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NM judge: Patients have right to get help in dying

Copyright © 2014 Albuquerque Journal

State law provides a fundamental right to a terminally ill, competent patient to choose a physician’s aid in obtaining prescription medications that will allow a peaceful death, a judge ruled Monday in a seminal case for New Mexico.

Aga Riggs, patient who wants option of aid in dying

RIGGS: Patient who wants option of aid in dying

The decision by 2nd Judicial District Judge Nan Nash said Drs. Katherine Morris and Aroop Mangalik, both oncologists at the University of New Mexico Hospital, could not be prosecuted under the state’s Assisted Suicide Statute. Assisted suicide is defined as the act of “deliberately aiding another in the taking of his own life.”

It was unclear Monday if the New Mexico Attorney General’s Office, which defended the statute, would appeal the decision.

The New Mexico Attorney General’s Office said it is discussing the possibility of an appeal but needs to fully analyze the judge’s opinion before commenting further.

The practice of aid in dying recognizes that the patient is dying from his or her underlying disease and allows the patient to have medication, usually sedatives, that may be taken at a time of the patient’s choosing to achieve a peaceful death. Patients who most often choose the option are those dying of cancer.

UNM Hospital Oncologist Katherine Morris

MORRIS: Oncologist at UNMH testified in case

Nash found that the right exists under the New Mexico Constitution, which prohibits the state from depriving a person of life, liberty or property without due process.

“This court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying,” Nash wrote in the opinion. “If decisions made in the shadow of one’s imminent death regarding how they and their loved ones will face that death are not fundamental and at the core of these constitutional guarantees, then what decisions are?”

Nash’s ruling comes after a two-day bench trial in December that included testimony from practitioners in other states where aid in dying is legally available.

Morris and Mangalik brought the suit with legal assistance from the ACLU and Compassion and Choices, a national advocacy organization focusing on end-of-life issues. Both doctors have previously practiced in Oregon, which has two decades of experience with aid in dying.

At trial, Morris testified about her previous experience there, and plaintiff Aja Riggs of Santa Fe, who has uterine cancer in remission but likely to recur, testified about her desire to have peace of mind about her options.

Riggs said Monday she was thrilled but still processing the ruling.

“The process of the trial just reaffirmed for me my understanding how different aid in dying is from assisted suicide,” she said. “It became even clearer to me how medicine is moving forward, as it always does, but how it’s recognizing the clear distinctions between the two.”

The attorney general has argued the law is consistent with the state constitution and that any changes should be made by the Legislature, not the judiciary.

“As plaintiffs describe it, the provision of ‘aid in dying’ is unquestionably assisted suicide” because it isn’t prescribed as a cure but rather “for a single purpose: the death of the patient,” the attorney general argued.

Legislatures in Oregon, Washington and Vermont have explicitly authorized aid in dying.

Montana made it legal after a decision by its state Supreme Court. And in Hawaii, there is no criminal prosecution for assisted suicide.

Two states, Arkansas and Idaho, have enacted laws to make clear that aid in dying is specifically prohibited.

New Mexico’s statute was enacted in 1963, and medical practice, treatment and ethics “have changed radically over the past 50 years,” Nash’s opinion noted.

State courts and the Legislature have shown a desire to respect a terminally ill patient’s end-of-life choices since that time, her ruling says. Among Nash’s factual findings are that when aid in dying is available, end-of-life care for terminal patients improves, and not all patients who choose to get the meds use them. But all find comfort in having the option.

“Most Americans want to die peacefully at home, surrounded by loved ones, not die in agony in a hospital,” Riggs said in a statement. “I feel the same way. If my cancer returns and I face unbearable suffering, I want the option to cut it short, and to die peacefully at home, not hooked up to a hospital ventilator.”

ACLU of New Mexico Legal Director Laura Schauer Ives hailed the decision as one giving New Mexicans the peace of mind that comes with having more control over their dying process at the end of life.

“The court has agreed that the New Mexico Constitution guarantees that terminally ill patients do not have to stay trapped in a dying process they find unbearable,” she said.

The Associated Press contributed to this report.