Most of us remember the criticism and outrage over physician-assisted suicide in the early 1990’s, mainly surrounding the medical practices of the infamous Doctor Jack Kevorkian. The debate over Dr. Kevorkian’s controversial assistance in his patient’s suicides highlighted an important issue that still exists today in modern hospitals and elder care facilities: Should terminally ill patients be allowed to voluntarily end their suffering with the assistance of a physician? Generally, physician-assisted suicide is completely illegal in the United States. However, there are 3 states that allow physician assisted suicide by specific statute and 2 states that have case law that physicians may use as a defense.
The states of Oregon, Washington, and Vermont all allow physician-assisted suicide by specific statute. These statutes provide certain requirements and procedures though in order for a physician-assisted suicide to be legal. Oregon’s Death With Dignity Law (O.R.S. §§ 127.800 – 127.995) and Washington’s Death With Dignity Act (R.C.W. 70.245) both provide that an adult, 18 years of age or older, who is a resident of the state, and has been determined by the attending physician AND a consulting physician to be suffering from a terminal illness that would lead to death within six months, and who has voluntarily expressed his or her wish to die, may request medication for the purpose of ending his or her life. The physician may prescribe such medication for the purpose of ending his patient’s life if these statutory requirements are met.
However, the physician must follow certain procedures and requirements in order to comply with the state statutes.. In both Oregon and Washington, the patient must make 2 verbal requests and 1 written request to the physician. The prescribing physician and the consulting physician are required to confirm the terminal diagnosis and prognosis, and determine that the patient is able to make and communicate health care decisions, and is acting voluntarily. Finally, there are certain required waiting periods between the time when the physician receives the requests and the time when the prescription may be filled for the purposes of ending the patient’s life. Vermont’s Patient Choice and Control at End of Life Act (18 V.S.A. chapter 113, §§ 5281-5292) is very similar to the Oregon and Washington statute, the only difference being that the physician must certify that the patient made an informed decision, was capable of making such a decision, and did not have impaired judgment at the time of the decision.
Two other states, Montana and New Mexico, both provide case law (not statutes) that permits a physician have a defense against prosecution in an assisted suicide case. In Montana, Baxter v. State, 224 P.3d 1211 (Mont. 2009) permits a physician to use the consent of his or her terminally ill, mentally competent adult patient as a defense against criminal charges for prescribing a lethal dose of medication that the patient may take on her own if and when she decides to terminate her life. In New Mexico, Morris v. Brandenberg, N.M. Dist. Ct. Jan 13, 2014, held that the New Mexico statute which prohibited assisted suicide violates the State Constitution when applied to aid in dying, and the court prohibited the prosecution of physicians who provide aid in dying to mentally-competent, terminally ill patients.
It is important to note that these statutes and case laws only provide protection for physicians prescribing life-ending medication. These laws do not authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia (sorry, but Dr. Kevorkian’s methods are still ILLEGAL today). Additionally, the statutes of Oregon, Washington, and Vermont also provide that life insurance benefits will not be denied for actions taken by a patient to end their life. Therefore, physician-assisted suicide is only an option in a very limited circumstance (available only to residents of 3 states, and protection for physicians in 2 other states), and thus, there are major legal obstacles and consequences for anyone considering this option.