Physician-assisted suicide: What should agencies do?
March 1, 1997 5 minutes read
Physician-assisted suicide: What should agencies do?
By Elizabeth Hogue, JD
Health Care Attorney
Elizabeth Hogue Chartered
Burtonsville, MD
So-called physician-assisted suicide may not be an issue home health agencies wish to discuss openly, but it’s one they will become involved with should their terminally ill patients elect to end their own lives.
As federal courts address this dilemma, home health directors and staff must understand the legal and moral ramifications. They should be aware that most states have adopted statutes making it clear that suicide is a criminal act. Such a statute in Michigan is the basis for the prosecution of Dr. Jack Kevorkian, who is trying to have physician-assisted suicide declared a constitutional right.
Direct help is prohibited
Some home care and hospice providers may know that families sometimes give indirect assistance to patients, such as leaving a bottle of sleeping pills within reach, but home care staff should understand that direct help is prohibited. Even indirect assistance might be considered grounds for a claim of abuse.
The issue currently before the U.S. Supreme Court is this: Does a terminally ill individual have the right to ask his doctor for lethal medication to end his suffering and does the state have the right to legislate or outlaw such a practice?
The high court began hearing arguments on the "constitutionality" issue in January. A ruling from the Court is not expected until late spring at the earliest.
Meanwhile, in January Kevorkian received a setback in his fight to have physician-assisted suicide declared a constitutional right when a federal district judge ruled against the constitutionality of the procedure. The suit was brought by Geoffrey Fieger, Kevorkian’s chief lawyer, to contest the Michigan Supreme Court decision that assisted suicide is a common law felony.
Although one of Kevorkian’s lawyers, Michael Schwartz, plans to appeal the decision, he says, "I don’t think our appeal will be decided until after the U.S. Supreme Court makes its ruling."
In recent months, two federal appellate courts have issued opinions giving terminally ill patients the right to seek assistance to end their lives. In Compassion in Dying v. State of Washington1, decided in March 1996, the Court of Appeals for the Ninth Circuit determined that the right of terminally ill patients to assisted suicide is based on the due process clause of the 14th Amendment to the U.S. Constitution. Specifically, the Court decided that terminally ill patients have a right to assistance to commit suicide and that a state must have a very strong basis for interference with this right.
In Quill v. Vacco2, the Second Circuit decided that a New York statute banning assisted suicide was unconstitutional. The Court in this case rejected the due process clause on which the Ninth Circuit relied as a basis for assisted suicide. The Court stated that it is not appropriate to base the right to assisted suicide on this clause because the U.S. Supreme Court indicated in previous cases that the due process clause is applicable only when states interfere with fundamental liberties such as the freedom to marry or procreate.
Instead, the Court in Quill said the right to assisted suicide is based on the equal protection clause of the 14th Amendment. The Court acknowledged that New York allows mentally competent terminally ill patients to direct the withdrawal of life-sustaining treatments that may hasten or cause death. The state’s statute that prohibits those who do not need life support from obtaining drugs to hasten or directly cause their deaths discriminates by allowing some of the terminally ill, but not others, to die quickly.
Patients may doctor shop’
Critics of assisted suicide expect problems with allowing health providers to help terminally ill patients take their own lives.
It will be difficult, if not impossible, to monitor use of assisted suicide for compliance with statutory requirements. For example, statutes may require certification by one or more physicians that the patient is terminally ill.
Many critics have expressed fear that patients will "doctor shop" for physicians who may be more willing than others to provide this certification. This concern may be especially acute for home care providers because services are often intermittent in nature. It is more difficult for agencies to control circumstances in which care is provided, withheld, or withdrawn than it is for institutions, such as hospitals.
Many ethicists also have expressed concern for health care providers who are asked to help patients commit suicide. Providers, especially home care agencies, often invest substantial effort to help patients get better. When they are asked to stop efforts to cure or heal patients, actually proceeding against their stated missions, providers are likely to experience significant stress. Some staff undoubtedly will oppose the act on moral grounds.
While waiting for the Supreme Court’s decision, home care agencies are given the following advice:
1. Conduct inservice education programs so all staff may review issues related to advance directives and compliance with the Patient Self-Determination Act, a federal statute that requires agency staff members to ask about the preferences of terminally ill patients with regard to withholding or withdrawing life-sustaining treatments, and to scrupulously honor the stated wishes of patients. Home health agencies must demonstrate compliance with the Patient Self-Determination Act to qualify for participation in Medicare/Medicaid programs.
Suicide assistance still is inappropriate
However, staff should be advised that it currently is inappropriate for them to be involved in providing assistance to patients or families to end patients’ lives, regardless of the circumstances. It should be emphasized that if assisted suicide eventually is found to be legally acceptable, the act applies only to patients who are judged to be terminally ill.
2. Agencies that have established ethics committees should encourage the committee to give preliminary consideration to this issue and its implications for agencies.
3. Begin discussions with referring doctors about their views on this issue and the roles of physicians and staff in potential cases of requests from patients for assistance in dying. Because physician-to-physician communication still seems to be most effective, it may be best to raise these issues in conjunction with the agency’s medical director or with a doctor who serves on the professional advisory committee (PAC).
It often seems to home care providers that they are routinely confronted with issues of important legal and ethical implications. Assisted suicide is only one of the more recent examples, yet it calls for a proactive approach, not a wait-and-see attitude.
References
1. Compassion in Dying v. State of Washington, 79F. 3d 790 (U.S. App., 9th Cir., March 6, 1996)
2. Vacco v. Quill, 97F. 3d 708 (U.S. App., 2nd Cir., Oct. 15, 1996)
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