New York City Bar Association White Paper Urges Public Debate on Medical Aid in Dying

Proposed Legislation and Court Case Make Issue “Ripe for Review” in New York

New York, May 30, 2017 – The New York City Bar Association has issued a white paper providing commentary and urging further public debate in New York on the issue of “Medical Aid in Dying,” sometimes understood or referred to as “physician-assisted death,” “physician-assisted suicide” or “death with dignity.”

Issued by the City Bar’s Bioethical Issues Committee, Health Law Committee, Science & the Law Committee, and Mental Health Committee, the paper encourages and seeks to “foster more robust debate and deliberation about proposed Medical Aid in Dying in New York and urgent public policy and public health policy issues, including foreseeable and unforeseeable risks to equitable access to care among vulnerable persons and groups, such as the elderly, the poor, racial and ethnic minorities, and the disenfranchised.” In particular, the paper voices concern about access to appropriate mental health services and qualified mental health professionals.

Referencing legislation pending in the New York State Legislature and the case of Myers v. Schneiderman, which is currently being litigated before the New York Court of Appeals and seeks to affirm the rights of mentally competent, terminally ill patients to end their life through medical assistance, the paper defines “Medical Aid in Dying” as “a medical practice that would allow a physician to prescribe a lethal medication to a mentally competent, terminally ill individual who requests and consents to such lethal medication for the purpose of ending her or his own life.” Observing that the issue of Medical Aid in Dying is “ripe for review,” the paper discusses the legal and ethical issues in terms of public health, health equity, and health care justice. Medical Aid in Dying is legally practiced in six states (California, Colorado, Montana, Oregon, Washington and Vermont) and the District of Columbia.

The paper presents some of the ethical arguments surrounding end-of-life care, and particularly the evolution in thinking regarding the right to refuse treatment. “Over the years, ethical analysis on the right to refuse treatment has included consideration of potentially conflicting and competing social interests, such as public policy concerns about the integrity of the medical profession and the prevention of suicide. However, these ethical arguments (many of which have been cited and followed by state courts in these cases) have gradually given way to the conclusion that such interests are not imperiled by respecting the right to refuse life-sustaining treatment,” the paper states. Refusal of medical treatment is “not tantamount to suicide,” because “such decisions have been deemed to be in a different class altogether from the actions of a person in a self-destructive depressive or psychotic state.” The now commonly accepted view is that the cause of death for a terminally ill patient who refuses medical treatment is not the refusal of medical treatment but, rather, the underlying disease itself. The paper invites consideration as to whether the ethical reasons supporting the right to refuse treatment—i.e., patient autonomy and the right to make decisions about one’s own medical care—are applicable in the context of Medical Aid in Dying. 

The paper identifies several points of consideration specific to the Medical Aid in Dying Act (A.2383/S.3151), including gaps with respect to the bill’s beneficiaries (i.e., no residency requirements or safeguards for institutionalized persons), and a lack of specificity with regard to financing, delivery systems, and qualifications for mental health professionals and English-language interpreters. The committees also urge funding for research on the experiences of terminally ill patients and their views and attitudes toward Medical Aid in Dying.

Observing the many issues surrounding Medical Aid in Dying, the paper concludes with a call “for more robust debate on important matters of public policy including issues of equity and adequacy of health systems, as well as funding for well-designed research studies.”

(City Bar President John S. Kiernan, a partner at Debevoise & Plimpton LLP, which represents one of the parties in Myers v. Schneiderman, has recused himself from the review and approval of any City Bar reports pertaining to the case or any related litigation or legislation.)

The paper can be read here:

About the Association

The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.