Although judges will often claim, as John Roberts famously did, that they “only call balls and strikes”, casting themselves as neutral umpires of rarefied law, the reality is that judicial opinions have profound impacts on shaping society on critical issues.
A December, 2022 ruling on physician-assisted suicide by the Supreme Court of Massachusetts provided clarifying insight on how judges analyze end-of-life issues.
Wherever an individual doctor stands on the issue of physician-assisted suicide, the reasoning that the Court used in this case is essential for all doctors to understand because it also touches on the issues of patient autonomy, informed refusal, and the use of advanced directives, that many doctors will face in their practices.
…and since, as they say in Westeros, valar morghulis, these are also points that doctors will want to keep in mind when doing their own end-of-life planning.
This case was a lawsuit filed by a patient who was himself a retired physician and had Stage 4 prostate cancer, and by a doctor who feared prosecution for manslaughter under the state criminal law if he prescribed medications to terminally ill patients to help them end their lives.
The plaintiffs were seeking a declaratory judgment. This is a statement that defines the legal relationship between parties and the rights of each party in a matter before the court. That statement then acts as a binding judgment, just as if those issues had been adjudicated in a jury trial.
Their goal was to get a declaration that the basic rights of Massachusetts residents under their state constitution encompassed the option for a doctor to prescribe a lethal dose of medication to a competent patient with a terminal illness.
The Court, however, ruled that that action by a doctor was not protected and so it would not offend constitutional protections to prosecute a doctor who did so. The Court then held that the legislature would have to pass a law that would affirmatively permit physician-assisted suicide to achieve the result that the plaintiffs sought.
In the process of reaching its holding, the Court drew a distinction between physician-assisted suicide and a patient’s voluntary choice to refuse medical treatment or nutrition, saying “whereas withdrawing or withholding medical care is not the primary cause of a patient’s death, physician-assisted suicide is.”
To a doctor that may sound absurd – after all withholding a necessary treatment or basic sustenance and providing a lethal drug all produce death as medical outcome. However, the Court was making a legal point that, whether they agree with it or not, doctors should understand.
Although the Court was, in the instant case, denying the right of a terminal patient to achieve the death they sought in the manner that they preferred, it was actually in line with cases that have upheld the principles of patient autonomy and informed refusal of treatment.
For example:
- In Quinlan, the New Jersey Supreme Court held that a patient had the right to refuse mechanical ventilation.
- In Barber, the California Court of Appeals held that doctors charged with murder had not committed an unlawful act when, with permission from a patient’s family, they removed nutrition and hydration from a comatose patient.
- In Cruzan, the United States Supreme Court held that a competent person’s right to forgo treatment, including nutrition and hydration, is a liberty interest protected under the Fourteenth Amendment.
Where the legal line is drawn is between a death process seen as natural – death taking its course in the absence of intervention – and one that is induced.
A doctor participating in a patient’s voluntary starvation by providing supportive care such as sedation for pain or hallucinations is therefore not seen as legally separate from the patient’s personal actions. This would be true even if the patient only made their choice to end their life in the expectation that the doctor would make sure that they were made comfortable during that process.
The point is that the doctor’s actions are seen by the law as therapeutic only, merely easing the patient in a choice that the patient actually made and actually controls through their own autonomy.
The analysis of whether the role of the doctor was primarily therapeutic also comes up in futility cases, in which the issue is whether to keep a patient alive solely by artificial means but without hope of recovery. Since medical actions that can never benefit the patient are outside any treatment role, terminating life support that has no value is held by courts hearing such cases to be within therapeutic medical standards.
This requirement that the medical action must be primarily therapeutic rather than primarily death-dealing also comes up in the setting of advanced directives. Most templates for healthcare proxy designations and living wills include that the person executing the document wants to be made maximally comfortable “even if such may hasten my death.” This is intended to apply to palliative sedation and to morphine for agonal respiration. What makes the administration of the drug non-criminal, and able to be upheld if the advanced directive is challenged, is that the goal is therapeutic because it is to ease suffering and the dose given is within established therapeutic limits, with any hastening of death then being an unavoidable side effect rather than a goal.
Taken together, what we see is that the likely judicial approach in end-of-life settings will be to accept a doctor acting therapeutically, including facilitation of a patient’s actions in hastening natural death, but to reject the doctor intervening deliberately to bring on death.
But does this approach by courts then mean that a doctor who participates in withholding treatment or nutrition and hydration is unequivocally outside a criminal charge if their state prohibits physician-assisted suicide?
The answer there would be “No”. The issue would be the intentionality of the doctor. A court would be looking to whether the doctor was the actual driving force behind the patient’s life-ending choice, thereby separating the case from the principles of patient autonomy and informed refusal.
This does not mean that a doctor cannot discuss options with a terminally ill patient, but it does mean that the process should be well-documented (and recorded, if the patient agrees) and ideally should involve family or an impartial witness, all to clarify that the doctor discussed all available alternatives with the patient and that the patient was not pressed to take a life-ending action that they were reluctant about.
In summary: In resolving an end-of-life issue a court will look to whether a doctor’s action, even if it facilitates death, was therapeutic in intention, and whether the driving force was the patient, acting autonomously, rather than the doctor.
