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Interview
Legislation on "death with dignity" in U.S.
Interviewee; Dr. Carol Suzuki
Interviewer; Dr. Masako Minooka (Executive Director of JACE)
A Interview with Dr. Suzuki who is a tenured professor of law at the University of New Mexico School of Law in Albuquerque, New Mexico .
On 18th April 2013, we had a meaningful talk for hours about End-of-Life Care and legislation on "Death with Dignity".
Some of the main Questions & Answers are below.
Q1;
Please tell us about the present situation of legislation on "death with dignity" in U.S. I hear in some states they discuss not only withholding & withdrawing life sustaining treatment by the patient's wish (1) or surrogate's wish (2), but also physician assisted death or aid in dying (3).
A1;
As a general matter, withholding or withdrawing life-sustaining treatment are measures that may allow a patient to die a natural death with dignity. As specific terminology, "death with dignity" has legal significance in the United States, with a different focus than how the term is utilized in Japan, because the term is used in some state laws that allow physician aid in dying. Oregon, Washington, and Vermont1 have "death with dignity" laws that allow a competent state resident, with an incurable and irreversible disease that will lead to death within six months, to self-administer a legally-prescribed lethal dose of medication. Physician aid in dying is also allowed in Montana based on a 2009 state court decision. 2
  1. Or. Rev. Stat. §§ 127.800 to 128.995 (effective 1997), available at
    http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/statute.pdf
    ; Wash. Rev. Code §§ 70.245.010 to 70.245.904 (effective 2009), available at http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245; S.B. 77, 2013-14 Leg. (Vt. 2013) (enacted May 20, 2013) (to be codified at Vt. Stat. Ann. tit. 18, §§ 5281-5292), available at http://www.leg.state.vt.us/docs/2014/Acts/ACT039.pdf.
  2. Baxter v. State, 224 P.3d 1211, 354 Mont. 234 (2009).
Q2;
In Japan the legislation on "death with dignity" is being discussed enthusiastically. It is that "If a patient shows his wish to refuse life sustaining treatment in writing, medical providers are not impeached for his death". It is the case of (1) withholding & withdrawing life sustaining treatment by the patient's wish. Some patient groups oppose the legislation. What do you think of this legislation?
A2;
Legalization of advance directives, such as a living will, supports patient autonomy and dignity. Advance directives provide direction to medical care providers, or an agent, guardian, surrogate or other person with legal decision-making power, to help guide decisions where a patient is not competent to state his or her wishes. The "death with dignity" legislation proposed in Japan would allow a doctor to withhold life-sustaining medical treatment to a terminally ill patient if the patient has a written document setting forth those wishes. A second proposal additionally allows a doctor to withdraw life-sustaining measures that have already been initiated. In the United States, we would need to look at the laws of each state to see how a state addresses the withholding and withdrawal of life-sustaining medical treatment based on a patient's living will or other advance directive. A patient should consider creating a directive prior to a medical emergency so that the patient has an opportunity to make thoughtful choices in regard to medical care and any agent or proxy permitted by law. A Japanese law that legalized an advance directive would help to ensure that a patient's preferences could be documented and would be followed. It would protect medical care providers who act in accordance with the written wishes.
Q3;
In the case that patient is incompetent and no Advance Directive, is it possible to withhold or withdraw life sustaining treatment by the opinion of the family (surrogate) in the U.S.?
A3;
We would need to look at state law in the situation where there is an incompetent patient without a written advance directive addressing the withholding or withdrawal of life-sustaining treatment. It would be important to try to determine what the patient's wishes are in order to respect patient self-determination and autonomy. A pivotal case is Cruzan v. Director, Missouri Department of Health3, where the U.S. Supreme Court found that a person has a right under the U.S. Constitution to refuse medical treatment, but that a state could require "clear and convincing evidence" that the patient would want life-sustaining treatment withdrawn. Although there was no written advance directive in that matter, the state trial court allowed the guardians to terminate treatment after it heard witness testimony that the patient had made prior oral statements that demonstrated she would not want the life-sustaining treatment.
As always, we would look to state law for guidance. Under the doctrine of substituted judgment, we could try to determine what the patient would want if the patient had decisional capacity. Are there relevant prior statements of the patient that reflect the patient's values? Let's consider a hypothetical situation where a patient is incompetent, and the patient's wishes are unknown because they have never been expressed through an advance directive or other instructions, and the patient had not appointed a health-care agent (decision-maker). If the patient had not appointed an agent and if there is no guardian to make health-related decisions, state law may require we look to the surrogate established by law, and the law may require the surrogate to make decisions in the patient's best interest. Generally, a provider will provide life-sustaining treatment if there is no one to speak on behalf of the patient's interests. Bioethicists might consider turning to beneficence, a principle of bioethical decision-making, to determine the best interest of the patient.
  1. 497 U.S. 261 (1990).
Q4;
What do you think of the case of Kameda General Hospital in Japan? [A competent patient with ALS wished to remove respirator when he couldn't communicate (it means status of 'locked-in'). He wrote his wishes on 9 pages papers. His family understood his wish. And hospital interdisciplinary ethics committee discussed for 1 year and decided to accept his wish. But the director of hospital refused to accept his offer being afraid of lawsuit.]
Do you have the same case like Kameda General Hospital in U.S.? And what happens after patient's wish is rejected?
(Please refer to what you said [It can happen in U.S. But after the rejection the family sues the hospital. Or change the hospital.]
A4;
In the United States, where there is conflict between the medical care provider and its ethics review board, and the patient or the patient's health-care agent, guardian or surrogate, or concern about liability, a party might choose to go to court to get an order regarding the continuation of or the termination of life-sustaining treatment.
We would need to look at the laws and case law of each state to see how a patient's right to refuse treatment is balanced against state interests and criminal laws prohibiting physician aid in dying. There is precedent to allow a competent adult to refuse life-sustaining medical treatment, including nutrition and hydration. For example, the patient in Bouvia v. Superior Court4 was a competent 28-year-old woman with severe cerebral palsy who was quadriplegic. She could not eat on her own and a feeding tube was inserted after she expressed an intent to starve herself in order to die. With sufficient feeding, the patient would probably live another 15 to 20 years. She sued to be allowed to refuse medical treatment. The California Court of Appeal stated, "Being competent she has the right to live out the remainder of her natural life in dignity and peace. . . . Personal dignity is a part of one's right of privacy." It granted the patient the relief she sought and ordered the feeding tube to be removed. After the court case ended, the patient decided to continue to receive medical treatment.
  1. 225 Cal. Rptr. 297, 179 Cal. App. 3d 1127 (Cal. Ct. App. 1986).

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