Amicus Curiae Brief — Washington v. Glucksberg

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OCTOBER TERM, 1996 | amen

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DENNIS C. VACCO, Attorney General of the State of New York, et ai.,

Petitioners,

—V.—

TIMOTHY E. QUILL, M.D., et al.,

Respondents.

STATE OF WASHINGTON, et al.,

Petitioners,

—V.—

HAROLD GLUCKSBERG, M.D.., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE SECOND CIRCUIT AND NINTH CIRCUIT

_—_—_=_—=_==_~-_—===

BRIEF AMICI CURIAE OF

THE AMERICAN MEDICAL STUDENT ASSOCIATION

AND A COALITION OF DISTINGUISHED MEDICAL

PROFESSIONALS IN SUPPORT OF RESPONDENTS

——————————————————————————aae——_——_—_________P

JOHN H. HALL

Counsel of Record

Russell Hartman

Kyra K. Bromley

Sandra C. McCallion

Harry Sandick

Nicholas J. Boyle*

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

(212) 909-6000

* Admission Pending

December 10, 1996 Counsel for Amici Curiae

TABLE OF CONTENTS

Page

SO UUNS Gir MOE GMS 5. 5 iv ccccicccesdeccvcecccscess |

SUMMARY OF ARGUMENT .................... ccc ceees 2

SE ci Ualds & wueukaa Wee ces ChGweeeeN Wears avtcccce 3

I. THE CLINICAL REALITIES OF TERMINALLY ILL

PATIENTS DO NOT JUSTIFY THE LEGAL

DISTINCTIONS URGED BY PETITIONERS. ......... 3

Medical Realities Do Not Support A Bright-Line

Legal Distinction Between Refusal Of Life Support

TR ee Oe 4

l. Terminally II] Patients And The Physicians

Who Aid Them In Dying Intend To Give The

Patient Control Of The Process Of Dying... .... 5

2. A Physician Who Withdraws Life Support

Actively Causes The Patient's Death .......... 7

3. The Medical Environment In Which

Terminally Il Patients Typically Spend Their

Final Days Necessarily Affects The Time And

Manner Of Their Death. .................... s

Terminally II] Patients Should Not Be Forced To

Choose Between Enduring Severe Pain And

Surrendering Their Constitutional Right To Avoid

Unwanted And Dehumanizing Medical Treatment .. 9

PHYSICIAN-ASSISTED SUICIDE IS FULLY

CONSISTENT WITH PETITIONERS’ INTEREST IN

PROTECTING THE ETHICAL INTEGRITY OF THE

PU PUTED, occ cece cnsccscenscenss 11

Ill.

The Prohibition Of Physician-Assisted Suicide Is

Inconsistent With The Medical Profession's

Obligation To Respect Patient Autonomy And To

Comfort Rather Than Abandon The Dying. ....... 12

The State's Interest In Preventing Doctors

From Intentionally Harming Patients Does Not

Justify A General Prohibition Of Physician-

Radiat GEMRGD. 2... - <0 siaddnve tpbevenseoleane 14

REGULATION OF PHYSICIAN-ASSISTED SUICIDE

IS FEASIBLE AND WOULD BETTER SERVE

PETITIONERS' INTEREST IN PREVENTING

POTENTIAL ABUSE THAN THE CURRENT

SCRE. PRA GEER 0 ov cet cebesueeneeeeeeeeee 17

State Regulation Of End-of-Life Decisions Is

Already Well-Established...................... 19

Comprehensive Regulations For Physician-

Assisted Suicide Have Already Been

0 RAE 22

Regulation Of Physician-Assisted Suicide Is Just

As Feasible As Regulation Of Other End-of-Life

BDUSMEOMD ... 2 0 occ cbdesvanetekeanee eee 25

Vemmings GRNGUD . 2. 00 cs vinscescuteseeene 25

Pee 27

er 28

Competence Or Capacity................... 28

et eth 6) errr ee 30

APPENDICES

APPENDIX A (Individual Medical Professional Amici)

APPENDIX B (A Model State Act to Authorize and

Regulate Physician-Assisied Suicide) ..............

APPENDIX C (BANEC-Generated Guidelines for

Comprehensive Care of the Terminally Ill)... ......

TABLE OF AUTHORITIES

Page

CASES

Bouvia v. Superior Court, 225 Cal. Rptr. 297

GDd. Ce. Aan. TOBED ono cc cccccccccccseccscccsdvececcecens 6

Brophy v. New England Sinai Hospital Inc., 497 N.E.2d 626

rrr errr. sy Pe x

Compassion in Dying v. Washington, 79 F.3d 790

Eee, GE. os vc ccdeccsucegucceedévondedecesececdges 16

Cruzan v. Director, Missouri mnaatieaed of Health,

GHOUIG. BE CIID oc cicccccncccccccvsesscsccvccss 4.11, 26

McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990) ............... 7

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) ........ 0... 16

Roe v. Wade, 410 U.S. 113 (1973) .. 0... 6 eee ees 15

Villanueva v. Harrington, 906 P.2d 374 (Wash. 1995) ........ 27

STATUTES

Patient Self-Determination Act, 42 U.S.C. §§ 1395ec,

SDR . ncn decdccceecconssuxddactanduddevekuaess 20

Ala. Code §§ 22-8A-1 to 22-BA-10 ©6666 20

Alaska Stat. §§ 18.12.010t0 18.12 100............. 6... . 20

Ariz. Rev. Stat. Ann. §§ 36-3201 to 36-3262 ............... 20

Ark. Code Ann., §§ 20-17-201 to 20-17-218 ............ 20, 21

Cal. Health & Safety Code §§ 7185-7194.5,72855........ 20-22

Colo. Rev. Stat. §§ 15-18-10] to 15-18-113. ... 20-22

Conn. Gen. Stat. §§ 19a-570to 19a-S80. sits 20, 21

Del. Code Ann. tit. 16, §§ 2501-2509 20

D.C. Code Ann. $§ 6-2421106-2420 sss 20-22

Fla. Stat. Ann. §§765.101t0765401....sst—si—‘itistsS 20-22

Ga. Code Ann. §§ 31-32-1 to 31-32-12... Sia chal outa sane 20

Haw. Rev. Stat. §§327D-lt0327D-27.... i sititi‘i:*:*™SW 20

Idaho Code §§ 39-4501 10 39-4509. 20

755 Ill. Comp. Stat. Ann. §§ 35/10 35/10 si, :ocaniel ae

Ind. Code Ann. $§ 16-36-4-1 to 16-36-4-21. ss 20

lowa Code §§ 144A.100144A.12......................... 20

Kan. Stat. Ann. $§ 65-28, 101 t0 65-28,109.. ss 20. 22

Ky. Rev. Stat. Ann. §§ 311.621t0311644.. ssi 20

La. Rev. Stat. Ann. §§ 40:1299.58.1 10 40: 12995810... 20

Me. Rev. Stat. Ann., tit. 18-A, §§ 5-801 to 5-817... 20

Md. Code Ann., Health-Gen. | §§ 5-601 to 5-618... a

Mass. Gen. Laws Ann. ch. 201D.§$ 1-17... ss 21

Mich. Comp. Laws § 700496... 21

Minn. Stat. §§ 145B.01t0 145B.17...... 20

Miss. Code Ann. §§ 41-41-101 to 41-41-12} 20

Mo. Ann. Stat. §§ 459.010 to 459.055 ........ 6... ene. 20-22

Mont. Code Ann. §§ 50-9-101 to 50-9-111, 50-9-201 to

ED, cccceccktcsdendssesevenencdisdsbacbesecepes 20

Neb. Rev. Stat. Ann. §§ 20-401 to 20-416... oan eee 20

Nev. Rev. Stat. $§ 449.535 to 449.690... ee, 20

NH. Rev. Stat. Ann. §§ 137-H:1 to 137-H:16 ........... 20, 21

N_J. Stat. Ann. §§ 26:2H-53 to 26:2H-78 ..............--5>. 20

NM. Stat. Ann. §§ 24-7-1 to 24-7-11 20202 20

N.Y. Pub. Health Law §§ 2441, 2961(23),

SED ov cccccuccceedcdcecsncenss cduccées 21, 25, 27, 29

N.C. Gen. Stat. $§ 90-320 to 90-322 .... 2.6... ce cece cece ee. 20

ND. Cent. Code §§ 23-06.4-01 to 23-06.4-14 ............... 20

Ohio Rev. Code §§ 1337.11 to 1337.17, 2133.01 to

ee ns on cpu ehabemeseetebebewedsnedss 20-22

Okla. Stat. Ann. tit. 63. §§ 3101.01 to 3101.16............... 20

Or. Rev. Stat. $§ 127.505 to 127.660, 127.800 to

SEED... cacodvcudbessanes Ge enkeseuen veyeeseeees 20, 22-24

20 Pa. Cons. Stat. Ann. §§ 5401-5416 ................... 20-22

RI. Gen. Laws §§ 23-4.10-1 to 23-4. 10-12, 23-4.11-1 to

Te 8. . cccncécccseusecesecnbesaesneseeses cess 20

S.C. Code Ann. $§ 44-77-10 to 44-77-160 ... 0... 0. eee, 20

SD. Codified Laws §§ 34-12D-1 to 34-12D-22............... 20

a wen

vii

Tenn. Code Ann. §§ 32-11-10] to 32-11-112....... 20

Tex. Health & Safety Code Ann. §§ 672.001 to

EE ob eetbdins inn aed ows Jel bcd bachcknxcconceds 20-22

Utah Code Ann. §§ 75-2-1101 to 75-2-1119........ 6... 20

Vt. Stat. Ann. tit. 18, §§ 5251 t0 5262...................... 20

IIE, RESIS 05 ici cuts cuca cdicveccetdecccced 20

Va. Code Ann. §§ 54.1-2981 t0 54.1-2993 20, 21

Wash. Rev. Code Ann. §§ 70.122.010 to

REIT SSE aaa ep ne nae ee ne 20-22, 25

W. Va. Code §§ 16-30-1 to 16-30-13 ©... 20

Wis. Stat. Ann. §§ 154.01to 154.15 .......0.. 20

Wyo. Stat. Ann. §§ 35-22-101 to 35-22-108 ..............,.. 21

OTHER AUTHORITIES

Noah Adams, Doctor Examines Evolution of Hippocratic

Oath, National Public Radio transcript #2199-4,

ES YS EEE Ca ae eee 15

American | Medical Association, Council on Ethical

and Judicial Affairs, Code of Medical Ethics (1996) ...__.. 12-15

American Medical Association, Council on Ethical and

Judicial Affairs. Decisions Near the End of Life, 267

NES date aeku Le vcvudbdeedicdiiecuc ces 14

American Medical Association, Council on Ethical and

Judicial Affairs. Physician-Assisted Suicide (Dec. 1993).

reprinted in 10 Issues L. & Med. 91(1994) ....... 15

viii

Marcia Angell, Euthanasia in the Netherlands - Good News or

Bad?, 335 New Eng. J. Med. 1676 (1996)............. eseses 18

David A. Asch, The Role of Critical Care Nurses in

Euthanasia and Assisted Suicide, 334 New Eng. J.

— fs RRR ER a eee 19

Jerald G. Bachman et al., Attitudes of Michigan Physicians

and the Public Toward Legalizing Physician-Assisted Suicide

and Voluntary Euthanasia, 334 New Eng. J. Med. 303 (1996) ... |

Anthony L. Back et al., Physician-Assisted Suicide and

Euthanasia in Washington State: Patient Requests and

Physician Responses, 275 JAMA 919 (1996) .............. 6, 18

Charles H. Baron et al., A Model State Act to Authorize

and Regulate Physician-Assisted Suicide, 33 Harv. J.

BED FEED coreockcudctcsncevenseeuhausedvadnenss 22-29

Bay Area Network of Ethics Committees, BANEC-Generated

Guidelines for Comprehensive Care of the Terminally Ili

SA, NUD ann dsb. 00004505 0000sns RAR ERO NTS eA Sense 22-25

Susan D. Block et al., Patient Requests To Hasten Death:

Evaluation and Management in Terminal Care, 154

Archives of Internal Medicine 2039 (1994) ............... 6, 29

Dan W. Brock, Death and Dying, in Medical Ethics 32

(Robert M. Veatch ed. 1989)... ... 0... ce eee 14

Howard Brody, Assisted Death - A Compassionate Response

to a Medical Failure, 327 New Eng. J. Med. 1384 (1992) ...... 13

Eric J. Cassel, The Nature of Suffering and the Goals of

Medicine, 306 New Eng. J. Med. 639 (1982) ................ 13

Nathan I. Cherny et al., Sedation in the Management of

Refractory Symptoms: Guidelines for Evaluation and

Treatment, 10 Journal of Palliative Care 31(1994) ........... 10

Clinical Oncology, 789-813 (Martin D. Abeloff et al.

in Gxt Ra 9

Jonathan S. Cohen, Attitudes Toward Assisted Suicide and

Euthanasia Among Physicians In Washington State,

331 New Eng. J. Med. 89(1994) 0... l

David J. Doukas et al., Attitudes and Behaviors on Physician-

Assisted Death: A Study of Michigan Oncologists, \3 J.

Clinical Oncology 1055 (1995) ....... 0.00.0... 18

Ezekiel J. Emanuel et al., Euthanasia and Physician-Assisted

Suicide: Attitudes and Experiences of Oncology Patients,

Oncologists, and the Public, 347 Lancet 1805 (1996) ....... 1, 18

Encyclopedia of Bioethics (Warren T. Reich rev. ed. 1995) .... 15

Robert E. Enck, The Medical Care of Terminally Ili

EE SE AES ela eR ee eer oe 10

Lorna E. Forster et al., Predicting Life Span For Applicants to

Inpatient Hospice, 148 Archives Internal Med. 2540 (1988)... . 26

Terri R. Fried et al., Limits of Patient Autonomy: Physician

Attitudes and Practices Regarding Life-Sustaining Treatments

and Euthanasia, 153 Archives Internal Med. 722 (1993) _..... 19

Robert T. Hall, Final Act: Sorting Out the Ethics of

Physician-Assisted Suicide, 54:6 Humanist 10

ee eee > 10, 13, 17

Sanford H. Kadish, Letting Patients Die: Legal and Moral

Reflections, 80 Cal. L. Rev. 857(1992).....0.0 0000 x

H.G. Koenig et al., Attitudes of Elderly Patients and their

Families toward Physician-Assisted Suicide, 156 Archives

of Internal Medicine 2240 (1996) .......... pack Cit as 19

Melinda A. Lee et al., Legalizing Assisted Suicide -- Views of

Physicians in Oregon, 334 N. Eng. J. Med. 310 (1996) ........ 19

Martha Alys Matthews, Comment, Suicidal Competence

and the Patient's Right to Refuse Lifesaving Treatment.

is RS Rf I ry Sr eee err ee 29

Michael P. McQuillen, Can People who are Unconscious

or in the "Vegetative State" Perceive Pain? , 6 Issues in L.

