HELENA – The Legislature had been out of session in the year since the Montana Supreme Court ruled that nothing in state law prevents physician-assisted suicide, leaving doctors and terminally ill patients to operate without regulations or oversight.
Now that lawmakers have convened in Helena, they are being asked to consider two competing measures: one that would create rules for doctors who are asked to write a prescription for a lethal dose of medication and another that would ban assisted suicide altogether.
The Dec. 31, 2009, Supreme Court ruling in the case Baxter v. Montana effectively made Montana the third state to allow physician-assisted suicide, along with Oregon and Washington.
Advocates, while applauding the Supreme Court decision, say many physicians still fear prosecution because of the lack of standards and regulations.
“Unless there is detail spelled out by the Legislature, I think a great number of physicians will be hesitant to follow through,” said Steve Johnson, a brain tumor patient from Helena.
One measure, Senate Bill 167, aims to protect patients from being coerced, sets out specific steps for physicians to follow and would require a patient to receive two doctor opinions before they could be prescribed the lethal medication.
“This ensures that doctors can follow the will of their patients without fear of prosecution,” said Sen. Anders Blewett, D-Great Falls, the bill’s sponsor. “I don’t think government has any role in telling patients how to make their medical decisions.”
The other measure, Senate Bill 116 sponsored by Sen. Greg Hinkle, R-Thompson Falls, would flatly prohibit assisted suicide.
“The potential for an elder person to be abused for monetary reasons is huge,” Hinkle said. “There is no real way to protect that.”
Since the Supreme Court decision, more than one terminally ill patient has died of a lethal ingestion of drugs, said Jessica Grennan, spokeswoman for the advocacy group Compassion & Choices.
The actual number of physician-assisted suicides is unclear because there are no state reporting requirements to the state. Compassion & Choices does not release statistics about its end-of-life consultation service.
Blewett’s bill would not create such a reporting requirement. What it would do is define what terminally ill means, require a patient to meet that definition to qualify and ensure that the patient is mentally competent to make the decision.
Once the doctor diagnoses a patient as being terminally ill, that patient must make voluntary oral and written requests for a lethal prescription of medication. The request must be signed by two witnesses, one of whom must be a person who is not related by blood, marriage or adoption.
The doctor must then refer the patient to a second physician to confirm the first doctor’s diagnosis and that the patient is competent and acting voluntarily. That second opinion requirement can be waived if an appointment can’t be made in a reasonable amount of time, if the doctor is too far away, or else if the illness has advanced to the point where confirmation is not necessary.
If a patient is diagnosed as depressed, the doctor must refer that patient to counseling, and the medication may not be prescribed until the counselor determines that a disorder or depression is not impairing the patient’s judgment.
The doctor would not be allowed to help the patient administer the drugs.
The Montana Supreme Court ruling came in the case filed on behalf of Robert Baxter of Billings and four physicians. Baxter died of lymphoma Dec. 5, 2008 — the day a district judge ruled that Baxter had a protected right to end his suffering and bring about a peaceful death by ingesting medication.
Baxter’s daughter, Roberta King, was in the Capitol recently to support Blewett’s bill.
“I just want to make sure this is left in place for people,” King said. “I don’t want anybody else to be deprived of the right to do this before they pass.”
Hinkle said that despite the advocates’ best efforts to protect against patients from being coerced into physician-assisted suicide, there is no real way to safeguard against elder abuse.
Relatives could force an elderly patient to sign a request that is supposed to be voluntary, and even doctors could be influenced, he said.
Hinkle also dismissed the argument that the government should not get between a patient and his physician.
“There are all these rules and regulations that doctors have to deal with. I don’t think that’s an argument,” he said.
While his bill would prohibit assisted suicide, Hinkle said the measure would not affect end-of-life directives, withholding life support or hospice care.
He said there is a big difference between assisted suicide and a physician switching off life support because of an end-of life directive previously signed by the patient.
“One is you’re deliberately killing somebody else and the other is you’re not,” he said. “If the person is not on life support, the prognosis of the doctor might be wrong.”
Jean Branscum, the executive director of the Montana Board of Medical Examiners, said the board has not taken up either bill and has not taken a general position on assisted suicide.
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