Boston University School of Law

February 2013

The Least Bad Death: Who Decides?
The 9th annual Pike Lecture on Health Law, featuring keynote speaker Marcia Angell, MD

Dr. Marcia Angell (BUSM ’67), a senior lecturer in the Department of Global Health and Social Medicine at Harvard Medical School, delivered the annual BU Law Pike Lecture on Health Law. She urged Massachusetts voters to legalize physician-assisted death for terminally ill patients by affirming ballot question two in the November 2012 election. This ballot question sought to import the “Death with Dignity Act” to Massachusetts after successful voter initiatives in Oregon and Washington.

Dr. Angell was careful with terminology as she described the Death with Dignity Act. Physician-assisted “suicide” implies that end-of-life patients have a clear choice between life and death. But physician-assisted “death” conveys the narrow purpose of the law—“to give dying patients who find their suffering no longer bearable the option of hastening an inevitable death.” This option would not displace palliative care. It would provide a back up where palliative care fails to relieve symptoms beyond physical pain, such as “weakness, loss of control of bodily functions, nausea, breathlessness” and the awareness “that no matter how bad it is today, it’ll be worse tomorrow and likely worse than that the next day.”

Oregon passed a “virtually identical” law fifteen years ago. Publically available data from the Oregon Division of Public Health show that physician-assisted death accounted for 0.2% of the state’s deaths last year, and 80% of the electing patients were on hospice care with end-stage cancer. These patients typically were “affluent, educated, insured” and unwilling to give up control “just because they were dying.” Just as patients won the right to refuse life-sustaining treatment after a 1976 New Jersey Supreme Court decision, Dr. Angell argued that physician-assisted death is the next step in ensuring patient dignity.

Dr. Michael Grodin, a professor at the Boston University Schools of Public Health and Medicine and the Director of Medical Ethics at Boston Medical Center, disagreed with Dr. Angell regarding “what dignity means.” He emphasized that “terminally ill patients’ lives should not be devalued,” particularly where legal life-ending drugs might answer “the call to cut costs at the end of life.” Dr. Grodin was also concerned about “the lack of documented health referral in Oregon.” The law requires physicians to refer patients to a psychiatrist for psychiatric conditions such as major depression. But symptoms such as “loss of appetite, difficulty sleeping [and] preoccupation with death” appear both in both depressed patients and terminally ill patients. Nobody knows how many patients take life-ending drugs “because they lack social, family and spiritual support.”

The Death with Dignity National Center and Compassion & Choices supported the Death with Dignity Act in Massachusetts because an eastern, “more traditional state” would raise the profile of the movement. The Catholic Church, the Massachusetts Medical Society and several disability groups voiced opposition. On Election Day, a slim majority of 51% of Massachusetts voters opted against the new law.

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Reported by David Linhart (’12)

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