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Author Archive: Thaddeus Mason Pope, JD, PhD

About Thaddeus Mason Pope, JD, PhD

06/09/2018

Examination of State Level Personality Variation and Physician Aid in Dying Legislation

This new article by Rush University Medical Center researchers in the Journal of Pain & Symptom Management concludes that "The social dialogue and potential controversy surrounding physician aid in dying may be linked to aggregate differences in st...

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06/08/2018

The 50-Year Legacy of the Harvard Report on Brain Death

I am delighted to have participated in this new Viewpoint in JAMA: "The 50-Year Legacy of the Harvard Report on Brain Death." I have a fuller legal analysis forthcoming in the Hastings Center Report which will have a whole issue on ...

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06/07/2018

American Medical Association May Switch Position on Medical Aid in Dying

The American Medical Association House of Delegates meets this weekend. On the agenda is changing the official position AMA on medical aid in dying. While the CEJA recommendation is against the changing, CEJA concedes that there have been no abuses in...

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06/06/2018

Practical Medical Ethics: Rationing Responsibly in an Age of Austerity

Join me for "Practical Medical Ethics: Rationing Responsibly in an Age of Austerity," two weeks from today, on Wednesday, June 20th, 2018, at Ship Street Centre, Jesus College, Oxford.

Health professionals face ever expanding possibilities for medical treatment, increasing patient expectations and at the same time intense pressures to reduce healthcare costs. This leads frequently to conflicts between obligations to current patients, and others who might benefit from treatment.

Is it ethical for doctors and other health professionals to engage in bedside rationing? What ethical principles should guide decisions (for example about which patients to offer intensive care admission or surgery)? Is it discriminatory to take into account disability in allocating resources? If patients are responsible for their illness, should that lead to a lower priority for treatment?

In this seminar philosophers from the Oxford Uehiro Centre for Practical Ethics will explore and shed light on the profound ethical challenges around allocating limited health care resources.

1-1.30 registration

1.30 - Introduction: Prof Dominic Wilkinson, University of Oxford

1.35: Guest lecture: Prof Christian Munthe: Rationing antibiotics in the face of drug resistance: ethical challenges, principles and pathways

2.05: Dominic Wilkinson: Allocating intensive care beds and balancing ethical values

2.25: Rebecca Brown: Moralising medicine – is it ethical to allocate treatment based on responsibility for illness?

2.45: Julian Savulescu: Cost-equivalence – rethinking treatment allocation.

3.05:  Guest Lecture: Prof Thaddeus Mason Pope: Allocating organs – the US approach

3.40: Tea/coffee

4: Live philosophical ethics committee: (A panel of philosophers and ethicists respond to case brought by conference attendees)

5: Refreshments: Wine/soft drinks/cheese

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06/05/2018

An Alternative to Medical Assistance in Dying? The Legal Status of Voluntary Stopping Eating and Drinking (VSED)

Jocelyn Downie, one of the most influential legal scholars on end-of-life issues, has a new article in the Canadian Journal of Bioethics on an important yet too-often-neglected subject: "An Alternative to Medical Assistance in Dying? The Legal Status of Voluntary Stopping Eating and Drinking (VSED)"

ABSTRACT - Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary stopping eating and drinking (VSED) as an alternative to MAiD. 

In this paper, I will apply a legal lens to the issue. An understanding of whether VSED is legal provides a foundation for ethical reflection on whether it ought to be permitted. Is it permitted for those who prefer VSED to MAiD? Is it permitted for those who do not qualify for MAiD under our current legislation – for those who do not have a grievous and irremediable medical condition, for mature minors, for individuals whose sole underlying medical condition is a mental disorder and who do not otherwise meet the eligibility criteria, and for individuals who have lost capacity but had completed an advance directive?

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06/04/2018

John Oliver on Guardianship and Advance Care Planning

With the help of William Shatner and others, John Oliver humorously yet accurately emphasizes the importance of advance care planning by emphasizing the risks of guardianship.

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06/03/2018

Constitutional Challenge to TADA – Kelly v. Houston Methodist Hospital

The appeal in Kelly v. Houston Methodist Hospital is now fully briefed. The plaintiffs filed their reply brief late last week. The Texas First Court of Appeals will soon set oral argument.

Plaintiffs argue:

1.  The death of Chris Dunn did not moot either his or Evelyn Kelly’s declaratory judgment claim or civil rights claims for the violation of their procedural and substantive due process rights by Methodist under color of state law through the use of Tex. Health & Safety Code §166.046.

