All states now have laws recognizing health care directives. Generally, the laws provide for individuals to determine to what lengths they wish health care providers to go to provide treatment or pain relief when their prognosis is bleak and they are no longer able to speak for themselves. The cases of In re Quinlan, 70 N.J. 10, 355 A.2d 647 (N.J. 1976) and Cruzan v. Mo. Dept. of Health, 497 U.S. 261 (1990) paved the way for much of what is now accepted planning. Inasmuch as these groundbreaking cases that unfolded in the public eye did much to give individual control of end-of-life decisions, for many, these cases have left other areas untouched.
Cases continue to make headlines as the facts reach into more different situations. For example, a 14-year-old girl in Appleton, Wisconsin was permitted to refuse to continue treatment for Spinal Muscular Atrophy. She plans on discontinuing her use of a ventilator to breath and allowing the disease to takes its course. A generation ago, granting an adolescent the legal right to make such a decision would have seemed far-fetched. See, 14-year-old girl makes decision to die, NBC4i.com (last visited July 26, 2016).
Recently, the New Mexico Supreme Court decided Morris v. Brandenburg, No. S-1-SC-35478 (NM June 30, 2016), dealing with an individual’s right to enlist the prescription pad of a physician to hasten their death—committing suicide with an overdose. The District Court had held that the statute was a violation of due process after concluding that the state had not shown a completing interest would be furthered by enforcing the law. On appeal, the Morris court was asked to determine “whether a mentally competent, terminally ill patient ha[d] a constitutional right to have a willing physician . . . prescribe a safe medication that the patient may self-administer for the purpose of peacefully ending the patient’s life.” Id. at *5.
In a very considered and thoughtful opinion, the Court declined to find such a right. The Court held that the state law prohibiting physician-assisted suicide was sound. “Although the State does not have a legitimate interest in preserving a painful and debilitating life that will imminently come to an end, the State does have a legitimate interest in providing positive protections to ensure that a terminally ill patient’s end-of-life decision is informed, independent, and procedurally safe. Id. at *55 (emphasis added). The court found other legitimate state interests, too, including “(1) protecting the integrity and ethics of the medical profession [and] (2) protecting vulnerable groups—including the poor, the elderly, and disabled persons—from the risk of subtle coercion and undue influence in end-of-life situations, [over considerations such as] the substantial financial burden of end-of-life health care costs.” Id. at 60.
When helping your clients with drafting powers of attorney, health care directives and last wills, it is important to know the limits of the law in your state. Only California, Oregon, Vermont, Washington and Montana have laws that seem to permit the type of suicide assistance the New Mexico Supreme Court declined to uphold. Permitting a client to include provisions in a directive that will not carry the force of law does them a disservice. No one wants their 15 minutes of fame to come when they’re enduring the very personal process of a family member dying or coming to the end of their own life. Let them know what the law permits and, as laws change, contact clients again to let them know it may be time to update their documents.