NC Medical Journal Letter Makes Case for MAID in NC

In an important pronouncement, four respected NC physicians argued in an open letter in the NC Medical Journal that Medical Aid in Dying is currently available in North Carolina, subject to application of the appropriate medical standard of care. The four physicians, Dr Haider Warraich, Dr Adithi Sethi-Brown, Dr John Carbone and Dr Beth Rosenberg, examined the legal landscape across America and the current legal situation in NC as outlined by Atty Kathryn Tucker in a recent UNC Law Reivew article. They conclude:

“In light of the legal analysis of North Carolina law, we feel confident that Aid In Dying can be provided to patients who request it. The medical community can respond supportively and compassionately to a final act of autonomy by patients who are confronted by a dying process which they find unbearable despite best palliative efforts.”

The endorsement by four pillars of the NC medical community in the wisdom, compassion and medical imperative of providing a MAID prescription to a terminally ill, mentally competent and freely acting patient is further evidence that NC is rapidly moving to join the 8 other uS jurisdictions where this procedure is available.

Respecting freedom and dignity at the end of life

The premier newspaper in North Carolina’s triangle published an op-ed urging support for legislation to enact MAID in NC, similar to the statutory provisions in place in 7 US jurisdictions. (An 8th jurisdiction, Montana, operates under an Open Practice regime relying on physicians applying the appropriate standard of care).

The op-ed is co-authored by Kory Swanson, the long time CEO of the influential and much respected John Locke Foundation and bespeaks the breadth of support for MAID. The John Locke Foundation is known to celebrate libertarian values of individual freedom and autonomy, and urgent a light touch from the government when interrupting an individual’s right to choose what is best for him or her. The editorial makes clear that MAID laws are consistent with the underlying philosophy of a libertarian approach to individual autonomy.

“No person can choose the time and place of one’s birth, but increasingly, people are seeking to have the final word on the time and place of their death when they’ve been diagnosed with an incurable, terminal and insufferable illness. “, the co-authors begin. They elaborate on the urgent need for North Carolina to join the growing national movement to afford an indispensable option to terminally ill individuals, who, although fully insured, although enrolled in hospice and receiving robust palliative care, may one day decide they simply don’t wish to continue an effort which is both agonizing and largely futile.

“Preparing for a Good End of Life”

In this weekend’s WSJ Review section (Feb 9-10, 2019; pp C1-C2), author Katy Butler notes the importance of making plans well ahead of time to make sure our passing does not become an undesired ordeal. She points out the frightening reality that “Seven in 10 Americans hope to die at home, but half die in nursing homes and hospitals.” She warns her reader that “Advanced medicine is replete with treatments (ventilators, dialysis, defibrillators, feeding tubes…) that postpone death and prolong misery without restoring health.”

And that may well be the rub. When an individual is suffering from a terminal, incurable and painful disease, there is essentially no hope of restoring health, even though life may be perpetuated. And with modern technology, it is possible to keep failing organs working artificially almost infinitely… but to what avail? The patient knows he/she will never be restored to a general state of well-being able to enjoy life as he/she once did. Instead, every breathing moment will be a miracle of modern science, totally detached from the essence of what a well lived life is all about. This is where the warnings of Katy Butler are so instructive.

In the absence of advance planning, an individual may well find his/her last days, if not weeks and months, tortuous and devoid of how he/she wants to live the end. Plan ahead, Ms Butler warns. And we all would be wise to take heed


Atty Tucker’s Article Draws Comment

We have previously drawn notice to an important law review article [North Carolina Law Review, Vol. 97 Addendum, pp. 1–20 (2019)], in which noted attorney Kathryn Tucker, Director and Founder of the End of Life Liberty Project, posited that even today, in the absence of any statutory language sanctioning Medical Aid in Dying, NC physicians can legally write end of life prescriptions for their terminally ill, mentally competent patients, provided they adhere to the prevailing medical standard of care. Tucker’s article has the potential to change the understanding of what NC doctors can and cannot do today and will likely therefore shape the debate in the General Assembly when it considers legislation on point.

In a recent commentary in the online journal eMerit, “Can NC Physicians Legally Prescribe Meds to Suffering Terminally Ill Patients to Precipitate a Peaceful Death?”, Dr Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, ( who has also a JD degree) reviewed the analysis behind Tucker’s article and concluded that she makes a compelling case that North Carolina physicians can legally prescribe medications to hasten end of life in competent adults with terminal illnesses.

Standard of Care in NC: IS MAID Legal Today?

In a pathbreaking law review article published Jan 17, 2019 in the UNC Law Review, Attorney and Hastings School of Law professor Kathryn Tucker, who has brought any number of MAID cases to the US Supreme Court and various State supreme courts, argues that because there is no NC law prohibiting the writing of MAID prescriptions, NC doctors should be able now to write scrips for terminal, competent adult patients, provided they adhere to a prevailing medical standard of care.

