Colorado Death with Dignity Act Archives - The Law Office of Barbara E. Cashman

At the Chatfield Wetlands

This is the continuation of my previous post about the Colorado House of Representative bill on physician assisted death, on the topic “Concerning a Terminally Ill Individual’s Freedom to Make End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.”

If you’re curious about the debate in other parts of the world, here’s a link to a recent article in The Guardian. And here’s a New York Times article from last year on the topic of “aid in dying,” as there are variety of names for what is collectively physician assisted death (PAD). Well, back to the Colorado bill.

I will continue in this post with some of the concerns I have with the proposed legislation – from the standpoint of what is in the bill (terminology) and how it works (philosophy). I have difficulties with the term “informed decision” and how it relates to the principle of informed consent – the process for getting permission for a patient prior to conducting a healthcare intervention. Based on the definition in (7) of section 25-47-102, this “informed decision” doesn’t look like informed consent. What is it that the doctor advising a patient about this life-ending process must advise their patient? Some of it is informed consent, but it seems to be bigger than that and only for purposes of this legislation. This is vague and troublesome indeed. Can’t we just call it informed consent for ending one’s life? Will that agitate the medical community? This is another unsaid conflict that should not go unnoticed in this bill.

One of the stated concerns relating to a person’s capacity in this bill is that the person be “capable” and not otherwise suffering from a depression-impaired ability to make an informed decision. This bill seeks to pigeonhole diagnoses, to impose clarity in another rather gray area. There are some terminal diseases, like Parkinson’s, which often have a psychological or psychiatric component that cannot be easily extracted from the disease itself. In my experience, I have seen disability insurers seeking to exclude from coverage a person with a diagnosis of Parkinson’s disease because those persons often also have a diagnosis of depression that accompanies Parkinson’s. I use this by way of example only, to assert that it is not at all simple for any health care provider to extract a psychiatric or psychological disorder such as depression (as stated in the bill at section 25-47-107) that accompanies a diagnosis or prognosis or course of disease progression from that which impairs one’s ability to make an informed decision. There is a psychosocial component to many terminal illnesses, you can read more here about treating depression in advanced cancer.

This goes back to the rather slippery nature of the informed decision versus informed consent distinction. The medical-technological focus on dying in this bill is on death not as a natural process of life but as a medical problem. I believe this is in large part what perpetuates the avoidance and the denial of death in our culture. Using emotional restraint, facing death stoically and by deciding bravely to “assert control” to foreshorten any disturbing developments of the disease progression or any needless suffering are all bureaucratic way of making death “ordinary” in the sense it happens to us all. This extends the social isolation of the dying person, making their suffering worse, a dying person is in this way of thinking simply a useless reject of a person. The “brave choice” of a person in this context converts the life-ending decision into a glorified act of autonomy. The individual’s decision is theirs alone. This approach of physician-assisted death (PAD) stands in contrast to the family unit or community based models of hospice and palliative care, which seek to lessen pain, maximize quality of life for the dying and hold those persons in their identities. In this respect, PAD becomes a means of the individual’s attempt to fight back against the ignominy of illness, of life-robbing disease which compromises one’s social identity. I don’t buy it!

Another problematic inclusion is the family notification provision in section 25-47-109. I am not sure why this in the bill. I don’t really understand what its point is, it seems to be about the doctor recommending some kind of reconciliation if the patient is estranged from his family, which may have nothing to do with patient’s decision to end his life with assistance from a doctor. It seems to hint at including the family in a person’s decision, but it is a feeble attempt at such.

The last point I will raise specifically about this bill, is its reference in section 25-47-103: “Individuals permitted to request life-ending medication”

(1) that an individual is qualified to make such request for life-ending medication if the individual is (a) an adult; (b) is capable; (c) is a Colorado resident; (d) is suffering from a terminal illness. . . and (e) has voluntarily expressed his or her wish to die.

(2) “A person does not qualify under this article solely because of age or disability.”

This seems to be saying in (1) that those whose quality of life was fully autonomous and who suffer from a terminal disease which implicates that autonomy, by its diminution by degrees, or by an aversion to “suffering” or one’s inability to “control” it – those are the persons who are likely to avail themselves of the life-ending process, for whom this legislation is designed. It implies in (2) that the disabled and elders who are perceived as “dependent” on others or with some diminished quality of life and whose lives are often pitied by the “young,” able-bodied and independent, would otherwise qualify for life-ending medications based on some perception of the disabled or elder’s quality of life. I do not imply here that there is any unified voice of the disabled community or of elders voicing an opinion about this, I find this language offensive.

More indifference to the suffering and social isolation of the terminally ill and dying persons is not the answer. To hasten the demise under the banner of the socially acceptable terms of “autonomy” and “dignity” is not a way of de-medicalizing or re-humanizing the dying process, rather the PAD is a feeble attempt to make death “less threatening” and I just don’t buy it. The lack of ritual around dying, along with the absence of any recognizable system of meaning around dying and death has resulted in the further isolation and stigmatization of the terminally ill or dying person. This bill to allow PAD does not promote death with dignity, rather it offers the socially acceptable perpetuation of the illusion that death con be contained and controlled and need not be “disturbing.”

Update from Friday Feb. 6th’s evening legislative activity: The House Health Committee voted to kill this bill (HB 15-1135) on an 8-5 vote. Two of the Democrats on the committee joined the Republicans to oppose it.

