Legal briefing: Medical futility and assisted suicide

Journal of Clinical Ethics

Volumn 20, Issue 3, 2009, Pages 274-286

  Pope, Thaddeus Mason ^a  

^a Widener University School of Law   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ASSISTED SUICIDE; AUSTRALIA; CANADA; EUROPE; HOMICIDE; HUMAN; LEGAL ASPECT; PATIENT ABANDONMENT; RESUSCITATION; TREATMENT OUTCOME; TREATMENT WITHDRAWAL; UNITED KINGDOM; UNITED STATES;

AUSTRALIA; CANADA; EUROPE; GREAT BRITAIN; HOMICIDE; HUMANS; MEDICAL FUTILITY; REFUSAL TO TREAT; RESUSCITATION ORDERS; SUICIDE, ASSISTED; TEXAS; UNITED STATES; WITHHOLDING TREATMENT;

EID: 70449707668     PISSN: 10467890     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (290)

1. S. Frye-Revere, "Legal Trends," The Journal of Clinical Ethics 1, no.1 (Spring 1990): 88-90.
2. T.M. Pope, "Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Medical Treatment," Tennessee Law Review 71, no.1 (2007): 1-81. Because medical futility concerns involuntary passive euthanasia, this article not does discuss involuntary active euthanasia. Similarly, because medical futility concerns treatment disputes, this article does not discuss insurance coverage denials.
3. T.M. Pope and E.A. Waldman, "Mediation at the End of Life: Getting Beyond the Limits of the Talking Cure," Ohio State Journal on Dispute Resolution 23, no.1 (2007): 143-195
4. T.M. Pope and E.A. Waldman, "Mediation at the End of Life: Getting Beyond the Limits of the Talking Cure," Ohio State Journal on Dispute Resolution 23, no.1 (2007): 143-195 Ibid.
5. R.H. Mnookin and L. Kornhauser, "Bargaining in the Shadow of the Law: The Case of Divorce," Yale Law Journal 88, no.5 (1979): 950-97, 968; see note 3 above.
6. See note 2 above.
7. Ibid.
8. Tex. Health & Safety Code Ann. § 166.046.
9. Tex. Health & Safety Code Ann. § 166.045.
10. A. Halevy and A.L. McGuire, "The History, Successes and Controversies of the Texas 'Futility' Policy," Houston Lawyer 43, no.6 (May/June 2006): 38-42.
11. Tex. S.B. 439 (2007) (Duell);
12. Tex. H.B. 1094 (2007) (Hughes);
13. Tex. H.B. 1440 (2007) (Parker);
14. Tex. H.B. 3180 (2007) (Parker);
15. Tex. H.B. 3474 (2007) (Delisi).
16. Tex. H.B. 2964 (2009) (Coleman).
17. Tex. H.B. 3325 (2009) (Hughes).
18. Gonzales v. Seton Family of Hospitals, No. A07CA267 (WD. Tex. filed 4 April 2007);
19. Gonzales v. Seton Family of Hospitals, No. 86427 (Travis Cty. Probate Ct., Tex. filed 20 March 2007);
20. In re Roberson-Reese, No. 04:06-CV-02258 (S.D. Tex. 17 August 2006) (Order of Dismissal).
21. Davis v. Memorial Hermonn Hosp., No.2009-07079 (Harris Cty. Dist. Ct., Tex. Feb 4, 2009) (Order granting TRO and preliminary injunction).
22. C. Vogel, "Doctors versus Parents: Who Decides Right to Life?" Houston Press, 1 May 2008.
23. See note 2 above, 68-69, 79-80;
24. R.L. Fine and T.W. Mayo, "Resolution of Futility by Due Process: Early Experience with the Texas Advance Directives Act," Annals Internal Medicine 138, no.9 (2003): 743.
25. Wisconsin Medical Society, Resolution 1-2004;
26. A.E. Kopelman et al., "The Benefits of a North Carolina Policy for Determining Inappropriate or Futile Medical Care," North Carolina Medical Journal 66, no.5 (2005): 392-394
27. R. Rincón, "Salud Multará Hasta con un Millón el Ensañamiento Terapéutico," El Pais, 3 September 2008. French law may also permit unilateral refusals, Loi no. 2005-2370 Relative aux Droits des Malades et á la Fin de Vie, 22 April 2005.
28. See, e.g., Ga. Code Ann. § 31-39-44(e);
29. Vt. Stat. Ann. tit. 18 § 9708 (a);
30. W.Va. Code § 16-30C-6(e).
31. N.Y. Atty. Gen. Op. No. 2003-Fl.
32. T.M. Pope, "Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism," Campbell Law Review 31, no.2 (2009): 257-332.
33. In re President & Directors of Georgetown College, Inc., 331 F.2d 1000,1009 (D.C Or. 1964) ("the compelling reason for granting the writ was that a life hung in the balance. There was no time for research or reflection.");
34. Cruzan v. Director, Missouri Dep't Health, 491 U.S. 261, 283 (1990) ("An erroneous decision not to terminate results in maintenance of the status quo An erroneous decision to withdraw... is not susceptible of correction.").
