Law Commons^™

Comment: Further Consideration On The Relationship Between The Americans With Disabilities Act, Supported Decision-Making, And Medical Aid In Dying, Amitai Heller

Washington and Lee Law Review

As Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It …

Supported Decision-Making And Merciful Health Care Access: Respecting Autonomy At End Of Life For Individuals With Cognitive Disabilities, Brenna M. Rosen

Washington and Lee Law Review

Supported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.

This Note attempts to bridge the gap by analyzing how supported decision-making may be a …

Comment: The Project Of Freedom, Alexandra L. Klein

Washington and Lee Law Review

A person’s status may change over time and people should have the right to maximize their autonomy and learn and grow from their experiences. Legal structures must encourage autonomy and growth, rather than producing a static environment that prevents people from challenging external controls imposed upon their lives. Law can create legal structures that sustain an individual’s right to live according to their values. As Ms. Rosen writes, “[i]f an individual is capable of valuing, the wishes stemming from those values should dictate how the individual ought to be treated.” By protecting those values, Ms. Rosen’s Note advises us how …

Physicians' Attitudes, Concerns, And Procedural Understanding Of Medical Aid-In-Dying In Vermont, Teresa Ditommaso, Ari P. Kirshenbaum, Brendan Parent

Dalhousie Law Journal

The general purpose of the current study was to collect data on physicians' attitudes towards Act 39, the medical aid-in-dying act that was legislatively approved in 2013. Given the recent nature of the implementation of Act 39, this is the first such study to be conducted in the State of Vermont. The survey was quantitative in nature and addressed three distinct aspects of legalized prescribing of life-ending medication, these being physicians': (I) attitudes regarding ethics and legality of Act 39, (11)understandings of the policies and procedural requirements under the law, including their belief in legal immunity from penalty, and (I1) …

Questioning Polst: Practical And Religious Issues, Lloyd Steffen

Dalhousie Law Journal

The Physician Orders for Life Sustaining Treatment (POLST) is a one-page transferrable medical chart insert designed to facilitate physician-patient communication about a patient's wishes at the end of life. The document as a chart addition is in widespread use today, but various criticisms have been leveled at POLST, the most serious being that POLST creates a slippery slope to illicit active euthanasia. This article examines the criticisms and finds that they fit two categories, the first being practical implementation problems. These problems are correctable given more and better training of medical care staff. The second and more serious ethical charge …

Champions For Justice 2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must …

The Pro Bono Collaborative Project Spotlight, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Don’T Pull The Plug On Bioethics Mediation: The Use Of Mediation In Health Care Settings And End Of Life Situations, Amy Moorkamp

Journal of Dispute Resolution

A hefty decision, such as the life or death of a loved one, requires more than a few minutes of deliberation and a handful of outside consultations. Delicate, emotional, and potentially contentious medical decisions compel a structured, compassionate approach to produce quality and well-informed results. Due to the magnitude of the decision being made, as well as the abundance of other considerations, (emotional, religious, historic, financial, etc.) the case for a creative, problem-solving process of dispute resolution, such as mediation, is ripe.

This Comment will explore the use of mediation in bioethical disputes. In Part II, the Comment will give …

Cross-Cultural Dynamics In Palliative Care: The Emerging Canadian Scenario, Chidi Oguamanam

Dalhousie Law Journal

As modern technologies leverage medical sciences, life expectancy is on the rise in Canada, and indeed globally with a remarkable increase in the elderly population in need of health care. The same is true of the diversity of cultural groups who are now patrons and stakeholders in Canada's health care landscape. An emergent feature ofthis landscape is the complexity ofcontexts for negotiating and mediating medical care delivery at the end of life. This paper examines the gaps in regulatory and legal interventions as well as the gaps and opportunities to negotiate the transition to palliative care in cross-cultural contexts that …

Avoiding Overtreatment At The End Of Life: Physician-Patient Communication And Truly Informed Consent, Barbara A. Noah, Neal R. Feigenson

Faculty Scholarship

This Article considers how best to ensure that patients have the tools to make informed choices about their care as they near death. Informed decision making can help reduce excessive end-of-life care and unnecessary suffering, and result in care that aligns with patients’ well-considered values and preferences. The many factors that contribute to dying patients receiving too much therapy and life-prolonging care include: the culture of denial of death, physicians’ professional culture and attitudes toward treatment, physicians’ fear of liability, physicians’ avoidance of discussions about prognosis, and the impact of payment incentives that encourage overutilization of medical technologies.

Under the …

The (Ir)Rationality Of (Un)Informed Consent, Barbara A. Noah

Faculty Scholarship

This essay considers the problem of over-utilization of medical care at the end of life and the lack of truly informed consent and briefly considers the multiple causes of these phenomena. It then explores the inherent challenges to making informed medical decisions using concepts of Knightian uncertainty, bounded rationality, optimism bias, and other heuristics. The essay concludes that uncertainty inherent in these decisions means that challenges to making truly informed decisions about medical care are even more substantial than physicians acknowledge or patients ever realize. Acknowledging these challenges is the first step to better medical decision making. informed consent has …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Promoting Completion Of Advance Directives In A Hispanic Religious Congregation: An Evidence-Based Practice Project, Luis Daniel San Miguel, Mary Jo Clark

Doctor of Nursing Practice Final Manuscripts

Background: Hispanics utilize more aggressive medical treatment at the end of life and are less likely to receive end-of-life care consistent with their wishes than nonHispanic Whites. Hispanics are less likely than nonHispanic Whites to have an advance directive (AD). Increasing AD completion among Hispanics can promote end-of-life care consistent with their wishes, diminish healthcare disparities, and eliminate unnecessary healthcare spending. Objectives: To promote completion of advance directives by increasing knowledge, positive attitudes, and comfort with advance care planning (ACP) among Hispanics through culturally sensitive interventions. Intervention: The project was conducted in Spanish and implemented among a …

After Carter V. Canada, Jocelyn Downie

Articles, Book Chapters, & Popular Press

When it recently struck down the Criminal Code prohibitions on physician-assisted dying, the Supreme Court of Canada gave federal and provincial legislatures 12 months to craft new legislation to meet the conditions set out in its landmark ruling.

Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza

Paolo G. Carozza

Article by Martin Rhonheimer, translated by Paolo G. Carozza.

A Role For Law In Preparing For Death, Barbara A. Noah

Faculty Scholarship

This Article discusses the limits of how end of life law can address threats to patient autonomy. The reluctance of physicians, patients and family to discuss end of life matters and to confront the certainty of death, together with a culture that actively denies the aging process itself, interferes with a patient’s ability to exercise choice as death approaches. Thus, patients often suffer needlessly from the continuation of treatments and life-supportive measures that they would choose to decline if better informed about their choices and the importance of choosing. Advance directives, as a legal mechanism, often fail fully to protect …

Aging Populations And Physician Aid In Dying: The Evolution Of State Government Policy, David Orentlicher

Scholarly Works

Professor David Orentlicher explores the evolution of physician assisted suicide from illegal taboo to the passage of Death with Dignity legislation and caselaw.

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …

Pleading For Physician-Assisted Suicide In The Courts, Charles H. Baron

Charles H. Baron

No abstract provided.

Aging In The United States: Rethinking Justice, Equality, And Identity Across The Lifespan, Nancy J. Knauer

Nancy J. Knauer

Our current aging policies and procedures raise profound questions of individual liberty, autonomy, and equality. Guardianship regimes require the state to balance the interests of vulnerable adults with their right to self-determination. The proliferation of age-specific laws designed to protect elders may actually compromise the civil rights of older individuals by denying their autonomy based solely on their age. The regulation of intimacy in long-term care settings infringes on a core liberty interest essential to human dignity. This essay introduces a new body of work that specifically addresses the civil rights aspects of aging. In many ways, aging represents the …

The Role Of Race In End-Of-Life Care, Barbara A. Noah

Faculty Scholarship

This essay focuses on one important aspect of racial disparities that has received comparatively little attention in the legal literature--the existence and causes of racial differences in end-of-life decision making and in the utilization of palliative and hospice care. African Americans and other racial minorities in the United States utilize palliative care and hospice less frequently than white Americans. These minority populations also tend to resist advance care planning and instead opt to receive more life-prolonging care at the end of life, even when quality of life and prognosis are poor. After a lifetime of limited access to health care …

When Is Medical Care “Futile”? The Institutional Competence Of The Medical Profession Regarding The Provision Of Life-Sustaining Medical Care, Meir Katz

Meir Katz

“Medical futility,” the doctrine by which hospital ethics boards have assumed the right to authorize medical providers to unilaterally withdraw or decline to provide aggressive life sustaining medical care, has swelled in popularity in recent years and has affected the lives of countless terminal patients. The case law governing medical futility is inconsistent and appears to provide medical providers and patients alike little guidance in this extremely sensitive area of health law. Lost in the confusion created by the case and statutory law is due consideration of the normative case behind “medical futility.” “Futility,” by definition, is preceded by an …

Immortal Beloved And Beleaguered: Towards The Integration Of The Law On Assisted Death And The Scientific Pursuit Of Life Extension, Mary J. Shariff

Mary J. Shariff

This article sets out to explore the scientific pursuit of life extension in the context of current controversies surrounding death, particularly those that involve competent individuals who desire death but are unable to bring it about without the assistance of another individual. Humans are on the threshold of being able to significantly increase their life expectancy yet, in Canada and elsewhere, we have still not come to any consensus as to how we are permitted to die. After a brief introduction in Part I, Part II of this article summarizes the legal position in Canada on assisted death and explores …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

The Right To Forego Life-Sustaining Treatment: Legal Trends And Emerging Issues, Karen H. Rothenberg

Karen H. Rothenberg

No abstract provided.

Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley

Michigan Law Review

This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …

In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker

Michigan Law Review

It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation …

The Criminalization Of Treating End Of Life Patients With Risky Pain Medication And The Role Of The Extreme Emergency Situation, Gina Castellano

Fordham Law Review

This Note examines the legality of physicians treating patients near the end of life with risky pain medication, specifically during an extreme emergency situation. The issues discussed include whether such treatment should be criminalized and, if criminalized, what standard should be used to determine culpability. This Note proposes that physicians should not be shielded from the criminal justice system, but that the standard of double effect intent should be expressly adopted in the adjudication of such cases.

The Role Of Religion In The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The brief life of Theresa Marie Schiavo and the dispute over her end-of-life care captured public awareness in a way that few such cases have done. The reasons for the nearly unprecedented public attention to her case are two-fold. The decision by various religious groups and governmental entities to intervene in the dispute surrounding her care in order to promote conservative causes (some of them only tenuously related to her particular medical circumstances) prompted unusually intense media coverage. In addition, the ensuing publicity surrounding Theresa's tragic condition--an unexpected cardiac arrest left her in a permanent vegetative state at the age …