©Barbara Cashman 2015 www.DenverElderLaw.org

The Road Only Appears to End

I recently looked at the Colorado House bill 15-1135 on the topic “Terminally Ill Individuals End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.” You can read the January 9, 2015 draft here. There are, as of February 2, 2015, two senate sponsors and an updated version of the bill. My first challenge with this bill is the how it is marketed – the idea that “death with dignity” can only be accomplished by one’s own hand with the assistance of a physician. If this sounds provocative, it is – but it implies that the disease process part of a person’s life or the dying from the insult of disease is somehow not otherwise dignified. Here’s a link to a Jan. 27, 2015 Denver Post article about this proposed legislation, and a link to another appearing on Feb. 1,2015. This is the first post in a series.

I find myself in the same camp as the hospice and palliative care community as far as the title is concerned. The idea that the way to die “with dignity” is through physician assisted death by one’s own hand is offensive. End-of-life decision making is an area in which Colorado residents and patients have many resources. The title implies otherwise and is simplistic and misleading. I also find the bill’s descriptions of “alternatives” such as hospice care and palliative care are confusing and misleading. I am unable to come up with a scenario in which physician aided death is a true “alternative” to these. I think in all cases with which I am familiar, patients have already been under the care of a doctor for hospice or palliative care. The physician aided dying is more of an “end of the line” complement of sorts to these well-established, even if not widely-recognized forms of medical care. The primary distinction between these, what makes physician assisted death (PAD) a real alternative to hospice and palliative care is that physician assisted death is not a natural death as the result of a disease process. PAD represents a premature death, hastened by a number of different perceptions and choices about what one’s life is for as well as one’s own ideas about loss of autonomy amounting to loss of dignity and as needless suffering. In this respect, terminal disease is a failure of one’s ability to control an outcome, and fear of a change in one’s identity in the world due to a change in one’s relationship to others. I think physician assisted death further isolates and marginalizes people and the dying in particular. It is in the time of weakness and vulnerability when we need each other. This is dignity, what it means to be human. Here’s a link to a recetly posted youtube by Jean Vanier, of L’Arche Internationale, speaking to the English House of Lords, on why the strong need the weak. I think it easily translates into why the healthy and living need the sick and dying.

Another big distinction between PAD and hospice and/or palliative care is the philosophical problem of distinguishing physician assisted dying from medical care. That difficult distinction crops up throughout the bill with the challenge of identifying informed consent in a way that is a major departure from its history. The Greek roots of the word “euthanasia” mean “easy death.” There are different types of euthanasia, as described in this abstract from pubmed.gov and the moral dilemma presented by its practice is ancient. Euthanasia is premised on the ending of life and may be voluntary or involuntary and active or passive. Suffice it to say there is no bright line in this arena, only slippery slopes leading in both directions!

One of those slopes I find particularly troubling concerns the definition of “capable” in the bill. This is defined in section 25-47-102(3) and it is overly broad. We don’t have any context for this meaning of “capable” – capable to do what exactly? This is the touchstone for capacity determinations in the field of estate and elder law. Is this definition of “capable” for giving informed consent for health care purposes or something different? I conclude it must be the latter, so the lack of a definition is a big problem. Would a court need to determine someone “capable” to make a decision under this statute? Under guardianship law, only those who have had a guardianship lifted are “adjudicated” as “capable.” All adults, persons aged eighteen and older, are presumed by the law to have capacity. “Capable” as used in this draft bill is too vague. Another part of the bill (the consulting physician confirmation of 25-47-106(1)(c) refers to this trifecta: requiring that the individual be capable, acting voluntarily and has made an informed decision. I find this safety net here very interesting – what it is designed to protect against . . . well that is not discussed anywhere, it is left unsaid.

The absence of any aspect of spirituality is telling – but there are those who think that leaving out the spiritual aspects and the soul-learning of the dying process are too hot not to handle. See M. Scott Peck, “The Denial of the Soul: Spiritual and Medical Perspectives on Euthanasia and Mortality” (1997: Harmony Books) at 209.

Death is fearful, yet we carry our death within our lives. Is the essential fear we are talking about in the PAD regime really a fear of loss of control, over our autonomy and the descent into helplessness? I think in this respect it is a fear of life, life’s uncertain course that leads to our inevitable demise. This fear of life is the adjunct of the fear of death. Many of us maintain a certainty that our life is predictable and we can control things that happen to us, if we maintain that fantasy then most certainly are disease, disability and death an affront to our choice, an assault to our personal belief system and no longer simply part of life. What if we were to do as Lau Tzu suggests – “take care with the end as you do with the beginning.”

I will close this first portion of the discussion of this proposed legislation with an insight from David Wendell Moller’s book “Life’s End: Technocratic Dying in an Age of Spiritual Yearning,) (2000:Baywood) at 159:

. . . the sequestering of dying patients protects ordinary people from the terrorizing issue of death. . . . [the hospital’s] technological coordination of dying serves to submerge, deny and organize the dying process into professionally restricted categories which restrain the expression of personal pinings and fears for both providers and patients.”

It seems to me that the PAD bill serves to further the marginalization of the dying. More about that in my next post.

Tag Archives: Colorado Death with Dignity Act

Is Physician Assisted Death Coming to Colorado?