Matt Fairchild, 48, of Burbank, California, doesn’t intend to access the state’s medical aid-in-dying option just yet. But having a willing physician to write the prescription and the procedural paperwork at the ready — if needed — gives him peace of mind.
Fairchild, a retired Army staff sergeant with terminal metastatic melanoma that has spread to brain and bones, has been grappling with cancer for more than five years. He takes some 25 medications daily to manage symptoms like pain and prevent seizures. Last weekend, he and his wife Ginger, who is also his caregiver, came home after another emergency hospital trip because of his suddenly swelling brain tumors.
After Fairchild was diagnosed with stage 2 melanoma skin cancer at age 42, within 1.5 years it advanced to stage 4 melanoma with secondary tumors in the brain and bone — plus treatable lung tumors as well. It’s been a grim game of “whack-a-mole” ever since, he says. He’s undergone surgery, radiation, chemotherapy and immunotherapy. A host of disease and treatment side effects dominate his existence.
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Chronic pain resulting from radiation treatments for bone metastasis is the worst, requiring three daily morphine tablets, Fairchild says: “You have divots of bone on your sacrum, rib cage, tailbone, femur and knees. So it tends to cause physical pain, standing and sitting.” Not surprisingly, walking is difficult. He also suffers from acute breakthrough pain in other parts of his body.
Fairchild sees the assisted death option as one tool among others, such as hospice or the palliative care he’s already receiving, to end or at least ease his suffering. For now, Fairchild says, he’s keeping that particular tool on a back shelf. But he’s glad to have it available.
But it may not stay available. On May 15, a California judge overturned the state’s medical aid-in-dying law, stunning Fairchild and right-to-die advocates who had hailed its passage in 2016. The surprise ruling hinged on what was deemed improper use of a special health care legislative session to pass the law. Now, the state attorney general has been given five days as of the new ruling to file an emergency appeal.
“Our supporters are shocked by the news and are reeling from the prospect that this important end of life option may be taken away from them,” Kevin Díaz, national director of legal advocacy for Compassion & Choices, which championed for passage of the law, wrote in an email.
The reaction from opponents of medically assisted death was much different. “The Patients Rights Action Fund applauds Riverside Superior Court, the physicians who brought the case to bear and their counsel at Life Legal Defense for today’s ruling, which is the first step to protecting both the Golden State’s constitution and vulnerable Californians from a dangerous public policy that lacks transparency and reporting,” the group said in a statement released May 15.
The following day, Americans United for Life, described as the legal arm of the pro-life movement, applauded the decision to overturn the law. “AUL urges California not to appeal this decision and to uphold its duty to protect the lives of all its citizens, especially vulnerable people [in] groups such as elder adults and those with disabilities and illnesses,” Catherine Glenn Foster, president and CEO of AUL, said in the statement.
Medical and other health professional associations’ response to the issue of assisted death for terminally ill patients has been mixed. The American Medical Association, among others, continues to oppose legalization. Other medical groups remain neutral. Some groups express support for physicians who make voluntary decisions to participate in assisted death when medical treatments, palliative care or hospice can’t meet the needs of an individual patient who requests it at the end of life.
Hawaii Comes on Board
On April 5, Hawaii became the latest state to legalize physician-assisted death. Called the Our Care, Our Choice Act, it gives mentally capable, terminally ill people with no more than six months to live the option to take prescription medicine enabling them to die peacefully in their sleep. The Hawaii law also establishes a regulatory process for patients to obtain the prescription.
As with other states, strict eligibility criteria and safeguards are embedded within the law: Patients must take the medication on their own. Two doctors must confirm their terminal illness and prognosis. Age or disability alone do not qualify patients for eligibility. Information on other end-of-life care options, such as pain and symptom management, hospice and palliative care, must also be offered by the attending physician. A mental health professional must confirm the patient’s mental capacity.
In addition, the Hawaii law imposes a 20-day waiting period between the two separate, mandatory requests to receive the medication, longer than the 15-day period required in other states to prevent impulsive decisions. Another written request, overseen by two witnesses — one of whom is prohibited from being a beneficiary of the patient’s estate — is also required.
Nationally, the assisted death movement is gaining traction, says Peg Sandeen, executive director of Death With Dignity, a nonprofit group that promotes related laws based on Oregon’s pioneering model. Sandeen points to “the accelerated speed at which death with dignity has been adopted in states,” compared to the 14-year gap between enactment of laws in Oregon and Washington, the second state to do so. “Now, we’re seeing a new state, or a couple new states, every year.” Hawaii became the seventh state to come on board.
Sandeen hopes the U.S. public can move past cultural taboos against talking openly about dying. “Death with dignity is just one choice; one option that is rarely used,” she says. “There are a lot of safeguards built into it. It is just one very small piece of the end-of-life conversation.”
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The assisted death movement faces hurdles in various parts of the country. Edmund Tiryakian, executive director of the nonprofit group Dying Right NC, describes recent setbacks. “In North Carolina, we’re trying very hard to get the legislation enacted here,” he says. Bills proposed in 2015 and 2017 so far have languished at the state capital in Raleigh.
Tiryakian is disappointed the latest bill didn’t receive a hearing, he says, “so the North Carolina legislators could hear the stories of people who’ve been through horrible end-of-life experiences with their loved ones.” However, he adds, despite current veto-proof majorities in both the state House and Senate, bipartisan support does exist.
“I don’t think anyone should go through a prolonged end-of-life experience against their wish,” Tiryakian says. “People ought to have the right to assisted suicide when they’re terminal and a doctor has confirmed what [patients] know: that you’re terminal; you have less than six months to go and you’ve decided to abbreviate that suffering and pain by ingesting a drug.”
Similar to other groups, Tiryakian says, “We advocate for all end-of-life options,” whether that means hospice, palliative care, voluntarily stoppage of eating or drinking, or voluntary aid in dying by having a doctor write a prescription. Many people have told him that if the law doesn’t get passed in North Carolina, they’ll move to a state where it’s legal.
In the District of Columbia, which implemented its death with dignity legislation in June 2017, the most significant news is that nobody has made use of the process to date. Difficulty finding physicians willing to fulfill all the procedural requirements might be one reason, advocates suggest.
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In Burbank, Matt and Ginger Fairchild are still able to get out a little. Mostly they’re driving to medical appointments, but occasionally to a local farmers market or restaurant. However, he’s more comfortable at home.
Home is where Fairchild will be if he chooses the option for a lethal prescription, should he receive the prognosis that he has less than six months to live. The scenario itself is intimidating, he admits. “It scares me: the act of doing it,” he says. “The act of actually mixing it up and having to sit there and drink it myself. It’s a fearful one.”
However, Fairchild says, having the terminal option shouldn’t be a political matter, but rather his own choice to make. “That doesn’t scare me,” he says. “I actually welcome having that on the shelf.”
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