Interview

Legislation on "death with dignity" in U.S.
Interviewee; Dr. Carol Suzuki
Interviewer; Dr. Masako Minooka (Executive Director of JACE)
A Interview with Dr. Suzuki who is a tenured professor of law at the University of New Mexico
School of Law in Albuquerque, New Mexico .
On 18th April 2013, we had a meaningful talk for hours about End-of-Life Care and legislation
on "Death with Dignity".
Some of the main Questions & Answers are below.

Q1;
Please tell us about the present situation of legislation on "death withdignity" in U.S. I hear in some states they discuss not only withholding &withdrawing life sustaining treatment by the patient's wish (1) or surrogate'swish (2), but also physician assisted death or aid in dying (3).

A1;
As a general matter, withholding or withdrawing life-sustaining treatment aremeasures that may allow a patient to die a natural death with dignity. As specificterminology, "death with dignity" has legal significance in the United States, with adifferent focus than how the term is utilized in Japan, because the term is used insome state laws that allow physician aid in dying. Oregon, Washington, andVermont1 have "death with dignity" laws that allow a competent state resident, withan incurable and irreversible disease that will lead to death within six months, toself-administer a legally-prescribed lethal dose of medication. Physician aid in dying
is also allowed in Montana based on a 2009 state court decision. 2
1.

Or. Rev. Stat. §§ 127.800 to 128.995 (effective 1997), available at
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDi
gnityAct/Documents/statute.pdf; Wash. Rev. Code §§ 70.245.010 to 70.245.904 (effective 2009), available athttp://apps.leg.wa.gov/RCW/default.aspx?cite=70.245; S.B. 77, 2013-14 Leg. (Vt. 2013)(enacted May 20, 2013) (to be codified at Vt. Stat. Ann. tit. 18, §§ 5281-5292), available at
http://www.leg.state.vt.us/docs/2014/Acts/ACT039.pdf.
2.

Baxter v. State, 224 P.3d 1211, 354 Mont. 234 (2009).

Q2;
In Japan the legislation on "death with dignity" is being discussed
enthusiastically. It is that "If a patient shows his wish to refuse life sustaining
treatment in writing, medical providers are not impeached for his death". It
is the case of (1) withholding & withdrawing life sustaining treatment by thepatient's wish. Some patient groups oppose the legislation. What do you
think of this legislation?

A2;
Legalization of advance directives, such as a living will, supports patient autonomy
and dignity. Advance directives provide direction to medical care providers, or anagent, guardian, surrogate or other person with legal decision-making power, tohelp guide decisions where a patient is not competent to state his or her wishes.
The "death with dignity" legislation proposed in Japan would allow a doctor towithhold life-sustaining medical treatment to a terminally ill patient if the patient
has a written document setting forth those wishes. A second proposal additionallyallows a doctor to withdraw life-sustaining measures that have already been
initiated. In the United States, we would need to look at the laws of each state tosee how a state addresses the withholding and withdrawal of life-sustaining medicaltreatment based on a patient's living will or other advance directive. A patient should
consider creating a directive prior to a medical emergency so that the patient has
an opportunity to make thoughtful choices in regard to medical care and any agent
or proxy permitted by law. A Japanese law that legalized an advance directive would
help to ensure that a patient's preferences could be documented and would befollowed. It would protect medical care providers who act in accordance with thewritten wishes.

Q3;
In the case that patient is incompetent and no Advance Directive, is itpossible to withhold or withdraw life sustaining treatment by the opinion of
the family (surrogate) in the U.S.?

