# Amicus Curiae Brief — Washington v. Glucksberg

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A54

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 702

## Text

OCTOBER TERM, 1996 | amen

>_>
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... - . 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

ix

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

x

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?

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).

26

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").

27

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).

28

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

29

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." ).

30

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

—
Ps

fa

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.

A-9

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

A-10

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].

(c) “Health care facility" means a hospital, hospice, nursing
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

B-2

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

B-3

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:

(C) has been made free of undue influence by any
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

B-4

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;

(c) counsel the patient to inform the patient's family of the
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

B-5

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.

B-6

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

(c) place the written opinions described in paragraphs (a) 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.

B-7

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.

(c) An individual who acts on the basis of an honest belief that
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

B-8

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

B-9

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

(c) The Board of Registration in Medicine [or similar state
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.

B-10

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

B-11

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

C-2

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).

B)

C)

C-3

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

D)

E)

C-4

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

F)

G)

H)

C-5

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. )

C-6

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.

C-7
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:
© I decline the recommendation of a consultation with hospice
personnel or physician, or
OI have accepted the referral and have consulted with (check one
or more)

C-8

© Hospice representatives
© Another physician as referred to by my primary physician
© Other.

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,

C-10

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

C-11

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

C-12

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.

C-13
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):

© I have been the patient's primary physician for —_|
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: __

C-14

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).

C-15

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:

0
0

0

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.

C-16

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A54. Public record. Not legal advice.