On May 23, 2017, a US Appellate Court upheld a Consent Agreement between the state and medical professionals to protect conscience rights of professionals who oppose assisted suicide. This is a real victory and perhaps the best that could have been achieved. True Dignity cannot say that it was the victory patients in Vermont and elsewhere needed, unfortunately. Patients have more protections than they did before this decision, but they still have far too few.
Here, briefly, is what happened.
Act 39, under which assisted suicide is legal in VT, contains protections for physicians and other medical professionals who refuse to provide assisted suicide or make referrals to doctors who will. Two previously-existing VT laws, the Patient Bill of Rights and the Informed Consent law, however, require that “terminally” ill patients be informed about all available end of life options. Vermont Alliance for Ethical Health Care and the Christian Medical and Dental Associations, represented by the Alliance Defending Freedom, brought a lawsuit against several “terminally” ill patients who were represented by the Vermont Attorney General’s office. They asked for a ruling that would explicitly grant medical professionals conscientiously opposed to assisted suicide an exemption from the requirement to list it among the available“options”.
On April 5th, the US District Court for Vermont issued a ruling dismissing the lawsuit, citing “broad agreement” between the Attorney General’s office and the suing medical professionals. The Attorney General’s office had affirmed that it did not read the language of the law to require physicians to list assisted suicide among the options if a patient did not ask about it, and the medical professionals had signaled their willingness to answer patient-initiated questions and/or refer patients to other sources of information.
In its decision, the court contrasted the VT objectors’ position with that of Thomas More, who lived in what it called “a more authoritarian age”. Perhaps the age was indeed more authoritarian, since Henry VIII did not offer More the negative option of neither agreeing nor disagreeing with the Act of Succession. On the other hand, More’s stance was perhaps more principled than that of the Vermont medical professionals. More wrote that, were he offered the chance to remain silent, he would do so, but he refused to take the proactive step of signing the Act. The VT court decision offers a very limited right to remain silent, only up to the point at which the patient asks for information. Once the patient has asked, the doctor is required to answer his questions with information; that seems like a proactive step to us. Amazingly, the doctors, agreed to do that, signing the consent agreement rather than continuing to pursue the suit.
Compassion and Choices wanted complete capitulation; it appealed the Consent Agreement. It must have soon realized it had gotten a lot of what it wanted, however; and it asked the court to dismiss the appeal. The May 23 decision was to grant Compassion and Choices’ request.
Here is the concerning language from “Civil Action No. 5:16-cv-206, Consent Agreement and Stipulation” (underlining ours) https://adflegal.blob.core.windows.net/web-content-dev/docs/default-source/documents/case-documents/vermont-alliance-for-ethical-healthcare-v.-hoser/vermont-alliance-for-ethical-healthcare-v-hoser—consent-agreement.pdf?sfvrsn=6
1.Plaintiffs and similarly situated medical providers do not have a legal or professional obligation to counsel and refer patients for the Patient Choice at End of Life process under 18 V.S.A,5281-93, the Patient’s Bill of Rights (18 V.S.A.,1871, or the Informed Consent Act (12 V.S.A. 1909(d).
2.Plaintiffs and similarly situated medical professionals have a professional obligation to provide relevant and accurate information regarding the Patient Choice at End of Life process upon a patient’s request, or if unwilling to provide the information personally, to make a referral or otherwise reasonably ensure that the patient will be able to obtain relevant and accurate information about the process.
Item No. 2, in our opinion, unacceptably requires a physician to violate his or her conscience in telling a patient where to get information about assistance in suicide. Even more unacceptably, it violates the fundamental right of a patient to look to a doctor for care and protection. It does not recognize that the patient may be asking about assisted suicide under pressure, perhaps pressure so subtle that he or she doesn’t even recognize it as such. If the physician refers that patient to the internet or phone (two sources that are mentioned in various documents related to the case), that would be the equivalent of what True Dignity has always regarded as the coldest and most disinterested of responses, “It’s your decision.” The response a patient deserves, the one we would hope VT patients would receive from their doctors, would be the proactive one given by an Oregon doctor to “terminal” patient Jeanette Hall when she asked him how to access assisted suicide under that state’s law. He told her he would not help her, went further in telling her how it would hurt her son if she committed suicide, and urged her to get treatment for her “terminal” illness. Today, 17 years later, she is still alive and advocating against legal assisted suicide.
True Dignity believes very sick patients deserve protection and accompaniment, not being left on their own. This agreement does not provide adequate protections for doctors who wish to disobey this bad law, or for their patients who may desperately need them to.
Yes, the court decision is a victory. Compassion and Choices has been telling medical professionals and patients around the state that they have to provide information to all “terminal” patients about assisted suicide as well as referrals to doctors who provide it. If C&C had liked the agreement it would not have appealed it. It was, however, not the victory for patients that True Dignity would have wanted, and C&C’s decision to drop the appeal confirms us in our opinion.
This victory leaves patients without the possibility of the caring advocacy Jeanette Hall got from her doctor, the caring advocacy they deserve in the cold and deadly environment in which we find ourselves, an environment in which it makes perfect sense to get rid of people who cost time, emotional investment, and money.
That things could have been much worse does not mean they are not still very bad.