The Right to Choose Death with Dignity

A multitude of questions arise for those who are diagnosed with a terminal illness that is likely to result in extensive suffering prior to death.  What does the future hold for me?  Who will take care of me?  Will the pain be intolerable?  Will any of my personal dignity remain?  If you have witnessed a loved one suffer extensively prior to death, you likely have strong opinions on these issues.  But will your opinion matter if you are faced with a terminal diagnosis?  What rights do you have to determine for yourself how you will die?

During my 23-year estate planning and elder law practice, I have had countless conversations with clients on the subject of their wishes for themselves if they are faced with a terminal diagnosis.  I have listened to their concerns that they not burden their loved ones with a long, drawn-out death.  I have commiserated with them as they’ve shared the anguish they felt while helplessly watching a loved one suffer through a long, tortuous end of life.  And I’ve railed with them against the unfairness of a legal system that prevents us from helping ourselves die with the same dignity that we afford our beloved pets.

Let me be clear.  This is not a discussion about assisted “suicide.”  The term suicide is an unfair, offensive, and biased label when used to describe the choice of a mentally competent terminally ill adult who desires to die in a peaceful and dignified manner.   Suicide is not that at all!  It is the intentional, voluntary ending of a life that would otherwise continue.  When used fairly and humanely, term suicide should only be used when describing one’s choosing the permanent solution of death to a temporary problem in life.

Why has death with dignity become such a significant issue in our society?  One reason is our modern health care system.  Historically, death was hastened for those suffering from a terminal illness when they, quite naturally, stopped eating or drinking. With the advent of intravenous hydration and feeding tubes, the frail, elderly patient who is approaching death, the person who is dying of an incurable disease, and the unlucky soul suffering from a permanent neurological disorder are staying alive longer.  Artificial means such as feeding tubes and ventilators hold death in abeyance.

Beginning in the 1970s, a series of highly publicized cases were brought before the courts in which patients or families challenged the treatment recommendations of physicians and hospitals.  These cases arose from a stalemate between the patient or family who sought to withdraw treatments that were keeping the patient alive, and physicians and hospitals who either believed it was ethically improper to withhold or withdraw treatment, or who wanted legal immunity before doing so.

The first U.S. case that addressed the “right to die” was the 1976 case of Karen Ann Quinlan.  Quinlan suffered permanent and severe brain damage when she took prescription drugs and drank alcohol after being on a crash diet for several days.  Doctors were able to save her life, but she remained in a persistent vegetative state.  After several months with no progress, her parents asked the doctors to remove her ventilator, as they no longer wanted her to be kept alive by artificial means. The hospital refused, and a lawsuit ensued.  The New Jersey Supreme Court held that Quinlan’s constitutional right of privacy included the right to decline medical treatment, even if such treatment was necessary to keep her alive.

The second major right to die case was that of Nancy Cruzan, a 25-year-old woman who, in 1983, suffered terminal injuries in a single-car accident.  Although she had no vital signs when found by emergency medical technicians, they resuscitated her.  Tragically, because her brain was without oxygen for at least 14 minutes, she remained in a persistent vegetative state with no chance of improvement.  She was not dependent on a ventilator; rather, she was being kept alive with constant medical care and a feeding tube.  Four years after the accident, her parents, seeing no hope of recovery, requested that the feeding tube be removed.  As in the Quinlan case, the hospital refused.  The United States Supreme Court, in ruling that Cruzan’s parents had the right to demand that the feeding tube be removed, held that a competent adult has a constitutional liberty interest in not being forced to undergo unwanted medical procedures.  The Court ruled in that in determining the wishes of an incompetent patient, such as Cruzan, the question to ask is whether the patient previously expressed clear wishes either to refuse medical treatment were she under circumstances such as these, or designated another person to make such a decision for her if she were in such a condition.

In 1990, the Florida Supreme Court issued a momentous right to die decision in the case In re Guardianship of Estelle Browning.  Mrs. Browning, who was 85 years old at the time, executed a living will after seeing a friend linger on life support.  The following year, she suffered a stroke that left her in a brain-damaged state for nearly three years while lawyers argued about her right to die – a right she thought her living will guaranteed. Unlike Quinlan and Cruzan, Mrs. Browning had executed a living will stating that she did not want to be kept alive by artificial means and, specifically, that she did not want to be fed via a feeding tube.  Nevertheless, the nursing home in which she was residing refused to honor her living will.  The Florida Supreme Court, in an extremely important decision, held that a Florida resident has the constitutional right to choose or refuse medical treatment.

While these and other decisions make clear that we have a constitutional right to refuse treatment that will extend our lives, Florida legislators have been reluctant to pass legislation that would permit certain terminally ill people to voluntarily and legally request and receive from their physician prescription medication that would hasten their death in a peaceful, humane, and dignified manner.  To date, only the states of Oregon, Washington, Vermont, California, and Colorado have physician-assisted dying statutes, although the state of Montana also makes physician-assisted dying legal under a 2009 Montana Supreme Court ruling.

Death with Dignity laws clearly and concisely outline the process by which qualified individuals may obtain life-ending medication.  The decision as to whether to avail oneself of such law is completely voluntary — no one is obligated to use these laws against his or her choice. Rather, these laws permit freedom of choice for terminally ill and suffering patients. In order to qualify for a prescription under the law of these states a person must be a resident of the state, past the age of minority, mentally competent, and have been diagnosed with a terminal illness that will, within reasonable medical judgment, lead to death within six months. In addition, the patient must be able to self-administer and ingest the prescribed medication. Neither doctors nor patients can be compelled to participate in these laws; rather, the laws grant all the right to choose.

Death with dignity laws have safely and effectively given terminally ill people more freedom and control, more choices, and peace of mind when it matters most.  Yet, at this time, terminally-ill Floridians continue to suffer without this option, and our legislators aren’t even working to pass such a bill. If you, like me, believe this is a fundamental right of extreme importance, urge your Florida state legislators to support a Death with Dignity bill in our next legislative session.