A group of terminally ill patients and their doctors filed a lawsuit this week in New York demanding that the state make a declaration that doctor-assisted dying is legal in the state.
In the complaint filed on Wednesday, the plaintiffs demand that the state make a declaration that “a physician who provides aid-in-dying to a mentally competent, terminally ill patient who has requested such aid is not criminally liable”.
Dr Timothy Quill, a physician who specialises in palliative care, is one of the named plaintiffs in the suit. He was at the center of a controversy in 1991 when he wrote in the New England Journal of Medicine about having helped a patient, known as Diane, to die after her leukemia reached an advanced stage, an action which was – and still is – illegal in the state of New York, though a grand jury declined to prosecute him.
He told the Guardian that more recently, when another patient of his who had terminal cancer wanted to end his life, he had to do so by refusing food and drink. “It took him 10 days to die,” Quill said. “He thought it was absurd that he had to go through that.”
According to Quill, while not a common practice, doctors in states without a death-with-dignity law do still sometimes offer terminal patients a way out – though they risk prosecution and even imprisonment by doing so. (Though it is worth noting that the current New York attorney general has never prosecuted any doctor for involvement in assisted dying.)
“The motivation behind the lawsuit is that there is a law in New York – and other places, but particularly in New York – that is really antiquated and probably wasn’t intended to apply in situations that it’s being applied to; it was put into place to try to prevent people from encouraging patients who are suicidal, in a mental health sense,” Quill said.
He said that the lawsuit was designed to help “people [who] are trying to make decisions at the very end of a long fight against disease, that have been fully evaluated, screened, supported and are searching, quite desperately at times, for options to end their suffering.”
There are two routes to success for the New York lawsuit, according to Edwin Schallert, one of the attorneys representing the plaintiffs – and both have already worked in other states.
The court might decide that there is no law prohibiting doctors from assisting terminally ill patients in dying, as the supreme court of Montana did in 2009.
The other potential route to success would be if the court rules that such medical interventions are covered by laws against general assistance of dying, and that those laws are unconstitutional as an invasion of privacy, as a district court in New Mexico ruled in 2012. That case is still making its way through the courts; the state court of appeals is currently preparing its decision.
The issue of death-with-dignity laws vaulted into public consciousness after Brittany Maynard, a 29-year-old with terminal brain cancer, opted to end her life under Oregon’s new law. A Harris poll in November 2014 showed that 74% of Americans polled agreed with the proposition that “individuals who are terminally ill, in great pain and who have no chance for recovery, have the right to choose to end their own life”.
Barbara Coombs Lee, the president of Compassion and Choices, a nonprofit organisation that works for patient rights in end-of-life choices, and who co-authored Oregon’s Death with Dignity Act, told the Guardian that there is “a deep need, a crying need for clarity in many jurisdictions”.
In the US, the actual laws vary wildly from state to state. Currently, three state legislatures – Oregon, Vermont and Washington – have enacted laws which allow mentally competent, terminally ill patients to request prescription medication to end their lives. Montana and New Mexico have arrived at legal end-of-life provisions for terminally ill patients via legal decisions.
Canada’s supreme court on Friday overturned a national ban on doctor-assisted dying, giving the government one year to draft rules under which it may be carried out.
“An individual’s choice about the end of her life is entitled to respect,” wrote the court in its ruling.
In other states, though many have discussed or proposed some measure of death-with-dignity provision, it remains, by varying degrees, a crime for a doctor to assist a terminally ill patient in ending his or her life.