2.  Because the trial court erred in finding the case was moot and that it lacked jurisdiction, and because there were cross-motions for summary judgment heard at the court’s request, this court must reverse and render the judgment that the trial court should have: that §166.046 is unconstitutional, both facially and as applied, and Plaintiffs are entitled to nominal damages under 42 U.S.C.§1983.

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06/02/2018

Terminally Ill Adults, Doctor File Notice of Appeal of Ruling Voiding California Medical Aid-in-Dying Law

Matt Fairchild

Two terminally adults and a physician in California today filed a notice of appeal of a lower court’s decisions in a lawsuit seeking to overturn the California End of Life Option Act

The decisions include the rejection on Wednesday of a motion filed by a physician and two terminally ill adults urging the judge to “vacate” (i.e., cancel) his judgment last week invalidating the law.

The group requests state Attorney General Xavier Becerra to take a position on Compassion & Choices’ legal opinion that its notice of appeal with the 4th District Circuit of Appeal triggers an automatic stay of Riverside County Superior Court Judge Daniel Ottolia’s judgment. A stay would reinstate the law pending further court rulings.

Similar to laws in six other states and Washington, D.C., the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep.

“We are besieged with calls from anxious, confused, terminally ill Californians, doctors and health care providers about the status of the law,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices, whose sister organization, Compassion & Choices Action Network, led the campaign to pass the End of Life Option Act. “It is becoming increasingly obvious that doctors and patients need this clarity from the attorney general or the courts. Otherwise, doctors will not feel comfortable advising patients about medical aid in dying or writing a prescription.”

“There is legal precedent that when you file an appeal with the appellate court of a lower court judgment that it automatically triggers a stay suspending the judgment to maintain the status quo,” said John C. Kappos, a partner in the O’Melveny working with Compassion & Choices, which filed an amicus brief earlier in the case. “Since certainty is so important for all involved, if the attorney general or Riverside district attorney has doubts as to the existence of a stay, we will ask the court for further guidance.”

The three Californians who are asking the appellate court for a reversal of the decisions by the lower court are:

  1. Matthew Fairchild, a 48-year-old, retired Army staff sergeant in Burbank with terminal melanoma that has spread to his bones, lungs and brain who has not received a prognosis of six months or less to live but wants the option of medical aid in dying when he does.

“I am devastated to learn that this [lower] Court has made a ruling that will interfere with my ability to receive a prescription from my doctor for aid-in-dying medication when I reach a diagnosis that I have no more than six months to live and when my suffering becomes unbearable,” said Fairchild in his petition to the court. “This ruling will likely mean that I have no option when my suffering becomes intolerable and that I will have to endure a needlessly agonizing death.”

  1. Joan Nelson, an 82-year-old resident of Marin County with a rare terminal cancer called leiomyosarcoma, who requested and received a prescription for medical aid in dying before the judgment invalidating the law, but now fears the legal ramifications of self-administering her medication if, and when, her suffering becomes too great.

“…I am very troubled to learn that this [lower] Court has made a ruling that could interfere with my ability to use my aid-in-dying medication when my suffering becomes unbearable’” said Nelson in her petition to the court.  “This ruling leaves me with uncertainty about whether I can legally use my aid-in-dying medication and whether my passing will be considered a ‘suicide,’ rather than death from leiomyosarcoma as it should be considered.”

  1. Dr. Catherine Sonquist Forest, a clinical associate professor of family medicine at University of California at San Francisco Natividad in Salinas, who has been actively involved in the care of over a dozen patients who have pursued medication under the End of Life Option Act.

“The recent decision that the End of Life Option Act was enacted unconstitutionally has left me, my colleagues and patients reeling as we try to navigate end-of-life care,” said Dr. Forest in her petition to the court. “The resulting confusion has compounded my patients’ suffering.”
Last June, Compassion & Choices released a report estimating that 504 Californians have received prescriptions for medical aid in dying since it took effect on June 9, 2016. Last July, the California Department of Public Health released a report showing 191 terminally ill Californians received prescriptions from 173 doctors for aid-in-dying medication during the nearly seven month period from June 9, 2016 until Dec. 31, 2016; 111 of those individuals (58%) decided to self-ingest the medication.
Polling shows 76 percent of Californians across the political and demographic spectrum support medical aid in dying. This majority support includes 82 percent of Democrats, 79 percent of independents, 67 percent of Republicans, 75 percent of whites, Latinos and Asian Americans, and 52 percent of African Americans.

California is one of seven states — including Colorado, Montana, Oregon, Vermont, Washington, and Hawai‘i — as well as the District of Columbia, that have authorized medical aid in dying. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.