35. T.M. Pope, "Involuntary Passive Euthanasia in U.S. Courts: Reassessing the Judicial Treatment of Medical Futility Cases," Marquette Elder's Advisor 9, no.2 (2008): 229-268
36. In re M.B., No.1:08-CV-01898 (D.D.C filed 4 November 2008);
37. In re M.B., No. 08FSP310 (D.C. Super, filed 3 November 2008).
38. K. Alexander, "Judge Delays Decision on Removing Life Support," Washington Post, 11 November 2008;
39. "Brain-Dead NYC Boy at Center of Care Controversy Dies," USA Today, 16 November 2008.
40. Chamberlain v. Kamali, No.S-13123 (Alaska, 30 May 2008) (Order granting stay pending appeal in trial court case No. 3AN-08-07509 Q).
41. Betancourt v. Trinitas Regional Med. Hosp., No. C-12-09 (N.J. Super. 4 March 2009).
42. Since the patient died, the appellate court must first decide whether the case is moot
43. Betancourt v. Trinitas Regional Med. Hosp., No.A003849-08 T2 (N.J. Super. A.D. May 28, 2009) (Brief and Appendix on behalf of Appellant, Trinitas Hospital).
44. F. Micoli, "Examining the Case of Samuel Golubchuk," Bioethics Matters 6, no.9 (September 2008): 1-4.
45. Golubchuk v. Salvation Army Grace Gen. Hosp., 2008 MBQB 49, No. CI-07-01-54664 (Court of Queens Bench of Manitoba, 13 February 2008) (Order granting preliminary injunction);
46. -2008 MBQB 171 (11 June 2008) (Order rescheduling trial from December to September 2008).
47. S. Solomon, "End-of-Life War Outlives Golubchuk," National Review of Medicine 5, no.7 (July 2008).
48. P. Turenne, "Family Drops Lawsuit," Winnipeg Sun, 9 August 2008.
49. Jin v. Calgary Health Region, 2007 ABQB 593 (7 October 2007).
50. In re I.H.V., 2008 ABQB 250 (16 May 2008). The court was impressed that: (1) medical opinion was consistent, and was supported by both (2) an independent specialist and (3) an independent ethicist.
51. Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318 (14 March 2008). Both the LH. V. and Rotaru courts heavily relied on the British decision Re J (a minor) (1992) 4 All E.R. 614 (C.A.). Unfortunately, in trying to distinguish Golubchuk, the Rotaru court suggested that its result rested on the fact that treatment had already been withdrawn. In other words, according to the B.C. court, providers can be ordered to continue treatment but cannot be ordered to provide treatment either initially or after its removal.
52. J.K. Mason and G.T. Laurie, Mason & McCall Smith 's Law and Medical Ethics, 7th ed. (Oxford, U.K.: Oxford, 2006): 539-97;
53. Wyatt v. Portsmouth Hosp. NHS (2005) EWCA Civ 1181 (granting hospital petition for unilateral DNR order).
54. There are limited exceptions. NHS Trust v. MB (2008) EWHC Fam 507.
55. General Medicai Council, Withholding and Withdrawing Life-Prolonging Treatments: Good Practice in Decision-Making, 2002, http://www.gmc-uk.org/ guidance/current/library/witholdingjifeprolonging-guidance.asp, accessed 5 August 2009.
56. fl (Burke) v. General Medical Council (Official Solicitor and others intervening) (2005) EWCA Civ 1003;
57. Burke v. United Kingdom (unreported, ECHR, No 19807/06,11 July 2006). Notably, the GMC retained the futility provisions in its recently-proposed updated guidance.
58. End of Life Treatment and Care: Good Practice in Decision-Making: A Draft for Consultation, 2009, http:/ /www.gmc-uk.org/guidance/news-consultation/eol- care.asp accessed 5 August 2009.
59. Re OT (A Child) (2009) EWCA Civ 409. Similarly, the Cardiff and Vale National Health Service (NHS) Trust recently sought a court order to prevent six-year-old Amber Hartland from being admitted to the intensive care ward.
60. The trust dismissed the case after Amber died. R. Savill, "Right-to-Life Girl Dies Amid Legal Battle over Her Care," Telegraph, 11 November 2008.
61. Isaac Messiha (by his tutor Magdy Messiha ) v. South East Health (2004) NSWSC 1061.
62. Melo v. Superintendent of Royal Darwin Hospital (2007) NTSC 71.
63. Inquest into the Death of Paulo Melo (2008) NTMC 080. The Coroner's Court observed that there "is a need for a decision maker that is independent of the treating doctors and the family," and recommended that the DOH establish a "clinical ethics committee ... with the ability to convene at short notice." Given the rural location of Darwin (Northern Territory, Australia), the court observed that "to have any independence ... it would need to have interstate members . . . available by telephone or video conferencing."
64. Inquest into the Death of Paulo Melo (2008), Ibid., 107-8.
65. In re Wanglie, No. PX-91-283 (Minn. Prob. Ct. Hennepin County 28 June 1991),
66. reprinted in Issues in Law and Medicine 7, no. 3 (1991): 369-78.