Tucker’s article follows the logic prevailing in Montana, where in 2009 the Montana Supreme Court agreed that in the absence of a law proscribing MAID, it would be illegal to prosecute a doctor who, in conformity with the appropriate medical standard of care, wrote prescriptions for terminally ill, mentally competent patients. In the last ten years, many Montana doctors have been writing MAID prescriptions to help terminal Montanans end their life on their own terms at the time and place of their choosing.

Tucker makes the compelling case that NC doctors can apply the relevant standard of care in treating their terminal patients because the legislature has chosen not to intrude in an area where medical professionals are best equipped to develop an appropriate standard of care, as they do in almost every other type of procedure. Additionally, Tucker notes, given that there are 8 US jurisdictions and several foreign countries where doctors for some time have been helping terminal patients in choosing the optimal end of life option, NC doctors should be able to develop and adhere to a binding standard of care.

DRNC congratulates Tucker on this landmark article which makes a compelling case hopefully providing imminent access to the terminally ill in North Carolina of another End of Life Option.

This article is republished with the kind permission the North Carolina Law Review, Vol. 97 Addendum, pp. 1–20 (2019).

Choosing one’s exit

Thanksgiving is hardly the time to think of shaking off these mortal coils; it’s a time for celebrating family and friends over a copious meal punctuated by good conversation and memorable stories of the year past.  Yet of course, death and dying are not respectful of season or holiday or the conventions of polite society.  Planning one’s exit is never too soon and frequently too late.

For some the question is one of pure selfishness:  what do you want for yourself?  Do you want above all to prolong to the last possible breath the final departure, no matter the impositions and burdens and financial implications?  Or do you want to avoid suffering, futile efforts and the degradations implicit in incontinence, immobility, loss of autonomy, paralysis, mental degradation, and physical dependency?  Each of us has our lodestar as to what is desired at the end of life.

A recent article in WaPo highlights the dilemma faced by those approaching death and understanding the inevitable decline which lies ahead.  It is not pleasant reading, but it is reality!

Suicide: Desperate, Hostile, Tragic… but mostly a Bloody Mess

A recent WaPo article by the daughter of a suicide highlights inadvertently the vital differences between suicide and Medical Aid in Dying. Its detractors persist in defying logic and decency in using the hoary, rejected terminology of Physician Assisted Suicide to imply that what befell Roxeanne Robert’s father some 20 years ago is analogous to what occurs in the states where MAID is perfectly legal.  And they are clearly polar opposites.

Medical Aid in Dying is neither desperate, nor hostile… perhaps tragic… but never a bloody mess.  Suicide though usually is; it is very often impetuous, brought about by irrational ideations, false impressions, or wildly uncontrolled emotions.  It almost always entails some horribly violent end, whether through gunshot, jumping off buildings or in front of moving vehicles, or electrocution.  It is never pleasant for the loved one(s) who come upon the remains of their deceased family member.

By contrast, MAID is the result of a rational analysis in conjunction with trained professionals, often in consultation with one’s family members who often accompany their loved one at his death bedside.  It is almost inevitably a peaceful, loving end, in a place and a time of one’s choosing, surrounded by love and empathy.  There is never bloodshed involved.

When MAID opponents harp on the term Physician Assisted Suicide, which almost every serious medical practitioner rejects as a misnomer, instead of the generally accepted term MAID, they are trying to confuse the issue and assimilate a national tragedy of an increase in suicide rates with society’s interest in reversing this trend.  They syllogism runs as follows “Suicide is a tragedy which we must discourage… and PAS is a type of licensed suicide… ergo, we must oppose PAS as encouraging suicide.”

The reality is MAID has nothing to do with suicide.  The situation of those who avail themselves of the practice is the polar opposite of those who commit self-murder.  The latter have an otherwise indeterminate life ahead of them; they inevitably are suffering from a mental delusion or heightened emotional state; they are often reacting impulsively to a temporary disappointment; they otherwise have numerous options including medical treatment for depression.

Those who use MAID have no illusions: they have been told they will die within 6 months, no matter what they do.  They know their quality of life is severely compromised and essentially hopeless.  They have been told that they can remain in hospice or embrace palliative care, and still they have weighed these imponderables and made a decision which few can question as being irrational.

So to those who enjoy bungling the English language and grasp on to dated terminology, I would note that once upon a time American psychiatrists deemed homosexuality a deviance if not a diseased syndrome, but they have moved on to a an illuminated understanding.  It’s about time, my linguistic troglodytes, that you too accepted that PAS is an inappropriate, medically incorrect and deeply offensive term.

