Would You Choose Death on Your Own Terms if You Had a Terminal Illness? In 10 States, It’s Legal.

Q. I was recently flipping through the channels to watch Wimbledon on TV. I flipped too far and ended up on the World Series of Poker. When the tennis match was over, I flipped back to the poker competition. A man named Kevin Roster, who was fulfilling the last item on his bucket list, really stood out to me. Kevin described to the viewing audience how he has terminal cancer and how he is a staunch believer in death with dignity (or medical aid-in-dying). As someone with a terminal illness, he wants to avoid intolerable pain and die on his own terms, rather than gasping for air or choking on his own blood (two options that he mentioned could occur at the end with his form of cancer).

I am intrigued by the idea of dying on my own terms, should I be in a situation that would warrant it. Is such a thing legal in the DC area, and if so, how can I plan so my loved ones know my wishes?

Thanks for your help!

A. Five years ago, medical aid-in-dying advocate Brittany Maynard died from terminal brain cancer at age 29. She gained national attention when she moved from her home state to another state, Oregon, to utilize this end-of-life care option.

Medical aid in dying has come a long way since then. Currently, 10 jurisdictions authorize medical aid in dying: California, Colorado, Montana, Oregon, Vermont, Washington state, Hawaii, New Jersey, Maine, and Washington, DC, while others are considering it.

Medical aid in dying allows terminally ill adults to request and receive a prescription for medication that they may choose to take to bring about a peaceful death when they are ready.

Things to know about this option include:

  • To qualify, one must be mentally capable, over 18 years of age, able to self-ingest the medication, and have a prognosis of six months or less to live.
  • Medical aid in dying is not suicide. Suicide often involves people who are severely depressed and no longer want to live. People who seek medical aid in dying are suffering life-ending illnesses and understand that their condition is no longer treatable — there is no hope for a better outcome. Those considering suicide see no hope and do not recognize that their problems are treatable.
  • Medical aid in dying is different from euthanasia. With medical aid in dying, the terminally ill person must take the medication themselves, and therefore, always remains in control. Euthanasia is commonly given as a lethal injection by a third party. It is often performed on somebody who does not have a terminal diagnosis and is illegal throughout the United States.
  • Medical aid in dying does not apply to dementia patients because these patients don’t have the mental capacity to make the required decisions/requests and take the required actions once the time comes for these decisions and actions.
  • For some people, simply having the prescription brings comfort whether or not they use it.
  • This option can be used at home.

How a Terminally-Ill Doctor Helps His Patients Die

Dr. Roger Kligler, a proponent of medical aid-in-dying, has counseled many people facing unpleasant deaths, and their families and friends. As a doctor for more than 30 years, he believes that options for end-stage, terminally ill patients are limited and insufficient.

Recently diagnosed with a terminal illness himself, Dr. Kliger publicly described his own interest in using lethal drugs to die on his own terms rather than endure what he expects to be several months of significant pain, fatigue, and declining quality of life. Dr. Kliger wants the same for his patients.

To assist his terminal patients, Dr. Kliger currently performs palliative sedation on those who indicated their wish to abstain from what he believes are pointless, life-sustaining treatments. The process involves medicating a patient into unconsciousness to alleviate suffering until death occurs hours or sometimes days later. He does not feel that this is an optimal situation in many cases, as there is often significant unnecessary suffering for the patient beforehand, as well as for the family.

In other instances, he has removed life-sustaining treatment, such as ventilators, from people. He has also had to decide when to stop resuscitating dying patients because to him, it was a futile exercise. According to Kliger, few people return to their usual state of health after resuscitation. Dr. Kliger believes that medical aid in dying using medication on a patient’s terms is the best option for terminal patients who consent. It is currently not legal in Massachusetts, the state where he resides, so he is suing the state in hopes that this will change.

What DC Residents Need to Do to Use Medical Aid in Dying

DC residents wishing to use this statute must make two requests at least 15 days apart for life-ending medications and ingest the drugs themselves. Two witnesses must attest that the patient is making the decision voluntarily. Again, these criteria clearly exclude dementia patients, because by the time a physician is able to say that the dementia patient has only six months to live, the dementia patient will not be mentally competent to make these requests or to take the action of ingesting the medication on his or her own volition.

In Maryland (in 2017) and Virginia (in 2019), medical aid-in-dying laws were considered but not passed, supposedly due to lack of public support.

Plan Ahead to Tell Loved Ones What You Would Want

Whether or not you agree with medical aid in dying, it is of utmost importance to plan ahead to make sure your end-of-life wishes are known to physicians and to your loved ones.

An Advance Medical Directive (including a Long-term Care Directive®, a vital part of the 4-Needs Advance Medical Directive® that I created for my clients) specifies what medical and long-term care-related actions should (or should not) be undertaken if you’re too ill or incapacitated to make decisions.

Numerous personal statements are included in the 4-Needs Advance Medical Directive® describing your history, values (including religious beliefs), and any other information that will help people understand or at least have a sense of who you are. This allows your caregivers to make informed decisions based on more complete information and allows them to fill in the gaps in unanticipated situations. This document reinforces that the person making it doesn’t want their wishes to be ignored and doesn’t want someone else’s judgment substituted for their own.

Remember, if you do not have an Advance Directive in place, the following can happen:

• State determines the legal health care decision-maker.
• Medical treatments are not limited in an emergency.
• Decision-makers, families, and health care providers struggle to determine what you would have wanted.

This is not what you would want your loved ones to think about during such a stressful time!

If you or a loved one has not done Incapacity Planning, Long-Term Care Planning, or Estate Planning (or had your Planning documents reviewed in the past several years), now is a good time to plan and get prepared. Call us to make an appointment for an initial consultation:

Elder Law Attorney Fairfax: 703-691-1888
Elder Law Attorney Fredericksburg: 540-479-143
Elder Law Attorney Rockville: 301-519-8041
Elder Law Attorney DC: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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