67. In re Mason, 669 N. E. 2d 1081, 1085 (Mass. Ct App. 1996);
68. In re Achtabowski, No. G93142173GD (Mich. Probate Ct. 30 July 1993);
69. J. Bopp, Jr., and R.E. Coleson, "Child Abuse by Whom? Parental Rights and Judicial Competency Determinations: The Baby K and Baby Terry Cases," Ohio Northern University Law Review20, no. 4 (1994): 821-46;
70. In re Howe, No. 03-O-1255,2004 WL 1446057 (Mass. Prob. & Fam. Ct. 22 March 2004);
71. "Daughter Explains Agreement to End Care," Boston Globe, 23 March 2005. These cases are reviewed in Pope, see note 24 above. Notably, in the Betancourt case described above, the hospital is arguing, on appeal, that the trial court should not have appointed the patient's daughter as guardian, because she had a conflict of interest. Specifically, she is apparently planning to file a malpractice case against the hospital. See notes 28 through 30 above.
72. In re Livadas, No. 080370/30 (Monroe Cty., NY Supr. Ct. 28 April 2008);
73. G. Craig, "Court Denies Extension of Stay in Livadas Case," Democrat and Chronicle, 20 August 2008. Observe that while Livadas's living will clearly applied to her then-present circumstances, the result was still premised on the assumption that Livadas's living will accurately represented her preferences. Ianthe argued that since Livadas signed many legal papers the same day she signed her living will, it is unlikely that she put much thought into it. Indeed, it is likely that many living wills (instructional advance directives) fail to accurately reflect the preferences of declarants. Still, the presumption is that they do, and Ianthe could not bear the heavy burden of rebutting this presumption.
74. A few weeks after its appointment, the Catholic Family Center, the new guardian, authorized the removal of Livadas's life support. J. Wang, "Woman at Center of Legal Battle about Endof-Life Wishes Dies," Democrat and Chronicle, 29 August 2008.
75. A similar care is being litigated in New York. J. Zick, "Man's Life in Court's Hands," Coming Leader, 22 June 2009.
76. Cardoza v. USC University Hosp., No. B195092 (Cal. Ct App. 13 August 2008).
77. Bernstein v. Sup. Ct. Ventura Cty., No. B212067 (Cal. Ct. App. 2 February 2009).
78. Ontario Consent and Capacity Board, "About Us," http:/ /www.ccboard.on.ca/scripts/english/aboutus/index.asp accessed 27 July 2009.
79. M. Handelman and B. Parke, "The Beneficial Role of a Judicial Process When 'Everything' Is Too Much," Healthcare Quarterly 11, no.4 (Winter 2008): 46, 48.
80. See, e.g., In re G, 2009 CnnL.II 25289 (ON C.C.B.);
81. In re E, 2009 CanLII 28625 (ON C.C.B.);
82. In re M.B., 2008 CanLII 3954 (ON C.C.B.);
83. In re E.J.G., 2008 CanL.II 44704 (ON C.C.B.).
84. Scardoni v. Hawryluck, 2004 CanLII 34326 (ON S.C.). In more recent cases, the Ontario Superior Court of Justice has repeatedly affirmed the CCB.
85. See, e.g., Drago Barbulov v. Dr. R. Cirone, 2009 CanLII 15889 (ON S.C);
86. Grover v. Butler, 2009 CanLII 16577 (ON S.C).
87. Golubchuk, see notes 31 to 34 above.
88. See note 24 above.
89. S. Dremann, "Stanford Hospital Settles 'Comfort Care' Lawsuit," Palo Alto Online, 5 June 2008.
90. Ussery v. Children's Healthcare of Atlanta, Inc., 656 S.E.2d 882 (Ga. Ct App. 2008).
91. DeKalb Med. Center, Inc. v. Hawkins, 655 S.E.2d 823 (Ga. Ct. App. 2007).
92. In re Baby K, 16 F.3d 590 (4th Cir. 1994).
93. -42 CFR §489.24(d)(2);
94. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Final Rule: Medicare Program; Clarifying Policies Related to the Responsibilities of Medicare-Participating Hospitals in Treating Individuals with Emergency Medical Conditions, 68 Fed. Reg. 53, 222 (9 September 2003).
95. Preston v. Mériter, 747 N.W.2d 173 (Wis. Ct App. 2008).
96. TM. Pope, "EMTALA: Its Application to Newborn Infants," ABA eSource 4, no.7 (March 2008).
97. Maxey v. Darden, 187 P.3d 144 (Nev. 2008).
98. "Patient on Life Support Who Had Machine Turned Off Could Have Recovered," Telegraph, 27 January 2009.
99. S. Bristow, "Family to Sue over Hospital Machine Switch Off," Yorkshire Post, 29 January 2009.
100. "Nursing Homes Fined for Serious Violations," Lincoln Courier, 31 March 2008.
