Two patients rights groups say an agreement between the state and opponents of Vermont’s aid-in-dying law offers a confusing interpretation of the law and want it stricken from the court record.
At issue is what doctors must tell patients about Act 39 of 2013, the Vermont law that allows terminally ill patients to get a doctor’s assistance in hastening death.
Patient Choices Vermont and Compassion & Choices, a national organization based in Washington, D.C., filed a motion Wednesday asking the U.S. District Court for Vermont to strike the agreement from its record.
The Vermont attorney general’s office and two groups opposed to the aid-in-dying law — Vermont Alliance for Ethical Healthcare and Tennessee-based Christian Medical and Dental Associations — filed the agreement in May.
Benjamin Battles, solicitor general in the attorney general’s office, said the agreement’s interpretation of the law requires doctors to either answer patients’ questions about Act 39 or refer them to a reliable source of information, but does not require doctors to bring up the option unprompted.
The agreement also prohibited the law’s opponents from appealing the U.S. District Court’s decision in the case.
Battles said the state “ultimately negotiated the agreement to avoid the appeal.”
Michael Tierney, an attorney who represented the Vermont Alliance for Ethical Healthcare in the case, said his clients were very happy with the agreement.
Tierney said his clients will object to the motion to strike the agreement from the record because they think it was filed too late and lacks standing.
Another lawyer for the plaintiffs, Steven Aden, praised the consent agreement in a press release published by the Alliance Defending Freedom, a national organization opposed to physician-assisted death.
“Vermont health care workers just want to act consistently with their reasonable and time-honored convictions without fear of government punishment,” Aden said. “Conscientious Vermont health care professionals are in agreement with the state that the law doesn’t force them to participate in this heinous process.”
Aid-in-dying supporters said striking the agreement from the court record would make the law less confusing for hospital administrators, doctors, lawyers and anyone else who might look at the case file.
“This consent agreement really muddied it up, whereas the law by itself was pretty clear,” said Betsy Walkerman, president of Patient Choices Vermont.
The agreement “very strongly implies that the obligations (of health care providers) are different than what the law says,” Walkerman said. She added that doctors are required “to inform patients of anything that would be relevant to a patient’s decision in their situation.”
Kevin Diaz, national director of legal advocacy for Compassion & Choices, said the “case was originally brought, in many ways, as a way to keep information away from terminally ill patients about what all their options were.”
His organization respects the religious or philosophical right of health care providers not to participate in physician-aided death, Diaz said, but “we we see it as a completely different duty” for “patients to be able to have access to all the information when it comes to their treatment options.”
Diaz said he was concerned about doctors cutting off a conversation with a patient immediately and referring them to another source of information after being asked about the Act 39 process.
That is allowed by the agreement’s interpretation of the law, Diaz said, but it might prevent doctors from really understanding why a patient is interested in medical aid in dying in the first place.
If a patient is suffering from a severe but treatable problem such as uncontrolled pain, Diaz said, there might be “another much less invasive or serious remedy” that the doctor could suggest if they continued the conversation.
Patient Choices Vermont and Compassion & Choices participated in the case as defendant-intervenors — that is, as parties with a clear stake in the case’s outcome that were not part of the litigation at its outset, but entered the case later.
Walkerman and Diaz said their organizations were not involved in negotiating the agreement and only found out about it when it was filed with the court.
In their motion asking for the agreement to be stricken from the record, the groups argued that it established “a restrictive interpretation” of the law “against the interests of defendant-intervenors and terminally ill patients in Vermont.”
They should have been consulted, the groups argued further, because the court had found that the “‘intervenors have interests which could be impaired if plaintiffs prevailed’ with respect to their interpretation of Act 39.”
Battles said “there was no legal obligation” to involve the advocacy groups “because they didn’t have claims against us and there were no claims against them.” But, Battles said, Walkerman’s and Diaz’s organizations “were clearly upset about not being brought in earlier.”
“In hindsight,” Battles said, “it would have probably been a better, more open process to bring them in.”
The motion submitted by Walkerman’s and Diaz’s organizations noted that the court dismissed the case because it found that the plaintiffs lacked standing in their claim that Act 39 threatened the careers of health care providers who object to the law.
Because the court’s decision was based only lack of standing and didn’t rule on the contested interpretation of the law, the motion argued that the agreement misleadingly offers what might appear to be a conclusive interpretation based on his decision.
Battles said that is not what the agreement was intended to do.
“All the stipulation does is say ‘This is how the plaintiffs and defendants interpret the law,’” Battles said. “It doesn’t bind any other party, it doesn’t bind any future court, so we disagree with that portion of the motion (that asserts that the agreement offers a misleadingly conclusive interpretation of the law).”
The state doesn’t plan to oppose the motion to strike the agreement from the court’s record, according to Battles.
The agreement, Battles said, is “a contract between the state defendants and the plaintiffs, so it didn’t need to be filed with the court.” He added that “the contract is still binding whether or not it’s on the court’s docket.”
Tierney said he was in “complete agreement” with Battles’s assessment of the situation.
Diaz said he was initially concerned that the state agreed to an interpretation of the law that abridged patient rights. Since then, Diaz said, he has received clarification from the attorney general’s office that has “made it clear that they’re not doing that.”
“The real problem with this consent agreement is that it sows confusion amongst both physicians and patients,” Diaz said. “If it gets struck from the record, I think that would definitely satisfy us.”