A3;
We would need to look at state law in the situation where there is an incompetentpatient without a written advance directive addressing the withholding orwithdrawal of life-sustaining treatment. It would be important to try to determine
what the patient's wishes are in order to respect patient self-determination andautonomy. A pivotal case is Cruzan v. Director, Missouri Department of Health3,
where the U.S. Supreme Court found that a person has a right under the U.S.
Constitution to refuse medical treatment, but that a state could require "clear andconvincing evidence" that the patient would want life-sustaining treatment
withdrawn. Although there was no written advance directive in that matter, thestate trial court allowed the guardians to terminate treatment after it heard witness
testimony that the patient had made prior oral statements that demonstrated shewould not want the life-sustaining treatment.
As always, we would look to state law for guidance. Under the doctrine ofsubstituted judgment, we could try to determine what the patient would want if thepatient had decisional capacity. Are there relevant prior statements of the patientthat reflect the patient's values? Let's consider a hypothetical situation where apatient is incompetent, and the patient's wishes are unknown because they havenever been expressed through an advance directive or other instructions, and thepatient had not appointed a health-care agent (decision-maker). If the patient had
not appointed an agent and if there is no guardian to make health-related decisions,state law may require we look to the surrogate established by law, and the law may
require the surrogate to make decisions in the patient's best interest. Generally, aprovider will provide life-sustaining treatment if there is no one to speak on behalfof the patient's interests. Bioethicists might consider turning to beneficence, aprinciple of bioethical decision-making, to determine the best interest of the patient.
3.

497 U.S. 261 (1990).

Q4;
What do you think of the case of Kameda General Hospital in Japan? [Acompetent patient with ALS wished to remove respirator when he couldn't
communicate (it means status of 'locked-in'). He wrote his wishes on 9 pages
papers. His family understood his wish. And hospital interdisciplinary ethics
committee discussed for 1 year and decided to accept his wish. But thedirector of hospital refused to accept his offer being afraid of lawsuit.]
Do you have the same case like Kameda General Hospital in U.S.? And what
happens after patient's wish is rejected?
(Please refer to what you said [It can happen in U.S. But after the rejection
the family sues the hospital. Or change the hospital.]

A4;
In the United States, where there is conflict between the medical care provider andits ethics review board, and the patient or the patient's health-care agent, guardianor surrogate, or concern about liability, a party might choose to go to court to getan order regarding the continuation of or the termination of life-sustaining
treatment.
We would need to look at the laws and case law of each state to see how a patient'sright to refuse treatment is balanced against state interests and criminal lawsprohibiting physician aid in dying. There is precedent to allow a competent adult torefuse life-sustaining medical treatment, including nutrition and hydration. For
example, the patient in Bouvia v. Superior Court4 was a competent 28-year-old
woman with severe cerebral palsy who was quadriplegic. She could not eat on herown and a feeding tube was inserted after she expressed an intent to starve herself
in order to die. With sufficient feeding, the patient would probably live another 15to 20 years. She sued to be allowed to refuse medical treatment. The California
Court of Appeal stated, "Being competent she has the right to live out the remainderof her natural life in dignity and peace. . . . Personal dignity is a part of one's rightof privacy." It granted the patient the relief she sought and ordered the feeding tube
to be removed. After the court case ended, the patient decided to continue toreceive medical treatment.

4.

225 Cal. Rptr. 297, 179 Cal. App. 3d 1127 (Cal. Ct. App. 1986).

Q5;
Some Japanese people worry about the pressure on "Death with Dignity" bythe legislation. Is there such unreasonable pressure by the family in the U.S.?

A5;
Certainly, unreasonable pressure is at least in theory a possibility when a patientconsiders end-of-life plans. A patient should be able to consult with family andfriends prior to entering into an advance directive, and as a society we hope thatfamily members and friends assist the patient to make informed decisions thatreflect the patient's preferences. With respect to an advance directive, a patient
should not sign one where consent would be given by mistake, or obtained throughduress, menace, fraud, or undue influence; additionally, an advance directive should
not be executed through coercion by a person who is not acting to support thepatient's wishes.
In the case of physician aid in dying or "death with dignity" laws in the United States,
the laws require that the physician determine that the patient requesting aprescription for a lethal dose of medication is competent, is acting voluntarily, ismaking an informed decision, and is not being coerced.5In Washington state, it is afelony to coerce or exert undue influence on a patient to request medication to end
the patient's life. 6
5.

See Or. Rev. Stat. §§ 127.810 to 127.830; Wash. Rev. Code §§ 70.245.030 to 70.245.070;
Vt. Stat. Ann. tit. 18, § 5283.