BE koebecdcbede bceseexceedcksencedisuees 10

Medical Society of the State of New York, Principles of

Professional Conduct (1995-96) ©... cee 13

Alan Meisel, The Right to Die (2d ed. 1995) ................. 29

New York Task Force On Life and Law, When Death Is

Sought: Assisted Suicide and Euthanasia in the Medical

SEE ka nc nvcccuce<besenssslssnssaeceusaneewes 5-6

Russel D. Ogden, Euthanasia: Assisted Suicide &

SE ED 6d ecied datndeenhs ey acbuwduassndaspevaieives 16

David Orentlicher, 7he Legalization of Physician-Assisted

Suicide, 335 New Eng. J. Med. 663 (1996) ............... 1, 4,8

David Orentlicher, Physician Participation in Assisted

Suicide, 262 JAMA 1844 (1989) .. 00. eee 19

John R. Peteet, Treating Patients Who Request Assisted

Suicide -- A Closer Look at the Physician's Role, 3 Archives

8. og SRR eer ery ee 13

Timothy E. Quill et al.. Physician-Assisted Death: A

Comparison of Terminal Sedation, Assisted Suicide.

and Voluntary Active Euthanasia, unpublished article

CRE EE SR A a SN eR ae Oe ee ep 10

Timothy E. Quill, The Ambiguity of Clinical Intentions,

329 New Eng. J. Med. 1039 (1993)

Timothy E. Quill, Doctor, ] Want to Die, 7 JAMA 870 (1993) ... §

Timothy E. Quill & Christine K. Cassel, Nonabandonment:

A Central Obligation for Physicians, 122:5 Annals Internal

DN SS ies es bind sbss ccndubawnan ences bie 13

Paul Rousseau, Terminal Sedation in the Care of Dying

Patients, 156 Archives Internal Med. 1785 (1996)

Ronald S. Schonwetter et al., Estimation of Survival Time in

Terminal Cancer Patients: An Impedance to Hospice

Admissions, 6 Hospice J. 65 (1990) ........................ 26

Andrew Solomon, A Death of One's Own, New Yorker 54

(May 22, 1995)

Robert D. Truog et al., Barbiturates in the Care of the

Terminally Ill, 327 N. Eng. J. of Med. 1678 (1992) ........... 16

P.J. van der Maas et al., Euthanasia, Physician-Assisted

Suicide, and Other Medical Practices Involving the End

of Life in the Netherlands, 1990-1995, 335 New Eng. J.

EEE OER ES Soe oe ee 18

Sidney H. Wanzer et al., The Physician's Responsibility

Toward Hopelessly Ill Patients, 320 New Eng. J.

Med. 844 (1989)

INTEREST OF AMICI CURIAE

The American Medical Student Association ("AMSA") and

an ad hoc coalition of distinguished medical professionals

respectfully submit this brief as amici curiae in support of

Respondents. We file this brief with the consent of all parties. '

Founded in 1950, AMSA is an independent, non-profit

organization representing nearly 30,000 physicians-in-training

from medical schools across the country. AMSA. thus. represents

the future of medicine in the United States.

The individual amici? are licensed medical professionals

and educators with both clinical and academic expertise in the end-

of-life issues confronting terminally il] patients. Some of us have

written papers and articles on the clinical and bioethical aspects of

end-of-life medical decisions: others have participated in the

writing of guidelines and model statutes for the regulation of

physician-assisted suicide. As a result of our experience, we are

among the growing number of medical professionals who believe

that, in certain limited and carefully-regulated circumstances,

physician-assisted suicide should be a lawful option available to

competent, terminally ill patients.

1. Copies of letters of consent are being filed with the Court at the same

time as the filing of this brief.

2. See Appendix A for a fuller description of each of the individual!

medical professional amici.

3. See, e.g.. David Orentlicher, The Legalization of Physician-Assisted

Suicide, 335 New Eng. J. Med. 663, 666 (1996) ("Surveys of physicians

demonstrate . . . majority support” for physician-assisted suicide.)

("Orentlicher, Legalization") (citations omitted), Jerald G. Bachman et al..

Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-

Assisted Suicide and Voluntary Euthanasia, 334 New Eng. J. Med. 303, 306-07

(1996) (S6% of Michigan physicians support legalization of physician-assisted

suicide), Ezekiel J. Emanuel et al., Euthanasia and Physician-Assisted Suicide:

Attitudes and Experiences of Oncology Patients, Oncologists, and the Public.

347 Lancet 1805, 1807 (1996) ("Emanuel, Oncology Patients") (45.5% of

oncologists agree with physician-assisted suicide for patients in unremitting

pain). Jonathan S. Cohen. Attitudes Toward Assisted Suicide and Euthanasia

Among Physicians In Washington State, 331 New Eng. J. Med. 89. 89 (1994)

We recognize that, for most patients, palliative care options

exist and a physician can adequately case a patient's suffering even

when there is no cure for the patient's underlying condition. For

this reason, we strongly support hospice and other comprehensive

palliative care initiatives as the standard of care for the dying.

When appropriate palliative care is adequate to relieve the patient's

pain and suffering, we do not believe that physician-assisted

suicide is an advisable option.

However, we also recognize that even the highest quality

palliative care will not always adequately ease a patient's suffering.

In such exceptional circumstances, mentally competent terminally

ill patients should have the option of a safe, legal and state-

regulated means of hastening death with the assistance of a

physician.

SUMMARY OF ARGUMENT

Terminally ill patients who are competent and make a

voluntary choice to hasten their death with the assistance of their

physician should have the same right to control the time and

manner of death as patients who refuse life-sustaining treatment.

There is no clinical basis for distinguishing these two classes of

patients based on purported categorical differences in either (i) the

intent of the patient or the physician or (ii) the extent to which the

active intervention of the physician affects the time and manner of

the patient's death. Furthermore, criminal prohibition of assisted

suicide compels many terminally ill patients to surrender their right

to refuse unwanted and degrading medical treatment in order to

relieve otherwise untreatable pain.

Petitioncrs' interests in protecting the ethical integrity of

the medica! profession and in limiting physician-assisted suicide to

(54% of Washington doctors believe physician-assisted suicide should be legal

in some situations).

competent, terminally ill patients who voluntarily choose to hasten

their deaths also fail to support their general prohibition of the

practice. Preventing physicians from assisting such patients is

inconsistent with important principles of medical ethics because it

may force doctors to abandon their patients, and to ignore their

requests for information, assistance, and comfort, at a time when

the patient is most in need because he or she is confronting both

severe suffering and imminent death. Nor is it necessary to force

competent patients to endure a prolonged, painful, and pointless

process of dying in order to ensure that the practice of physician-

assisted suicide is appropriately regulated. Detailed regulatory

schemes have already been promulgated which involve the same

types of medical judgments and legal protections that have been

successfully used in other, long-established end-of-life decisions.

ARGUMENT

I. THE CLINICAL REALITIES OF TERMINALLY ILL

PATIENTS DO NOT JUSTIFY THE LEGAL

DISTINCTIONS URGED BY PETITIONERS.

Petitioners contend that it is constitutionally permissible

for them to distinguish between the withdrawal or refusal of life

support and physician-assisted suicide. Their justifications for

such a distinction, however. simply ignore the clinical realities of

terminally ill patients. Furthermore, in many instances, the

artificial distinctions Petitioners seek to draw merely compel

patients who are not on life support to surrender their right to refuse

dehumanizing medical treatment in order to escape prolonged and

intolerable suffering.

A. Medical Realities Do Not Support A Bright-Line

Legal Distinction Between Refusal Of Life

Support And Assisted Suicide.

The patients who brought these cases sought the same

general right that this Court recognized in Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261, 278 (1990): to

exercise the deeply personal choice to hasten the end of their lives

as the only alternative to a painful and degrading process of dying.

In denying this right to patients who seek the aid of their doctors in

hastening their death, Petitioners rely on three purported

categorical distinctions between such patients and those who refuse

life-sustaining measures:

e whether the physician or the patient intend the patient's

death or merely know that it is a foreseeable consequence

of the physician's efforts to relieve suffering:

e whether the physician acts to hasten death or merely fails

to take actions to prevent or delay death; and

e whether the time and manner of the patient's death is

caused by medical intervention or is the "natural" result of

an underlying illness.

These purportedly dispositive differences in intent, action, and

causation, however, simply do not withstand scrutiny in light of the

medical and clinical realities of terminally ill patients and their

treatment. See generally Orentlicher, Legalization at 663

(explaining why categorical distinction between refusal of

treatment and assisted suicide is no longer appropriate in light of

changes in medical treatment of terminally ill patients).

1. Terminally Ili Patients And The

Physicians Who Aid Them In Dying

Intend To Give The Patient Control Of

The Process Of Dying.

Petitioners contend that the intent of patients and

physicians who participate in physician-assisted suicide is

necessarily different from that of the patient and physician who

refuse, withhold, or withdraw life-sustaining measures. In the case

of physician-assisted suicide, the specific intent purportedly must

be the death of the patient, see Vacco Pet'r Br. at 15-16, Glucksberg

Pet'r Br. at 44, while where life-sustaining treatment is being

refused. death is merely an unintended, albeit often inevitable.

consequence of a desire to relieve the patient's suffering and

indignity, see Vacco at 13-14. There is simply no basis, however,

for presumptively ascribing such different intentions and purposes

to patients and physicians in these two circumstances.

Such a simplistic and arbitrary account of the intentions of

those who participate in physician-assisted suicide trivializes the

inherently complex and multiple motivations involved in any end-

of-life decision. See Timothy E. Quill, Zhe Ambiguity of Clinical

Intentions, 329 New Eng. J. Med. 1039 (1993) ("Quill, Ambiguity")

Thus. in requesting and prescribing a potentially lethal dosage of

medication, the immediate goal of both patient and physician may

be nothing more than to give the patient "a greater sense of control"

over the process of dying and both may hope that the patient is

never forced to take this final step in order to relieve their suffering.

N.Y. Task Force On Life and Law, When Death Is Sought: Assisted

Suicide and Euthanasia in the Medical Context, 83 (1994) ("N_Y.

Task Force Report"), see also Quill, Ambiguity. Timothy E. Quill.

Doctor, | Want to Die, 7 JAMA 870, 872 (1993)

Indeed, in many cases. patients who have been prescribed

a lethal dosage never take the medication * Rather, the medication

serves .\s intended purpose by reassuring the patient that their

terminai © ondition need not lead to dependency or indignity See.

e.g., Susan D. Block, Patient Requests to Hasten Death:

Evaluation and Management in Terminal Care. 154 Archives

Internal Med. 2039, 2045 (1994) ("Block, Patient Requests”)

("[A]eceptance of the patient's wish for hastened death .. may

paradoxically allow the patient enough control and confidence in

his or her ability to manage the future so that the option of suicide

does not have to be exercised."). For some patients, this sense that

they retain control of their lives provides sufficient comfort to

make their final days bearable. E.g , Kingsley Decl. ® 11-12

(Vaeco J.A. 99, 101-02), Grossman Decl. ® 15 (Vacco J.A. 84, 87).

see also N.Y. Task Force Report at 92 ("The most frightening

aspect of death for many is not physical pain, but the prospect of

losing control and independence and of dying in an undignified.

un(ajesthetic, absurd, and existentially unacceptable condition ")

Even where the patient chooses to hasten her death, her

ultimate goal is no different from that Petitioners ascribe to those

who reject life sustaining treatment: to avoid a prolonged and

dehumanizing process of dying No less than those on life support.

such patients seek to hasten death “because the quality of life

during the time remaining . _. hajs] been terribly diminished” and

their life “has been physically destroyed and its quality, dignity and

purpose gone.” See Bouvia v. Superior Court. 225 Cal. Rptr. 297.

304-05 (Cal. Ct. App. 1986) (describing patient's reasons for

withdrawal of life support). Regardless of the means by which

death is hastened. the intent and purpose of both categories of

terminally ill patients are essentially the same

4 See, e.g.. Anthony L. Back et al.. Physician-Assisted Suicide and

Euthanasia in Washington State: Patient Requests and Physician Responses.

275 JAMA 919, 922 (1996) ("Back, Physician-Assisted Suicide in

Washington” ). Andrew Solomon, A Death of One's Own, New Yorker, 54, 58

(May 22. 1995) ("Solomon, Death of One's Own").

2. A Physician Who Withdraws Life

Support Actively Causes The Patient's

Death.

Equally meritless is Petitioners’ attempt to distinguish

assisted suicide from withdrawal of life support by arguing that. in

the latter case, the physician takes no affirmative action that causes

the patient's death. See Vacvo Pet'r Br. at 17. Glucksberg Pet'r Br.

at 30. This contention simply ignores the clinical reality of life-

sustaining technology. For example, to disconnect a respirator. a

physician or nurse must take each of the following steps.

l. turn off the respirator,

2. disconnect the machine from the tube that goes to the

patient's lungs.

3. remove the tube from the patient's lungs.

4. administer morphine or barbiturates to ease the patient's

sense of suffocation, and

5. monitor medication levels to ensure that symptoms of

severe air hunger do not arise.

See Quill Supplemental Decl. € 5 (Vacco J.A. 116-117) ("Quill

Supp. Dec.”).°

Furthermore, it is clear that when a patient is subject to on-

going life-sustaining treatment. the withdrawal of that treatment

will be a cause of the patient's death. For example, when a

physician stops a respirator. death results because breathing

stopped, but the cause of death is also the physician's act in halting

the respirator See McKay v. Bergstedt, 801 P.2d 617. 634 (Nev.

5. Furthermore, when a patient refuses or requests withdrawal of life

support, the physician may dispense drugs that ease the patient's suffering. but

also hasten death For example. when a doctor stops a patient's food and

hydration. the ensuing bodily reaction requires the physician to treat these

with sedatives that may hasten the patient's death. Quill Supp. Dec

6 (Vacco JA. 117-18).

1990) (Springer, J.. dissenting) Similarly, when a physician halts

food and hydration, death occurs because the patient is unable to

eat or drink, but the physician is causally responsible for the death

as aresult of issuing the order to stop providing food and

hydration. See Brophy v. New Eng. Sinai Hosp. Inc., 497 N.E.2d

626, 631 (Mass. 1986) (Nolan, J. dissenting) (explaining that

removal of feeding tube leads to death by dehydration and

Starvation). There can be no question that if a physician performed

either of these actions without the patient's consent, she would be

legally responsible for causing the patient's death just as surely as if

she had shot her patient. See Orentlicher. Legalization at 663.

3. The Medical Environment In Which

Terminally Ill Patients Typically Spend

Their Final Days Necessarily Affects

The Time And Manner Of Their Death.

