A letter to the editor written earlier this year by four North Carolina (NC) physicians to the North Carolina Medical Journal suggests that aid-in-dying (AID) is viable under the law as it now exists in that state. Their opinion follows a well-reasoned law review article by Kathryn L. Tucker, the founder and director of the End of Life Liberty Project, which appeared in the North Carolina Law Review in January 2019.
The physicians summarize Tucker’s conclusion:
. . . physicians [in NC] can provide AID to their mentally competent terminally ill patients who request it, subject to standard of care, without risk of a viable criminal or disciplinary action. The United States Supreme Court has ruled that physicians cannot be punished for prescribing medication for AID under the Controlled Substances Act. (Citations omitted.)
To arrive at this conclusion, Tucker examined NC’s relevant criminal statutes concerning AID, its end-of-life decision-making process, its clinical practice guidelines (broadly referred to as its medical standard of care), and its physician disciplinary standards. She begins with two assertions: “[t]here is a legitimate role for government in deterring assisting a suicide,” and “suicide is starkly different from providing AID.”
The criminal law in NC
Tucker explains that “. . . it is a basic principle of criminal law that prohibited conduct be clearly delineated.” In NC, there is no law prohibiting AID, nor is there a statute that permits it. In 1974, the North Carolina General Assembly abolished the common law crime of suicide. Because suicide is not prohibited in NC, there is no underlying crime that can be assisted, which is why some states have adopted assisted suicide statutes. (Homicide is discussed below in the section concerning Montana.)
There have been attempts over the past 16 years to pass laws to both allow physician AID and to prohibit it, but no such laws have been approved by the NC General Assembly.
NC’s end-of-life decision-making process
Tucker explains that
North Carolina’s existing statutory framework already empowers patients to make autonomous decisions regarding their end-of-life care and treatment, and the standard of care already accepts a variety of other life-ending practices such as withdrawing life-sustaining treatment, including nutrition and hydration, and administering palliative sedation.
Further support for Tucker’s analysis is found in NC’s Advance Directive for a Natural Death law, which
empowers patients to declare their desire to have life-prolonging measures withdrawn upon the occurrence of certain triggering conditions, even where doing so will precipitate death.
The NC Medical Society recognizes patient autonomy and self-determination, which results in their “right to make their own healthcare decisions.”
NC’s standard of care for medical practice
Tucker explains further that physicians can be guided by the standard of care that is “also referred to as best medical practices.” Tucker elaborates:
The standard of care is an objective one. A physician has a duty to have and to utilize the knowledge and skill ordinarily possessed by a physician practicing in the same field with similar training and experience, situated in a similar community under similar circumstances, as established by expert testimony.
Medical practices may also include some that are not universally followed, but are accepted by a “respectable minority” of practitioners. AID, for example is one such practice. Tucker suggests that it
has become increasingly accepted among medical and health policy organizations, with many of these organizations adopting policies in support of the practice.
Clinical practice guidelines are one way to determine whether an acceptable standard of care is being followed. In 2016, a committee created by Compassion & Choices published “Clinical Criteria for Physician Aid in Dying” in the Journal of Palliative Medicine.
The Physician Aid-in-Dying Clinical Criteria Committee included
experts in medicine, law, bioethics, hospice, nursing, social work, and pharmacy, and drafted the criteria over a one-year period. The criteria draw upon over 25 combined years of extensive documentation and data collection from AID in Oregon and Washington, with the goal of supporting optimal patient care at EOL.
Our clinical criteria discuss the ways in which physicians should respond to a request for AID, including (1) discussion of the patient’s reasons for requesting AID, (2) evaluation of the patient’s decisional capacity, and (3) assessment of the patient’s understanding of palliative measures that might be used instead of or concurrent with AID. In addition, while the statutes authorize the writing of a prescription for AID, they say nothing about the kinds or doses of medication that should be used. In contrast, our criteria provide specific recommendations for the prescriptions that physicians should write and the steps that patients should take in preparing their medication for ingestion.
An important criterion was ensuring informed consent:
Studies show that few patients understand all their EOL options. Therefore, when a patient requests AID, the physician ought to explore with that patient the full range of EOL care available.
However, the committee did not discuss the non-medical alternative of using inert gas to have a quick and peaceful death, an option that may be preferable for some dying patients, especially those who can’t swallow the lethal drugs successfully. But they will not have this option if they do not learn about it.
Disciplinary actions against physicians in NC
The NC Board of Medicine regulates the practice of physicians in that state. The statute that empowers the Board to discipline a physician for unprofessional conduct is limited:
The Board shall not revoke the license of or deny a license to a person, or discipline a licensee in any manner, solely because of that person’s practice of a therapy that is experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence, the Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective.
A careful reading of this statute suggests to Tucker that the Board would be overstepping its authority if it tried to discipline a physician for prescribing AID to a terminally ill patient. Tucker concludes that
Neither of the two exceptions to this protection would appear to fit AID. A patient choosing AID avoids harm they hope to avoid (that of a more lingering and horrific death), and AID, when provided subject to the standard of care, is nearly always “effective” in achieving the desired result (the swift and peaceful death of the patient).
Montana’s AID background is similar to NC’s
Tucker explains that the legal and medical circumstances in NC and Montana are nearly identical, except that Montana’s Supreme Court has ruled that AID is permitted in that state. In Baxter v. State, the court held that
a physician who aids a terminally ill patient in dying is not directly involved in the final decision or the final act [but rather] only provides a means by which a terminally ill patient himself can give effect to his life-ending decision.
In analyzing the Montana Rights of the Terminally Ill Act, the court found no suggestion that physician AID is against public policy as homicide because of the homicide statute’s limited scope, which only applies to one who “purposely or knowingly causes the death of another human being.” The terminally ill patient’s decision to self-administer medication causing his or her own death would not cause the death of “another” within the homicide statute but the death of oneself, which was not within the statute.
The court noted that while the Act expressly “does not condone, authorize, or approve mercy killing or euthanasia,” it also does not say that “physician aid in dying” is prohibited. The court also noted that neither “euthanasia” nor “mercy killing” is consent-based, nor do they involve a patient’s “decision to self-administer drugs that will cause his own death.”
Conclusion
It remains to be seen whether Tucker’s legal analysis will stand up to judicial scrutiny in NC. In Massachusetts, another state with similar circumstances to NC and Montana, a case is in the courts that should answer this question for that jurisdiction. Perhaps someone in NC will seek a declaratory judgment, or a physician will add AIM to her practice and be challenged in the courts, or others might proceed in some other way to obtain a judicial decision that will place NC on the same footing as Montana with respect to AID provided by physicians.
But even if AID becomes a practice in NC, it will not help the people who suffer from progressive neurodegenerative diseases, because such people are rarely mentally competent when they are found to be terminally ill within the six-month parameter observed by all US jurisdictions that allow AID by physicians.
My primary care provider read this, and commented that he fears that the NC Medical Board would disagree with this. Thus he could not provide that kind of service.