How Montana Is Revolutionizing the Movement For End-of-Life Choice

On New Year's Eve 2009, Montana's Supreme Court handed down the ruling in "Baxter v. Montana" and authorized the practice of aid in dying for mentally-competent, terminally-ill adults. The Court declared that such a patient may request medication that could be ingested to ensure a peaceful death. They ruled that a physician providing such medication does not violate public policy and is safe from prosecution.

It was a remarkable ruling in many ways. With subsequent legislative events, the Court's findings created a watershed between previous assisted-dying advocacy typified by Oregon's Death with Dignity Act and the new era, in which patient choice becomes integral to the scope of medical practice at the end of life.

Early in 2010 the medical practice of aid in dying began to take shape in Montana. Terminally-ill patients began to ask about this option, now openly available. Willing physicians began to evaluate their requests and measure them against the qualifying standards laid out by the Court. Montana physicians sought guidance from doctors with years of experience in Oregon and Washington. The state medical society engaged counsel to explain the Court's ruling, and it received confirmation that aid in dying was a choice Montanans were entitled to make and physicians providing it were not subject to criminal prosecution. Hospices began to consider policies and practices if a patient requested life-ending medication or decided to self-administer it while under hospice care. One year later patients, families, physicians and health care providers across the state already had personal experience -- or knew someone who had personal experience -- with aid in dying.

When legislators convened in Helena in January 2011, they considered two bills related to aid in dying. One would nullify the Court's ruling and repeal the end-of-life freedom people had come to appreciate. The other itemized the steps to evaluate a request and provided civil and regulatory immunity for following them. Neither bill passed a committee or reached the governor's desk.

Montana residents now enjoy the freedom of knowing one of the most important, private, intimate and meaningful decisions in life is safe from blockade or intrusion from prosecutors or authoritarian busybodies.

Here are some aspects of the ruling that will, from now on, direct the flow of liberty at life's end:

• The Montana Supreme Court called the practice "aid in dying" and enshrined that name in a legal context. Professional associations, medical and legal scholars and ethics publications had adopted this term for the medical practice that gives patients peace of mind and control over their dying and distinguish it from "suicide." But never before had the term achieved legal authority.
• Montana recognized that requests for aid in dying were akin to other already permissible end-of-life choices, as contemplated in the autonomy protected under the state's Rights of the Terminally Ill Act. The Court reasoned if state law protects decisions that advance the time of death of a person no longer able to make health care decisions, it surely extends that protection to a contemporaneous decision by one fully capable of assessing treatment options and making a choice. Almost every state has adopted some version of this model act, creating the framework for advance directives. Other states could adopt Montana's reasoning.
• The Court felt no need to impose additional government oversight or policing procedures on the medical practice it authorized. It trusted the oversight and policing of aid in dying to the same mechanisms that regulate every other end-of-life decision and practice, and indeed all of medical practice. These are the regulatory mechanisms that maintain accepted practice standards: medical peer review, medical licensing and disciplinary proceedings, civil remedies for negligent or reckless acts, and the police authority and criminal justice system in every community. Protected by these mechanisms of oversight, patients regularly make decisions that advance the time of death, and physicians implement those decisions. Patients discontinue life-sustaining treatments like dialysis and ventilation. They ask that cardiac pacemakers and implanted defibrillators be deactivated. And they voluntarily stop eating and drinking and receive medical comfort care as they fast. Medicine is the most regulated and supervised profession in existence, and the controls in place are able to keep aid in dying as safe as other end-of-life decisions.

In 1976, the New Jersey Supreme Court ruled that Karen Ann Quinlan had a right to refuse artificial ventilation, beginning a line of jurisprudence that protects health care decisions, even if they advance the time of death. (In re Quinlan) The Quinlan court imposed no extraordinary governmental policing on the newly-recognized right. So it is with "Baxter v. Montana," and the Baxter ruling is to aid in dying what Quinlan was to withdrawal of mechanical ventilation.

The Montana experience is ongoing, with aid in dying governed by standards of practice and the same regulatory procedures as all medical care. Its impact will likely reach across our nation. As our path leads forward from this point, we draw water from the streams that flow from Montana. "Baxter v. Montana" is the watershed.

 

Follow Barbara Coombs Lee on Twitter: www.twitter.com/@bcoombslee

Comments

[Kelley Harrell]

10:04 AM on 09/21/2011

Wonderful to learn.
Thank you!

