By Norman L. Cantor
Justice Cardozo, the legendary jurist from New York, would turn over in his grave upon reading the New York Court of Appeals’ per curiam (unsigned) opinion in Myers v. Schneiderman, 2017 WL 3897181 (9/17/17). The lawsuit was filed by several terminally ill patients (and physicians serving such patients) challenging New York’s ban on physician assistance to a competent, terminally ill medical patient seeking a lethal prescription. The deficiency that would upset Cardozo was not so much the Court’s conclusion that application of assisted suicide laws to a dying patient does not violate constitutional rights of liberty and equal protection, but rather the Court’s perfunctory, over-simplified handling of the constitutional issues.
The most plausible constitutional challenge in this context is equal protection – a claim that states act arbitrarily in allowing terminal patients certain means of hastening a grueling dying process (rejection of life-sustaining medical intervention, use of risky analgesics or sedatives to relieve suffering, and voluntarily stopping of eating and drinking (VSED)) while banning a physician’s provision of a more expeditious means of hastening death – a lethal medication. The per curiam opinion’s dismissive response to this equal protection claim was that New York’s laws don’t differentiate among persons. From the Court’s perspective, every competent patient is entitled to reject medical intervention and every person is forbidden to assist a suicide. There are no invidious “discriminations” present. This myopic formulation of the equal protection issue ducks the complex distinctions made by state laws in the context of dying medical patients.
The issue of controlling the time and manner of death derives from medical science’s newfound (mid-20th century) capacity to prolong a fatally stricken patient’s dying process – sometimes beyond the patient’s tolerance for suffering or indignity. Patient choice and some medical management of the dying process became an accepted norm in confronting irremediably fatal pathology. The initial accepted means of controlling the timing of unavoidable death was through patients’ control of life-sustaining medical intervention (including chemotherapy, respirators, dialysis, or artificial nutrition and hydration). A competent patient’s prerogative to reject medical life support has been recognized as a basic legal right in every jurisdiction. Continue reading
by Norman L. Cantor
In the early days of living wills — the 1970’s and 1980’s – a major objective was to avoid being maintained on burdensome medical machinery in a highly debilitated status at the end stage of a fatal affliction. The contemporaneous legislation endorsing advance directives was typically geared to “terminal illness” (meaning likely death within 6 months). The distasteful specter was a moribund patient tethered to burdensome interventions like a respirator or a dialysis machine despite an unavoidable, looming demise. A common short-form living will rejected life support that “only prolongs the dying process” for a patient in “a terminal condition.”[i]
Another specter was being medically sustained in an utterly dismal quality of life – such as permanent unconsciousness without awareness or interaction with one’s environment. The contemporaneous legislation explicitly authorized advance directives seeking to avoid medical maintenance in a permanently vegetative state. And several landmark cases authorizing surrogate end-of-life determinations involved permanently unconscious patients. See Quinlan (N.J. 1976); Brophy, (Mass. 1986); Browning (Fla. 1990); Schiavo (Fla. 2005).
With the increasing prevalence of Alzheimer’s disease and similar degenerative dementias, the focus of advance directives has changed for some people. The primary specter is neither an unavoidable looming demise nor the insensate limbo of permanent unconsciousness. Rather, the emerging concern is protracted maintenance during progressively increasing cognitive dysfunction and helplessness. For some, being mired in a demented state is an intolerably degrading prospect well before the advanced stage when the person no longer recognizes loved ones and is totally uncomprehending.
For people like me who see even moderate dementia as an intolerably demeaning status staining their life image, their advance directive may seek to facilitate death by declining even simplistic medical interventions like antibiotics. Our hope is that death will soon ensue when an infection is left untreated or when artificial nutrition and hydration is withheld in the face of an eating disorder. Continue reading
by Norman L. Cantor
The right of a grievously stricken, competent patient to hasten death by ceasing eating and drinking is increasingly recognized. In the typical scenario, a person afflicted with a serious degenerative disease reaches a point where the immediate or prospective ordeal has become personally intolerable. The stricken person decides to shorten the ordeal by stopping eating and drinking, precipitating death by dehydration within 14 days. The dying process is not too arduous so long as there is a modicum of palliative care available – emotional support, lip and mouth care, and provision of a sedative if patient agitation or disorientation ensues.
A further question is whether a person can dictate a similar fatal course for his or her post-competence self by advance instruction to an agent. The instruction would be that — once a pre-defined point of dementia has been reached — either no food or drink should be offered to the incompetent patient or no manual assistance should be provided where the patient is not self-feeding. This post-competence SED tactic appeals to persons who view the prospective demented status as intolerably demeaning and wish to hasten their demise upon reaching that state. The legal claim would be that if a competent patient has a right to SED, the right ought to subsist post-competence when exercised by clear advance instruction. According to this claim, just as an advance instruction to reject a respirator would be upheld as an exercise of prospective autonomy, so an instruction for cessation of nutrition should be respected.
A person who undertakes responsibility for a demented person normally has a fiduciary duty to promote the well-being, comfort, and dignity of the ward. A guardian who forgoes available care measures such as shelter, warmth, hygiene, and food is chargeable with unlawful neglect. Provision of food and assistance in eating are normally part of that fiduciary obligation. A legal exemption might apply, though, if the guardian – in discontinuing hand feeding pursuant to an advance instruction — is simply respecting the right of the ward to exercise prospective autonomy. The question becomes: Is the acknowledged right to SED exercisable by means of an advance instruction? Continue reading
Medical personnel are trained to “first do no harm.” In end-of-life treatment, that simple directive can be difficult to interpret, and the legal landscape has evolved in the United States over the past 25 years. In 1990, the US Supreme Court ruled that physicians and other health care providers could withhold medical treatment at the direction of a patient or the patient’s directed agent.
Most recently, a movement to provide patients’ help in dying has been termed “death with dignity” and “assisted suicide.” Federal law does not currently address euthanasia or “mercy killings” in terminal patients who seek a physician’s aid to end their own suffering. Rather, the patient’s right to obtain a physician’s or other health care provider’s help to end their life is established by state law. Continue reading