A substantially changed medical aid-in-dying bill is headed to the Maryland Senate for debate this week.
The 2019 session will mark the first time the full Senate will debate whether a person with a terminal illness should be allowed to request medical help ending their life. The House of Delegates narrowly passed a version of the bill earlier this month. With only two weeks left in the 90-day legislative session, however, the House and Senate are far apart on several key provisions and will need to find agreement in order to send the bill to the governor’s desk.
The Senate Judicial Proceedings Committee approved nearly 30 amendments to the bill last week, before voting 8-3 in favor of the legislation on Friday. Sen. Michael Hough (R-Frederick and Carroll) and two Republicans on the committee cast the three dissenting votes.
“I think the House and Senate are very far apart, and I’m not sure what’s going to happen, even in the Senate,” Hough said.
The House version of the bill passed by a margin of eight votes, which Del. Karen Lewis Young (D-Frederick) said was the closest she had seen in her five-year tenure in the chamber. In the Senate, a difference of just a few votes is also expected.
The narrow majority support for medical aid-in-dying would not be enough in either chamber to guarantee an override vote, if Gov. Larry Hogan (R) vetoes the legislation.
The bill underwent substantial changes to be passed by the committee. Chairman Bobby Zirkin (D-Baltimore) was adamant the committee remove the bill’s “good-faith” liability exemption for doctors who prescribe the medication that patients must self-administer to end their lives. Zirkin said he would not vote for a bill that gave blanket immunity, as his committee has granted no other class of physicians the same request.
Compassion and Choices, an advocacy organization that has pushed for the bill, said it would not support the Senate version as it stood on Friday due to the changes.
“Basically, what it feels like is that they’re intentionally adding barrier after barrier in order to make it so patients are unable to access the law,” said Kim Callinan, CEO of Compassion and Choices.
Callinan said she was concerned about the lack of protection for doctors, which could lead to more doctors opting out of prescribing the necessary medication. The committee’s decision to add more restriction through vague language, such as the definition of terminal illness, also concerned Callinan.
Compassion and Choices continues its support for the House’s version.
Whether the House or Senate versions of the bills would violate the state’s existing Criminal Law statute prohibiting physician-assisted suicide also remained a question for Hough.
Maryland law says a licensed health care professional may not “knowingly provide the physical means by which another individual commits or attempts to commit suicide.” Doctors are exempted from this standard only to prescribe medication to relieve pain, which may ultimately hasten or lead to death; however, the explicit purpose cannot be to cause death.
“I think the bill is just fundamentally flawed. They’re trying to pretend it’s not what it is,” which is physician-assisted suicide, Hough said.
Sen. Ron Young (D-Frederick), who sponsored two previous versions of the bill, continued to defend the bill as being separate and different from physician-assisted suicide. Terminally ill patients would request a prescription from a doctor, but the patient — not the doctor — would then have the option to administer it. The doctor does not physically administer the drugs, which makes it separate from physician-assisted suicide, Young said.
“I think like a lot of things, it’s just a matter of choice,” Young said, who was at his sister’s bedside as she died of cancer. “... I think when someone is in that kind of pain, it should be their choice to ask for medication, and call their family in and die peacefully.”
People let their religious views cloud their judgment of what people of different faiths should be allowed to do, he said. Both chambers have heard moral objections to the contents of the bill, but Sen. Mary Washington (D-Baltimore City) argued that allowing medical aid in dying was not a moral question, but a legal one.
“We’re establishing at what point ... a physician may legally assist in individuals ending their life,” Washington said.
Members of Judicial Proceedings added multiple restrictions to the process of asking for medical aid-in-dying in order to prevent abuse.
The attending physician and consulting physician involved in a person seeking aid in dying will also no longer be able to be part of the same practice, if the Senate version prevails. The doctors also cannot have any agreements or share financial ties.
All individuals seeking to end their lives through aid in dying will also have to undergo a mental health examination. Opponents of the bill requested this as a mandatory provision but were disappointed to see clinical social workers included among those qualified to perform the assessment.
A person who will financially benefit from the individual’s death will no longer be able to sign as a witness to the individual’s written request for aid-in-dying. This could include a spouse or adult child who is a beneficiary in a will.
Callinan said the added stipulations could be roadblocks for patients who have little time left. The bill as originally presented had many protections in it, which may have made it already difficult for terminal patients to complete the process before dying, Young said. He did not support additional limits.
A matter of time
For Dr. David Meyers, of Takoma Park, the Senate’s version of the bill could limit options for people like his former patients or himself.
Meyers is a family physician, although he is no longer seeing patients. He was recently diagnosed with terminal brain cancer. Like Callinan, he has concerns about the added amendments and potential barriers in the bill. As a doctor, he said he believes patients are their own experts and he wants to give them autonomy.
In his opinion, doctors can usually give a good estimate of time left, based on different equations.
Both the House and Senate versions of the bill currently use the six-month mark as the qualifying point for terminally ill patients to seek medical aid-in-dying. According to the Medicare Benefit Policy Manual, a person is considered terminally ill when they have six months left to live. Only then do they qualify for hospice under Medicare.
“The idea of saying: We think as doctors this person — if they’re average and the course goes as expected — probably has six months or fewer left to live, and, therefore, it’s a good time to start hospice care,” he said. “So is it wrong? No, that is a good estimate. Does it turn out to be accurate? No, not for some people. Some people die much sooner. And some people actually, because they start getting hospice care, may live longer.”
A 2016 analysis of 42 journal articles found that a doctor’s accuracy in determining how long a person has left ranged, between 23 and 78 percent.
Critics of the bill, like Dr. Joseph Marine, associate professor of medicine at Johns Hopkins University, point to the difficulty in determining how long someone has left to live as a reason not to make it part of the law. Unlike Meyers, Marine said the equations make it so doctors cannot give individualized timelines, and instead rely on the average time left for a person with the same illness.
Sen. Robert Cassilly (R-Harford) also said in the committee’s debate he was concerned that doctors would tell a person they have six months left in order to give them access to palliative care.
“The whole six-month thing is an administrative farce that they do under Medicare, because that’s the standard they have for hospice,” he said.
Both Marine and Meyers discussed hospice as an option for those at the end of their lives. Marine called for more awareness and funding for hospice instead of looking at end-of-life options.
The Hospice and Palliative Care Network of Maryland elected to not take a stance on the bill. Hospice and palliative care are still encouraged in the bill, though, Cassilly was disappointed the bill did not go further to encourage it. Advocates of the bill say there is more hospice use in states that have enacted similar aid-in-dying laws.
The Senate will debate the bill this week and then send it to the House for its consideration.
“I sure as heck hope this isn’t rushed through,” Hough said. “... This is the weightiest thing we’ve ever voted on [that] I’ve been a part of.”