Posts Tagged ‘suicide’

Montana High Court Approves “Death With Dignity” Request


Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to give him the prescription he wanted. They were concerned, they said, that doing so might expose them to criminal charges for assisting Mr. Baxter to commit suicide.

While suicide itself is usually not illegal, assisting another person to commit suicide is a crime in most American states. With the exception of Oregon and Washington (where state voter initiative actions have expressly legalized physician-assisted suicide in narrow circumstances), the notion of what is often called “physician aid-in-dying” has run up against the assisted-suicide prohibition.

Mr. Baxter and his physicians, with the assistance of a group called Compassion & Choices, decided to do something about Montana’s law. They asked the courts for an order recognizing Mr. Baxter’s rights under the Montana Constitution to seek his physicians’ assistance in ending his life, and those physicians’ authority to respond to his request.

In December, 2008, a state trial judge agreed, ruling that Montana’s Constitution promised its citizens both dignity and privacy. Those guarantees, said the judge, extended to the right of a physician to prescribe a lethal dose of medications. The Montana Attorney General appealed the ruling to the state’s Supreme Court.

On December 31, 2009, the state high court affirmed the trial judge’s ruling — though it used different logic to do so. Noting that it is always preferable to resolve issues without relying on Constitutional analysis if possible, the court ruled that Montana law would prevent the prosecution of a physician authorizing a lethal dose of medication for a competent, terminally ill patient requesting that prescription.

The court’s statutory analysis focused on the doctrine of “consent.” A patient who requested the lethal prescription has consented to the doctor’s actions. That would prevent a criminal prosecution, so long as the consent did not violate public policy — and the high court determined that no public policy considerations would be affected.

This circumstance can be distinguished, said the court, from the case of a noisy, dangerous fight between bar patrons who might “consent” to one another’s assault. No other individuals, and therefore no legitimate public policy, would be endangered by allowing physicians to respond to a patient’s request. Baxter v. State, December 31, 2009.

The Montana Supreme Court decision was not unanimous. Four of the seven Justices agreed with the majority opinion authored by Justice W. William Leapheart (one of those four, Justice John Warner, wrote separately to urge the Montana Legislature to take up the issue and resolve any uncertainties). One, Justice James C. Nelson, would have gone further — he argued for upholding the trial court’s Constitutional analysis. Two (Justice James A. Rice and District Judge Joe L. Hegel, sitting as a special Justice) would have reversed the trial court and found that “physicians who assist in a suicide are subject to criminal prosecution.”

Ironically, Mr. Baxter did not benefit directly from the court’s ruling. He died in 2008, the same day the trial judge ruled in his favor, and without ever having learned of his victory in either the trial court or the state Supreme Court.

Long Term Care Insurance: A Primer and Review


Almost half of those reaching age 65 in any given year are expected to spend at least some time in a nursing home during the last years of their lives. With nursing home costs in Arizona averaging as much as $35,000 to $40,000 per year, few can afford sustained long term care costs. Medicaid, the federal program which has paid those costs for most patients, is likely to be extensively revamped (and curtailed) in this budget year.

All of that is the rationale for a tremendous growth in sales of long-term care insurance in recent years. While millions of Americans have purchased policies since they became widely available a decade ago, many are uncertain of the value of those policies.

In a rapidly-developing industry, the only completely predictable element is change. The most recent innovation is development of a long term care policy based on life insurance. With such a policy, the purchaser who never enters a nursing home will have left a substantial payment to beneficiaries at death, while providing coverage in the event that nursing home placement becomes necessary.

The principal drawback to life-insurance-based long term care policies is cost. Since the policy also includes a death benefit, it stands to reason that the expense will be higher.

Purchasers of long term care insurance (whether or not they are considering one of the new kinds of policies) should be alert to common shopping pitfalls:

  • Length of coverage–current Medicaid rules impose a three-year penalty on asset transfers by the applicant. If the purpose of insurance is to permit transfer of assets (to children, for example), then coverage should extend for more than the three-year period. Given upcoming changes and a desire for flexibility, the prudent purchaser should opt for five years of coverage.
  • Home care–any good policy should provide coverage for assistance in the home. One item to look out for: “Activities of Daily Living” should include ability to bathe oneself. Otherwise, someone with limited deficits may need assistance but fail to qualify for in-home help.
  • Inflation protection–nursing home care costs tend to increase faster than inflation. Some policies permit periodic purchase of increased protection. Some life-insurance based products rely on increased policy value to make up future differences between cost and benefit.

Elderly Suicide Rate Increases

The suicide rate among elderly Americans is rising after decades of decline. That’s the conclusion of a federal study released last week that cites depression, alcohol abuse, social isolation and physical illness as leading risk factors.

