Maine’s Death with Dignity Act: What You Need to Know

In September, Maine passed the Maine Death with Dignity Act and became the ninth state to legalize “death with dignity,” where physicians prescribe medications to certain terminally ill patients to hasten death. Soon, Maine hospitals will begin offering the option to qualifying patients. If you or a loved one are considering seeking physician-assisted death, here are answers to seven common issues relating to the process:

1. I am concerned that my loved one is considering physician-assisted death because they are suffering from depression. Is there anything I can do?

Draw their attending physician’s attention to the issue. If your loved one’s physician believes they may be suffering from depression that is impairing their judgment, the doctor is obligated to refer her to a state-licensed professional, such as a psychiatrist, psychologist, clinical social worker, or clinical professional counselor, for counseling. If the physician makes this referral, physician-assisted death cannot proceed unless that counselor confirms that the condition is not impairing your loved one’s judgment. But bear in mind: The counselor need not conclude that your loved one is mentally well, as terminal illness and mental illnesses like depression often go hand-in-hand. Rather, the professional must conclude that mental illness, if any, are not causing impaired judgment. In other words, even if your loved one is depressed, if they are choosing to proceed with physician-assisted death voluntarily and intelligently, the counselor likely will sign off.

2. Is my family member required to inform me when they have chosen physician-assisted death?

No. Your family member’s attending physician must recommend that they notify their next of kin of this serious decision, but neither the terminally ill patient nor their physician is obligated to notify family members of their choice to obtain life-ending medications, and a physician cannot refuse to provide an otherwise qualifying patient with life-ending medications on the basis of the patient’s decision not to inform family members of the choice.

3. Can my doctor refuse to prescribe life-ending medication if I otherwise qualify for the medication under the law?

Yes. In general, healthcare providers may decline to provide life-ending medication under the Death with Dignity Act and prohibit their employees and independent contractors from providing that care, too, provided that they follow certain procedural requirements.

4. I live in a state that does not allow physician-assisted death. Can I travel to Maine to qualify and receive life-ending medication?

Not unless you become a Maine resident. The law only enables Maine residents who otherwise qualify under the law to obtain life-ending medication. To prove residency, patients must provide to their attending physician sufficient evidence that the patient “has established a fixed and principal home to which the person, whenever temporarily absent, intends to return,” and that evidence will vary from case to case. Evidence that the physician may consider includes a valid Maine driver’s license, a Maine voter registration, a deed showing homeownership within the state, a lease showing rental housing within the state, a current address within the state, a Maine motor vehicle registration, a Maine street address on a current income tax return, and-or a Maine street address where the person receives mail. This list is not exhaustive. The patient need not produce all of these documents, and no one document establishes residency by itself. Rather, the physician must make a case-by-case assessment based on the documentation presented.

5. I know my loved one wants physician-assisted death. Due to their illness, they have trouble communicating, and physicians and others have issues understanding them, but I can translate. Can they still qualify for physician-assisted death?

Yes. If your loved one otherwise qualifies, individuals like yourself who are familiar with the patient’s manner of communicating can help them communicate their wishes to doctors, counselors, and others.

6. I want to request life-ending medication under the Death with Dignity Act. Is there specific language I must use in my written request?

The statute provides form language, which you can find here. But the law requires only that a qualifying patient make their written request in “substantially” that form. In other words, a patient need not use any “magic language” in order to qualify, but the request must contain the same substance as the form language referenced in the statute.

7. I am concerned that someone is coercing my loved one to proceed with physician-assisted death for financial gain. How does the law protect against coercion, and what can I do?

The law provides a series of procedures designed to protect against coercion. For example, in order to qualify for physician-assisted death under the statute, an otherwise qualifying patient must sign a written request with two witnesses who swear that to the best of their knowledge and belief the patient is competent, is acting voluntarily, and is not signing the request due to coercion. At least one of the two witnesses must be a person who is not:

(1) a relative of the patient by blood, marriage, or adoption;

(2) a person who, at the time the request is signed, would be entitled to any portion of the patient’s estate under a will or under the law; or

(3) an owner, operator, or employee of the healthcare facility where the patient is receiving medical treatment or is a resident.

Then, two physicians also must make a determination that the patient is voluntarily making the request, and the attending physician specifically must make a determination that the patient’s request does not arise from coercion or undue influence after a one-on-one discussion with the patient. Interpreters are allowed to join.

If you become concerned that someone has forged a request for life-ending medication without your loved one’s permission, destroyed a written withdrawal of that request without your loved one’s permission, coerced them to request life-ending medication, or coerced them not to withdraw such a request, contact law enforcement. These actions, when done with the intent or effect of causing the patient’s death, are Class A felonies. Also, consider contacting a civil attorney to explore whether the circumstances justify filing a lawsuit or seeking other legal recourse.

Tracy B. Collins, Esq
Rudman Winchell