[Source1]

09:07 PM on 09/15/2011

6. Overuse of labeling the patient, family members and other concerned parties: If the hospice providers reflexively responds to questions about treatment by saying that the inquirer is in denial, angry, too irrational, ignorant, etc.---rather than providing substantive answers. Of course family members may be in denial or angry but even in these cases, hospice providers should be able and willing to answer basic questions regarding care and the patient’s condition, just as any other medical specialists would. It can also be helpful to get a second opinion about appropriate care from an outside doctor (which the hospice should not discourage or interfere with the patient or family member with power of attorney from doing.)

7. Find out who the hospice doctors are and check them out on internet sites where patients and family members rate doctors. While the information may or may not always be 100 percent accurate, these sites can provide information that is not available from more conventional sources. (It's also good, of course, to check with more conventional sources, such as the State Medical Board. However, medical boards are infamous for their inadequate oversight of their fellow MDs.)

[Source1]

09:02 PM on 09/15/2011

4. Hospices often use a very limited number of medications/drugs to treat patients with with a wide range of conditions who may or may not be in serious pain. Find out if the hospice rigidly adheres to a limited protocol of strictly “palliative” treatments or if they have a policy that provides for an expanded range of options that can address more specifically what is in the best interests of the patient’s welfare and comfort. For instance, administering morphine and Ativan, a standard hospice “cocktail” which can seriously depress breathing, may be contraindicated for a patient who suffers from a respiratory ailment but is not in serious pain.

5. Observe if the hospice staff “encourages” the “right answers” while discouraging the “wrong” ones, for example, constantly asking the patient in a worried tone with a lot of head nodding if she is feeling anxious or is in pain.
(continued)

[Source1]

09:00 PM on 09/15/2011

Hospice palliative care has become a lucrative medical speciality. Patients and their families need to use critical thinking to evaluate hospice care, as they would with any other specialty medical treatment they were considering. This can be terribly difficult during such a time of distress but it is critically important.

1. Find out if the hospice is readily willing to provide updated medication lists and other pertinent medical information to the patient or to the family member with power of attorney. Hospitals generally provide permission forms for just such requests and so should hospices. The hospice should not discourage these requests in any way.

2. Look very carefully at the written hospice agreement. The hospice is only required to abide by what is in the written hospice contract. No matter how nice and concerned the hospice providers appear to be, do not assume they will abide by anything they say or promise that is not in the written contract, particularly if what they say verbally contradicts anything in the written agreement.

3. Be very wary if the hospice insists it is necessary to administer any medication, e.g. morphine, to which the patient has a history of an adverse or allergic reaction. (It can be too easy to rationalize certain adverse reactions to medications as being “natural” manifestations of the dying process.)
(continued)

[Halsey]

03:55 PM on 09/19/2011

pt. 1Thank you for these three posts Souce. I can't quite discern if you are PRO the right to drink the final kool-aid, to end suffering we'd never allow our own pets (unless the owners are selfish).
I grew up in MT and was pleasantly surprised when Death with Dignity passed in a state that is mostly "red" and filled with God Fearing (capital F) folk. Billings, where I grew up and where my elderly parents still live, has become hospice center. Many have retired there and every day a new clinic/hospital pops up, serving 90% elderly(medicare dollars..sorry) patients. I don't think my parents would take the drink to end suffering. But they've never had a horrible diease..just old age aches and pains. ME,their daughter, went through grueling chemo/surgeries/radiation/lost my job, etc. IF cancer returns, I decided I will not fight it again. My choices, with NO money and no job are to move to WA, OR or back to MT (bad memories there) with enough time to find a doctor willing to be compassionate, realistic. I KNOW many find comfort in hospice care. That is NOT me. I dont' want to die in bed, hooked to a morphine drip and am not the type to use a gun or hoard my own drugs. It should simply be my choice "if" cancer returns. Period. I'd NEVER force it on anyone, and Compassion and Choices is adamant in NOT encouraging drinking the kool-aid.

[Halsey]

03:56 PM on 09/19/2011

pt. 2 for Source: They know, it is the most personal choice we can ever make on this plane.
I believe something happens to our energy when we die, be it heaven or the cosmos. Going gently, I believe, would even help in the afterlife with the final decision to be no suffering at the end(if one chooses)