Petitioners finally argue that refusal or withdrawal of life-

sustaining measures and physician-assisted suicide are materially

different because. in one case. the time and manner of death are the

result of "natural" processes, while, in the other, they are affected

by the action of physicians and other medical professionals. See

Vacco Pet'r Br. at 17-18; Glucksberg Pet'r Br. at 12, 30, 38. This

distinction also ignores the clinical reality of terminally ill patients.

It is a fundamental fact of contemporary medicine that

death rarely occurs “naturally” and apart from significant medical

intervention. Indeed, in 1992 nearly 80% of all deaths in this

country occurred in hospitals. See Sanford H. Kadish, Letting

Patients Die: Legal and Moral Reflections, 80 Cal. L. Rev. 857,

858 (1992). In such a setting, both the time and manner of a

patient's death are necessarily often the result of a series of

conscious decisions and affirmative actions by the patient and her

In particular, the extensive medical treatment received by

most terminally ill patients will often have collateral consequences

that affect both the timing and the manner of the patient's ultimate

death in a way that makes it meaningless to describe death as

occurring “naturally.” See, e.g., Froom Decl. € 11 (Vacco J.A. 125,

126) ("With advancing medical technology, many patients are

subject to active and ineffective therapeutic efforts by their

physicians, even when an carly terminal outcome is not in

doubt.").° For example, a cancer patient's chemotherapy may

temporarily treat the illness, but it also may damage vital organs in

the process and thereby affect when and how the patient may die

See Clinical Oncology, 789-813 (Martin D. Abeloff et al. eds

1995) (describing pulmonary and cardiac complications resulting

from cancer therapy). Because the precise circumstances of death

for most terminally ill patients will be determined in part by the

effect of such medical interventions. the death of such patients

cannot fairly be described as “natural.”

B. Terminally Ili Patients Should Not Be Forced To

Choose Between Enduring Severe Pain And

Surrendering Their Constitutional Right To

Avoid Unwanted And Dehumanizing Medical

Treatment.

Although Petitioners and their amici suggest that adequate

palliative care options are virtually always available for terminally

6. The affidavits of the patients who brought the Vacco action

graphically illustrate some of the effects of such treatments on terminally il!

patients. See, e.g. Barth Decl. ® 3-4, 9-10 (Vacco J.A. 96, 97-98) (describing

adverse side effects of treatments for disease). Doe Decl. € 10 (Vacco J.A. 106.

107) (describing scarring inside throat and neck from surgery and radioactive

iodine treatment, burning and swelling in neck and nausea from radiation

therapy: pain, nausea. and vomiting from tube feeding). Kingsley Decl. € 8

(Vacco J.A. 101) (describing “cramping.” "gas with bloating” and “total loss of

appetite” from medication to prevent infection. administration of medication

through Hickman tube connected to chest artery prohibited showering and made

simple routine functions burdensome).

ill patients, see, e.g.. Glucksberg Pet'r Br. at 18; American Medical

Association ("AMA") Vacco Br. at 6-7, they ignore the cruel and

dehumanizing nature of the "care" that may be required and the

extent to which it may compel the patient to surrender his or her

right to refuse unwanted and degrading medical treatment. In some

instances, palliative care for terminally ill patients also impairs

those patients’ most basic bodily functions.’ "Adequate" palliative

care may also require extended periods of sedation to the point of

permanent or temporary unconsciousness. See AMA Vacco Br. at 6

("For a very few patients, however, sedation to a sleep-like state

may be necessary in the last days or weeks of life to prevent the

patient from experiencing severe pain.") (emphasis added).* Indeed

in some cases, patients may be sedated to the point where they

require life support and then are “allowed to die" by withholding

the necessary life-sustaining treatment.’ This last practice

7. See, e.g, Kingsley Decl., 4 8 (Vacco J.A. 101), Grossman Decl. % | 3-

14 (Vacco J.A. 86-87).

a See also Robert E. Enck, The Medical Care of Terminally Ili Patients

166-172 (1994) (summarizing recent studies on degree and frequency of

sedation of termizaily ill patients), Paul Rousseau, Terminal Sedation in the

Care of Dying Patients, 156 Archives of Internal Med. 1785, 1786 (1996)

("some [terminally ill] patients may require profound sedation"), Nathan I.

Cherny et al., Sedation in the of Refractory Symptoms: Guidelines

for Evaluation and Treatment, \0 J. of Palliative Care 31. 36 (1994) (adequate

palliative care for the terminally ill may require sedation involving permanent

or temporary “total loss of interactional function", attempts to adjust dosages of

sedatives "to reestablish lucidity after an agreed interval or for pre-planned

family interactions” nsk “possibility that lucidity may not be promptly restored

or that death may ensue as doses are again escalated"). In addition, there can be

no certainty that a patient who has been sedated to unconsciousness will, in fact.

cease to experience pain. See Michael P. McQuillen, Can People who are

7 ~ ~~ _iatammel ae aamcaaaaaas trace tasers

(1991).

9. See Robert J. Hall, Final Act: Sorting Out the Ethics of Physician-

Assisted Suicide, 54 Humanist 10 (Nov/Dec. 1994) ("Hall, Final Act”) ("The

most recent answer to such problems. which may well become standard

practice, is to sedate these patients into complete unconsciousness and to

withhold nutrition and hydration until they die.”). Timothy E. Quill et al..

illustrates the utter artificiality of the line Petitioners seck to draw.

Terminally ill patients may refuse such palliative care

based on their right to refuse unwanted medical treatment. Fg.

Cruzan, 497 U.S. at 279; Vacco Pet'r Br. at 10. But the price of

exercising this right is to remain conscious and to suffer both

intolerable pain and an awareness of all of the indignities resulting

from the ravages of the illness and its treatment. Doe Decl. 9

(Vacco J.A. 107) ("{I}t is not possible for me to reduce my pain to

an acceptable level of comfort and to retain an alert state.");

Klagsbrun Decl. 4 16 (Vacco J.A. 71) ("Pain management at the end

stage of cancer often requires the patient to choose between

enduring unrelenting pain or sacrificing an alert mental state to the

high dose of drugs adequate to alleviate pain."). In short, for some

terminally ill patients, the choice Petitioners offer between

palliative care or extreme pain and suffering is both cruel and

meaningless.

Il. PHYSICIAN-ASSISTED SUICIDE IS FULLY

CONSISTENT WITH PETITIONERS’ INTEREST IN

PROTECTING THE ETHICAL INTEGRITY OF THE

MEDICAL PROFESSION.

Petitioners’ contention that they can require terminally ill

patients to endure unnecessary and intolerable suffering in order to

vindicate their interest in maintaining the integrity and ethical

standards of the medical profession, see Vacco Pet'r Br. at 14-15,

31-32, is equally misplaced. As even those who support

Petitioners’ position, such as the AMA, acknowledge, established

principles of medical ethics fully support a physician providing

Physician-Assisted Death. A Comparison of Terminal Sedation, Assisted

Suicide, and Voluntary Active Euthanasia, (manuscript at 8. on file with author)

("the suffering patient is put into an iatrogenic coma. usually using barbiturates

or benzodiazepines, and then dies of dehydration, starvation. or some other

intervening complication. as all life-sustaining interventions are withheld").

medication that will hasten a patient's death where the patient has

voluntarily chosen this outcome as the only means of relieving

severe suffering. Petitioners and the AMA argue, however. that the

same conduct becomes unethical where a physician frankly

acknowledges, or otherwise reveals, that her aim is to assist the

patient in controlling the time and manner of their death. This

distinction, however, makes no sense as a matter of professional

ethics or public policy. Indeed, the criminal prohibition of

physician-assisted suicide prevents doctors from fulfilling

important ethical obligations to dying patients and encourages

furtive practices that are akin to voluntary euthanasia and have a

greater potential for abuse.

A The Prohibition Of Physician-Assisted Suicide

Is Inconsistent With The Medical Profession's

Obligation To Respect Patient Autonomy And

To Comfort Rather Than Abandon The Dying.

Petitioners’ criminal prohibition of physician-assisted

suicide conflicts with the medical profession's well-established

ethical obligations to respect patient autonomy and to continue to

attend to and comfort their patients, even when they may have an

incurable illness. Indeed, it forces doctors to choose between

violating the law and abandoning patients at a time when they are

most in need and have expressed a desire to hasten their death as

the only way of avoiding intolerable and untreatable suffering.

A traditional role of the physician, and a central goal of

medicine, is to help people die with meaning, comfort and dignity.

See AMA Council on Ethical and Judicial Affairs, Code of Medical

Ethics, Opinion 2.20, at 40 (1996) ("AMA Code") ("Physicians have

an obligation to relieve pain and suffering and to promote the

dignity and autonomy of dying patients in their care.").'° In

addition, as the AMA Council on Ethical and Judicial Affairs

acknowledges in its opinion on physician-assisted suicide, medical

ethics mandate that "[p]atients should not be abandoned once it is

determined that cure is impossible." AMA Code, Opinion 2.211, at

56.'' Indeed, "[t]o allow a [terminally ill] patient to experience

unbearable pain or suffering is unethical medical practice." Sidney

H. Wanzer et al., The Physician's Responsibility Toward Hopelessly

Ill Patients, 320 New Eng. J. Med. 844, 847 (1989).

The principle of patient autonomy is equally central to

medical ethics and to defining the physician's role in end-of-life

decisions. As the AMA Council on Ethical and Judicial Affairs

stated in its opinion on withholding or withdrawing life-sustaining

medical treatment, "[{t]he social commitment of the physician is to

sustain life and relieve suffering. Where the performance of one

duty conflicts with the other. the preferences of the patient should

prevail." AMA Code, Opinion 2.20, at 39 (emphasis added): see

also id. at 40 ("Physicians have an obligation to relieve pain and

suffering and to promote the dignity and autonomy of dying

10. See also Medical Society of the State of New York, Principles of

Professional Conduct, ch. 1, § | (1995-96) ("The prime object of the medical

profession is to render competent medical service with compassion and respect

for human dignity."), Eric J. Cassel. The Nature of Suffering and the Goals of

Medicine, 306 New Eng. J. Med. 639, 639 (1982) ("The obligation of

physicians to relieve human suffering stretches back into antiquity"). Hall,

Final Act. John R. Peteet. Treating Patients Who Request Assisted Suicide -- A

Closer Look at the Physician's Role, 3 Archives Fam. Med. 723, 726 (1994).

11. See also AMA Code, Opinion 8.11, at 123 ("Once having undertaken a

case, the physician should not neglect the patient."), Howard Brody. Assisted

Death -- A Compassionate Response to a Medical Failure. 327 New Eng. J.

Med. 1384, 1385 (1992) ("[W)Jalking away. denying that medicine can do

anything to help in the patients's plight. 1s an immoral abrogation of medical

power, especially in cases in which the prior exercise of the medical craft has

extended the patient's life and resulted in the complications that have brought

the patient to the present state of suffering."). Timothy E. Quill & Christine K.

Cassel. Nonabandonment: A Central Obligation for Physicians. \22 Annals

Internal Med. 368, 368 (1995).

patients in their care.").'? Each patient must be allowed to make

life-and-death decisions within the broader context of her own

beliefs concerning the purpose and value of her existence. After

all, "health and life extension are ultimately of value in the service

of the broader overall well-being of the patient. They are of value

in so far as they facilitate the patient's pursuit of his or her overall

plan of life; the aims, goals and values important to the particular

patient." Dan W. Brock, Death and Dying, in Medical Ethics 329.

334 (Robert M. Veatch ed. 1989). Thus, medical professionals

should respect a patient's decision to hasten her death when the

patient's remaining life offers nothing more than an intolerable and

undignified process of dying. See AMA Code, Opinion 2.211, at 56

("It is understandable, though tragic, that some patients in extreme

duress -- such as those suffering from a terminal, painful,

debilitating illness -- may come to decide that death is preferable to

life.").

B. A State's Interest In Preventing Doctors From

Intentionally Harming Patients Does Not Justify

A General Prohibition Of Physician- Assisted

Suicide.

Petitioners and their supporting amici contend that their

interest in maintaining the integrity of the medical profession

justifies a general prohibition against intentionally hastening the

death of a patient even where precisely the same conduct would be

lawful if done solely to relieve the patient's suffering. This

distinction between instances where a doctor intentionally assists a

patient in ending her life and so-called "double effect" cases in

12. AMA Council on Ethical and Judicial Affairs, Decisions Near the End

of Life, 267 JAMA 2229. 2231 (1992) ("[The AMA recognizes that] a

competent patient must be the one who decides whether the relief of pain and

suffering is worth the danger of hastening death. The principle of respect for

patient autonomy and self-determination requires that patients decide about

such treatment.").

which death is foreseeable, or even certain, but purportedly not

intended is not supported by either medical ethics, legitimate policy

considerations, or common sense!

Petitioners argue that the principle that doctors should not

intentionally harm their patients trumps all the other ethical

considerations that support physician-assisted suicide '* This takes

an unreasonably narrow view of what may constitute harm for a

patient suffering irremediable and severe pain and confronting an

imminent and unavoidable death. For such a patient, death may

constitute not harm but the only available relief, the true harm may

lie in being compelled either to continue unnecessary suffering or

13. The AMA formally explained its position on the “double effect"

doctrine in an opinion by its Council on Ethical and Judicial] Affair which stated

that "pain medications may be [ethically and legally} administered in whatever

dose necessary to relieve the patient's suffering, even if the medication has the

side effect of . . . causing death through respiratory depression.” AMA Council

on Ethical and Judicial Affairs, Physician-Assisted Suicide (Dec. 1993).

reprinted in \0 Issues L. & Med. 91, 95 (1994), see also AMA Code, Opinion

2.20, at 40.

14. Although the AMA relies on the Hippocratic Oath for this proposition.

see AMA Vacco Br. at §, it is clear that the Oath does not represent the best or

final word on modern medical ethics and controversies. Even at its inception.

the Oath was not accepted by all ancient physicians. See Roe v. Wade, 410 US.

113, 131-32 (1973), Encyclopedia of Bioethics, Appendix at 2632 (Warren T.

Reich ed., rev. ed. 1995). In fact, the strict provisions of the Oath forbid many

medical procedures which are widely accepted today as ethical or legal.

including abortion, "double effect" pain medication, and even surgery in any

form. See Encyclopedia of Bioethics, Appendix at 2632 ("I will neither give a

deadly drug to anybody if asked for it, nor will I make a suggestion to this

effect. Similarly I will not give to a woman an abortive remedy... . I will not

use the knife, . . . but will withdraw in favor of such men as are engaged in this

work.”) (quoting Hippocratic Oath). For this reason, it has often been

"retranslated” or modified. See, e.g.. Noah Adams, Doctor Examines Evolution

of Hippocratic Oath, National Public Radio transcript #2199-4, April 30, 1996

(noting that at Johns Hopkins Medical School. the oath used at graduation

ceremonies has been altered to "I will give no drug or perform no operation

without a justifiable purpose."). Thus. the Hippocratic Oath should have no

greater weight here than it did in determining whether women have a

constitutional right to an abortion. See Roe. 410 U.S. at 131-32.

to end one's life in a lonely and violent manner.'*

Furthermore, by sanctioning the practice of directly

administering medications that will foreseeably cause a patient's

death, the "double effect" doctrine allows physicians to engage in

practices that are far closer to voluntary, or even involuntary, active

euthanasia than physician-assisted suicide. See Robert D. Truog et

al., Barbiturates in the Care of the Terminally Ill, 327 N. Eng. J. of

Med. 1678 (1992) (describing practice of administering

barbiturates to relieve pain of terminally ill patients with

unavoidable side effect of hastening death).

