Montana judge rejects stay of physician-assisted suicide ruling

The decision maintains the legality of aid-in-dying until the state Supreme Court takes the case. Meanwhile, Washington debates how to regulate doctor-assisted suicide.

By Kevin B. O’Reilly — Posted Jan. 29, 2009

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A Montana state district judge ruled in December 2008 that mentally competent patients with terminal illnesses have the right to physician-assisted suicide under the state's constitution. In early January the same judge, Dorothy McCarter, rejected the state attorney general office's request that her order be stayed until the Montana Supreme Court considers the case on appeal.

McCarter said in a one-page order that issuing a stay of her decision in the case of Baxter v. Montana would "deny the fundamental right of Montanans to die with dignity for a lengthy period of time while the case is being appealed."

The order means that physician-assisted suicide is now legal in three states: Oregon, Washington and Montana. The state's new attorney general, Democrat Steve Bullock, plans to appeal the Baxter decision, a spokesman said.

It could take several months to a year before the state Supreme Court rules on the case, said Kathryn Tucker, co-counsel for the plaintiffs in Baxter. In the meantime, Tucker said, McCarter's ruling should put doctors on relatively secure legal ground.

"This ruling gives a lot of comfort to a physician who has a patient suffering in the final stage of a terminal illness who wants this option to feel comfortable writing that prescription," said Tucker, director of legal affairs for Compassion & Choices, a group that supports access to doctor-aided dying. "If there were a prosecutor that got excited about bringing a case forward, which I think would be unlikely, any court would throw that case out."

But Kevin O'Brien, a spokesman for Bullock, said there may be a reason for physicians to think twice about writing deadly prescriptions.

Oregon and Washington "have clearly defined what terminal illness and mentally competent mean," O'Brien said. "Judge McCarter, in her ruling, gave no guidelines on what those two things are. So, I guess a doctor would be very concerned with what those are before any type of prescription is written."

O'Brien said he could not answer whether the state Justice Dept. would prosecute a physician who takes part in assisted suicide. The Montana Medical Assn. has no policy on physician-assisted suicide and does not plan to take part in the Baxter appeal, the association's CEO said.

Washington regulations proposed

In related news, the Washington Dept. of Health in early January proposed rules that would govern doctor-aided dying in accordance with Initiative 1000, which voters adopted in November 2008.

The proposed rules are virtually the same as those in Oregon, experts said. The Washington law makes physician-assisted suicide available only to patients who have been judged terminally ill by two doctors. Patients must make an oral request and a witnessed written request. Another oral request must be made 15 days later. Physicians must tell patients about options such as hospice and palliative care.

The Washington State Medical Assn., which opposed I-1000, said in a letter to the health department that patient forms should more precisely define "terminal disease" as being "incurable and irreversible," leaving patients with less than six months to live. The WSMA also said state forms should acknowledge the possibility of complications after the prescribed medicine is ingested. The draft form asks patients to acknowledge that death may take longer than three hours.

American Medical Association policy opposes physician-assisted suicide because the practice is "fundamentally inconsistent with the physician's role as healer."

The Coalition Against Assisted Suicide opposed I-1000 and plans to file comments on the proposed rules. The group is encouraging supporters to contact doctors, hospices and hospitals to pledge not to take part in physician-assisted suicide.

A public hearing on the proposed regulations is set for Feb. 10 in Tumwater, Wash. The draft rules are available at the Washington Dept. of Health's Web site (link).

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