Montana Case Highlights Potential Abuse by Doctors on Assisting Suicide

State   Jennifer Popik, J.D.   Jun 14, 2013   |   3:24PM    Helena, MT

This week, in Montana District court, Judge Mike Menahan heard arguments involving doctor-prescribed suicide. At issue is the effort by Montanans Against Assisted Suicide to strike the state Board of Medical Examiners’ permissive policy that guides physicians on doctor-prescribed death.

In a 2009 decision, the Montana Supreme Court interpreted existing Montana law to allow doctors to raise a defense of consent if charged with assisting suicide at a criminal or civil trial. The court stopped short of making assisting suicide a constitutional right in the state.

The case before Judge Menahan involves a Board of Medical Examiners’ rule adopted last year that says it would consider, on an individual basis, any complaints filed against a doctor for providing “aid-in-dying.” Montanans Against Assisted Suicide is asking the court to have the medical society vacate this rule, and return to the original policy where the medical society opposes the practice, and would allow all complaints on the matter.

A LENGTHY AND COMPLICATED BACKGROUND

During this last legislative session, two separate bills were defeated, one that would have criminalized doctor-prescribed death, and another that would have outright permitted the practice. Although there appears to be much public confusion over the status of the law, under current Montana law, physicians can still be prosecuted.

However, since there are no formal guidelines (either from the state, or from the Medical Society), it will remain nearly impossible to know how common the practice is. As described in an April, 2013, New York Times piece titled, “In Montana, New Controversy Over Physician-Assisted Suicide,” Dr. Eric Kress, a Montana physician, indicated that he has assisted in multiple deaths. He admitted to reporter Paula Span that he had assisted in the death of at least three patients.

In light of this, it is important to assist people in filing complaints against physicians who might be in violation of some provision of state law. Hence today’s court challenge.

Doctor-prescribed death is a battle being waged on many fronts – not just in Montana. The doctor-prescribed advocacy groups, Compassion & Choices and the Death with Dignity National Center, have been in high gear, targeting many states this legislative. After a decade-long fight, they did prevail in the state of Vermont, making it only the third state to legalize the practice.

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In contrast, a Connecticut bill lacked the support to even move it out of committee in 2013, and Maine’s Health and Human Services Committee rejected a similar bill on a vote of 10-2. Now, all eyes are on the fight that is heating up in New Jersey. More on this can be found at “Assisting Suicide promoted in large number of states.”

One of the major arguments that Compassion and Choices (the main assisted suicide lobby) uses is that the suicide measure they promote has so-called safeguards. Legally, the claim that the practice can even be safe-guarded is inaccurate. More information on how the safeguards are an illusion is available here: www.nrlc.org/MedEthics/WhySafeguardsDontWork.pdf

What is even more revealing is that Compassion and Choices does not even desire safeguards. Kathryn Tucker, a lawyer for Compassion and Choices, told the Bozeman Daily Chronicle in February of 2009 that, lawmakers should not be passing anything to regulate doctor-prescribed death in light of the state Supreme Court decision. She said, ‘It’s very unusual that a physician would be governed by a statute telling them how to practice medicine.”

LifeNews Note: Jennifer Popik is a medical ethics attorney with National Right to Life. This column originally appeared in its publication National Right to Life News Today.

CORRECTION: The Board of Medical Examiners is a state licensing Board, not a “medical society” as identified by the article. Also, the Baxter case did not address civil liability.