Tuesday, June 5, 2018

Breaking Down the Minnesota Legislation To Allow Physician Assisted Death

This is an effort to explain in non-legal lingo the Minnesota legislation pertaining to physician assisted death. For the record, the bill never came out of committee so was never discussed on the floor or brought to a vote. Assuming it does get introduced again in the next session, it will have a new numerical designation.  

Disclaimer: The author of this blog post is not a qualified medical professional or lawyer. What follows is my best understanding of the legislation as it is written.  


The New End-of-Life Option

Minnesota S.F. No. 1572, was titled “A bill for an act relating to health: adopting compassionate care for terminally ill patients, proposing coding for new law in Minnesota Statutes, chapter 145." Introduced in 2017, the bill to a committee first and never re-emerged. The document is 11 pages long, and its primary aim is to open the door to a new end-of-life option for Minnesotans.

I first began writing about ethical issues in terminal health care back in the early 1990s. I’ve spent more than 25 years following stories about end-of-life issues and have read many of the key books.

The purpose of this blog post is to highlight several features of the Minnesota legislation that was never voted on. If you wish to skip everything I've written and read it yourself, follow this link.

Like most legal documents the bill (hereafter referred to as S.F. 1572) begins with three pages of definitions. Terms such as “terminal illness” and “patient” and “informed decision” are all spelled out in language that aims to eliminate ambiguity. Defining terms is an important part of any conversation, but especially so when it involves matters that may end up in court.

Subdivision 3 outlines the criteria of who is eligible for medical aid in dying. The person must be a capable adult with a terminal illness who has voluntarily expressed a wish to receive medical aid in dying, twice orally and at least once in writing. The wording for the written request is outlined in Subdivision 5 and must be submitted to the attending physician and when signed must be in the presence of two witnesses. Specifics regarding the witnesses are designed to eliminate motives for helping the person die. That is, one of the witnesses must be a person who is no relation to the terminal patient and has nothing to gain from the death. Similarly, they cannot be an owner, operator or employee of a health facility where the patient is being treated.

It is in this written request section that S.F. 1572 indicates that the person is expected to die within six months. In other words, there is a time frame established in order for the qualified person to be eligible.

The written document has some additional features thoughtfully included. First, the patient has to initial a statement as regards whether the family has been informed or not. Also, there is a statement that spells out that the patient has a right to rescind this request at any time. Finally, the document they must sign indicates that they are fully aware that they expect to die when the prescribed medication is taken and that most deaths occur within three hours, though it may take longer and the physician has made this clear.

The final statement before the signature line is that “I make this request voluntarily and without reservation and I accept full responsibility for my decision to request aid in dying.

The Declaration of Witnesses statement to be signed is equally explicit.

Subdivition 6 adds another protection against abuse of the system. First, the patient may rescind at any time, no matter what their mental state. Second, the physician has the right to offer patients the opportunity to rescind at any time. In other words, the doctor is not going to get sued for making an inquiry like, “Are you sure you want to go through with this?”

Subdivision 7 details the physician’s responsibilities under this law. There are more than a dozen items in this section, including the requirement to make sure the patient understands the probable outcome of self-administering the prescribed medication. The physician must also mention that there are alternatives including hospice and palliative care.

The attending physician must also refer the patient to a consulting physician to confirm the attending physicians diagnosis, as well as to determine that the patient is capable of making this decision and acting voluntarily.

Subdivision 8 requests that the attending physician put it in writing that the patient is qualified. If, however, there are doubts about psychological competence, Subdivision 9 outlines the process for addressing the possibility of impaired judgment. The patient will be referred to an outside professional counsellor. While the patient is undergoing counseling, the physician must not provide life-ending medication, an added safeguard required by law.

Subdivision 10 details the process. After a second request has been submitted, the attending physician has the following responsibilities:
1. To recommend that the patient notify next of kin of what he or she is about to do, but that not notifying next of kin will not result in denial of the request.
2. Have someone with you. (Counsel the patient regarding the importance of having another person with you when you self-administer the medication.)
3. Advise them not to do this in public.
4. Indicate again that the patient may rescind at any time.
5. Verify that the person is making an informed decision (before writing the prescription).
6. Fulfill medical record documentation.

Subdivision 11 details the seven essentials that must be included in the medical record documentation.

Subdivision 12 focuses on the manner in which these records are used. They cannot be subpoenaed or used in judicial proceedings except “to resolve matters concerning compliance.”

Subdivision 13 contains some additional general provisions. The first is that when a person takes their life by self-administered medicine in this manner they will not lose their life, health or accident insurance, annuity policy or other benefits. Item four states that ending one’s life in this manner, by physician prescription, is legally not a suicide.

On page 9, in Subdivision 14, there is a provision for doctors to opt out. I believe this is designed to reassure physicians that they are not going to be legally required to take an action that violates their own consciences or beliefs. If unwilling to participate, however, the physician is required to pass on all relevant records to another care provider.

Health care facilities are not required to carry out physician assisted dying and may create written policies indicating their position.

Subdivision 15 makes it clear that altering or forging a request for medical assistance in dying, or destroying any record of a patient’s having changed their mind (rescinded) is guilty of murder or attempted murder. This section also states emphatically that a person shall not be coerced against their will to request aid in dying.

Subdivision 16 gets into some semantics that could raise the ire of some critics of the legislation. Essentially, it requires that public agencies must call this this “medical aid in dying” and not “assisted suicide.” Ironically, in May a new wrinkle was raised regarding the lingo. There are some (this was not in Minnesota) who wantt to avoid calling it “dying” and that a better term would be “assisted ending of life.” Assisted death, the article explained, is considered too morbid.

Subdivision 17 has to do with instructions regarding the death certificate. This section requires that the attending physician may sign the death certificate but must list the cause of death as the underlying illness, not the prescribed medicine. Does this mean that the physician must, by law, lie?

The last three sections address civil damages, criminal prosecution and reporting requirements.

Follow this link to read the entirety of the current version of S.F. 1572 as introduced.

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Related Links 
A Death with Dignity page with History of this legislation in MN. (A link, not an endorsement)
Concern about MN law requiring doctors to misrepresent cause of death.
An Alphanews article regarding this legislation when it was introduced. 
The Pros and Cons of Physician Assisted Dying. My first published article on the topic, written in 1992. Not much has changed other than the what it's called. It used to be "assisted suicide" but now advocated call it "assisted dying" because of the stigma associated with the word suicide.


IN KEEPING WITH THE SPIRIT OF INQUIRY to bring ongoing understanding to this subject, I welcome comments from others whose ideas and experiences might bring increased illumination on this subject.  If you would rather not make a public comment, you can email me at ennyman3 AT gmail DOT com.

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