The Centers for Disease Control and Prevention said the suicide rate for those 65 and older increased by nine percent between 1980 and 1992. The suicide rate for the elderly had declined from the 1940s until 1980, when it began to increase, the CDC said. The biggest suicide rate increase occurred among the 80-to-84 age bracket, while the rate declined among adults aged 65 to 74.

Oregon’s “Death With Dignity” Act Stricken By Federal


Last November, Oregon voters approved a ballot initiative called the “Oregon Death With Dignity Act.” This first-of-its-kind legislation created a right to physician-assisted suicide in narrowly proscribed circumstances. Predictably, opponents filed suit claiming the Act violates the U.S. Constitution.

Earlier this month a U.S. District Court Judge in Oregon sided with opponents of the Death With Dignity Act. In a nine-page opinion, Judge Hogan ruled that the Act violates the Fourteenth Amendment by denying equal protection of the laws to terminally ill patients who may also be depressed.

Oregon’s law provided a mechanism for securing physician assistance with suicide only when the patient:

  • is terminally ill,
  • initiates the discussion about suicide,
  • waits at least fifteen days, and
  • is examined by another physician on referral by the attending physician.

Judge Hogan’s opinion striking down the Oregon law makes the point that a clinically depressed patient who attempts suicide normally will come under the purview of the state’s civil commitment laws. Under those laws (essentially similar to Arizona’s), the patient would be evaluated by two independent and qualified physicians. If the patient’s suicidal actions appeared to be the result of a mental disorder (including but not limited to depression), the state would intervene and protect the patient from harm, even though the patient may not choose to be so protected.

Under the Death With Dignity Act, however, the determination whether the patient’s wish to die is the product of mental disorder is made by the attending physician and another chosen by the attending physician. This, says Judge Hogan, means that the terminally ill and suicidal patient is not adequately protected from the possibility that he or she might be mentally ill. This is true, according to the Court, because the examination is undertaken by:

  1. One physician and his or her choice of consulting doctor,
  2. Neither of whom is required to be a psychiatrist or trained in dealing with mental illness.

Thus, according to the Federal Court opinion, Oregon’s Death With Dignity Act fails to provide adequate protection for those who are both terminally ill and mentally ill. Consequently, the Act must fail.

The result of this decision is a legal anomaly. In Oregon, where voters adopted a Death With Dignity Act, physician-assisted suicide is not available because of Judge Hogan’s ruling. In Washington state, however, where voters rejected a nearly-identical Death With Dignity Act, another Federal Court ruling has found that physician-assisted suicide must be made available to the same patients.

Stay tuned for further legal developments.

White House Conference on Aging (Cont’d)

APRIL 10, 1995 VOLUME 2, NUMBER 40

More proposals considered by Arizona delegates to the White House Conference on Aging (by topic area):

Health Care and Mental Health

  • Permit reimbursement for direct care provided by nurse practitioners and physician’s assistants, for home care, preventive care and wellness programs.
  • Reduce duplication and coordinate services, particularly for those who access special services such as Veteran’s programs, Indian Health Services and Medicaid.
  • Control prescription medication costs.
  • Avoid rationing of health care by caps on service reimbursement and cost-benefit analysis of the true value of high-cost medical procedures.
  • Use excess hospital capacity for alternative services, such as extended care and assisted living.
  • Share medical resources, particularly high-tech equipment.
  • Consider means-testing Medicare (though a strong minority voice opposed any discussion of such a step).
  • Expand health programs to include mental health services.
  • Promote greater patient involvement in medical decisions.
  • Deal more creatively with substance abuse and suicide among the elderly.
  • Encourage medical professionals to work in rural and under served populations.
  • Institute a single-payor national health program (though this one did not make it into the final report).

Long Term Care

  • Shift emphasis from long term care in medical institutions to home care.
  • Provide tax incentives for family caretakers.
  • Encourage innovation in state and local programs by granting federal program waivers.
  • Promote prevention practices, among both elderly and young.
  • Encourage seniors to volunteer in their communities, to help them stay vital and involved.
  • Develop a wellness check program for homebound seniors.
  • Provide loans and incentives for home repair and adaptation for the homebound elderly.
  • Increase recreational programs for the elderly.
  • Expand case management programs.
  • Provide respite care for family care givers.
  • Promote congregate housing alternatives to reduce care costs.
  • Promote family and community responsibility for the elderly.

These are just a few of the myriad of suggestions considered by Arizona delegates. Next issue, we will discuss “special populations” and “elder rights.”

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