Nor is there any basis for believing that an open and legal

practice of physician-assisted suicide would undermine patients’

trust in their doctors because patients will come to view their

doctors as killers. See AMA Vacco Br. at 21. First, it is difficult to

see how more openness in the doctor-patient relationship will lead

to less trust. To the contrary, imposing criminal liability only

where there is evidence of the physician's intent to hasten death has

15. Examples of such suicides are numerous: patients have jumped from

bridges, withheld their own insulin to die of insulin shock, shot themselves in

the head, suffocated themselves with plastic bags, and taken overdoses of

prescription or over-the-counter drugs. See, e.g., Compassion in Dying v.

Washington, 79 F.3d 790, 834-35 & n. 135 (9th Cir.), cert. granted, 117 S. Ct.

39 (1996), Quill v. Vacco, 80 F.3d 716, 724 (2d Cir.), cert. granted. 117 S. Ct.

36 (1996), Solomon, Death of One's Own, at 57. Moreover. a patient who

seeks to commit unassisted suicide (or suicide assisted by a layperson) is most

likely unaware of what drugs or dosage they must use. Physical inability or

miscalculation can lead to an even more drawn-out, painful and undignified

death. See, e.g., Russel D. Ogden, Euthanasia: Assisted Suicide & AIDS (1994)

(approximately half of the layperson-assisted suicides were unsuccessful and

increased the patient's suffering, rather than mitigating it). Compassion in

Dying. 79 F.3d at 836 n.135; Quill, 80 F.3d at 721 ("Very often. patients who

survive a failed suicide attempt find themselves in worse condition than before

the attempt. Brain damage. for example, is one result of failed suicide

attempts."). In addition, the negative effects of a violent unassisted suicide on

the patient's family members extends the tragedy far beyond the individual

patient. See, e.g. Compassion in Dying. 79 F.3d at 835 ("My son-in-law then

had the unfortunate and unpleasant task of cleaning my father’s splattered brains

off the basement walls.”) (quoting Brief of Amicus Curiae of Ten Surviving

Family Members). When a family member assists the suicide. the negative

effects can be irremediable. See id. at 35-36 & n. 135-36.

a chilling effect on the patient's ability to communicate freely with

and receive critical information from his doctor. Second, this

concern "is based upon the simplistic assumption that trust implies

only that physicians will do no harm. The fact is that many patients

now want to trust that their physicians will stay with them and will

not abandon them when the only way out of their suffering is to

help them to die as they choose." Hall, Final Act, at 14.'°

Ill. | REGULATION OF PHYSICIAN-ASSISTED SUICIDE

IS FEASIBLE AND WOULD BETTER SERVE

PETITIONERS' INTEREST IN PREVENTING

POTENTIAL ABUSE THAN THE CURRENT

SECRET PRACTICE .

Although Petitioners and many of their supporting amici

concede the compelling nature of the suffering of individual

terminally ill patients such as those who brought these actions, see.

e.g., Vacco Pet'r Br. at 19; Glucksberg Pet'r Br. at 16; U.S.

Glucksberg Br. at 21, they nevertheless contend that such patients

must be forced to endure intolerable suffering because there is no

way to effectively regulate the practice of physician-assisted

suicide to ensure that it is limited to such patients and only

exercised voluntarily, see Vacco Pet'r Br. at 29-31; Glucksberg Pet'r

Br. at 44-47.!’

16. Petitioners’ further attempt to justify their criminal ban by contending

that. once freed of the prohibition from intentional harm. medical providers

might resort to encouraging physician-assisted suicide as a means of reducing

health care costs, see Vacco Pet'r Br. at 29. ignores the far greater economic

incentives providers have for reducing the enormous costs of life-sustaining

treatment for the terminally ill. This argument can not, therefore. support the

line Petitioners seek to draw.

17. The State of Washington. as well as amici States, also argue that

holding that a categorical criminal prohibition of physician-assisted suicide puts

an undue burden on the exercise of such nghts would somehow limit each

State's "broad range of discretion” to develop appropriate regulations in this

Medical decisions concerning physician-assisted suicide

are, however, no more subject to error or abuse than other end-of-

life decisions, such as refusal of life-sustaining treatment, which

have been effectively regulated by States for more than two

decades. Indeed, the risks involved in such decisions do not

essentially differ from the numerous decisions that patients must

make concerning procedures that involve a significant risk of

mortality.'*

Both statistical and anecdotal evidence indicate that the

practice of physician-assisted suicide, although illegal in virtually

all states, is prevalent throughout the United States.'? Legal

area. Glucksberg Pet'r Br. at 16: see also id. at 47-49; Amici States Br. at 27-

30. To the contrary, however. it would plainly allow States to develop a

variety of appropriate substantive and procedural regulatory standards, such as

those discussed below.

18. In support of their contention that physician-assisted suicide can not

be effectively regulated, Petitioner Vacco and various amici, see, e.g., Vacco

Pet'r Br. at 24 n.14; AMA Glucksberg Br. at 11-12, also point to the 1991

Remmelink Study, which studied the effects of the de facto legalization of both

physician-assisted suicide and voluntary euthanasia in the Netherlands.

However, a review of that study and its 1996 successor reveals that such

reliance is misplaced. Rather, as the authors of the most recent report conclude,

their data simply "do not support the idea that physicians in the Netherlands are

moving down a slippery slope” towards "less careful end-of-life decision

making and . . . the gradual social acceptance of euthanasia performed for

morally unacceptable reasons." P.J. van der Maas et al., Euthanasia, Physician-

Assisted Suicide, and Other Medical Practices Involving the End of Life in the

Netherlands, 1990-1995, 335 New Eng. J. Med. 1699. 1705 (1996). To the

contrary, the reports show that "Dutch physicians continue to practice

physician-assisted dying only reluctantly and under compelling circumstances.”

Marcia Angell. Euthanasia in the Netherlands - Good News or Bad?. 335 New

Eng. J. Med. 1676, 1677 (1996).

19. See, e.g., Back, Physician-Assisted Suicide in Washington, at 919

(12% of Washington physicians received requests for assistance in suicide and

in nearly 25% of those requests, prescribed a potentially lethal drug), David J.

Doukas et al., Attitudes and Behaviors on Physician-Assisted Death: A Study of

Michigan Oncologists, 13 J. Clinical Oncology 1055. 1058 (1995) (38% of the

250 practicing oncologists in Michigan had been asked to participate in

physician-assisted suicide and 18% had done so). Emanuel, Oncology Patients

at 1808 ("More than 50% of oncologists had received requests for euthanasia or

recognition and regulation of physician-assisted suicide would only

foster the Petitioners’ interest in ensuring that the practice is limited

to appropriate circumstances and is done in a manner that

minimizes any potential for abuse *°

A. State Regulation Of End-of-Life

Decisions Is Already Well-Established.

Legalized physician-assisted suicide would not be the first

instance of state regulation of important end-of-life decisions To

the contrary, virtually every jurisdiction in the United States has

regulations governing both living wills and decisions concerning

the withdrawal or withholding of life-sustaining treatment in the

absence of advance patient directives. These regulations require

medical professionals to make judgments similar to these involved

physician-assisted suicide [and] | 3.5% said they had participated in phy sician-

assisted suicide"), Terri R. Fried et al., Limits of Patient Autonomy: Physician

Attitudes and Practices Regarding Life-Sustaining I reatments and Euthanasia.

153 Archives Internal Med. tang te penne org dealer

physicians concluding 18.9% had been asked to prescribe a lethal amount o

sleeping pills and 13.3% did so at least once), Melinda A. Lee et al.. Legalizing

Assisted Suicide -- Views of Physicians in Oregon. 334 N. Eng. J. Med. 310.

313 (1996) (21% of Oregon physicians had been asked in the last year to

provide physician-assisted suicide and 7% had done so). see also David

Orentlicher, Physician Participation in Assisted Suicide. 262 JAMA 1844. 1844

(1989). These studies most likely underestimate the extent of the practice in the

United States because "hs » depend upon self-reporting of an illegal act that can

easily be kept secret and because other health care professionals. including

nurses. also assist in suicides. See David A. Asch, The Role of Critical Care

Nurses in Euthanasia and Assisted Suicide. 334 New Eng J Med. 1374. 1374

(1996) (study of critical care nurses across the country concluding that | 7%

were asked to assist in a suicide or perform euthanasia and |6% had done so at

least once).

20. Furthermore. studies of the attitudes of terminally 11] patients suggest

that it is the patients who are assumed to be most vulnerable. such as those with

limited cognitive ability or lower income or education. who look with least

favor on the option of physician-assisted suicide. See. e.g. H.G. Koenig et al .

Attitudes of Elderly Patients and their Families toward Physician- Assisted

Suicide, 156 Archives of Internal Medicine 2240. 2247 (1996).

in physician-assisted suicide and demonstrate how procedural

safeguards cam ensure that patients make end-of-life decisions

competently and voluntarily.

For example. health professionals and lawyers have

implemented state laws concerning living wills for more than

twenty years’! Patient declarations regarding the withdrawal of

life support are currently regulated »n f srty-seven states. the District

of Columbia and the Virgin Islands *? Regulation in most states

21. For example, the California Natural Death Act (Cal. Health and Safety

Code §§ 7185-7194.5) was enacted in 1976. In addition, since 1991, the

federal Patient Self-Determination Act, 42 U.S.C. §§ 139Scc, 1396a (1994), has

required health care providers to have wntten institutional policies regarding

living wills and to document whether or not a patient has executed such an

hospital ethics committee to oversee the process and the decisions taken with

regard to the execution and implementation of living wills.

22. Ala. Code §§ 22-8A-1 to -10; Alaska Stat. §§ 18.12.010 to 18.12.100:

Ariz. Rev. Stat. Ann. §§ 36-3201to 36-3262; Ark. Code Ann. §§ 20-17-20! to-

218, Cal. Health & Safety Code §§ 7185-7194.5: Colo. Rev. Stat. §§ 15-18-10!

to -113, Conn. Gen. Stat. §§ 19a-570 to -580; Del. Code Ann. tit. 16, §§ 2501-

2509, D.C. Code Ann. §§ 6-2421 to -2430; Fla. Stat Ann. §§ 765.101-765.401.

Ga. Code Ann. §§ 31-32-1 to -12; Haw. Rev. Stat. §§ 327D-1 to 327D-27. Idaho

Code §§ 39-4501 to -4509; 755 Ill. Comp. Stat. Ann. §§ 35/1 to 35/10; Ind.

Code Ann. §§ 16-36-4-1 to -21; lowa Code §§ 144A.1 to .12; Kan. Stat. Ann.

§§ 65-28.101 to 65-28.109; Ky. Rev. Stat. Ann. §§ 311.621 to 311.644: La.

Rev. Stat. Ann. §§ 40:1299.58.1 to 40:1299.58.10; Me. Rev. Stat. Ann. tit. 18-

A. §§ 5-80! to -817, Md. Code Ann.., Health-Gen. I §§ 5-601 to 5-618; Minn.

Stat. §§ 145B.0! to 145B.17; Miss. Code Ann. §§ 41-41-10! to -121: Mo. Ann.

Stat. §§ 459.010 to 459.055; Mont. Code Ann. §§ 50-9-101 to -111. -201 to -

206: Neb. Rev. Stat. Ann. §§ 20-40! to -416 and §§ 30-3401 to -3452: Nev.

Rev. Stat. §§ 449.535 to 449.690: N.H. Rev. Stat. Ann. §§ 137-H:1 to H:16:

NJ. Stat. Ann. § 26:2H-53 to 2H-78; N.M. Stat. Ann. §§ 24-7-1 to -11: N.C.

Gen. Stat. §§ 90-320 to -322; N. D. Cent. Code §§ 23-06.4-01 to -14: Ohio Rev.

Code Ann. §§ 1337.11 to 1337.17, 2133.01 to 2133.15: Okla. Stat. Ann. tit. 63.

$§ 3101.01 to 3101.16, Or. Rev. Stat. §§ 127.505 to 127.660: 20 Pa. Cons. Stat.

Ann. §§ 5401-5416, R.I. Gen. Laws §§ 23-4.10-1 to 23-4. 10-12, 23-4.11-1 to

23-4 11-14, S.C. Code Ann. §§ 44-77-10 to -160: S.D. Codified Laws §§ 34-

12D-1 to 34-12D-22: Tenn. Code Ann. §§ 32-11-10! to -112: Tex. Health &

Safety Code Ann. §§ 672.001 to 672.021; Utah Code Ann. §§ 75-2-1101 to -

1119, Vt. Stat. Ann. tit. 18, §§ 5251 to $262; VI. Code Ann. tit. 19. § 192: Va

Code Ann. §§ 54.1-2981 to -2993, Wash. Rev. Code Ann. §§ 70.122.010 to

70.122.920, W. Va. Code §§ 16-30-1 to -13, Wis. Stat. Ann. §§ 154.01 to

follows a similar pattern. Declarants are restricted to individuals

over the age of eighteen _» are of “sound mind"? or

"competent."** Further, all declarations must be signed and

witnessed,?° and the patient must have a “terminal,” “incurable” or

“irreversible” condition, or be "permanently unconscious.” before

the instructions may be followed 7° Several other common

procedural safeguards include: restrictions on who may act as a

witness (e.g, those who stand to benefit financially from the

patient's death or those who are employed by the relevant medical

facility are barred):?” a mandatory second opinion as to the patient's

154.15; Wyo. Stat. Ann. §§ 35-22-10] to -108. The three states that do not

regulate living wills have all enacted “health care proxy statutes” which allow

designated agents to make health care decisions. including the withdrawal of

life support, whenever the patient is no longer able to make treatment decisions

See Mass. Gen. Laws Ann. ch. 201D. §§ 1-17, Mich. Comp. Laws §§ 700.496.

N.Y. Pub. Health Law §§ 2980 to 299+.

23. See, e.g.. Cal. Health and Safety Code § 7186.5(a). Ohio Rev. Code

§ 1337.12(A\1) N.EL Rev. Stat. Ann. § 137-H:3, 20 Pa. Cons. Stat. Ann.

§ 54.04(a).

24. See, e.g.. Colo. Rev. Stat. § 15-18-104; Fla. Stat. Ann. §§ 765.102(1).

765.302(1), Mo. Ann. Stat., § 459.015; Tex. Health & Safety Code §

672.00 a), Va. Code Ann. § 541-2983.