6. Wash. Rev. Code § 70.245.200(2).

Q6;How do you reflect the change of patient's wish/intention after making
Advance Directive in the U.S? How the legal specialists (lawyers) in U.S.
advise or counsel the patients to better ensure that their choices (A.D.) arefollowed?

A6;
Just as state law would direct the creation of an advance directive, we would needto look at the laws to determine how changes to an advance directive would berecorded. Depending on the state, a patient, while having capacity, may be able torevoke provisions of an advance directive either by a signed writing or by personallyinforming the health-care provider. In a situation where a patient is competent but
cannot sign, a written revocation may be able to be signed on behalf of the patient.
A competent patient may be able to orally state changes to a medical care provider,
who can record those changes in the patient's medical records. In the event where
an individual enters into a new advance directive, the provisions of the older one
might be considered invalid where they conflict with the new directive.
As a lawyer, I would advise a client to consider executing any advance directive,
including a living will or a power of attorney for health care, when the client is notinvolved in an emergency. The directive should be made voluntarily, withappropriate counseling so that the decisions regarding an advance directive areinformed. The client should have time to reflect on her or his preferences for thewithholding of or discontinuation of medical treatment and choice of agent for
decision-making. There should be time to consult with family and friends. The
advance directive should be created and executed following the relevant state laws,
and copies should be given to the relevant people, including close family members
and medical-treatment providers, so the information is accessible when needed.

Q7;
In Japan ethical discussion about DNAR order has just begun recently. But
actually medical providers sometimes withhold some treatments other thanCPR to the patient with DNAR order.
I think the concept of POLST (Physician Order for Life Sustaining Treatment)
is important to improve the present situation in Japan. Please explain to us
about POLST.

A7;
The POLST (Physician Order for Life Sustaining Treatment; sometimes called aMOLST, Medical Order for Life Sustaining Treatment) is a product of state law.
Generally, a POLST is a document containing specific orders regarding end-of-life
medical treatment based on the wishes of a patient with a serious, progressive orchronic illness. It can contain provisions beyond what is found in a Do Not
Resuscitate Order. It is made after consultation with and on consent of the patientor the patient's health-care agent, guardian or surrogate, and signed by thephysician. A POLST will be honored by medical-care providers, including
emergency-care professionals, in a number of health-care settings and outside of ahospital setting. A patient-executed advance directive, even if otherwise legal, might
not be effective to give emergency medical care providers instructions to withhold
emergency medical treatment.

Q8;
If you have any other opinions or advices about legislation on "death withdignity" in Japan, please write freely.

A8;
A law that allows a competent person to give informed consent with regard tocommencement of or termination of medical treatment, and protects a medical
professional who provides treatment based on those written wishes, supports
patient autonomy, beneficence, and social justice. "Death with Dignity," whether wemean withholding or withdrawing treatment pursuant to an advance directive, as in
the proposed legislation in Japan, or if we mean physician aid in dying,7legal in somestates in the United States, raises social, legal, medical, ethical, moral, philosophical,
political and constitutional issues. Some differences in medical decision-making in
the United States and in Japan are cultural in nature and should be explored further.
I think patient autonomy and family decision-making can be in conflict and are
significant to our understanding of cultural differences. The United States
Constitution and state laws support liberty interests and self-determination;
decisions in Japan may be considered more family and society directed. However, itseems as if the discussions in both countries reflect a desire to honor and respect
the patient and the patient's values and wishes.
7. With regard to physician aid in dying, there are a number of states that are now consideringsuch measures, either through proposed legislation, or through the court.

ProfileCAROL MARI SUZUKI (Professor of Law, University of New Mexico)
As a law professor, she teaches in the clinical law program; Torts; a Bioethics seminar; and an
AIDS and the Law seminar. Her clinical teaching and practice areas include interviewing andcounseling, trial practice, family law, juvenile delinquency, and immigration. She is also theFaculty Advisor for the New Mexico Law Review, a student-edited legal journal which
publishes professional and student articles.