July 7, 2023
One of the most important decisions a person can make is the decision to end his or her life. Likewise, it may be an equally vexing situation for the physician who is asked to provide the lethal cocktail that would end a patient’s life. Currently, 11 jurisdictions permit medical aid in dying (MAID). This article briefly examines some of the legal, medical, and ethical issues that lie at the heart of MAID.
Legislative Initiatives
MAID is a controversial matter with understandable perspectives on both sides of the issue. Eleven jurisdictions have enacted End-of-Life Option(s) Acts (EOLOA) or similarly named statutes that permit a physician to prescribe a lethal dose of a medication to qualifying patients. Legislation is currently pending in 14 other states, which if enacted would represent about 50% of the country allowing MAID.
In 1997, Oregon became the first state to legalize MAID. Apart from relatively minor distinctions, most states mirror the Oregon statute in large measure. Some elements are common to all statutes. For example, each state requires the adult to be competent, in a terminal condition, and able to self-administer the lethal dose of a medication before a willing physician can prescribe a lethal cocktail. All states, except Oregon, have residency requirements for patients requesting MAID.
There are some differences in the required waiting period between seeking a physician’s prescription and the actual dispensing by a pharmacy. The New Mexico statute is currently the only one that permits nurse practitioners and physician assistants to prescribe the lethal dose to a patient (not enrolled in hospice) if they have written confirmation from a consulting physician that the patient meets the requirements.
In no state is a physician required to participate in MAID although they generally have an obligation to forward the medical records of a patient, subject to appropriate Health Insurance Portability and Accountability Act of 1996 (HIPAA) disclosure authorizations.
Legal Cases
Not surprisingly, there has already been litigation involving physicians and hospitals regarding MAID. For example, in the case of Dale v. UCSF, the family of Judith Dale sued a treating oncologist and medical center [Dale v. University of California Board of Regents; UCSF Health; UCSF Medical Center; Chloe Atreya, MD; and Does 1-100, California Superior Court of San Francisco, CGC-17-560014 (July 7, 2017)]. They alleged that the physician and medical center initially told Ms. Dale — who had inoperable, terminal metastatic cancer — that they would cooperate with her repeated and documented requests to end her life. However, at the time of her discharge, weeks before her demise, the physician and medical center allegedly refused to cooperate with Ms. Dale’s wish for MAID.
The family claimed that Ms. Dale was forced to suffer the painful and undignified death that she had wanted to avoid. At the time, California had enacted the End of Life Option Act (June 9, 2016), which “allows patients with terminal disease (with a life expectancy of six months or less) to request a life-ending drug prescription from their doctor.” The suit against the physician and medical center alleged a violation of California’s elder abuse statute as well as negligence, misrepresentation, fraud, and negligent infliction of emotional distress. (The case was ultimately dismissed.)
At the time, California had enacted the End of Life Option Act (June 9, 2016), which “allows patients with terminal disease (with a life expectancy of six months or less) to request a life-ending drug prescription from their doctor.
Another recent case illustrates how a state refused to recognize: (1) a patient’s right to MAID, and (2) a physician’s right to provide a lethal prescription to a terminally ill, competent adult. In the case of Klingler v. Healey, the Supreme Judicial Court of Massachusetts refused to allow a physician to provide a lethal dose of medication to a terminally ill adult who wanted to end his life [Klingler v. Healey, Supreme Judicial Court of Massachusetts, SJC-13194 (Dec. 19, 2022)]. The court refused to recognize either the terminally ill patient’s right to end his life or the willing physician’s right to participate in MAID.
Thus, not all states recognize a patient’s right to end his or her life or the right of a physician to provide the lethal dose. From a legal perspective, the states are divided on the issue of MAID, as are the courts.
Ethical Issues
The issues of autonomy, beneficence, nonmaleficence, and justice come into play when considering MAID, and, as we will see, respectable arguments can be made on either side. For example, the official position of AMDA – The Society for Post-Acute and Long-Term Care Medicine — which has not been revisited since 1997 — states, “AMDA opposes any physician involvement in assisted suicide or active euthanasia of any person regardless of age. AMDA members recognize that we are entrusted with the care of people who are vulnerable in terms of physical frailty and cognitive impairment. Our position recognizes that physician involvement in assisted suicide or active euthanasia would erode the trust vital to the doctor/patient relationship” (“Position Statement on Care at the End of Life,” P97, March 1, 1997; https://bit.ly/3LC6xPs).
Karl Steinberg, MD, CMD, HMDC, a recent past president of the Society, states, “Considering that over 20% of the U.S. population can legally request MAID, it is probably about time that we ask our members and Board to reconsider the stance of categorical opposition — and I suspect we’ll see a resolution to that effect submitted to the 2024 House of Delegates.” One complicating issue for nursing homes is that because of the Assisted Suicide Funding Restriction Act of 1997, no federally appropriated funds can be used to support MAID. Nursing homes are highly dependent on Medicare and Medicaid funding, so there is understandable reluctance to consider allowing MAID in this care setting.
Nor is the Society alone in opposing MAID — the American Medical Association (AMA) continues to oppose it as well. By contrast, several state and national medical organizations have expressed support for MAID while others, including some state chapters of the AMA, have taken a position of “studied neutrality.”
Some of the arguments opposing MAID are that it violates the Hippocratic Oath, it is unnecessary with good palliative care, it undermines the physician-patient relationship, it is inconsistent with the physician’s role as a healer, it provides potential for abuse, and it violates the sanctity of life.
Alternatively, supporters of MAID note that it is an act of compassion that recognizes patient autonomy, alleviates unnecessary suffering (beneficence), and allows the physician to respect the wishes of a competent, terminally ill, adult patient.
Conclusion
Regardless of whether you — or your clinical affiliation — supports or opposes MAID, the following recommendations are worth considering:
- Clarify your organization’s (or practice’s) position, consistent with state law. • Have appropriate written policies and procedures in place.
- Educate all involved staff.
- Let prospective patients, especially hospice patients, know your policy in advance of admission.
- Seek input from your facility’s ethics and compliance committees, and quality assessment and assurance committees (required for skilled nursing facilities pursuant to 42 C.F.R. §§ 483.85 and 483.75, respectively).
- Maintain thorough documentation regarding patients’ decision-making capacity (DMC), including discussions of alternatives such as palliative care as well as a reference to the DMC determination by the consulting physician.
- Seek competent legal advice, if appropriate.
Just as patients in the 11 jurisdictions who meet the criteria can decide whether they desire MAID, so too can physicians decide whether they want to participate in the process. Both patients and physicians have rights that need to be respected. Sometimes there are no easy answers — especially when medicine, law, and ethics collide.
Mr. Horowitz is Of Counsel at Arnall Golden Gregory LLP. His practice involves regulatory compliance concerning skilled nursing facilities, hospices, and home health agencies. Prior to joining the firm, he served as Assistant Regional Counsel at the U.S. Department of Health and Human Services and represented the Centers for Medicare & Medicaid Services. Mr. Horowitz also has extensive experience as health care provider.