25. See, e.g. Cal. Health & Safety Code § 7186.5(a); D.C. Code Ann. § 6-

2422: Fla. Stat. Ann. § 765.302(1); Tex. Health & Safety Code § 672.003b).

Va. Code Ann. § 54.1-2983.

26. See, e.g. Ark. Code Ann., § 20-17-202. Cal. Health & Safety Code

§§ 7185.5(d), 7186.5(b), Conn. Gen. Stat. § 19a-57Sa. Fla. Stat. § 765.303, 20

Pa. Cons. Stat. Ann. § 5405(2), Va. Code Ann. § 54.1-2983, Wa. Rev. Code

§§ 70.122.010, 70.122.030(1).

27. See, e.g. Cal. Health & Safety Code § 7285.S(a). D.C. Code Ann...

§ 6-2422 (4). Ohio Rev. Code Ann.. § 1337.12 (B). Tex. Health & Safety Code

§ 672.003(c): Wa. Rev. Code § 70.122.030(1).

condition;”* and record-keeping requirements °

B. Comprehensive Regulations For Physician-

Promulgated.

Various comprehensive schemes for regulating physician-

assisted suicide have already been developed. These include (/) the

Oregon Death with Dignity Act, (ii) the Harvard model statute, so-

called because several of its authors are affiliated with Harvard

University, and (i//) the guidelines promulgated by the Bay Area

Network of Ethics Committee ("BANEC")*° These regulatory

schemes draw on the previous extensive experience of health

professionals and lawyers in making and regulating other end-of-

life decisions. They include the following procedural safeguards

. Those requesting physician-assisted suicide must be adults

suffering from a terminal or intractable and cnbearable

illness. See Harvard Model § 3(a)(2); BANEC Gd. V.A(1).

Or. Rev. Stat. § 127.805.

° The request must be voluntary (i.¢.. free of undue

28. See, e.g, Cal. Health & Safety Code §7186.5(b); Colo. Rev. Stat.

§ 15-18-107, Fla. Code Ann. § 765.303(1), D.C. Code § 6-2422 (c), Kan. Stat.

Ann. § 65-28. 10(c), Ohio Rev. Code § 1337.11(y): 20 Pa. Cons. Stat. Ann.

§ 5408.

29. See, e.g.. Cal. Health & Safety Code § 7189. Kan. Stat. Ann. § 65-28.

103 (by, Mo. Rev. Stat. §459.015(2), 20 Pa. Cons. Stat. Ann. § 5404 (D). Tex.

Health & Safety Code § 672.003(e). Wa. Rev. Code § 70.122.030(1).

30. See Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800 to

127.995, Charles H. Baron et al., A Model State Act to Authorize and Regulate

Physician-Assisted Suicide, 33 Harv. J. on Legis. | (1996) ("Harvard Model”)

(attached hereto as Appendix B). Bay Area Network of Ethics Committees

(BANEC ). BANEC-Generated Guidelines for Comprehensive Care of the

Terminally Ill (Sept. 1996) ("BANEC Gd.") (attached hereto as Appendix C).

influence), informed, and repeated on at least two

occasions. See Harvard Model § 3(a)(3)(C), (D); BANEC

Gd. V.A(4), F; Or. Rev. Stat. §§ 127.805, 127.830,

127.840.

. A second opinion in writing must be sought to confirm the

diagnosis of the patient. See Harvard Model § 5(a):

BANEC Gd. V.B; Or. Rev. Stat. § 127.820.

. A second opinion as to the mental state of the patient must

be submitted in writing. Harvard Model § 5(b); BANEC

Gd. V.B; Or. Rev. Stat. § 127.820. In particular, the second

physician must confirm that the patient's judgment has not

been distorted by clinical depression or other mental

illness. See Harvard Model § 5(b); BANEC Gd. B; Or.

Rev. Stat. § 127.825.*!

. Patients must be informed of, and offered, all reasonable

palliative care options. See Harvard Model § 4(a); BANEC

Gd. V.C: Or. Rev. Stat. § 127.815.

. Patients must be informed of their diagnosis, prognosis.

and the various benefits and burdens of the available

medical options, including physician-assisted suicide. See

Harvard Model § 5(d). BANEC Gd. V_E; Or. Rev. Stat.

§ 127.815.

° Patients must be counseled to consult with their family.

See Harvard Model § 4(c);: BANEC Gd. V_D:; Or. Rev. Stat.

31. Under the Oregon statute. whenever. in the opimion of the attending or

consulting physician. a patient may be suffering from a mental disorder or

depression causing impaired judgment. the patient must be referred for

patient is not suffering from such problems. See Or. Rev. Stat. § 127.825.

§ 127.835.

° Patients must be informed that they may consult a third

party, e.g., a social worker, or a hospital ethics committee.

See Harvard Model § 4(b); BANEC Gd. V_D.

. The patient must execute a signed, witnessed request for

physician-assisted suicide.** The witnesses must be

individuals who do not stand to benefit from the patient's

death and who are not affiliated with the relevant health

care facility. See BANEC Gd. V.E; Or. Rev. Stat.

§ 127.810. In certain cases (e.g., if the patient is in a

skilled nursing facility), the presence of a state-appointed

witness is required. See BANEC Gd. V_E; Or. Rev. Stat.

§ 127.810(4).

. The patient must be informed that he or she may revoke the

request. See BANEC Gd. V.G; Or. Rev. Stat. § 127.845.

° All documentation, including the declaration, the opinion

of the attending physician, and the second opinions, must

be included in the patient's medical record. See Harvard

Model §§ 4(d)(3), 5(c), 6 (does not include the patient's

request); BANEC Gd. V.A-H; Or. Rev. Stat. § 127.855.

° Attending physicians must prepare detailed reports which

are either filed with or made available to State health

32. Mode! written forms can be found in BANEC Guidelines -- Attached

Form #2 and Or. Rev. Stat. § 127.897. The Harvard Model has no equivalent

provision and allows an oral request. However, the physician's discussion with

the patient regarding the patient's diagnosis and prognosis and the benefits and

burdens of the treatment options (including physician-assisted suicide) must be

witnessed and either recorded on video or audio tape or transcribed and signed

by the patient. Harvard Model § 4(d). see also BANEC Gd. V. E; Or. Rev. Stat.

§ 127.810.

officials >?

C. Regulation Of Physician-Assisted Suicide Is Just

As Feasible As Regulation Of Other End-Of-

Life Decisions.

Each of the key concepts involved in assessing the

appropriateness of physician-assisted suicide has been used for

years in making and regulating other end-of-life decisions by

patients and their doctors. There is no basis for believing that such

regulations could not similarly ensure that physician-assisted

suicide is appropriately limited to terminally ill patients who have

made their decisions competently, voluntarily and with the best

available information concerning incir medical condition and

options.

1. Terminal Illness

Determinations of terminal illness have been used as a

basis for end-of-life decisions for more than two decades and form

part of the regulatory schemes of virtually all States. including

Petitioners New York and Washington.** Thus, both physicians

and hospital ethics committees have extensive experience in

determining when a patient is terminally ill.

33. For example, under the Harvard mode] statute, the attending physician

must file a detailed report with the state Health Commissioner. See Harvard

Model § 6. The Commissioner may review the reports and medical records in

order to prepare an annual report on the operation and success of the statute

See id. § %d). The BANEC Guidelines propose the creation of a state registry

which would be able to request, for review. the full medical records of all

patients, including details of the hastened death. The registry would track

complete demographic information and issue an annual report detailing its

findings. See BANEC Gd. V.K.

34. See, e.g.. N.Y. Pub. Health Law § 2961(23); Wash. Rev. Code Ann.

§ 70.122.020(9).

Although the risk of misdiagnosis can never be entirely

eliminated, a number of studies suggest that erroneous prognoses

of the terminally ill tend to be overly optimistic. See, e.g., Ronald

S. Schonwetter et al., Estimation of Survival Time in Terminal

Cancer Patients: An Impedance to Hospice Admissions, 6 Hospice

J. 65 (1990), Loma E. Forster et al., Predicting Life Span For

Applicants to Inpatient Hospice, 148 Archives Internal Med. 2540.

2542 (1988). Moreover, even if an illness is misdiagnosed by a

primary physician as "terminal," there are a number of subsequent

safeguards and procedures which could reduce the risk of error

before physician-assisted suicide would be permitted. For example.

the Harvard model statute provides for a mandatory second opinion

as to the severity of the patient's condition. Harvard Model § 5(a).

More importantly, legalization of physician-assisted

suicide, in contrast to the current secret practice, would ensure that

patients will make such decisions based on frank and full

discussions with their doctors concerning their medical condition

and options and that their doctors can freely consult with other

medical professionals. Furthermore, because physician-assisted

suicide will be limited to patients whose suffering is severe and

untreatable, the risk of an overly pessimistic diagnosis must be

weighed against the unendurable condition in which the patient

might survive. In such circumstances, an overly optimistic

prognosis may risk as severe harm to the patient as an overly

pessimistic one. Cf Cruzan, 497 U.S. at 320 (Brennan, J.,

dissenting) (an erroneous decision to keep alive a patient on life

support is just as irrevocable as an erroneous decision to remove

life support because the patient's "own degraded existence is

perpetuated; his family's suffering is protracted; the memory he

leaves behind becomes more and more distorted").

2. Informed Consent

The requirement of informed consent is a concept familiar

to all health care professionals as part of any decision to undergo

medical treatment and is a well-established feature of the health law

of both New York and Washington.** Because of the seriousness

of the decision to elect physician-assisted suicide, additional

safeguards can ensure that the patient has all of the medical

information necessary to make her decision and that there is a

sufficient record so that the adequacy of the information provided

to the patient can be subject to review. For example, the Harvard

model statute requires that the responsible physician shall:

supply to and discuss with the patient all available

medical information that is necessary to provide a

reasoned decision concerning a request for medical

means of suicide, including all such information

regarding the patient's diagnosis and prognosis, the

medical treatment options and the medical means

of suicide that can be made available to the patient.

and their benefits and burdens.

Harvard Model § 4(d). This discussion must be witnessed by two

individuals "at least one of whom . . . must not be affiliated with

any person that is involved in the care of the patient, [or] . . . stand

to benefit personally in any way from the patient's death." /d.

§ 4(d)(1). The medical discussion must be either recorded on video

or audio tape or summarized in a document which the patient signs.

See id. § 4(d)(3). The physician must inform the witnesses that

35. See N.Y. Pub. Health Law § 2441 ("Voluntary informed consent’

means the legally effective knowing consent of an individual or his legally

authorized representative. so situated as to be able to exercise free power of

choice without undue inducement or any element of force. fraud. deceit. duress.

or other form of constraint or coercion." ), Villanueva v. Harrington. 906 P.2d

374, 376 (Wash. 1995).

they "may question the ._. physician and the patient to ascertain

that the patient has, in fact, heard and understood all of the material

information discussed." Jd. § 4(d)(2). In addition, the model

statute mandates the involvement of at least three health care

professionals at different points in the process (the primary

physician, consulting physician and licensed psychiatrist, clinical

psychologist or psychiatric social worker), all of whom wilil discuss

the matter with the patient. Finally, the written opinion on the

patient's competence must specifically address whether the patient's

decision is "fully informed.” Jd. §§ 5(a), (b).

3. Voluntariness

Assessments of voluntariness are also a well-established

aspect of existing schemes for regulating other end-of-life

decisions. For example, most living will statutes include

provisions intended to ensure that end-of-life decisions are made

voluntarily, such as requirements that multiple witnesses be present

at the time the living will is executed. See supra. Additional

protections can ensure that individuals are not coerced into

choosing physician-assisted suicide. For example, the Harvard

model statute requires that the patient's request be made on separate

occasions at least two weeks apart. Harvard Model § 3(a)(3)(D). In

addition, a licensed psychiatrist, clinical psychologist, or

psychiatric social worker who has examined the patient must make

a written finding that the patient's judgment is "free of undue

influence.” Jd. § 5(b).

4. Competence Or Capacity

Assessments of a patient's capacity to make a medical

decision are also a common and well-established aspect of medical

practice. Indeed, “[t}here appears . . . to be a developing consensus

regarding the meaning of capacity in cases dealing with medical

decision making, including those concerning life-sustaining

treatment. This consensus is toward accepting the meaning of

capacity implied in the Restatement of Torts [§ 892A], namely the

ability to appreciate the nature, extent, or probable consequences of

the physician's conduct to which consent is given." 1 Alan Meisel,

The Right to Die § 3.19, at 100 (2d ed. 1995).*°

The Harvard model statute again suggests how states can

adopt the general standards of competency to the special

circumstances of terminally ill patients to ensure that decisions are

not "the result of a distortion of the patient's judgment due to

clinical depression or any other mental illness." Harvard Model

§ 3(a)(3)(A); cf Martha Alys Matthews, Comment, Suicidal

Competence and the Patient's Right to Refuse Lifesaving

Treatment, 75 Cal. L. Rev. 707 (1987) (proposing test for

determining competency of patients who seek to hasten death). In

order to ensure that the patient fully understands the nature of their

decision, the Harvard model statute requires consultation with a

licensed psychiatrist, clinical psychologist, or psychiatric social

worker, who must provide a written opinion that the patient is not

seeking physician-assisted suicide due to clinical depression or

mental illness. Harvard Model § 5(b). Well-established criteria

exist, such as prior mental illness, and the intensity and consistency

of the symptoms, which allow psychiatrists to differentiate between

clinical depression and mere feelings of sadness and grief. See

Block, Patient Requests, at 2042.

* * *

In short, all of the assessments that medical professionals

would need to make to ensure that physician-assisted suicide is

36. See, e.g., N.Y. Pub. Health Law § 2980 (3) ("Capacity to make health

care decisions’ means the ability to understand and appreciate the nature and

consequences of health care decisions, including the benefits and nsks of and

alternatives to any proposed health care, and to reach an informed decision." ).

limited to appropriate circumstances are currently being made by

physicians in virtually all States -- including those of Petitioners

themselves -- in connection with other. equally weighty end-of-life

decisions. Numerous proposals have already been developed with

extensive procedural protections to minimize the possibility of risk

of error or abuse in aiding terminally ill, suffering patients to

voluntarily hasten their own deaths. There is no justification,

therefore, for a categorical criminal prohibition of the practice.

mea

ay Pat ie VoFTi

CONCLUSION

VETS Ef FOP Sey ietie Foy

—

For the reasons stated above, amici urge this Court to

affirm the decisions of the Courts of Appeals for the Second and

Ninth Circuits.

December 10, 1996

John H. Hall

Counsel of Record

Russell Hartman

Kyra K. Bromley

Sandra C. McCallion

Harry Sandick

Nicholas J. Boyle*

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

(212) 909-6000

* Admission pending

APPENDIX A'

Howard B. Beckman, MD, Professor of Medicine and Family

Medicine, University of Rochester School of Medicine & Dentistry.

