any time. A valid refusal of treatment that allows a person to die (passive) is justifiable, whereas PAD equates to killing (active) and is not morally justifiable.5

Protection of vulnerable groups: Vulnerable populations, lacking access to quality care and support, may be pushed into assisted death. Furthermore, assisted death may become a cost-containment strategy. Burdened family members may encourage loved ones to opt for assisted death and the protections in legislation can never catch all instances of such coercion or exploitation. To protect against these abuses, PAD should remain illegal.

Protection of the ethical integrity of the medical profession: Historical ethical traditions in medicine are strongly opposed to taking life. Some major professional groups (American Medical Association, American Geriatrics Society) oppose physician assisted death. The overall concern is that linking PAD to the practice of medicine could harm both the integrity and the public's image of the profession.

Palliative care and Hospice: Effective and available palliative care can diminish the reasons often cited for requesting PAD, such as physical, emotion, and spiritual pain. Home and inpatient hospice care can further reduce the need for PAD.

For additional discussion of positions for and against PAD, VEN recommends Top 10 Pros and Cons at ProCon.org

1Adapted from Bioethics Topics, Physician Aid in Dying, University of Washington School of Medicine http://depts.washington.edu/bioethx/topics/pad.html
2The U.S. Supreme Court rejected this argument in Vacco v. Quill, 522 U.S. 793 ( 1997)
3 Adapted from Bioethics Topics, Physician Aid in Dying, University of Washington School of Medicine http://depts.washington.edu/bioethx/topics/pad.html
4See Cruzan v. Director, Mo Dep't of Health, 497 U.S. 261, 287 (1990).
5See Vacco v Quill, 521 U.S. at 808-09.

The question whether a severely ill patient should be able to obtain a physician's assistance in ending his or her life is almost as old as the practice of medicine itself. The prevailing opinion in Western medicine, as expressed in the Hippocratic Oath, has rejected this practice: "I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan."

The law is in accord. While suicide is not a crime in Vermont or any other state, assisted suicide is generally understood to be a crime under common law.

In recent decades, patients have become more active in medical decision-making. No longer are medical decisions left exclusively in the hands of medical professionals. Courts have become involved in determining the appropriate balance between patients and medical-care providers in decision-making, and have established a limited "right to die." The right to die is a negative right, meaning that competent individuals have a constitutional right to refuse unwanted medical treatment, even when doing so will result in death. At stake in the debate over physician aid in dying is whether in some circumstances there might also be a positive right to die (i.e., a right to assistance in hastening death). The U.S. Supreme Court has twice ruled that the U.S. Constitution does not establish a positive right to physician assistance in dying.1 However, those two cases left open the possibility that the right might exist in very narrow circumstances not present in those cases, or that state law might confer such a right. The Court explicitly suggested that the "laboratory of the states" is a better forum to work out the many moral, philosophical and practical issues PAD brings up. Justice Sandra Day O'Connor stated:

Every one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure.2

To date, most states prohibit PAD and no court has found a state constitutional right to PAD. Two states, Oregon and Washington, have statutes that authorize PAD under strictly controlled circumstances described below. Both statutes were passed by voter referendum. The Oregon law has withstood several court challenges and PAD has now been practiced there for over 13 years. In addition, Montana legalized PAD through a court decision in 2009; however, the Court in that case sidestepped the question of whether PAD is a state constitutional right and merely upheld the state law prohibiting prosecution of physicians for helping terminally ill patient die.3 Two state supreme courts have upheld state laws banning PAD. In Vermont, past legislative efforts to legalize PAD failed.

For a more detailed discussion of the constitutional legal issues involved in PAD, see Legal Analysis below.

1Vacco v Quill, supra; Washington v. Glucksberg, 521 U.S. 702 (1997)
2Washington v. Glucksberg, 521 US at 737 (1997) (O'Connor, J., concurring). See also, Cruzan v. Director Mo. Dep't of Health, 497 U.S. 261, 292 (O'Connor, J. concurring) (1990).
3Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (Mont. 2009).

According to the Bioethics Briefing Book of the Hastings Center, a non-partisan bioethics resource center, the public remains deeply divided on the question of whether to permit physician-assisted death. In most surveys, approximately two-thirds of the population of the United States approve of it as an option for terminally ill patients with intractable suffering. But when the question of legalization comes to a vote, it is usually closer to 50/50. This split probably reflects the inherent tensions in the debate. On the one hand, most people know of cases of severe suffering, even with excellent palliative care, where the need for some predictable escape is very compelling. On the other hand, there are real fears that physician-assisted death could be used as a detour that avoids effective palliative care or as a way to eliminate the suffering of vulnerable patients by eliminating the sufferer.1

1Physician Assisted Death, The Hastings Center http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2202

Oregon was the first state to authorize PAD. The Oregon Death With Dignity Act was approved by referendum in Oregon in1994 and implemented in 1997.1 It has survived several court challenges. The Oregon law strictly limits the circumstances in which PAD may be used and the law contains a number of procedural safeguards to prevent abuses. Health care providers are not required to participate in implementing the law.