101. A.L. Becker, "State Regulators Discipline Bristol Hospital for Violations," Hartford Courant, 1 January 2009.
102. R. Lin II, "2 Orange County Nursing Homes Fined for Patient Deaths," Los Angeles Times, 11 June 2009.
103. "Resuscitation Orders Not Always Followed in Kentucky," Herald-Dispatch, 22 March 2009.
104. Distinct and excluded from the discussion are legal developments concerning voluntary, involuntary, and non-voluntary active euthanasia.
105. Alaska Stat. § 11. 41. 120(a)(2);
106. Ariz. Rev. Stat. §131103 (a)(3);
107. Ark. Code Ann. §5-10-104 (a)(2);
108. Cal. Penal Code § 401;
109. Colo. Rev. Stat. §18-3-104 (1)(B);
110. Conn. Gen. Stat. Ann. §§ 53a-56 (a)(2);
111. Del. Code Ann. tit. 11, § 645;
112. Fla. Stat. Ann. §782.08;
113. Ga. Code Ann. §16-5-5 (b);
114. Haw. Rev. Stat. §707-702(I)(B);
115. -720 Ill. Comp. Stat. Ann. §5/12-31 (a)(2);
116. Ind. Code Ann. §35-42-12.5;
117. Iowa Code. Ann. § 707A.2;
118. Kan. Stat. Ann. §21-3406;
119. Ky. Rev. Stat § 216:302;
120. La. Rev. Stat. Ann. §14:32.12;
121. Me. Rev. Stat. Ann. tit. 17A, §204;
122. Md. Code Ann. 3-101 to -104;
123. Mich. Comp. Laws Ann. §750.329a;
124. Minn. Stat. Ann. §609.215;
125. Miss. Code Ann. §97-3-49;
126. Mo. Rev. Stat. §565.023;
127. Mont. Code Ann. §455-105;
128. Neb. Rev. Stat. Ann. §28-307;
129. Nev. Rev. Stat. §449.670 (2);
130. N.H. Rev. Stat. Ann. § 630:4;
131. N.J. Stat Ann. § 2C:11-6;
132. N.M. Stat. Ann. §30-2-4;
133. N.Y. Penal Law §125.15;
134. N.D. Cent. Code §12.116-04;
135. Ohio Rev. Code Ann. §3795.02;
136. Okla. Stat. tit. 21, §813-15 & tit. 63, § 3141.3;
137. -18 Pa. Cons. Stat. § 2505;
138. R.I. Gen. Laws § 11-60-1 to -5;
139. S.C Code Ann. §16-3-1090;
140. S.D. Codified Laws § 22-16-37;
141. Tenn. Code Ann. §39-13-216;
142. Tex. Penal Code §22.08;
143. Va. Code §8.01-662.1;
144. Wis. Stat §940.12.
145. Alabama, D.C., Idaho, Massachusetts, North Carolina, Utah, Vermont, West Virginia, and Wyoming have no statute that specifically prohibits assisted suicide. But assisted suicide may be prohibited under the common law or may constitute criminally negligent homicide. Wyoming attempted to enact a statute this year. Wyo. H.B. 120 (2009) (Davison). One of the best sources on recent developments concerning assisted suicide are Williamette law professor Valerie Vollmar's reports, http://www.williamette. edu/wucl/pas, accessed 5 August 2009.
146. Not all sanctions concerning assisted suicide are criminal. Other legal sanctions include licensure, injunctions, and civil remedies for damages. A. Meisel and K.L. Carminara, The Right to Die: The Law of End-of-Life Decisionmaking, 3rd ed. (Aspen, 2004; supplement, 2009): § 12. 04 [B]-[C];
147. Minn. Stat. Ann. § 147.091(1)(w);
148. Okla. Stat. Ann. tit. 63, § 3141.8.
149. Meisel and Carminara, see note 73 above, § 12. 04[D];
150. R.S. Magnusson, "Underground Euthanasia and the Harm Minimization Debate," Journal of Law Medicine and Ethics 32, no.3 (2004): 486-95;
151. T.E. Quill, "Physician-Assisted Death in the United States: Are the Existing 'Last Resorts' Enough?" Hastings Center Report 38, no. 5 (September-October 2008): 17-20;
152. S.W. Smith, "Some Realism about End of Life: The Current Prohibition and the Euthanasia Underground," American Journal of Law and Medicine 33, no. 1 (2007): 55-95.
153. Michigan juries repeatedly acquitted Jack Kevorkian in trials over the suicide of: Thomas Hyde (May 1994), Ali Khalil and Merian Frederick (March 1996), and Sherry Miller and Marjorie Wantz (May 1996). N. Nicol and H. Wylie, Between the Dying and the Dead (Madison, Wise: University of Wisconsin Press, 2006): 185-7.
154. Only when Kevorkian moved from assisted suicide to active euthanasia was he convicted of second-degree murder in the killing of Thomas Youk. "Jail Time for Dr. Kevorkian," New York Times, 15 April 1999.
155. A New York grand jury refused to indict Timothy Quill after he wrote in the New England Journal of Medicine that he assisted a patient's suicide. L.K. Altman, "Jury Declines to Indict a Doctor Who Said He Aided in a Suicide," New York Times, 27 July 1991.