Right to Try vs Right to Die

On May 30, 2018, President Trump whose newly-found pro-life bona fides can no longer be in doubt, signed the Right to Try Act of 2017, which amends Federal law to allow certain FDA-unapproved, still experimental drugs to be administered to terminally ill patients who have otherwise exhausted all approved treatment options.  Eligible drugs must nevertheless have undergone FDA phase I (safety) testing.  Among other aspects of the legislation, the law limits the liability of manufacturers, prescribers or dispenses which provide or decline to provide an eligible experimental drug.

President Trump cogently explained: “People who are terminally ill should not have to go from country to country to seek a cure.  I’d see people-friends of mine, and other people I’dread about, where they’d travel all over the world looking for a cure.  And we have the best medical people in the world.”

The analogy between Right to Try and Right to Die should be lost on no one.  When people enter a terminal phase, society should do all that is feasible to assist those in greatest need.  If the individual wishes to try an experimental drug which may give hope if not a cure, should we really allow bureaucratic red tape condemn that person to an early death.  Likewise, if a terminal person has concluded that the suffering and hopelessness are no longer worth the struggle, shouldn’t we provide redress, in whatever form it might take?

President Trump bemoaned the fact that our laws forced terminal patients to get up and seek treatment in another country.  Today in America, a terminal patient who seeks a peaceful end is equally forced to seek MAID in one of the 8 (well, for the time being 7 during prosecution of the appeal of California’s temporary limbo) jurisdictions where the procedure is legal.

What we are seeing is a general movement to disintermediate those hierarchical patriarchial forces which insist that they know better what is good for a patient, whether it is the Catholic Church, the AMA, or the FDA.  Slowly, the revolution of patient autonomy is being accepted and the individual is allowed to decide his or her future.

Setback in California

A Riverside County (California) Superior Court Judge, Daniel Ottolia, entered an order on Friday, May 25, in Ahn v Hestrin, holding as invalid California’s End of Life Option Act, signed into law by Governor Jerry Brown in June 2016.  The order effectively brings to a halt a law which has brought relief to some 500 Californians facing an end of life dilemma, who would prefer to hasten an imminent death due to an incurable terminal illness in the comfort of their home or other preferred place, rather than suffer pointlessly.

The Superior Court decision is being appealed by California’s Attorney General Xavier Becerro who was unable to stay the application of Judge Ottolia’s ruling.

The plaintiffs, several religiously-motivated physicians, brought the suit almost immediately after the End of Life Option Act went into effect in June 2016.  Judge Ottolia had initially refused to stay implementation of the act pending resolution of the plaintiffs’ claims.

It should be noted that the plaintiffs are alleging that the End of Life Option Act, which was introduced and debated during an extraordinary legislative session called for by Governor Brown to discuss “access to healthcare services”, does not constitute a matter of healthcare policy.  This argument seems counterintuitive if not nonsensical since MAID is by its very nature an issue of access to a fundamental healthcare practice, and since Governor Brown, who called the extraordinary session, supported and signed the legislation.  Nevertheless the plaintiffs chose their forum wisely, targeting a judge with known sympathies.

It is unlikely that Judge Ottolia’s ruling will stand the scrutiny of an appeal to the California Supreme Court, but for the time being, it is a setback and a bitter disappointment to some of the most vulnerable and suffering Californians.



Successful Charlotte Conference Highlights Need for MAID in NC

More than 80 interested guests joined us at our first conference at Charlotte’s UNC-C Center City on May 9, 2018, entitled “Expanding Medical Aid in Dying in North Carolina: Choices and Challenges”.  Keynote addresses by Barbara Mancini, whose heart-rending story of her politically-motivated prosecution for an innocent gesture of helping her dying 93-year old father take his pain medication, and Atty Kathryn Tucker, Executive Director of the California-based End of Life Liberty Project and a veteran of court battles seeking recognition of MAID, set the tone and clarified both the need for legislation and the uphill battle to see enactment in NC.   A panel of specialists and experts offered views on alternatives to MAID, such as VSED, self-exile to a state where the practice is honored, hospice and palliative care or, as a desperate measure, self-exit.

Atty Tucker elaborated on a different approach to MAID, now exercised in Montana, where doctors practice a Standard of Care.  Ms Tucker explained that historically and culturally, medical procedures are defined and policed by physicians applying a rigorous best practice, learning from each other through peer-reviewed journals, continuing education seminars, medical school instruction, etc.  In a state like NC where there is no statutory language prohibiting or endorsing MAID, physicians should logically be free to institute MAID as an offered procedure subject to using what the medical community deems to be a Best Practice.

A panel of legal, ethical, medical and legislative experts were invited to comment on Ms Tucker’s proposal, pointing out the risks and difficulties of proceeding without a clear legislative imprimatur.

Feedback from the audience was overwhelmingly positive, with the one consistent suggestion being to expand the timeframe for Q&A, even if it meant lengthening the conference by another hour or so.

DRNC wishes to thank all the presenters and panelists who made the conference a success.  Charlotte Conference Materials