To be eligible for PAD in Oregon, a person must be 18 years old or older and must be suffering from a terminal disease in which death is expected to occur within 6 months. He or she must have decision-making capacity. Additional features of the Oregon law include:

A patient must make one written and two oral requests for medication to end his or her life, the written one "substantially in the form" provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the patient is "capable, acting voluntarily, and not being coerced to sign the request," and there are stringent qualifications as to who may act as a witness. The patient's decision must be an "informed" one, and the attending physician is thus obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the medication to be prescribed, and alternatives, "including but not limited to, comfort care, hospice care and pain control." Another physician must confirm the diagnosis, the patient's decision-making capacity, and voluntariness of the patient's decision. There are requirements for counseling if the patient is thought to be suffering from a mental disorder which may impair his or her judgment, for documentation in the patient's medical record, for a waiting period, for notification of the patient's next of kin, and for reporting to state authorities. The patient has the right to rescind the request for medication to end his or her life at any time.

Having met the above requirements, the patient is entitled to a prescription for medication to end life. The Act does not "authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia." That is, the Act authorizes physician assisted suicide by lethal prescription but explicitly rejects active euthanasia.2

Studies of the Oregon law to date indicate that PAD use is stable and relatively rare (460 deaths over the first 12 years).3 Pain management has improved, hospice use is among the highest in the country, and there is a state program to record Physician Orders for Life Sustaining Treatment (POLST).4 POLST forms (called COLST forms in Vermont) are medical orders signed by a physician that are intended to insure that a patient's wishes to limit treatment are respected.

Given that Vermont has 1/6 the population of Oregon – and assuming the use of PAD would be similar to that of Oregon – we can predict that 3 Vermonters would obtain a lethal prescription in the first year of legalized PAD (2 would use it), subsequently reaching a maximum of 15 prescriptions per year (up to 9 patients would use them).

13 Or. Rev. Stat. § 127.800 (1994).
2Report of the Vermont Legislative Council's Office, Oregon's Death with Dignity Law and Euthanasia in the Netherlands: Factual Disputes (2004) http://www.leg.state.vt.us/reports/05death/death_with_dignity_report.htm#Section2
3See Death With Dignity Act Annual Reports, Oregon Dept of Human Services http://www.oregon.gov/DHS/ph/pas/ar-index.shtm
4Physician Assisted Death, The Hastings Center http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2202

As medicine has advanced and to continues to advance, PAD has arrived at the intersection of constitutional privacy law and medical technology. Constitutional privacy law limits the government's ability to intrude in personal choices. As technology advances and life can be preserved even if the individual patient does not find a quality to his/her life, what are the government's legitimate interests? Government has a general interest in preserving life and prohibiting intentional killing and suicide. It may want to insulate terminally ill patients from undue influence from others who would want them to end their lives. It also has an interest in maintaining the integrity of the medical profession, in containing the cost of care, and in avoiding a slippery slope toward legal euthanasia. Courts examining PAD balance governmental interests against the individual's autonomy.

From a legal perspective, why is PAD considered different from either the right to refuse unwanted medical treatment or the right to adequate pain management? A review of relevant cases is helpful in answering this question.

As noted above, there have been two circumstances where the US Supreme Court has considered PAD, both on challenges by state stakeholders to the illegality of PAD under state law. See Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997). In both, the Court found no right to physician assistance in dying under the US Constitution, either as a matter of privacy or equal protection. Given the lack of a fundamental federal constitutional privacy or equal protection right to PAD, a state government may regulate PAD and make it illegal where its regulation is rationally related to a legitimate state interest. The Court found that the states' interests in preserving life, preventing suicide, protecting the vulnerable and maintaining the integrity of the medical profession were sufficient to support statutes forbidding PAD. However, the Court acknowledged that the States have the freedom to offer their citizens more liberties than the minimum required under the federal Constitution.

Attorney General Ashcroft did not agree that the issue of PAD is best left to the states. In 2002, he sought to enforce the federal Controlled Substances Act against Oregon practitioners who prescribed or filled prescriptions for controlled substances to be used in accordance with Oregon's statute. 21 C.F.R. part 1306 (2002). When Oregon sued to challenge the actions of the Attorney General, the Supreme Court found that the federal Controlled Substances Act could not be used to declare a medical standard of care and treatment authorized under state law to be illegitimate. Gonzales v. Oregon, 546 U.S. 423 (2006)


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