156. Similarly, Rodney Syme, MD, was never prosecuted after admitting to assisting the suicide of Steve Guest. J. Turnbull, " 'Benign Conspiracy' over a Death," Sydney Morning Herald, 21 April 2009.
157. After losing her case challenging the Canadian criminalization of assisted suicide, Sue Rodriguez was illegally assisted by a physician who was never prosecuted. J.E. Bickenbach, "Disability and Life-Ending Decisions," in Physician Assisted Suicide, ed. M.P. Battin et al. (New York: Routledge, 1998): 123-32, 124.
158. G. Bluestein, "For $50, Suicide Group Offers a Way to Die," Star-Ledger, 27 February 2009.
159. "Martens Not Guilty in Assisted Suicide Case," CTV.ca, 5 November 2004.
160. The statute prohibits only "intentionally and actively assisting suicide," meaning "direct and physical involvement, intervention, or participation." Ga. Code Ann. §16-5-5(a)(1).
161. In May 2009, the Phoenix prosecutors indicted Larry Egbert, MD, and three other defendants in connection with the death of Jana Van Voorhis. " 'Final Exit' Suspects Indicted in Multistate Crackdown," Maricopa County Attorney News Release, 14 May 2009, http://www.mcaodocuments.com/press/20090514- a.pdf,accesseâ27 July 2009.
162. D. Thigpen, "Charges Rare in Assisted Suicides," Stockton Record, 24 February 2009.
163. Hartley later conditionally pleaded guilty to a lesser charge and was sentenced to community service, a $260 fine, and three years of probation. C Burkin, "Lodi Woman Pleads Guilty to Lesser Charge in Suicide," Stockton Record, 29 May 2009.
164. S. Smith, "Touch Made All the Difference," Stockton Record, 10 August 2009.
165. J. Seibel, "Inmate Charged in Cellmate's Suicide," Milwaukee Journal Sentinel, 9 April 2009.
166. A.M. Chavez, "Man Charged with Assisted Suicide in Mom's Death," El Paso Times, 30 June 2009.
167. M. Hottle, "Husband Testifies His Wife 'Didn't Want to Live Anymore,'" The Oregonian, 14 July 2009.
168. R. Doolittle, "Do Assisted Suicide Laws Apply to the Virtual World?" Toronto Star, 2 March 2009.
169. C Sherman, "Las Vegas Man Linked to Assisted Suicide Appears in Court on Drug Charges," Star Telegram, 24 June 2009.
170. D. Lister, "Euthanasia GP Suspended by GMC," Times, 24 July 2008.
171. J. O'Brien, "I Won't Be Back, Says Right-to-Die Reverend," Independent, 16 May 2009.
172. In re Extradition of Exoo, 522 F. Supp. 2d 766 (S.D.W.V. 2007).
173. Similarly, New Zealand authorities are unlikely to prosecute an American associate of Exoo's in connection with the suicide of Audry Wallis. D. Müssen, "Assisted Suicide Charges Likely over Auckland Woman's Death," Stuff, 26 July 2009.
174. "Neighbour Arrested after Suicide of MS Sufferer Who Pioneered Treatment," Daily Mail, 22 June 2009.
175. A. Lester, "Anthony Lester: End the Legal Uncertainty over Assisted Suicide," Independent, 6 July 2009.
176. The British High Court confirmed that accompanying a patient to a foreign suicide clinic could constitute a violation of the 1961 Suicide Act. Be Z (2005) 1 FLR 749.
177. M. Wardrop, "Timeline: Britons Who Have Ended Their Lives at Dignitas," Telegraph, 3 June 2009.
178. "Decision on Prosecution ? The Death by Suicide of Daniel James," 9 December 2008, http://www.cps.gov.uk/news/national news/death-by-suicide-of-danielj'ames.html, accessed 27 July 2009. See note 149 below.
179. Scoonheim, "Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands]," 27 November 1984, NJ 106 (Neth.),
180. translated in J. Griffiths et al, Euthanasia andtheLawin the Netherlands (Amsterdam: Amsterdam University Press, 1998), 322. Most of the prosecutions have been in cases where the procedural requirements were not followed.
181. M.A.M. De Wächter, "Euthanasia in the Netherlands," Hastings Center Report 22, no.2 (1999): 23-30;
182. J. Griffiths et al., Euthanasia and Law in Europe (Portland, Ore.: Hart Publishing, 2008): 29-50.
183. Termination of Life on Request and Assisted Suicide (Review Procedures) Act, http://www.nwe.nl/assets/nwe/english/euthlawenglish.pdf, accessed 27 July 2009.
184. See also Ministry of Health, Welfare, and Sport, "Euthanasia: The Netherlands' New Rules," 2002, http://minvws.nl/en/folders/ibe/euthanasia- the-netherlandsjnewjrules.asp, accessed 27 July 2009.
