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MONTANA AFFIRMS RIGHT TO PHYSICIAN ASSISTED SUICIDE-THROUGH STATUTORY, NOT CONSTITUTIONAL, ANALYSIS.

By Greg Piche'

In a decision filed on the last day of 2009, the Montana Supreme Court affirmed a lower court decision concerning the right of a dying patient to a physician assisted suicide though it based its decision on an analysis of Montana statutes and public policy rather than the state Constitutional analysis adopted by the trial court below. In Baker et al v. The State of Montana et al., 2009 MT 449 (MT, December 31, 2009), the court followed the maxim of Viscount Falkland that when it is not necessary to make a decision, it is necessary not to make a decision and side stepped addressing whether there exists a constitutional right to die with dignity in the State constitution as requested by the principal plaintiff, Robert Baxter. Mr. Baxter, a retired truck driver, suffered from lymphocytic leukemia with diffuse lymphadenopathy.  Mr. Baxter, now deceased, contended that the State Constitution gave him the right to choose the timing and circumstances of his impending death, rather than suffer the indignities that he perceived in palliative care and the imposition that a drawn out departure would have upon his family.  He wanted the right to obtain a prescription of life terminating drugs from his physician without fear that his physician would be prosecuted for violation of state law.

The majority of the Supreme Court started from the premise that suicide itself is not a crime under Montana law and that a patient could give legally acceptable consent to a physician to provide him with the agency for terminating his life. Many states have statutes providing for the defense of ?consent? in criminal circumstances. Montana?s statute permits the defense of consent if none of the four exceptions exist. The exceptions are 1) legal incompetency of the consenting party; 2) extreme youth, mental disorder or dysfunction; 3) force, duress or deception and 4) the violation of public policy.  Since the first three are fact specific, the court focused on whether the application of the defense of consent would violate the public policy of the State.

There are a number of decisions where states have found that as a matter of law the application of consent in circumstances of extreme violence would be contrary to state public policy as in the situation where a shooting victim exclaims ?go ahead and shoot.?

The court distinguished the circumstance in physician assisted suicide that the agency of death was administered by the patient and the patient?s conduct is not illegal. The court also reviewed the State?s Rights of the Terminally Ill Act where patients have the right to insist upon the withholding of treatment or sustenance as being consistent with the right to assisted suicide. It noted that the right to assisted suicide was not among the specific acts proscribed in the statute like euthanasia and that there were in fact criminal sanctions under the statute that could be applied to physicians for failure to comply with a patient?s requests.

Justice James Nelson, in a concurring opinion, felt that physician assisted suicide was also supported by the State Constitution and its protection of the right to human dignity. He underscored that the right at hand was not the right to die as everybody will eventually achieve that end.

The only right guaranteed to him in any of these decisions is the right to reserve his personal autonomy and his individual dignity, as he sees fit, in the face of an ultimate destiny that no power on earth can prevent.

Noting the existence of vast circumstantial variations between persons, including relative tolerance for pain to ability to pay for care, Justice Nelson placed his trust in the judgment of the individual.

There is a difference between living and suffering; and the sufferer is uniquely entitled to define the tipping point that make suffering unbearable.

Full post as published by Healthcare Law Blog on January 01, 2010 (boomark / email).