The Physician’s Aid in Dying Law (Act 39) in Vermont

On May 20, 2013, after more than a decade of debate, Vermont joined Oregon, Washington, and Montana to become the 4th state in the country to pass an aid in dying law that governs how and when medical professionals can help people die.

Since then, Washington, D.C., and six other states–California, Colorado, Hawaii, New Jersey, Maine, and New Mexico–have adopted similar laws

While patients and physicians have always been able to discuss end of life issues such as pain control and hospice care, the new law makes it possible in certain circumstances for patients to request assistance from their physician in dying. Patients, doctors and the state of Vermont are all trying to figure out what it means for them.

Though we all will die someday, our comfort level with that fact varies. Some folks are worried about the concept, while others are more comfortable with it, but still concerned about physical comfort when their time comes. Now some patients who want further control over the circumstances of their death have another option. At this point, there are still many more questions than answers about the law, despite that fact that it went into effect the day it was signed.

Guidelines have yet to be fully developed, but the language of the statute includes elements that are already quite clear. The key to understanding what this law means for patients will come with understanding the criteria laid out for its use. Here are a few of the questions we have heard here at Brattleboro Memorial Hospital.

Who can use this law? Can I bring my ailing mother here from out of state for this?

The first criterion is that you must be a VT resident. Immediately after passage of the law Brattleboro Memorial Hospital started getting calls from people out of state wanting to know if the law could apply to them. It is quite clear that the answer is no.

Can I get a prescription just in case I want it someday? Or do I have to be dying to get a prescription?

A second criterion is that the patient must have a terminal illness that, within reasonable medical judgment, will produce death within 6 months. This approach isn’t new territory. While this estimation process isn’t an exact science, as any physician can tell you, the estimation is at least one with which we are familiar. It is the same criterion that is used for someone to access hospice services as well as to qualify for both the Oregon and the Washington Death with Dignity Acts.

Will it take a long time for me to get a request fulfilled?

It does take some time. One requirement of the Act is that the request must come at multiple times, and in multiple forms. This is a serious business, not a decision to be made lightly. The multiple requests ensure that a patient making the request still has plenty of time to think about it, a minimum of just over 2 weeks in fact. This gives them the opportunity to sit with the idea, to reconsider, to get more information and possibly change their mind.

Another requirement is that at least one of those requests must be in writing, ensuring first hand documentation about the request. How often have we said things that we mostly meant, but maybe still had some doubts? Putting our thoughts or requests down on paper forces us to consider the request just a bit more deeply than we otherwise might. It is there for all to see forevermore, a contract with ourselves in a way. It is a way of making sure that the request is from a person’s heart. This is serious stuff. It needs to be considered thoroughly.

Do I have to talk with lots of people about this? Isn’t it really a private decision?

The law also requires that a second physician review the situation and concur. While it is a deeply personal decision, we have all made decisions at one time or another in our lives that we later regret. We are affected by our interactions with others in our lives, and our understanding of information is affected by them as well. An additional opinion ensures a patient really does have the information and the capability required for making such a grave decision. Just like any other serious life altering medical decision, the perspective of a second opinion clarifies that the direction being taken really is a reasonable course of action.

How do I find out if my doctor is participating in this new law?

This is new territory for doctors, nurses and patients. We have not gone here before in Vermont. Doctors and nurses are used to caring for patients, relieving their suffering. Ending their lives is something new and foreign. We don’t have systems of care set up for this yet. While the law says any Vermont doctor can provide this care, it is quite clear that a doctor must make their own decision about their participation in such an action, and if they decline they must inform a patient about the law anyway. The law does not make a distinction about the status of a physician’s employment. Physicians are licensed to provide care, and their privilege to do that is not dependent on being employed or not employed by a hospital or health care organization which is a separate business arrangement. No one can punish a physician for following the law, and no one can prohibit a physician from providing care in accordance with the law. At this time there is no information about which physicians might want to be involved.

Can I do this while I am in the hospital?

BMH, like many other of Vermont’s health care facilities has decided that this is an important decision between a patient and their physician, and not something to be done in the hospital. This law is not legalizing euthanasia. The patient must be able to self-administer the medication. This is not a situation where anyone else can do this to a patient. BMH’s decision was not made lightly. It was the topic of an extended and thoughtful discussion amongst the medical staff of BMH at their June meeting. The discussion included many perspectives, those in favor of the law as well as those against. In the end though, the issue wasn’t an opinion about the law. The law stands no matter what anyone’s opinion of it may be. The vote was strictly in response to the BMH Board of Directors’ request that the medical staff make a recommendation about exempting the hospital facility as a location for law to be carried out. The vote was overwhelmingly in favor of choosing to enact the exemption for BMH.

How many people have used this law so far?

At the moment, none have completed the entire process. Oregon has a population of 3.9 million people, and Washington nearly 7 million, compared to Vermont’s 626,000. Last year, in Oregon’s fifteenth year with their Death with Dignity law in place, there were 115 prescriptions written, and 77 people who used them, Washington has had their law in place for 4 years, and 121 prescriptions were written and 83 of them used this past year. Comparable rates would make the expected actual usage by Vermont residents very small. The Vermont Health Department is creating guidelines to accompany the implementation of the law, and has just created the forms for patients and doctors to use in the process.

This is a new type of care delivery. Time will tell how Vermonters choose to embrace it. We are all still working out the kinks. It is likely, that in 2016 when the requirements for specific documentation and process both expire, we will have gained some expertise in making this work for all concerned. Check the Vermont Ethics Network website for further information and resources on this law as other topics related to end of life care.

 Kathleen McGraw, MD, is board-certified in Hospital Medicine and is the Chief Medical Officer at Brattleboro Memorial Hospital.