Faculty Member, Program in Biopsychosocial Studies, University

of Rochester School of Medicine & Dentistry, Chief of Medicine

and Member, Clinical Review Committee, Highland Hospital.

Training Program, Attending Physician, Highland Hospital,

Genesee Hospital and St. Mary's Hospital, Fellow and Member.

Doctor-Patient Communication Subcommittee, American College

of Physicians, Reviewer, Annals of Internal Medicine and Journal

of General Internal Medicine. author of over 150 presentations and

medicine and primary-care medicine

Bry Benjamin, M D., Assistant Clinical Professor of Medicine.

Cornell University Medical College, Attending Physician,

North Division, Assistant Attending Physician, New York Hospital.

Cornell Medical Center, Consultant in Medicine, Gracie Square

Hospital; Member, Committee on Public Health and Managed Care

Task Force and Committee on Government Affairs, New York

County Medical Society; Member. Advisory Board, David Rogers

Health Colloquium, New York Hospital, Cornell Medical Center.

Fellow, American College of Physicians and New York Academy

of Medicine

Rodney R. Bentz. M D., MA., private practice in pulmonary disease

and critical care medicine for over 25 years. former Assistant

Professor of Internal Medicine and Pulmonary Medicine,

University of Michigan Medical Center, Master's Degree in medical

ethics (thesis entitled "Beneficent Medical Care and Physician-

1. The individual] medical professionals do not necessarily represent the

views of those organizations with which they are affiliated.

A-2

Assisted Suicide”), Member and Ethics C ——

Committee, St. Joseph's Mercy Hospital. Member, Society for

Bioethical Consultation: author of publicati line

pulmonary and critical care medicine.

Ronald C. Bishop, M_D., Professor Emeritus of Internal Medicine,

University of Michigan Medical School; former Director, Unit for

Human Values in Medicine, University of Michigan Medical

School, Member (representing the American Civil Liberties Union),

Michigan Commission on Death and Dying, 1993-94; former Chief

of Medical Service, Veterans Administration Hospital, Ann Arbor,

Michigan; Co-Founder, Merian's Friends, Fellow, American

College of Physicians; author of several publications regarding

Russell B. Butler. M D., Associate Professor of Clinical Neurology.

MGH Institute of Health Professions; Lecturer in Clinical

Neurology, Boston University, Sargent College and Northeastern

University, Attending Physician and former President, Emerson

Hospital; Council Member, Massachusetts Hospital Association.

Member, Executive Committee, Board of Trustees, Emerson Health

Care Systems; Member, American Academy of Neurology,

American Society of Law and Medicine, Massachusetts Medical

Ethics Advisory. Member, President's Commission for the Study of

Ethical Problems in Medicine and Biomedical and Behavioral

Research, 1981-82: author of over 120 publications and

presentations regarding neurology. medical ethics and medical

decision-making

Thomas L. Campbell. M_D., Associate Professor of Family

Medicine and Psychiatry, University of Rochester School of

Medicine & Dentistry, Attending Physician in Medicine, Pediatncs

and Obstetrics & Gynecology. Highland Hospital. Co-Director,

A-3

Psychosocial Medicine Education and Medical Director, Family

Medicine Mental Health Services, University of Rochester,

Department of Family Medicine, Medical Director of Community

Residence, United Cerebral Palsy: Reviewer, Archives of Family

Medicine and Journal of Family Practice. author of over 125

ions and publicati fing family medicine,

David J. Doukas, M._D., Associate Professor of Family Practice.

University of Michigan Medical Center, Associate Director for

Clinical Bioethics, Program in Society and Medicine, University of

Michigan Medical Center; Assistant Adjunct Professor. Center for

Ethics and Humanities in the Life Sciences, Michigan State

University; Faculty Associate, Survey Research Center, Institute of

Social Research, University of Michigan, Attending Physician,

Chelsea Community Hospital, Chair, UMH Adult Ethics

Committee, Reviewer, Journal of Family Practice, Archives of

Family Practice, and Journal of Clinical Ethics, Associate

Member, Hastings Center, Member, Steering Committee, Working

Group on Bioethics and the Humanities, and Co-Chair, Group on

Ethics and Humanities, Society of Teachers of Family Medicine.

Member, American Association of Bioethicists, author of over 75

presentations and publications regarding the values of patients and

physicians with respect to end-of-life care and physician-assisted

death.

Ronald M. Epstein, M_D., Associate Professor of Family Medicine

and Psychiatry: University of Rochester School of Medicine &

Dentistry, Director, University of Rochester Department of Family

Medicine, Predoctoral Education Division, Attending Physician

and Ethics Committee Member. Highland Hospital. Member. New

York State Academy of Family Physicians and American Academy

of Family Physicians: Member, Rochester Area Task Force on

AIDS: author of over 80 lectures and publications regarding family

A-4

medicine, physician-patient communication, HIV infection and

AIDS treatment.

John L. Fahey, M_D., Associate Director, Department of

Hematology and Bone Marrow Transplantation, City of Hope

National Medical Center. former Associate Clinical Professor of

Medicine, University of Southern California, Los Angeles; Fellow,

American College of Physicians, author of numerous publications

regarding hematology and bone marrow transplantation.

Daniel D. Federman, M_D., Dean of Medical Education, Harvard

Medical School; Carl W. Walter Professor of Medicine and Medical

College of Physicians. former Chairman, American Board of

Internal Medicine. author of several articles on physician-assisted

Kevin A. Fiscella, M_D., Assistant Professor of Family Medicine,

University of Rochester School of Medicine & Dentistry. Co-

Director, Community Medicine Program, University of Rochester

Department of Family Medicine, Attending Physician, Highland

Hospital, Strong Memorial Hospital and St. Mary's Hospital,

Medical Director, Rochester Pathways Methadone Maintenance

Program. HIV Clinical Coordinator, Westside Health Center:

Member, American Academy of Family Physicians, Society of

Teachers of Family Medicine, and American Society of Addiction

Peter A. Goodwin. M D., Associate Professor of Family Medicine,

Oregon Health Sciences University. Attending Physician,

University Hospital, Oregon Health Sciences University. former

Chief of Staff, Southwest Washington Hospitals, Consultant in

Industrial Medicine, United Grocers, Portland, Oregon. Member.

American Academy of Family Physicians and Society of Teachers

A-5

of Family Medicine; Member, Scientific Assembly Committee.

Public Relations Committee and Public Policy Committee, and

former President, Oregon Academy of Family Physicians: author of

numerous publications regarding family medicine. orthopedics and

physician-assisted death.

Ake N. A. Grenvik, M.D., Ph.D., Professor of Anaesthesiology.

Critical Care Medicine and Surgery, University of Pittsburgh

Professor, University of Pittsburgh Medical Center, Director

Emeritus, Mutlidisciplinary Critical Care Training Program.

University of Pittsburgh Medical Center, Attending Physician,

Presbyterian-University Hospital and Montefiore University

Hospital; Chairman, University of Pittsburgh Health Sciences-Wide

Ethics Panel: Founding Member and former President of the

Society of Critical Care Medicine. Founding Council Member and

former officer of World Federation of Societies of Intensive and

Critical Care Medicine; Fellow, American College of

Anaesthesiologists: author of over 350 publications and editor of

25 books regarding critical care medicine.

Thomas F. Hornbein, M_D., Professor of Anaesthesiology,

Physiology and Biophysics, University of Washington School of

Medicine, Research Affiliate, Primate Center, University of

Washington School of Medicine. Member and former President.

Association of University Anaesthesiologists: Member and

multiple committee-member. American Society of

Anaesthesiologists: Editorial Board, Journal of Applied

Physiology. author of nearly 150 publications regarding various

aspects of respiration, ventilation and oxygenation.

Joel D. Howell, M_D., Ph_D., Associate Professor of Internal

Medicine, University of Michigan Medical Center. Associate

Professor of Health Management and Policy. University of

A-6

Michigan School of Public Health; Associate Professor of History,

University of Michigan; Director, Program in Society and

Medicine, University of Michigan Medical Center, Attending

Physician, University of Michigan Medical Center. Member,

Society for Heath and Human Values; author of over 50

publications regarding medical practice, history and values.

Edward Lowenstein, M_D., Professor of Anaesthesia, Harvard

Medical School; Anaesthetist-in-Chief, Beth Israel Deaconess

Medical Center; Co-Director, Harvard Anaesthesia Center,

Honorary Anaesthetist, Massachusetts General Hospital; Member,

Medical Executive Committee and Patient Care Assessment and

Quality Committee, Beth Israel Deaconess Medical Center,

Executive Committee, Department of Anaesthesia, Harvard

Medical School; Founding Member, Association of Cardiac

Anaesthesiologists; author of nearly 250 publications regarding

various aspects of cardiopulmonary physiology and pharmacology

of large-dose opiate anaesthesia.

Charles F. McKhann, M_D., Professor of General Surgery and

Surgical Oncology, Yale University School of Medicine, Member,

Editorial Board, Cancer Research, Member, Yale New Haven

Hospital Cancer Committee; author of numerous publications

regarding cancer research and treatment, preparing a book on

physician-assisted suicide.

Janet L. Mitchell, M.D., M-P.H., Chairperson, Department of

Obstetrics and Gynecology, Interfaith Medical Center, Obstetrical

Consultant, New York City Department of Health Bureau of

Maternity Services and Family Planning, National Institutes of

Health and Centers for Disease Control and Prevention, former

Chief of Perinatology and Director of Special Prenatal Program for

Chemically Dependent Women, Harlem Hospital Center, former

Director of Ambulatory Perinatology, Boston City Hospital; author

A-7

of over 50 publications regarding substance abuse in pregnant

women, HIV disease in women and infant and maternal mortality.

including Chairperson on the Center for Substance Abuse

Treatment panel that wrote the Treatment Improvement Protocols

for Substance Using Pregnant Women.

David Orentlicher, M.D., J.D., Associate Professor of Law in

Bioethics and Law, Fourteenth Amendment and Professional

Responsibility, Indiana University School of Law: former Adjunct

Assistant Professor of Medicine, Northwestern University Medical

School; former Director, Division of Ethics Standards, and Ethics

and Health Policy Counsel, American Medical Association;

Member, American Law Institute; Editorial Advisory Board, Food

and Drug Law Journal, Member, American Association of

Bioethics, author of over 80 publications regarding legal and

ethical issues in medicine, including physician-assisted death.

Naomi Pless, M_D., Clinical Assistant Professor of Family

Medicine, University of Rochester School of Medicine & Dentistry:

Co-Director, Community Medicine Program, University of

Rochester Department of Family Medicine, Family Medicine

Residency Program, Attending Physician, Highland Hospital:

Member, American Academy of Family Physicians and the Society

of Teachers of Family Medicine.

Edward Pierce, M.D., retired family physician; Chairperson,

Merian's Friends; former Michigan State Senator; former Mayor of

the City of Ann Arbor, Michigan.

Friedrich K. Port, M.D., MS., Professor of Internal Medicine and

Epidemiology, University of Michigan Medical School; Co-

Director, Kidney, Epidemiology & Cost Center: Staff Nephrologist

and former Chief, Hemodialysis Unit, Veterans Administration

Medical Center, Ann Arbor, Michigan: author of over 100

A-8

publications regarding end stage renal disease.

Peter Safar, M_D., Distinguished Professor of Resuscitation

Medicine and Endowed Chair in Anaesthesiology and Critical Care

Medicine, University of Pittsburgh Medical Center, Founder and

Fellow, American College of Critical Care Medicine and American

College of Chest Physicians; Founder and former Director, Safar

Center for Resuscitation Research; Founder, Departments of

Anaesthesiology at National Cancer Institute (Lima, Peru).

Baltimore City Hospitals, and University of Pittsburgh Medical

Center: Founder, World Association for Disaster and Emergency

Medicine; author of over 1,100 publications, including the first

vextbooks on Respiratory Therapy, Anaesthesiology and

Emergency Medicine, and numerous articles and President's

Commission studies regarding biomedical ethics and death.

Anthony L. Suchman, M.D., Associate Professor of Medicine and

Psychiatry, University of Rochester School of Medicine &

Dentistry; Executive Director of Highland PO, Inc.; Fellow,

American College of Physicians, Charter Fellow and Senior

Facilitator, American Academy for Physician and Patient; Member.

managed care committees, Robert Wood Johnson Foundation,

Fetzer Institute and the Society for General Internal Medicine,

author of numerous publications regarding doctor-patient

relationships and medical decision-making.

Griffith D. Thomas, M_D., J.D., practitioner, Anatomic, Clinical and

Forensic Pathology; Medical Staff Member, Valley Presbyterian

Hospital: Director, Valley Community Clinic, Los Angeles County

Bar Association (Bioethics Committee, Subcommittee on Durable

Power of Attorney, Subcommittee on AIDS, Subcommittee on

Death and Dying); Founder Barristers Hospice/AIDS Project: Joint

LACBA/LACMA Committee on Biomedical Ethics: author of

several publications regarding AIDS.

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Milton Viederman, M_D., Professor of Clinical Psychiatry, Cornell

University Medical College; Lecturer in Psychiatry, Columbia

College of Physicians and Surgeons; Director, Consultation-

Liaison Service, and Attending Psychiatrist, New York Hospital:

Adjunct Attending Physician, Memorial Hospital for Cancer &

Allied Diseases, Associate Director, Columbia Psychoanalytic

Center for Training and Research: Consultant, Rockefeller

University Hospital; Life Fellow, American Psychiatric

Association; Fellow and Member, Committee on Physician-

Assisted Suicide, New York Academy of Medicine; Reviewer.

American Journal of Psychiatry, Hospital and Community

Psychiatry, author of nearly 70 publications regarding various

aspects of psychiatry, the doctor-patient relationship, bioethics and

medical decision-making.

Sidney H. Wanzer, M_D., Physician, Harvard University Health

Services; Clinical Instructor in Medicine, Harvard Medical School:

Preceptor for residents from Cambridge Hospital on ambulatory

care medicine rotation, Member, Advisory Committee, Hemlock

Society U.S.A.; author of several publications regarding the ethics

and regulation of physician-assisted suicide, including the "Harvard

Model statute."

Max Harry Weil. M_D., Ph.D., Clinical Professor of Medicine.

Surgery and Anaesthesia, University of Southern California Los

Angeles, Adjunct Professor of Medicine, Northwestern University:

Visiting Professor of Anaesthesiology, University of Pittsburgh.

President of the Institute of Critical Care Medicine: author of

numerous publications regarding critical care and decisions at the

end of life.

