Is There a Right to Die?

This is the fourth in a four-part series of articles on consumer-focused health care. These articles are adapted from a Health Law Update presentation Attorney Tyler Wilkinson gave at the State Bar of Wisconsin’s annual Health, Labor and Employment Law Institute in August 2015.

In “Being Mortal: Medicine and What Matters in the End,” author and physician Atul Gawande explores how the medical field can help improve the end-of-life for patients. This new book has impeccable timing. As the baby boomers age and begin to face their own mortality, many are starting to think about where they will pass, whether it be in a nursing home, hospice care or at home. A smaller group of people are debating how people should die.

There are currently laws in Oregon, Washington and Vermont that give certain patients a limited “right” to choose to take affirmative steps to die. This “right-to-die” legislation is growing in popularity; recent polls show that between 68 and 74 percent of people support these laws. In 2015, over 25 states, including Wisconsin, will have considered laws that allow certain people to “die with dignity.” In fact, California’s legislature recently passed a “right-to-die” bill; the bill only needs to be signed by the Governor to become law in the nation’s most populous state.

So how would a “right-to-die” law change Wisconsin law? Currently, Wisconsin law allows a person to refuse life-saving treatment, in one of four ways:

1. A competent adult can refuse any medical treatment, even if it would save or sustain their life;
2. A person can execute an “advance directive” authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is brain-dead;
3. Certain persons can execute a “do-not-resuscitate” order which directs medical personnel to forgo CPR on them if they are choking or suffering a heart attack and CPR will exacerbate other conditions;
4. A guardian may agree to withhold life-sustaining procedures for a person who is brain-dead.

In other words, Wisconsin law allows a person to refuse treatment, but does not allow a person to take affirmative actions to end his or her life.

The proposed law would change that and allow a competent but terminally ill adult to request life-ending medication from a physician. The proposed law requires agreement from both a treating and a consulting physician that the patient is terminally ill. The proposed law also builds in a “waiting period” to allow patients to change their minds.

Research in Oregon, with enacted a “death with dignity” law almost twenty years ago, shows that just over 1,300 people have requested prescriptions for lethal medications, but only one-third of those requesting actually used it. For many patients, simply having control over the illness and over one’s end is good enough. This is just another example of how recent changes in health care seek to empower patients to take control of their own health and treatment.

To be sure, there is little chance that Wisconsin will enact a “right-to-die” law anytime soon. That said, the topic raises questions that will increasingly be discussed as the baby boomers age. Does this count as suicide? Should we commit diminishing resources to preserving life, even if that life is one of pain? Who decides how and where we die? Though its unlikely to become law in the near future, the legislators who introduced the “right-to-die” law recognized these questions and indicated that “it’s a conversation lawmakers ought to have.”