Ask the Legal Expert about ... the right-to-die movement

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

What should we know and/or do about the right-to-die movement, which seems to be growing?

There are five states and Washington, D.C., that have passed Death with Dignity statutes: Oregon (1994); Washington (2009); Vermont (2013); California (2016); Colorado (2016); and Washington, D.C. (2016). 

Also, in Baxter v. Montana, 234 P.3rd 1211 (2009), the Montana Supreme Court found that Montana law allowed a physician to honor a terminally ill, mentally competent patient requesting medication to hasten death. 

Healthcare providers can allow staff and independent contractors to participate without incurring liability for abuse or neglect. However, a healthcare provider can have a written policy with notice to staff and contractors prohibiting participation on the premises owned, managed or directly controlled by the healthcare provider. 

While residents under DWD laws have the right to participate in the self-infliction of ending their life, providers may prevent staff or independent contractors from participating in the process and even prevent them from witnessing the written request. The healthcare provider, based upon the sponsor or owner's religious beliefs, may seek to prohibit the process in their facility.

In sum, if you or your residents try to exercise their rights to participate in self-administering aid in dying medications, you must have your policy on such activities written with all necessary procedures complying with state law. You should notify prospective residents of your policy, especially if you intend to prohibit staff or independent contractors from participation. 

You should have legal counsel assist in developing and implementing your policies because DWD statutes are being considered in many jurisdictions.