Peter M Winter, M_D., Peter and Eva Safar Professor of

Anaesthesiology and Critical Care Medicine and former Chairman,

University of Pittsburgh School of Medicine; Visiting Professor of

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Anaesthesiology at 14 medical schools across the United States,

Anaesthesiologist-in-Chief, University Health Center Hospitals of

Pittsburgh; Member, Advisory Committee and Managed Care

Committee, Center for Medical Ethics, University of Pittsburgh

School of Medicine; Member, American College of Chest

Physicians, American Medical Association, New York Academy of

Sciences: Founding Member, American Society of Critical Care

Anaesthesiologists and Society of Critical Care Medicine.

Chairman, Educational Advisory Board, Association of University

Anaesthetists: Editorial Board, Critical Care Medicine, author of

over 100 publications on critical care medicine, acute respiratory

failure and anaesthetic agents.

APPENDIX B

A MODEL STATE ACT TO AUTHORIZE

AND REGULATE PHYSICIAN-ASSISTED SUICIDE

SECTION 1. STATEMENT OF PURPOSE

The principal purpose of this Act is to enable an individual

who requests it to receive assistance from a physician in obtaining

the medicai means for that individual to end his or her life when he

or she suffers from a terminal illness or from a bodily illness that is

intractable and unbearable. Its further purposes are (a) to ensure

that the request for such assistance is complied with only when it is

fully informed, reasoned, free of undue influence from any person,

and not the result of a distortion of judgment due to clinical depres-

sion or any other mental illness, and (b) to establish mechanisms

for continuing oversight and regulation of the process for providing

such assistance. The provisions of this Act should be liberally

construed to further these purposes.

SECTION 2. DEFINITIONS

As used in this Act,

(a) “Commissioner” means the Commissioner of the De-

partment.

(b) "Department" means the Department of Public Health for

similar state agency].

home, long-term residential care facility, or other institution

providing medical services and licensed or operated in accordance

with the law of this state or the United States.

(d) “Intractable and unbearable illness" means a bodily

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disorder (1) that cannot be cur: 4 or successfully palliated, and (2)

that causes such severe suffering that a patient prefers death.

(e) "Medical means of suicide" means medical substances or

devices that the responsible physician prescribes for or supplies to

a patient for the purpose of enabling the patient to end his or her

own life. "Providing medical means of suicide" includes providing

a prescription therefor.

(f) “Patient's medical record" means (1) in the case of a patient

who is in a health care facility, the record of the patient's medical

care that such facility is required by law or professional standards

to compile and maintain, and (2) in the case of a patient who is not

in such a facility, the record of the patient's medical care that the

responsible physician is required by law or professional standards

to compile and maintain.

(g) "Person" includes any individual, corporation, professional

corporation, partnership, unincorporated association, government,

government agency, or any other legal or commercial entity.

(h) "Responsible physician" means the physician, licensed to

practice medicine in this state, who (1) has full or partial

responsibility for treatment of a patient who is terminally ill or

intractably and unbearably ill, and (2) takes responsibility for

providing medical means of suicide to the patient.

(i) “Terminal illness" means a bodily disorder that is likely to

cause a patient's death within six months.

SECTION 3. AUTHORIZATION TO PROVIDE ASSISTANCE

(a) It is lawful for a responsible physician who complies in all

material respects with Sections 4, 5, and 6 of this Act to provide a

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patient with medical means of suicide, provided that the

responsible physician acts on the basis of an honest belief that

(1) the patient is eighteen years of age or older:

(2) the patient has a terminal illness or an intractable and

unbearable illness; and

(3) the patient has made a request of the responsible

physician to provide medical means of suicide, which

request

(A) is not the result of a distortion of the patient's

judgment due to clinical depression or any other

mental illness;

(B) represents the patient's reasoned choice based on

an understanding of the information that the

responsible physician has provided to the patient

pursuant to Section 4(d) of this Act concerning the

patient's medical condition and medical options:

person; and

(D) has been repeated without self-contradiction by the

patient on two separate occasions at least fourteen

days apart, the last of which is no more than

seventy-two hours before the responsible physician

provides the patient with the medical means of

suicide.

(b) A responsible physician who has provided a patient with

medical means of suicide in accordance with the provisions of this

Act may, if the patient so requests, be present and assist the patient

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at the time that the patient makes use of such means, provided that

the actual use of such means is the knowing, intentional, and

voluntary physical act of the patient.

SECTION 4. DISCUSSION WITH PATIENT AND

DOCUMENTATION

Before providing medical means of suicide to a patient

pursuant to Section 3 of this Act, the responsible physician shall

(a) offer to the patient all medical care, including hospice care

if available, that is consistent with accepted clinical practice and

that can practicably be made available to the patient for the purpose

of curing or palliating the patient's illness or alleviating symptoms,

including pain and other discomfort,

(b) offer the patient the opportunity to consult with a social

worker or other individual trained and experienced in providing

social services to determine whether services are available to the

patient that could improve the patient's cares sufficiently to cause

the patient to reconsider his or her request for medical means of

suicide;

request if the patient has not already done so and the responsible

physician believes that doing so would be in the patient's interest.

and

(d) supply to and discuss with the patient all available medical

information that is necessary to provide the basis for a reasoned

decision concerning a request for medical means of suicide,

including all such information regarding the patient's diagnosis and

prognosis, the medical treatment options and the medical means of

suicide that can be made available to the patient, and their benefits

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and burdens, all in accordance with the following procedures

(1) at least two adult individuals must witness the dis-

cussion required by this paragraph (d), at least one of

whom (A) is not affiliated with any person that is in-

volved in the care of the patient, and (B) does not stand

aga personally in any way from the patient's

(2) the responsible physician shall inform each witness

that he or she may question the responsible physician

and the patient to ascertain that the patient has. in fact.

heard and understood all of the material information

pursuant to this paragraph (d). and discussed pursuant

to this paragraph (d):; and

(3) the responsible physician shall document the discus-

sion with the patient held pursuant to this paragraph

(d). using one of the following methods

(A) an audio tape or a video tape of the discussion.

during which the witnesses acknowledge their

presence, or

(B) a written summary of the discussion that the pa-

tient reads and signs and that the witnesses attest in

writing to be accurate

The documentation required by this subparagraph (3)

must be included and retained with the patient's

medical record, and access to and disclosure of such

records and copies of them are governed by the

provisions of Section 10 of this Act.

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SECTION 5. PROFESSIONAL CONSULTATION AND

DOCUMENTATION

Before providing medical means of suicide to a patient

pursuant to Section 3 of this Act, the responsible physician shall

(a) secure a written opinion from a consulting physician who

has examined the patient and is qualified to make such an

assessment that the patient is suffering from a terminal illness or an

intractable and unbearable illness.

(b) secure a written opinion from a licensed psychiatrist,

clinical psychologist, or psychiatric social worker who has

examined the patient and is qualified to make such an assessment

that the patient has requested medical means of suicide and that the

patient's request meets the criteria set forth in Sections 3(a)(3)(A).

3(a\(3)(B), and 3(a)(3)(C) of this Act to the effect that the request is

not the result of a distortion of the patient's judgment due to clinical

depression or any other mental illness, is reasoned, is fully

informed, and is free of undue influence by any person, and

(b) of this section in the patient's medical record.

SECTION 6. RECORDING AND REPORTING BY THE

RESPONSIBLE PHYSICIAN

Promptly after providing medical means of suicide to a

patient, the responsible physician shall (a) record the provision of

such means in the patient's medical record, (b) submit a report to

the Commissioner on such form as the Commissioner may require

pursuant to Section 8(a) of this Act, and (c) place a copy of such

report in the patient's medical record.

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SECTION 7. ACTIONS BY PERSONS OTHER THAN THE

RESPONSIBLE PHYSICIAN

(a) An individual who acts on the basis of an honest belief that

the requirements of this Act have been or are being met may, if the

patient so requests, be present and assist at the time that the patient

makes use of medical means of suicide, provided that the actual use

of such means is the knowing, intentional, and voluntary physical

act of the patient.

(b) A licensed pharmacist, acting in accordance with the laws

and regulations of this state and the United States that govern the

dispensing of prescription drugs and devices and controlled

substances, may dispense medical means of suicide to a person who

the pharmacist reasonably believes presents a valid prescription for

such means.

the requirements of this Act have been or are being met may

counsel or assist the responsible physician in providing medical

means of suicide to a patient.

SECTION 8. RECORD KEEPING BY THE DEPARTMENT

(a) The Commissioner shall by regulation specify a form of

report to be submitted by physicians pursuant to Section 6(b) of

this Act in order to provide the Department with such data

regarding the provision of medical means of suicide as the

Commissioner determines to be necessary or appropriate to enable

effective oversight and regulation of the operation of this Act

Such report shall include, at a minimum. the following information

(1) the patient's diagnosis, prognosis. and the alternative

medical treatments. consistent with accepted clinical

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practice, that the responsible physician advised the

patient were practicably available,

(2) the date on which and the name of the health care

facility or other place where the responsible physician

complied with the patient's request for medical means

of suicide, the medical means of suicide that were pre-

scribed or otherwise provided, and the method of re-

cording the discussion required by Section 4(d) of this

Act,

(3) the patient's vital statistics, including county of resi-

dence, age, sex, race, and marital status.

(4) the type of medical insurance and name of insurer of

the patient, if any:

(5) the names of the responsible physician, the medical

and mental health consultants who delivered opinions

pursuant to Section 5 of this Act, and the witnesses

required by Section 4(d) of this Act, and

(6) the location of the patient's medical record.

(b) The Commissioner shall require that the report described in

paragraph (a) of this section not include the name of the patient but

shall provide by regulation for an anonymous coding or reference

svstem that enables the Commissioner or the responsible physician

to associate such report with the patient's medical record.

SECTION 9. ENFORCEMENT AND REPORTING BY THE

DEPARTMENT

(a) The Commissioner shall enforce the provisions of this Act

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and shall report to the Attorney General and the appropriate board

of registration [or similar state agency] any violation of its

provisions.

(b) The Commissioner shall promulgate such rules and

regulations as the Commissioner determines to be necessary or

appropriate to implement and achieve the purposes of this Act and

shall, at least ninety days prior to adopting any rule or regulation

affecting the conduct of a physician acting under the provisions of

this Act, submit such proposed rule or regulation to the Board of

Registration in Medicine [or similar state agency] for such Board's

agency] may promulgate no rule or regulation inconsistent with the

provisions of this Act or with the rules and regulations of the

Department promulgated under it and shall, at least ninety days

prior to adopting any rule or regulation affecting the conduct of a

physician acting under the provisions of this Act, submit such

proposed rule or regulation to the Commissioner for the

Commissioner's review and advice.

(d) The Commissioner shall report to the Legislature annually

concerning the operation of this Act and the achievement of its

stated purposes. The report of the Commissioner shall be made

available to the public upon its submission to the Legislature In

order to facilitate such annual reporting, the Commissioner may

collect and review such information as the Commissioner

determines to be helpful to the Department, the Board of

Registration in Medicine {or similar state agency], or the

Legislature and may by regulation require the submission of such

information to the Department.

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SECTION 10. CONFIDENTIALITY OF RECORDS AND

REPORTS

(a) The information that a person acting under this Act obtains

from or about a patient is confidential and may not be disclosed to

any other person without the patient's consent or the consent of a

person with lawful authority to act on the patient's behalf, except as

this Act or any other provision of law may otherwise require.

(b) The report that a responsible physician files with the

Department pursuant to Section 6(b) of this Act is confidential, is

not a public record, and is not subject to the provisions of [the state

public records statute or freedom of information act].

SECTION 11. PROVIDER'S FREEDOM OF CONSCIENCE

(a) No individual who is conscientiously opposed to providing

a patient with medical means of suicide may be required to do so or

to assist a responsible physician in doing so.

(b) A health care facility that has adopted a policy opposed to

providing patients with medical means of suicide and has given

reasonable notice of such policy to its staff members may prohibit

such staff members from providing such means to a patient who is

within its facilities or under its care.

SECTION 12. PATIENT'S FREEDOM FROM

DISCRIMINATION

(a) No physician, health care facility, health care service plan.

provider of health or disability insurance, self-insured employee

health care benefit plan, or hospital service plan may require any

individual to request medical means of suicide as a condition of

eligibility for service, benefits. or insurance. No such physician or

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entity may refuse to provide medical services or medical benefits to

an individual because such individual has requested medical means

of suicide, except as Section 11 of this Act permits.

(b) A patient's use of medical means of suicide to end such

patient's life in compliance with ihe applicable provisions of this

Act shall not be considered suicide for the purpose of voiding a

policy of insurance on the life of such patient.

SECTION 13. LIABILITY

(a) No person who has acted in compliance with the applicable

provisions of this Act in providing medical means of suicide to an

individual shall be subject to civil or criminal liability therefor

(b) No individual who has acted in compliance with the

applicable provisions of this Act in providing medical means of

suicide to a patient shall be subject therefor to professional

sanction, loss of employment, or loss of privileges, provided that

such action does not violate a policy of a health care facility that

complies with Section | 1(b) of this Act.

| (c) Except as provided in paragraphs (a) and (b) of this section,

this Act does not limit the civil, criminal, or disciplinary liability of

any person for intentional! or negligent misconduct

SECTION 14. CRIMINAL PENALTIES

In addition to any other civil, criminal, or disciplinary

liability that he or she may otherwise incur thereby, an individual

who willfully violates Section 3; 4, 5, 6, or 7 of this Act is guilty of

a [specify grade of offense].

APPENDIX C

BAY AREA NETWORK OF ETHICS COMMITTEES

BANEC-GENERATED GUIDELINES FOR

COMPREHENSIVE CARE OF THE TERMINALLY ILL

(NOTE: These guidelines are intended for use regardless of the

patients’ residence -- home, hospital, hospice, clinic, or extended

care facility -- as they approach death.)

I. The ultimate responsibility for the care of the patient,

pertaining to end-of-life decisions and treatments, resides

with the patient's physician.

Il. The primary care physician is qualified to provide

appropriate care, with or without consultation, for the great

majority of patients who are dying.

Ill. The care of patients experiencing "difficult deaths," those

undergoing (in their judgment) intolerable or prolonged

suffering as they die, or patients who are making complex

and irreversible decisions about end-of-life (including the

decision to hasten death), may fall out of the range of skills

of many primary care physicians.

Hospice programs have extremely effective teams which

provide medical care had help patients with their decisions about

end-of-life treatments. Certain physicians in the medical

community are also recognized to have special expertise in

palliative, end-of-life care. For those patients who face difficult

deaths, or those who are making complex and irreversible decisions

about terminal care (including a request for physician aid in

hastening their death), THE BANEC GUIDELINES URGE

REFERRAL TO A HOSPICE PROGRAM AND/OR

CONSULTATION WITH A PHYSICIAN EXPERIENCED IN

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PALLIATIVE CARE (including, but not limited to, pain control).

Many patients, given appropriate and skilled palliative end-of-life

care, will withdraw their requests for a hastened death.

IV. At times, in spite of skilled physical, psychological,

spiritual and social care, an adult, mentally competent and

terminally ill patient will desire a physician's aid in

hastening death.

