Does Massachusetts Need a “Best Interests” Panel?

With Election Day approaching, and Massachusetts due to vote on the Death With Dignity Act, apparent physician opposition remains a stumbling block. And yet, in their essay “Redefining Physicians’ Role in Assisted Dying (New England Journal of Medicine July 12, 2012), authors Julian Prokopetz and Dr. Lisa Soleymani Lehmann state that among citizens “momentum is building for assisted dying.”

That said, “some physicians believe it’s inappropriate or wrong for a physician to play an active role in ending a patient’s life,” they write.

Their solution is to remove “physician-assisted” from assisted dying. Instead, an independent state or federal “mechanism” would be created “to confirm the authenticity and eligibility of patients’ requests, dispense medication, and monitor demand and use.” 

As someone who can justify the practice of Death With Dignity/Assisted Suicide (see our White Paper: Choosing Medically Induced Death, but is wary of such a radical change to the healing nature of what physicians do, I’m drawn to the idea of legalizing the practice but removing the physician from the ultimate decision and dispensation of the lethal dose.

What would such a governmental “mechanism” look like? Would it be used exclusively for terminal patients wanting to end their lives? Or would it have a broader charge, perhaps resolving intractable medical disputes, and advocating for unbefriended patients.

There are models for this type of panel. 

In Ontario, Canada, the Consent & Capacity Board is used to resolve questions of mental health and competence, informed consent, and substitute decision-makers. It conducts hearings related to the province’s Mental Health Act, Health Care Consent Act, Personal Health Information Protection Act, the Substitute Decisions Act and Mandatory Blood Testing Act. Members consist of psychiatrists, lawyers and other citizens, appointed by the lieutenant governor.

The CCB, in resolving intractable disputes between the medical team and surrogate decision-makers, has a good reputation for serving the patient’s best interests.

In New York State, a Surrogate Decision-Making Committee has a more specific purpose. It serves to advocate for mentally disabled patients who cannot speak for themselves, and so cannot give informed consent for medical treatment.

Texas, under its Advance Directives Act, also seems to handle intractable disputes efficiently and as well as possible in considering the life-and-death circumstances. But TADA carries the taint of keeping the decision, not only out of the courts, but inside the hospital. 

Like Ontario’s CCB, New York’s SDMC is an alternative to the court system, which is ill equipped to deal decisively and expeditiously in such cases. The SDMC serves persons with mental disabilities who are or have been residents of a state program and have neither decision-making capacity nor a legally authorized surrogate decision-maker.

Such “unbefriended” patients are increasing in number -- in Massachusetts, as well.

“These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf,” according to Thaddeus Pope, the medical futility legal expert, and Hamline University colleague Tanya Sellers. “This topic has been the subject of recent articles in (Journal of Clinical Ethics).It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the ‘single greatest category of problems’ encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.”

Does Massachusetts need such a “mechanism”? Were a panel created to decide cases of assisted dying in Massachusetts, what else should it be responsible for?

“Such a mechanism would make it essential to offer high-quality palliative care,” say the authors of the NEJM essay. “The availability of assisted suicide in Oregon seems to have galvanized efforts to ensure that it is truly a last resort, and the same should hold true regardless of who writes the prescription. Usual care for terminally ill patients should include a discussion of life-preserving and palliative options so that all patients receive care consistent with their own vision of a good death.”