185. Dutch Ministry of Justice, "Euthanasia," http://english. justitie.nl/themes/euthanasia/ accessed 27 July 2009.
186. T. Sheldon, "Only Doctors Can Carry out Euthanasia in the Netherlands, Ruling Confirms," British Medical Journal 338 (9 June 2009): b2319.
187. G. Bosshard et al., "Open Regulation and Practice of Assisted Dying: How Switzerland Compares with Netherlands and Oregon," Swiss Medical Weekly 132 (2002): 527-534
188. "Doctor Sentenced over Assisted Suicide," Swisslnfo.ch, 6 July 2007;
189. "Quatre Ans de Prison pour Aide au Suicide," TSRInfo.ch, 24 June 2009.
190. "Code de la Sant? Publique, Loi No. 2005-370, J.O. Relative aux Droits des Malades et á la Fin de Vie, 23 April 2005.
191. G. Bosshard et al., "A Role for Doctors in Assisted Dying? An Analysis of Legal Regulations and Medical Professional Positions in Six European Countries," Journal of Medical Ethics 34, no.1 (2008): 28-32.
192. " 'Dr. Tod' Stellt Sterbehilfe Ein," Stern, 20 February 2009. Roger Kusch, MD, did, however, stopped assisting suicide.
193. M. White, "Quebec Court Ruling May Rewrite Assisted Suicide Law," Calgary Herald, 13 December 2008.
194. In February 2009, Thunder Bay police charged Peter Fonteece with the assisted suicide of his wife. P. Cheney, "Couple's Odyssey Ends in Tragedy at Super 8 Motel," Globe and Mail, 10 February 2009.
195. Criminal Code Amendment (Suicide Related Material Offences) Act 2005 (No.92) 2005, http://www.comlaw.gov.au/ Com Law/Legislation/Actl.nsf/ bodylodgmentattachments / E73F3E4D3B48COA1CA2570380018EF3B?OpenDocument, accessed 27 July 2009.
196. Notably, the Australian government banned Philip Nitschke and Fiona Stewart's The Peaceful Pill Handbook (Waterford, Mich.: Exit International US Ltd., 2007).
197. Australia also forbids the importation of devices or documents pertaining to assisted suicide. Customs (Prohibited Imports) Amendment Regulations 2002 (No. 3) 2002 No. 206, http://austlii.law.uts.edu.au/au/Iegis/cth/num-reg-es/ ciar200232002n206566.html, accessed 27 July 2009.
198. Since so many people import barbiturates from Mexico, test kits are now available for consumers to test the drug's concentration. W.L. Adams, "Foolproofing Suicide with Euthanasia Test Kits," Time, 13 April 2009.
199. K. Williamson, "Date with Death," Dominion Post, 18 July 2009.
200. "Assisted Suicide Website Blocked," Khaleej Times, 10 July 2009.
201. Coroners and Justice Bill 2008-2009, H.L. Bill 69 §55 (as amended 21 July 2009) ("encouraging assisting suicide: information society services").
202. Suzy Gonzales Suicide Prevention Act of 2009, H.R. 853,111th Cong. (2009) (purporting to criminalize teaching and providing support or resources).
203. Festival of Light Australia, "Submission on the Rights of the Terminally 111 (Euthanasia Laws Repeal) Bill 2008," to the Senate Legal and Constitutional Affairs Committee (6 April 2008), http://www.aph.gov.au/SENATE/ COMMITTEE/legcon-ctte/terminally-ill/submisssions/sub361.pdf, accessed 27 July 2009.
204. Loi Relative a'l'Euthanasie, F. 2002-2141 (C-2002/ 09590);
205. Griffiths et al., see note 92 above, pp. 275-94;
206. M. Adams and H. Nys, "Comparative Reflections on the Belgian Euthanasia Act," Medical Law Review 11, no.3 (2003): 353-76.
207. S. Michlowski, "Legalizing Active Voluntary Euthanasia through the Courts: Some Lessons from Colombia," Medical Law Review 17, no.2 (2009): 183-218. Although the Colombia Constitutional Court ruled, in 1997, that assisted suicide is not a crime, there has since been no enabling legislation.
208. See notes 91 through 94 above.
209. C Schwarzenegger and S.J. Summers, "Criminal Law and Assisted Suicide in Switzerland," submission to the Select Committee on the Assisted Dying for the Terminally 111 Bill, House of Lords, 3 February 2005, http://www.rwi.unizh.ch/schwarze negger/unterlagen/unterlagen/assisted-suicide- Switzerland.pdf, accessed 27 July 2009.;
210. Griffiths et al., see note 92 above, pp. 463-482
211. See note 90 above.
212. Lethal Drug Abuse Prevention Act of 1998, H.R. 4006, 105th Cong. (1998);
213. Pain Relief and Promotion Act, H.R. 2260 and S.1272,106th Cong. (1999);
214. Assisted Suicide Prevention Act of 2006, S. 3788,109th Cong. (2006).
215. More recent bills have also failed. Suzy Gonzales Suicide Prevention Act of 2009, H.R. 853, 111th Cong. (2009) (purporting to criminalize teaching and providing support or resources).