V. These guidelines urge that, before a physician aids a patient

to hasten his or her death, the following occur (with

specific documentation in the patient's hospital chart and/or

outpatient medical records):

(NOTE: No physician, nurse, physician-assistant, pharmacist, or

other health care worker is required to participate in the act of

hastening a patient's death. nor in the patient's evaluation for such

an act. However, these guidelines recommend that participation

practitioners who exclude themselves from such participation

respond to a patient's request for a hastened death by advising that

patient of his or her right to obtain consultation from other

practitioners, and/or facilitating the transfer of care should the

patient so request.)

Chart documentation should include:

A) The primary care physician's ascertaining of:

1) The terminal diagnosis (a reasonable certainty of death

within six months provided the disease runs its expected

course, ascertained by review of the medical records and

pertinent history and physical examination).

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2) An assessment to confirm that, in the best judgement of the

physician, the patient is mentally competent and not

suffering from a depression that impairs decision making

capability. (IT IS HIGHLY RECOMMENDED THAT

PHYSICIANS NOT EXPERIENCED WITH SUCH AN

EVALUATION SEEK APPROPRIATE AID. WITH

THEIR PATIENT'S CONSENT, FROM OTHER

PRACTITIONERS IN THE MEDICAL,

PSYCHOLOGICAL, OR SOCIAL SERVICES

COMMUNITY.)

3) That high-quality palliative care, by hospice and/or a

physician recognized to have expertise in palliative care.

has been made accessible to the patient.

4) That, to the best of the physician's knowledge, the patient's

choice to hasten death has been freely made. independent

of financial, family, health insurance, or other coercion.

A second opinion to confirm the four points noted above by the

primary care physician. These guidelines strongly recommend

that the second opinion be obtained from a physician

recognized to have expertise in palliative end-of-life care.

Documentation of the patient's evaluation by a hospice

program and/or physician with palliative care expertise (this

can coincide with the second opinion noted above).

Documentation should also be made of the palliative-care

recommendations resulting from this evaluation. and the ways

in which they have or have not been followed.

Alternately, documentation should be made that the patient

declines an evaluation for improved palliative care. These

guidelines recommend that these patients sign a form (see

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attached) to indicate an understanding that they have waived a

medical evaluation that could offer care with significant

potential for improving their quality of life as they die.

The patient has been counseled that a decision to hasten death

should, if at all possible, be discussed in detail with family

members, loved ones, and others who are likely to be

significantly affected by this decision.

The patient has also been counseled that the hospital and

hospice medical ethics committees are valuable and willing to

discuss his/her care, and the decision to hasten death, with the

patient and/or family.

A witnessed consent form should be signed by the patient (see

example attached), to include full disclosure of the illness, the

procedure to aid the patient in hastening death and the

associated risks, and a statement that other medical options

exist (including hospice care) that might provide further

comfort without hastening death.

The witnessing procedure should be in accordance with that

now established for the signing of a Durable Power of Attorney

for Health Care Decisions, i.e.: "(1) Two qualified adult

witnesses who are personally known to the patient (or to whom

the patient provides evidence of his/her identity), and who are

present when the patient signs and acknowledges the signature.

or (2) acknowledged before a notary public in California. If the

witness is other than a notary public, the law provides that none

of the following be used: (1) a health care provider or an

employee of a health care provider, (2) an operator or an

employee of a community care facility or residential care

facility for the elderly. Additionally, at least one of the

witnesses cannot be related to the patient by blood, marriage. or

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adoption, or be named in the patient's will. For patients in a

skilled nursing facility, one of the witnesses must be a patient

advocate or ombudsman."

For patients and/or witnesses who are not able to understand

the consent form in English, the forms will be provided in a

language they can understand, or the signatures should be

accompanied by that of a competent translator.

A second witnessed signature by the patient must be obtained.

no sooner than 48 hours after the first signature.

Before aiding the patient in hastening death. there should be

chart documentation of verbal counseling that the patient has

the right, at any time, to change his or her mind and to return to

care that includes the involvement of a hospice team or another

physician experienced in palliative care.

Chart documentation that the physical process of hastening

death was initiated and completed by the patient: These

guidelines emphasize that the physician may aid the patient in

the process of hastening death (i.e. by provision of oral or

injectable medication, or the starting and maintaining of

intravenous access), but it should be the patient's own physical

effort that initiates and completes the process.

(NOTE: In the BANEC discussions of this document, a significant

minority felt that section H draws an artificial mechanical boundary

between a "patient initiated" hastened death and a physician's act of

administration of drugs once other guideline recommendations

have been met. However, since the 9th Circuit Court addressed

only physician assisted suicide, the final BANEC guidelines reflect

this limitation and refer only to a "patient initiated and completed”

process. )

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1) These guidelines emphasize that, although it is the patient who

undertakes the proximate action that leads to the hastened

death, a physician or the physician's designee responsible for

the care of the patient should remain immediately and

continuously available to the patient and family until death has

occurred.

J) The cause of death on the death certificate should be listed as

the underlying disease.

K) Reporting: These guidelines urge that a system similar to that

of the California Tumor Registry (including the confidentiality

of information) be established to which all cases of physician

aid in the hastening of a patient's death be reported. This

registry would be able to request, for review, the full medical

records of the patient, including details of the hastened death.

The registry should track complete demographic information

and issue an annual report detailing its findings. This report

should be accessible to the public.

It is also recommended that existing hospital, hospice and

community clinic peer-review organizations include cases of

aid in hastening deaths in their mandate of review.

This document is a blueprint for potential policy, to be used as

deemed appropriate by individuals or organizations. The Bay Area

Network of Ethics Committees provides a forum for open,

independent discussion of ethical issues in healthcare. Opinions

and guidelines proffered via BANEC are not necessarily

representative of or endorsed by any individual or organization

participating in BANEC discussions, and are non-binding in all

cases.

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FORM #1: (two sides)

BANEC-generated guidelines for

Appropriate Care of the Terminally III

DOCUMENTATION OF OFFER OF CONSULTATION

AND SERVICES BY HOSPICE OR OTHER

PALLIATIVE CARE EXPERT

NAME:

My physician, , has recommended

that | be evaluated by a hospice program and/or another physician.

both of which have special expertise in controlling the emotional,

spiritual and physical suffering that can be associated with dying.

It is my understanding that hospice programs and such physicians

can provide the optimal treatment for terminally ill patients such as

myself, and that such treatment might include improved treatment

for the pain associated with my illness, treatment and counseling

for possible depression or other psychological or social issues, or

other problems related to my condition. | further understand that

while such treatments will not cure my condition or significantly

extend my life, they do have the potential to improve my quality of

life. It has been explained to me that a consultation with hospice is

readily available to me, and that hospices can make arrangements

that will not place additional financial burdens on myself or my

family while they provide such services.

After due consideration of this information and offer of

referrals, | hereby certify that:

personnel or physician, or

OI have accepted the referral and have consulted with (check one

or more)

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Signature of patient Date

Signature of witness Date

The witnessing procedure should be in accordance with

that now established for the signing of a Durable Power of Attorney

for Health Care Decisions, i.¢.: "(1) Two qualified adult witnesses

who are personally known to the patient (or to whom the patient

provides evidence of his/her identity), and who are present when

the patient signs and acknowledges the signature, or (2)

acknowledged before a notary public in California. If the witness is

other than a notary public, the law provides that none of the

following be used: (1) a health care provider or an employee of a

health care provider, (2) an operator or an employee of a

community care facility or residential care facility for the elderly

Additionally, at least one of the witnesses cannot be related to the

patient by blood, marriage, or adoption, or be named in the patient's

will. For patients In a skilled nursing facility, one of the witnesses

must be a patient advocate or ombudsman."

For patients and/or witnesses who are not able to

understand the consent form in English, the forms will be provided

in a language they can understand, or the signatures should be

accompanied by that of a competent translator

Signature of primary physician Date

Signature of translator (if applicable) Date

FORM 2: (two sides)

BANEC-generated guidelines for

Appropriate Care of the Terminally III

INFORMED CONSENT-- REQUEST FOR

PHYSICIAN ASSISTED DEATH

Patient's name:

1, the above-named patient, being of sound mind. have of

my own free will and in consultation with my physician and others

close to me, decided that it is my desire to end my life. | hereby

certify that:

I am an adult resident of the State of California.

I believe, and my physicians agree. that | am mentally

competent to make decisions regarding my life and death.

| have a confirmed terminal diagnosis with a reasonable

prediction that, if the disease runs its expected course, | will die

within six months of this date.

| am making this choice to hasten death of my own free

will and have not been convinced or coerced to do so by any other

persons or party, including any insurer or payor involved in the

finances of my health care.

I have been offered full use of medical and hospice services

and expertise for the improvement of my condition and quality of

life. including management of my pain and discomfort. and have

either availed myself of such consultations or have declined to do

sO,

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I have also been offered consultation with an ethics

committee of a hospice or hospitals and have or have not

undertaken this consultation in accordance with my best

judgement.

I have, in accordance with my best judgment, discussed (or

chosen not to discuss) this final decision with any members of my

family or others who will be affected by my death.

I have discussed the process to be utilized to hasten my

death, its risks, and alternatives. and have chosen this method as

my preferred means of ending my life:

I retain the right at any time to change my mind and

withdraw my request to die. | understand that all other options for

care. including hospice and other measures that are likely to make

me more comfortable, continue to be available to me at all times.

First request:

Signature

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Second request:

Signature

Date: Time:

(Must be 48 hours from first request)

Signature of witnesses of patient's first signature: (NOTE: The

selection of witness is in accordance with the regulations now

established for the signing of a Durable Power of Attorney for

Health Care Decisions).

#1:

Name and Signature

Date: Time:

#2:

Name and Signature

Date: Time:

Signature of witness of patient's second signature:

#1:

Name and Signature

Date: Time:

#2.

Name and Signature

Date: Time:

Name and signature(s) of translator (if applicable)

Date: Time:

The witnessing procedure should be in accordance with

that now established for the signing of a Durable Power of Attorney

for Health Care Decisions, i.e. "(1) Two qualified adult witnesses

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who are personally known to the patient (or to whom the patient

provides evidence of his/her identity), and who are present when

the patient signs and acknowledges the signature, or (2)

acknowledged before a notary public in California. If the witness is

other than a notary public, the law provides that none of the

following be used: (1) a health care provider or an employee of a

health care provider, (2) an operator or an employee of a

community care facility or residential care facility for the elderly.

Additionally, at least one of the witnesses cannot be related to the

patient by blood, marriage, or adoption, or be named in the patient's

will. For patients in a skilled nursing facility, one of the witnesses

must be a patient advocate or ombudsman." —

For patients and/or witnesses who are not able to

understand the consent form in English, the forms will be provided

in a language they can understand, or the signatures should be

accompanied by that of a competent translator.

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FORM 3: (two sides)

BANEC-generated guidelines for

Appropriate Care of the Terminally Il!

REPORT OF A PHYSICIAN-ASSISTED DEATH

(To be completed by the patient's primary physician)

(NOTE: All cases of assisted death should be reported to an

appropriate organization. Until such time as an official reporting

entity has been established, the BANEC guidelines recommend

reporting to the local Health Department, hospital

or hospice ethics committee, or an established peer review or

quality assurance committec. )

This information will be held confidential and will be

reviewed for compliance with recommended standards of practice

only. It is hereby agreed that the patient's complete medical records

may be requested by such a review committee, and | hereby agree

to provide these records if so requested.

Patient name (or identifying code):

Patient's date of birth: Age: Sex:

Ethnicity:

Physician:

Patient's diagnosis:

Second physician who confirmed terminal diagnosis:

Date of death:

Location of death: (Institution/home/or?)

Physician's relation to patient (check one):

months/yrs.

C) Patient was referred to me to deal with the illness/symptoms

which led to the request for hastened death. Date of referral: __

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OI believe patient was referred to me specifically regarding the

hastening of death. Date of referral:

First witnessed request for a hastened death:

Date: Time:

Second witnessed request for a hastened death:

Date: Time:

Diagnosis and symptoms leading to patient's request:

Was patient referred for palliative care/hospice consultation:

O Yes ONo

Did the patient accept this consultation: 0 Yes 0 No

If Yes: Date of consultation:

By whom:

Outcome:

Please attach copies of signed forms:

1) Documentation of Offer of Consultation and Services by

Hospice or Other Palliative Care Expert.

2) Informed Consent for Physician Assisted Death.

3) Physician Checklist in Assisted Death Cases.

Location of patient's medical records:

Mode of assisted dying utilized:

Other comments (use other side of form and additional pages as

needed).

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FORM #4: (two sides)

Patient's name:

Physician's name:

BANEC-generated guidelines for

Appropriate Care of the Terminally II]

PHYSICIAN CHECKLIST IN ASSISTED DEATH CASES

(to be completed before the hastening of a patient

Prior to assisting in the death of a patient, please confirm

the following:

The patient is an adult resident of California

As the patient's physician, | am well aware of the patient's

medical history, condition, diagnosis and prognosis.

The patient's condition is terminal, with death otherwise

expected to occur within six months of this date.

A second physician has confirmed this terminal diagnosis.

The patient is mentally competent and able to exercise rational

thought processes in making decisions regarding their health

care.

High-quality palliative care, by hospice and/or physicians

qualified to provide such care, has been offered to the patient,

with full understanding that such care might result in an

improved quality of life in the patient's remaining days.

If such care has been refused by patient, such refusal has been

documented by signed consent form.

To the best of the physician's knowledge. the patient's choice to

die has been freely made, independent of financial, family.

health insurance, or other sources of coercion.

The patient has been offered consultation with an ethics

committee.

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Ql The patient has been offered counseling by psychiatrist,

therapist, social service worker, clergy or other.

Q) The patient has been counseled to discuss his/her decision with

any family members, loved ones, or others who will be affected

by this decision.

QO The patient has made the required two signed, witnessed

requests, at least 48 hours apart, for a hastened death.

0 The patient has been offered appropriate means by ending

his/her life, with full disclosure of the process, pros and cons of

each, and has made an informed choice of which intervention

will be utilized.

QO) At the time of the procedure, the patient is still competent, has

made a third, final request, with witness(es) present, and has

been advised that the procedure may be halted at any time upon

the patient's request, v ith a return to optimal palliative care as

an option.

QO A healthcare professional (physician or nurse) with expertise in

this area has been identified who will remain immediately and

~~ continuously available to assure that distressing symptoms are

minimized via appropriate palliative means.

Following death, the usual confirmation and reporting

requirements are in effect, with the addition of the reporting form

for physician-assisted death.

NARRATIVE SECTION (OPTIONAL): PLEASE UTILIZE

THE BACK OF THIS FORM AND/OR ADDITIONAL PAGES TO

ADD ANY COMMENTS DEEMED APPROPRIATE

REGARDING THIS PATIENT'S CASE.

Physician's signature Date

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.