Bill would outlaw physician-assisted death, reversing Montana’s current practice

Robert Baxter wanted to die, and he needed a physician’s help.

He and another terminally ill man challenged the right to obtain medical help in a legal fight that wound its way to the Montana Supreme Court.

He died the day the Montana Supreme Court decided his legal case.

His daughter testified on Wednesday that although the decision happened on the day Baxter died, he didn’t know about it. The ruling came too late to actually help him.

Baxter is the namesake of one of the best known and most debated Montana Supreme Court decisions in recent memory, Baxter vs. Montana. In it, the state Supreme Court said that a patient’s consent in having a doctor’s prescription for life-ending drugs was a defense in a murder case.

That ruling opened the way for Montana to allow physician-assisted suicide in end-of-life cases, ending the threat of criminal penalty.

So when Leslie Mutchler, a family nurse practitioner, spoke to lawmakers who were debating end-of-life and physician-assisted death, some guessed she would be referencing her father.

Instead, she spoke about her son.

“I hope none of you have to watch your child suffer like mine,” she said on Wednesday morning as she testified about Senate Bill 210, sponsored by Sen. Carl Glimm, R-Kila.

The bill would remove patient consent as a defense in a homicide charge. While sounding technical and even small, medical providers, lawyers and the public testified that it would effectively shut down the practice of medically assisted death, because it means opening up the possibility that doctors could be charged with homicide for assisting with death.

Mutchler’s son had been diagnosed with metastatic pancreatic cancer, a terminal disease. She testified to the “gentle death” her son experienced, surrounded by his family. He spoke about his desire to die with dignity, even recording a message that Mutchler sent to lawmakers.

“Keep this choice where it should be – no physicians should be in jail and no one should have to risk their career,” Mutchler said.

Several testified that physician-assisted suicide, often called “compassionate end-of-life care” was never specifically authorized by the legislature. In fact, Glimm and others pointed out that state law still says it’s illegal for anyone to assist another in suicide.

“We have seen this bill before but it hasn’t passed,” Glimm said. “Every session it keeps getting closer and closer and there are new facts that emphasize some of what we’re talking about.”

Lawmakers also said that Baxter was a narrow ruling because the legislature had not created clear law on the matter. Glimm told lawmakers this bill shows the clear intent of lawmakers, which would be that suicide is illegal in all circumstances, without exception.

To emphasize the importance, Lt. Gov. Kristen Juras, a lawyer who has represented elderly clients, testified in support of the bill. She said that she has two grandchildren with cystic fibrosis, which will likely be terminal. She said she was there fighting for the value of their lives.

“We oppose suicide in all its forms,” Juras said.

She said she understands the difficulty that families, including hers, face.

“There are hard days and suffering and our message to our family is that we’re going to help them get through it,” she said.

Others reminded lawmakers that Montana has rebuffed efforts for similar legislation previously, and that polls show Montanans generally support the idea of physician-assisted suicide.

Glimm called the measure a slippery slope, mentioning that other countries, like Canada, had continued to widen the practice of physician-supported suicide to homeless or mentally ill people.

He also said that the state sends an inconsistent message by combating suicide in some cases, and approving it in others.

“Suicide is a real problem in Montana and I think we need to send a consistent message,” Glimm said. “We can’t tell people their problems aren’t real enough and their pain isn’t real enough, but it’s OK at the end of your life. Suicide isn’t the right way out.”

Instead, Jeff Laszloffy of the Montana Family Foundation, which supports the change in Montana law, said that “palliative care works and that should be the route for end-of-life.”

Bernadette Franks-Ongoy with Disability Rights Montana also supported the bill.

“People with disabilities don’t have their lives valued at the same level. There’s a belief that their lives are full of suffering and sometimes they may feel as if they’re an added burden to their family and may want to consider this option,” Franks-Ongoy said.

Different members of the medical community appeared on both sides of the proposed bill on Wednesday morning, demonstrating the wide array of opinions.

Dr. Craig Treptow, a family medicine doctor in Great Falls, said that the role of a physician is one of healer.

“We use language to divert attention away from the act itself,” he said. “The essence and act is still the same.”

He said that he worries about depression playing a factor in making a decision to end the life.

“That can interfere with rational decision making,” he said. “Who is protecting these patients?”

He said that the Montana Medical Association, which testified against the bill, doesn’t represent the views of all doctors, including himself.

“It’s fundamentally incompatible with a physician’s role,” he said.

David Cooper, who testified in opposition, told lawmakers about his wife who was diagnosed with amyotrophic lateral sclerosis, ALS, more commonly referred to as “Lou Gehrig’s Disease.”

“The quality of life is at least as important as the quantity,” he said.

So far, pain management medication, often part of palliative care, has been unsuccessful at mitigating her pain, Cooper said.