Case Background:

On May 15, Judge Ottolia granted plaintiffs’ motion in the case, Ahn vs. Hestrin Case RIC1607135, to invalidate the law because he claimed the legislature violated the state constitution by passing it during a special session limited to health care issues.

Judge Ottolia gave Attorney General Xavier Becerra five days to appeal the ruling, and the attorney general did so on May 21. On May 23, the 4th District Circuit of Appeal denied a separate motion by the attorney general for a “stay” to suspend the ruling, but ordered the plaintiffs to show cause why the appellate court should not overturn the ruling in 25 days. Despite the appellate court’s denial of the stay, Judge Ottolia’s original ruling didn’t invalidate the law because he had not yet issued a judgment giving effect to his decision reflected in his order last week.

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06/02/2018

2019 Aging in America Conference – Call for Proposals

Are you proud of the work you are doing with older adults and the innovative solutions you engage? Do you have best practices you'd like to share? The American Society on Aging invites you to submit a proposal to present at the 2019 Aging in America Co...

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06/01/2018

Idaho Law Voiding Pregnant Women’s Living Wills Is Unconstitutional, Groups Say


Compassion & Choices and Legal Voice have filed a federal lawsuit on behalf of four Idaho women. The lawsuit, Almerico et al. v. State of Idaho et al, challenges the constitutionality of an Idaho statute that invalidates a person’s advance directive for end-of-life care if they have been diagnosed as pregnant. 


Idaho’s Medical Consent and Natural Death Act recognizes: “...the fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn.” But the law states that if a person has “been diagnosed as pregnant, this Directive shall have no force during the course of [their] pregnancy.”


This law disregards a person’s wishes for the care they want or do not want to receive. As such, Compassion & Choices and Legal Voice argue that Idaho’s law violates people’s constitutional rights to legal equality and to direct their own medical care.


All four plaintiffs are women of childbearing age and have completed advance directives. Some of their health care directives include provisions about pregnancy and some do not, reflecting their different expectations about their medical care if they become terminally ill while pregnant. 


“This law blatantly discriminates against women who are pregnant, plain and simple,” said plaintiff Chelsea Gaona-Lincoln, a behavioral therapist who is pregnant with her first child and lives in Caldwell, Idaho. “Of course, I hope my baby’s birth goes smoothly and we both are healthy after it’s over. But God forbid, if I get a terminal illness during my pregnancy, I do not want the state interfering in my family’s end-of-life care decisions.”


The other three plaintiffs are Anna Almerico, Micaela de Loyola-Carkin and Hannah Sharp, all of whom live in Boise, Idaho. The lawsuit defendants are the Idaho Secretary of State Lawrence Denney, Idaho Attorney General Lawrence Wasden and the Idaho Health and Welfare Department Director Russell Barron.


“Idaho’s refusal to recognize the right of all people, regardless of gender, to make decisions as to their own health care violates the due process and equal protection clauses of the United States Constitution,” says the complaint filed in the U.S. District Court for the District of Idaho by the Boise office of Perkins Coie LLP. “Accordingly, Plaintiffs seek a judgment declaring unconstitutional the portion of the law that automatically invalidates a woman’s health care directive if she is diagnosed as pregnant.”


The complaint also asks the court to permanently prohibit Defendants from “nullifying otherwise valid health care directives on the basis of pregnancy” and from “stating that [health care directives] will not be enforced or otherwise considered valid during pregnancy.”


“The State of Idaho is forcing pregnant women to receive treatment until the end of their pregnancies, regardless of their wishes in their health care directives, their physicians’ instructions or recommendations, or any other circumstances,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices. “It violates the right to privacy in making medical decisions and treats women of childbearing age differently than other people by eliminating the validity of their health care directives if they are pregnant.”


“People do not lose their civil rights when they become pregnant. But that’s exactly what is at stake here. Idaho’s discriminatory law purports to take away a pregnant person’s decision-making power, even when they have explicitly detailed the care they wish, or do not wish, to receive,” said Sara L. Ainsworth, Advocacy Director of Legal Voice. “The tragedy that families face when a pregnant loved one is in a terminally ill condition is only heightened when that loved one’s health care decisions are ignored. This lawsuit seeks to vindicate people’s rights to make their own decisions about their health care, regardless of gender.”


There is no medical practice of keeping terminally ill, unconscious women alive to bring their pregnancies to term. In fact, the state of Texas tried to do it in the tragic case of Marlise Munoz, whom doctors had declared brain dead. But a court ultimately ordered the hospital to follow her family’s wish to end life-sustaining treatment, in part because there was no medical evidence that her 14-week-old fetus could actually survive to term.


The full complaint is posted at: bit.ly/IdahoPregADlaw 


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