By Kara Morris
Massachusetts’ End of Life Options Bill Elicits Emotional Arguments
“An Act relative to end of life options” is currently being considered in the Massachusetts State House. Six states, including California, Colorado, D.C., Oregon, Vermont, and Washington, have legalized physician-assisted suicide (“PAS”). Massachusetts Representative Lou Kafka and Senator Barbara L’Italien introduced identical bills in Massachusetts’ legislature (H1194 and S1225, respectively) on January 27, 2017. According to Death with Dignity, a 501(c)(3) nonprofit organization and proponent of Massachusetts’ bill, “[t]he 2017-2018 session is the eighth time a Death with Dignity bill is under consideration in the Massachusetts legislature.” A “Death with Dignity” initiative was also voted down by Massachusetts citizens in a November 2, 2012 ballot measure.
The Massachusetts bill would allow a fully-informed “adult of sound mind” with “a terminal illness or condition which can reasonably be expected to cause death within 6 months” to end their life with medication prescribed by a physician. Massachusetts legislators heard “emotional appeals” regarding the bill in a September 2017 joint hearing.
Proponents include Compassion and Choices, “the nation’s oldest, largest and most active nonprofit organization committed to improving care and expanding options for the end of life.”
Compassion and Choices argues:
- Medical aid in dying has strong support from people living with disabilities and offers “autonomy, independence and self-determination.”
- It is a “safe and trusted medical practice” that requires two doctors to confirm a patient is fully informed before providing a prescription for medication.
- Existing laws are overseen by state agencies and “have sound oversight and investigation processes in place.”
- A similar law in Oregon showed improvement in overall end-of-life care.
- The New England Journal of Medicine reports “there are no substantial cost savings,” so there is no financial incentive for insurers to pressure terminally ill patients to end their lives.
- Gallup and The Harris Poll found Americans supported medical aid in dying at a rate of 68 and 74 percent, respectively. Additionally, six states have authorized medical aid in dying.
- A growing number of healthcare professionals have endorsed or accepted medical aid in dying.
Other organizations, such as Second Thoughts Massachusetts and Not Dead Yet, opposed the legalization of PAS, which they consider “a deadly form of discrimination against disabled people.” John Kelly is the director of Second Thoughts and regional director of Not Dead Yet. Proponents, according to Kelly, tend to be those who have been treated well by the healthcare system: white, non-disabled, higher social class—the same types of people who tend to make up the majority of the legislature. In the 2012 Massachusetts ballot measure which voted down PAS, Cambridge and Northampton voted roughly 68 and 73 percent, respectively in favor of PAS. Springfield and Lawrence, however, voted 65 and 69 percent against PAS, respectively. Kelly, who prefers the term “assisted suicide” instead of “medical aid in dying,” offered five additional arguments against the Massachusetts bill:
- Once it becomes one person’s choice, it becomes everyone’s choice; a family can engineer the decision rather than it being solely the decision of the individual.
- Assisted suicide is the cheapest treatment for insurers and, where legal, there are examples of insurers covering suicide, but not treatment.
- The Massachusetts bill requires those seeking PAS to have “a terminal illness or condition which can reasonably be expected to cause death within 6 months.” However, some patients expected to live only six months actually live much longer. According to Kelly, “thousands of people graduate from hospice every year.”
- Those assisting in death are immunized from liability; doctors can write prescriptions with little to no knowledge of the patient; and without a witness requirement, “anyone could take action with impunity.”
- Bias: Suicide requests from people with terminal illness are usually based on fear and depression.” Unlike in the case of a suicidal teenager who is offered suicide prevention services, a terminally ill patient may instead be offered suicide assistance. This is a “deadly” form of discrimination.
Massachusetts’ bill neither confirms nor contradicts Compassion and Choices’ arguments. The bill addresses some, but not all of its opponent’s concerns:
“Once it becomes one person’s choice, it becomes everyone’s choice.” The bill addresses this concern a few ways. First, the bill requires witnesses, the patient, the patient’s attending physician, and a consulting physician to verify the patient is acting voluntarily. See §§ 3(2)(b), 4, 6(1)(a)(iv), 6(1)(c), 7(1)(c)(ii). Next, section 14(1) invalidates any estate provisions hinging on “whether a patient may make or rescind a request for medication.” The bill also provides criminal sanctions and civil liability for misconduct: “[p]urposely or knowingly altering or forging a request. . . without authorization of the patient . . . is punishable as a felony . . .”; “[a]n individual who coerces or exerts undue influence on a patient to request medication . . . shall be guilty of a felony”; and “[n]othing in this act limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any individual.” §§ 16(1)-(3). It could still be argued, however, that it is difficult to detect “undue influence” as it is sometimes difficult to tell whether an idea is a patient’s or someone else’s.
“Assisted suicide is the cheapest treatment for insurers.” The bill does not appear to address this concern.
Patients diagnosed with a terminal illness can get better. The bill does not appear to address this concern.
The law immunizes from liability those assisting in death. The bill protects the actions of “health care providers and patient advocates supporting a qualified patient” from being construed as “elder abuse, neglect, assisted suicide, mercy killing, or homicide under any civil or criminal law or for purposes of professional disciplinary action.” § 14(4). However, the law also protects against negligence and intentional misconduct, as noted in section 16(3) above.
Bias: a depressed teenager is offered suicide prevention, while a depressed disabled individual may be offered suicide assistance. Section 8(1) requires patient speak to a counselor to “determine that the patient is not suffering from . . . depression causing impaired judgment.” This appears to potentially address Kelly’s concerns; however, this could also be interpreted to allow someone with depression that does not impair judgment to seek life-ending treatment.
Massachusetts’ End of Life Options Bill has additional protections to ensure the informed consent of terminally-ill patients seeking medical aid in dying. For example, the bill requires that such patients make an oral and written request and get approval from four health and counseling professionals, among other requirements. John Kelly, however, argues that the state needs to more-substantially fund mental health and palliative care programs instead. Thus, while this bill may achieve many of the goals of its proponents, it does not do enough to alleviate its opponents’ concerns.
Kara Morris anticipates graduating from Boston University School of Law in May 2019.