216. Also unsuccessful were federal regulatory attempts to stop assisted suicide through the Controlled Substances Act, 21 U.S.C §§801-904.
217. Gonzales v. Oregon, 546 U.S. 243 (2006) (holding that the "federal government cannot declare illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law").
218. But federal funds cannot be used. Assisted Suicide Funding Restriction Act of 1997,42 U.S.C. §14401.
219. New State Ice Co. v. Liebmann, 258 U.S. 262 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments").
220. International Task Force on Euthanasia and Assisted Suicide, "Failed Attempts to Legalize Euthanasia/Assisted Suicide in the United States," http://internationaltaskforce.org/ usa.htm (collecting over 100 failed bills from 25 states).
221. Other states, like Michigan and Maine, attempted to bypass the legislative process with ballot initiatives. K.M. Duvivier, "Fast-Food Government and Physician-Assisted Death: The Role of Direct Democracy in Federalism," Oregon Law Review 86, no.4 (2007): 895-972.
222. Or. Rev. Stat. §§127.800-.897;
223. Or. Admin. Regs. §§333009-0000 to 0030. The 2008 annual report is available at http://www.oregon.gov/DHS/ph/pas accessed 27 July 2009.
224. Conn. S.B. 1138 (2009);
225. Haw. H.B. 587 and 806 (2009);
226. Haw. S.B. 1159 (2009);
227. Mass. H.B. 1468 (2009);
228. Mont. LC 1818 (2009);
229. N.H. H.B. 304 (2009);
230. N.M. H.B. 814 (2009);
231. Pa. S.B. 404 (2009);
232. Vt. H.B. 455 (2009);
233. Vt S.B. 144 (2009).
234. Rev. Code Wash. §§70.122.100 and 42.56.360;
235. Wash. Admin. Code §§246-978-001 to -040. Interestingly, in 1990, Washington had the first state voter referendum (Initiative 119) on physician-assisted suicide.
236. Washington State Department of Health, Center for Health Statistics, "Death with Dignity Act," http://www.doh.wa. gov/dwda/formsreceived. htm, accessed 27 July 2009.
237. "Luxembourg Strips Monarch of Legislative Role," Guardian, 12 December 2008 ;
238. T. Burki, "European Laws on Assisted Suicide Move in Opposite Directions," Lancet Oncology 10, no.5 (2009): 447-447
239. Coroners and Justice Bill 2008-2009, http //services. parliament.uk/bills/2008-09/coronersandjustice.html accessed 27 July 2009.
240. The peers voted 194 to 141 to reject the proposed changes. "Lords Reject Assisted Dying Law," BBC News, 7 July 2009.
241. Possibly influencing this outcome was a July 2009 vote of the British Medical Association rejecting (although only by 52 to 44 percent) a proposal to give loved ones immunity. O. Bowcott, "Doctors Oppose Legal Protection for Assisted Suicide Relatives," Guardian, 1 July 2009. Earlier legislation was rejected in 2004.
242. Assisted Dying for the Terminally IIl Bill, HL Bill 17, 53/3 and HL Bill 36 54/1.
243. MP David Winnick (Labour-Walsall N) plans to put forward a bill to legalize assisted suicide. D. Martin, "MP Plans Crusade in the Commons to Make Assisted Suicide Illegal," Daily Mail, 1 August 2009.
244. The Proposed End of Life Choices (Scotland) Bill, Consultation Document, December 2008, http://www.scottish. parliament.uk/s3/bills/MembersBills/pdfs/ EndofLifeChoicesConsultation.pdf, accessed 27 July 2009.
245. T. McVeigh, "Let Me Die with Dignity, Says MSP," Guardian, 7 December 2008;
246. T. Thompson, "Couple's Suicide Sparks New Right-to-Die Debate," The Scotsman, 15 July 2009.
247. Northern Territory of Australia, Rights of the Terminally 111 Act 1995, ;http://www.nt.gov.au/lant/parliament/committees/rotti/rotti95.pdf, accessed 27 July 2009.
248. Woke v. Northern Territory [1996] 124 FLR 298;
249. D. Gray, "Doctor: I Helped 15 Patients Die," The Age, 27 November 1998.
250. Euthanasia Law Act 1997, http://www.comlaw.gov.au, accessed 27 July 2009.
251. Rights of the Terminally 111 (Euthanasia Laws Repeal) Bill 2008 (Brown), http://www.austlii.law.uts.edu.au/au/legis/cth/ bill/rottilrb2008495/ accessed 27 July 2009.
252. Research Service, Parliamentary Library, Parliament of Victoria, "Current Issues Brief No. 2: Medical Treatment (PAD) Bill 2008," http://www.parliament.vic.gov.au/research/2008CImedical.pdf, accessed 27 July 2009.
253. Consent to Medical Treatment and Palliative Care (Voluntary Euthanasia) Amendment Bill 2008 (Pamell), 51st Parliament, 3rd Session, Bill No. 34.
254. Dying with Dignity Bill 2009 (McKim), http://www. parliament.tas.gov.au/ bills/pdf/37-of-2009.pdf accessed 27 July 2009.