“She wants to live,” he said, even though the prognosis for the disease is currently 100% fatal. “And she wants to decide when her life is gone. That decision is hers. The only abuse she’ll suffer is from the disease.

“I’m begging you not to take away my wife’s ability to have some glimmer of dignity as she approaches the end of her life.”

Dick Barrett, a former state senator from Missoula, said that lawmakers’ logic for passing the bill was inconsistent. For example, he said the state doesn’t take guns away from people, even though they may be suicidal. He gave another example of elderly living alone who may be exploited; then, he said that Montana doesn’t restrict hiking or outdoors activities even though it knows a number of people will die each year because of those activities.

“Let’s protect personal freedom,” Barrett said.

Pamela Brown, a registered nurse who works in hospice and palliative care, said that she’s attended more than 300 dying patients, witnessing deaths and some physician-assisted deaths.

“It’s completely gentle and pain-free,” she said. “These were deaths in which they were surrounded by loved ones.”

She gave the example of a former doctor who opted for physician-assisted death, while his wife chose not to when she was diagnosed with a terminal disease.

She gave the four requirements for engaging in physician assistance, which includes being of sound mind, capable of taking the lethal medication, has less than six months to live. Advocates of the procedure said it’s only discussed if the patient initiates the conversation.

Dr. Colette Kirchhoff, a family physician with 17 years of palliative care in hospice, said she’s witnessed physicians helping patients to end their life with dignity and comfort.

“Remember our ability to prolong life is extensive now. There’s always something more we can do to prolong life,” Kirchhoff said. “I am seeing more difficulty at the end of life as far as suffering and more people have made up their minds that when no more can be done, they’d like to choose when, how and where they’re going to die.”

She said that many patients take the prescription and even fill it, but elect not to use it.

She said that suicide is a much different issue because it involves a person who wants to die, whereas a terminally ill patient’s death is imminent.

“These people want to live and they want to avoid suffering,” Kirchhoff said. “It’s a very different intent.”

Jean Branscum, the chief executive of the Montana Medical Association, said that no matter what the Legislature decides “not all physicians will be happy.”

She said her organization, which represents doctors across the state as a professional organization, would like to remain neutral on the position, but opposes the bill because it criminalizes medical practice.

The Montana Hospital Association also opposed the bill because it said the best people to make the decision about the end of life are the patient and the doctor.

Lindsay Barnes, a death doula, said that she first learned about physician-assisted death with her sister who was diagnosed with terminal leukemia.

“Our individual freedom is our birthright and therefore, it’s our deathright,” she said.

Ron Waterman, whose wife was a state senator, testified that she had died by pancreatic cancer.

“When you were campaigning for the seats you hold – when you went to Helena, did you tell (your constituents) that when the time comes for talking about terminal illness, I’m going to take that right away from you. Did you tell them that?” Waterman asked.

Dr. Kenneth Younger, a retired Bozeman physician, said that he experienced the issue not just as a physician by as a brother, who was diagnosed with ALS.

“He chose medical assistance in dying when the living was unbearable and the future was even worse,” Younger said. “He knew suicide was terrible but what he was contemplating was not suicide. It was extraordinary life support that was not supporting his life, but suffering.”

False death certificates, kidney sales and drug dealing

During the committee meeting on Wednesday, the emotionally charged hearing on physician assisted death veered into several tangents which included dealing prescriptions for death-inducing drugs to selling body organs.

At one point, members of the Senate Judiciary Committee asked how death certificates of patients who had died would be reported. Most doctors, including Colette Kirchhoff, said it would be listed as their terminal disease, but other contributing factors could be listed, too.

Sen. Barry Usher, R-Billings, asked if that meant doctors weren’t falsifying state records because they didn’t list suicide.

At another point, the conversation drifted into a discussion of organ donation.

“If we’re not allowed to sell our body parts, do we have total bodily autonomy?” asked Sen. Chris Friedel, R-Billings.

“I’m not sure I know how to answer that,” Kirchhoff said.

“You don’t have to answer that,” said Senate Judiciary Chairman Keith Regier, R-Kalispell.

Friedel then turned to Lt. Gov. Kristen Juras about the legality of selling organs, arguing that if a person doesn’t have the right to sell organs, then medical autonomy isn’t limitless.

Juras informed him that it is illegal to sell body parts – heart, liver, kidneys, as Friedel suggested – but not to donate them.

At another point, Sen. Daniel Emrich, R-Great Falls, raised some hackles, referring to the prescription for physician-assisted suicide as “poison.”

Some of the committee members also worried that a prescription for the life-ending drugs may be then sold or given away illegally because physicians aren’t in attendance when patients decide to take them.

“We can’t control everything a patient does with any medication,” Kirchhoff said.