By Vallerina F. Day
Say you wake up after an accident in the hospital. You slowly realize that you are completely paralyzed and on a ventilator. All your life you have feared this very circumstance. You still have your wits about you and you are filled with revulsion at the idea of living helpless and captive to machinery. You would much rather die than live in this condition, even though the doctors say you could live for years. Is there help for you?
“Euthanasia” means the action of inducing a gentle and easy death. The federal government and all fifty states prohibit euthanasia under general homicide laws. The federal government does not have assisted suicide laws. In 1997, the U.S. Supreme Court unanimously ruled, in Glucksberg v. Washington and Vacco v. Quill that there is no Constitutional right to assisted suicide. Therefore, states have a right to prohibit it.
The exception to these laws is in the area of terminal illness. The phrase “assisted suicide” often is used interchangeably with the phrases “death with dignity,” “physician-assisted suicide” and “physician-aided suicide.”
Assisted suicide is legal, by legislation or court order, in six states (Washington, Oregon, Colorado, Vermont, Montana, and California) and Washington, D.C. The requirements are similar in all cases. The person requesting the service must be a resident of the state or city. The person typically must make more than one oral request for the service to their doctor, often separated by a period of time, usually fifteen days, and a written request.. The person must be declared by one or more doctors as terminally ill and having six months or less to live. The doctor must determine that the patient is capable of making an informed decision and is making that decision voluntarily.
All protections under the various assisted suicide laws contemplate assistance rendered under medical supervision. They typically do not apply to assistance rendered by family or friend. Some protection is sometimes provided if the friend or family is acting in accordance with a Living Will, a Power of Attorney or a Do Not Resuscitate request by withholding medical treatment, medicine, food or water.
So far, no help for you. But wait, as the late night commercials say, there’s more.
The courts have long recognized the individual’s right to the control over one’s body and to refuse unwanted touching.
The 1976 New Jersey case of In Re: Quinlan started the debate about under what circumstances artificial life support, in this case a respirator, can be withdrawn from a person in a persistent vegetative state. The patient’s father sought guardianship with the express intent of directing the removal of the respirator, consistent with his daughter’s wishes. The Court addressed the issue in terms of a constitutional right to privacy and determined that that such right to privacy could be asserted by her guardian.
In 1990, the U.S. Supreme Court, in Cruzan v. Director, Mo. Dept. of Health, recognized that a competent person has a constitutionally protected liberty interest under the due process clause of the Fourteenth Amendment to refuse unwanted medical treatment. The patient was in a vegetative state, and the family wished to terminate artificial nutrition and hydration. The Court held that, in order to balance the patient’s constitutional right against the State’s interest in preserving life, the State’s standard of “clear and convincing evidence” of the patient’s wishes could be applied. If the evidence were clear and convincing, which it was not in this case, it would trigger the Constitutional right of the patient.
So, my paralyzed friend, fret not. If you are conscious and competent, you have the right to refuse any unwanted medical treatment. If you are unconscious, incompetent or vegetative, you can rely on your clearly worded Living Will and/or Durable Power of Attorney for Health Care to speak for you under these terrible circumstances and to be clear and convincing evidence of your wishes.
Unfortunately, you may run into medical personnel (or others), who oppose your clearly stated wishes and attempt to thwart the actions you desire. There are several approaches to address such opposition.
- Be sure the hospital or medical facility has copies of your directing documents in its files. Discuss these documents and their directives with your doctor to see if you can ascertain any resistance early.
- Meet any opposition with direct verbal demands to doctor and hospital administrator, reducing such demands to writing, if necessary. The administrator is interested in getting the revenue from your hospitalization, but is probably not so interested in getting the facility embroiled in a lawsuit to enforce clearly stated, Constitutionally protected, rights.
- Many hospitals and other medical facilities employ patient advocates or ombudsmen, whose job it is to act as an intermediary between patient and the medical establishment and to advocate for the patient’s wishes.
- Get an attorney involved in the enforcement of your legal rights. The attorney can act quickly to obtain a Temporary Restraining Order, or other order consistent with the rights of the patient.
- Finally, contact your state or local representatives and/or the media and see if you can get them interested in your case. The Veterans Administration Hospitals are particularly politicized, so contacting your Senator, especially if you have a strong, straight-forward case, could be very advantageous.
1 521 U.S. 702 (1997)
2 521 U.S. 793 (1997)
3 355 A.2d 647 (N.J. 1976)
4 497 U.S. at 279 (1990)
DISCLAIMER: This is NOT legal advice! Local laws can differ greatly. This article is intended only for information purposes. If you have questions about it, you can bring it to your local lawyer to see if/how it might be applied in your locality.
Vallerina F. Day is an attorney, now happily retired.