255. Medical Treatment (PAD) Bill 2008 [Hartland], ;http://www.austlii.edu.au/ au/legis/vic/bill/mtadb2008415/ accessed 27 July 2009.
256. R. Carmody, "Chappie Renews Fight for Voluntary Euthanasia," ABC.au 5 June 2009.
257. "Euthanasia Draft Law Presented," Prague Post, 16 July 2008.
258. Bill C-384, An Act to amend the Criminal Code (Right to Die with Dignity), House of Commons of Canada, 2nd Session, 40th Parliament, 57-58 Elizabeth H, 2009, http://www2.parl.gc.ca/content/hoc/Bills/402/Private/C-384/C- 384-l/C-384-l.PDF, accessed 7 August 2009.
259. MP Lalonde had unsuccessfully introduced similar bills over the past few years. See, e.g., Bill C-562 (2008);
260. Bill C-407 (2005).
261. J. Friesen and R. Seguin, "Quebec Keeps 'Open Mind' on Euthanasia," Globe and Mail, 17 July 2009.
262. K.P.M. Basheer, "Legalize Euthanasia Says Panel," The Hindu, 8 January 2009.
263. Kenya also explored legalization. LegalBrief Africa 312 (22 December 2008).
264. Baxter v. Montana, No. ADV 2007-787 (1st Jud. Dist. Ct., Mont. Dec. 10, 2008) (Defendant Attorney General Brief in Support of Motion for Stay Pending Appeal). Two draft bills died in process. Mont. LC 1818 and LC 2180 (2009).
265. J. Colina, "Colombia Seeks Legalizing Murder, Says Bioethicist," Zenit.org 25 September 2008.
266. The Swiss government has traditionally left regulation of assisted suicide to cantons and communes. "Doctor Sentenced over Assisted Suicide," Swisslnfo.ch, 6 July 2007.
267. But the federal government will reconsider the approach this fall. "Zurich Reaches Deal with Exit," World Radio Switzerland, 29 June 2009. Exit signed an agreement with the Zurich government, agreeing to voluntary guidelines recommending, among other things: (1) charges not exceed 500 francs, (2) the patient be seriously suffering due to health problems, (3) the patient have exhausted other options, (4) the physician meet the patient on at least two separate occasions, (5) only sodium pentobarbital be used.
268. Dignitas rejected the guidelines as too restrictive. P. Sawer et al., "Clampdown on Dignitas Suicide Clinic," Telegraph, 18 July 2009.
269. T. Blackwell, "Healthy Vancouver Woman Wants to Die beside Her Ailing Husband," Vancouver Sun, 14 April 2009.
270. H. Samuel, "Swiss Suicide Clinic Helped Depressed Man Die," Telegraph, 21 March 2009.
271. Vacco v. Quill, 521 U.S. 793 (1997);
272. Washington v. Glucksberg, 521 U.S. 701 (1997).
273. Other courts have upheld assisted suicide bans under the First Amendment. Sanderson v. Colorado, 12 P.3d 851 (Colo. Ct. App. 2000).
274. The Canadian courts have also rejected constitutional challenges to criminalization. Rodriguez v. British Columbia (Attorney General), (1993) 3 S.C.R. 519 (Can.).
275. Baxter v. Montana, No. ADV-2007-787 (Mont. Dist. Ct 5 December 2008), on appeal No. DA 09-0051 (Mont. 2 September 2009) (oral argument).
276. Some state legislators tried to moot the litigation by amending the state constitution to prohibit assisted suicide. Mont LC 2181 (2009).
277. Others tried to establish some regulations. Mont LC 1818 and LC 2180 (2009).
278. Mahomerv. Florida, No.3:08-cv-300-J-33TEM, 2008 WL 2756481 (M.D. Fla. 14 July 2008) (refusing to declare Florida's assisted-suicide statute unconstitutional);
279. Colon v. United States, No. 08-26080JWL (D. Kan. 3 February 2009).
280. Krischer v. Mclver, 697 So. 2d 97 (Fla. 1997);
281. Sampson v. Alaska, 31 P.3d 88 (Alaska 2001);
282. Donaldson v. Lundgren, 4 Cal. Rptr. 2d 59 (Cal. Ct App. 1992);
283. Kevorkian v. Arnett, 939 F. Supp. 725 (C.D. Cal. 1996),
284. vacated, 136 F.3d 1360 (9th Or. 1998);
285. Michigan v. Kevorkian, 527 N.W.2d 714 (Mich. 1994);
286. Kevorkian v. Thompson, 947 F. Supp. 1152 (E.D. Mich. 1997).
287. R. (on the application of Pretty) v. Director Pub. Prosecutions, (2002) H.R.L.R. 10, 3 W.L.R. 1598, 2001 WL 1423045 (2002);
288. Pretty v. U.K., 35 Eur. H.R. Rep. 1 (2002).
289. Purdy, R (on the application of) v Director of Public Prosecutions and Ors (2009) EWCA Civ 92.
290. R. (On the application of Purdy) v. Director of Public Prosecutions (2009) UKHL 45.