Delaware and Kentucky are facing challenenges to lase r4gatding end of life deicisions.
In Kentucky, Thaddeus Pope in his January 29th blog Death Determination Errors Addressed in New Legislation states:
“The goal in death determination is 100% accuracy: zero false positives. So, it is regrettable that we need legislation to address roles and responsibilities when a patient who was determined and declared dead is not dead. But we now have such legislation.
Kentucky H.B. 510 provides that “during any organ donation recovery, preservation, or procurement activity … a pause in procedure shall be initiated if any individual … reports on any of the following: (1) Observed or suspected change in neurological status; (2) Observed or suspected indication of life; or (3) Uncertainty regarding the accuracy or completeness of neurological status or death declaration assessments.” (Emphasis added)
The goal in death determination is 100% accuracy: zero false positives. So, it is regrettable that we need legislation to address roles and responsibilities when a patient who was determined and declared dead is not dead. But we now have such legislation.
Kentucky H.B. 510 provides that “during any organ donation recovery, preservation, or procurement activity … a pause in procedure shall be initiated if any individual … reports on any of the following: (1) Observed or suspected change in neurological status; (2) Observed or suspected indication of life; or (3) Uncertainty regarding the accuracy or completeness of neurological status or death declaration.”
And in Delaware, a lawsuit has been filed by several disability organizations and others, after the bill was signed by the governor and took effect January 1, 202. the plaintiffs state that:
Delaware’s End of Life Options Act, 16 Del. C. § 2501C, et seq. (“EOLOA” or the
“Act”), is scheduled to go into effect on January 1, 2026 (or as soon as final regulations are in
place), and will allow providers, including Advanced Practice Registered Nurses (“APRN”), to
prescribe drugs—not to alleviate pain or suffering—but to cause the death of the patient and
intentionally facilitate suicide.
Plaintiffs, people with life-threatening disabilities and organizations that represent
and advocate for people with life-threatening disabilities, belong to a class of protected individuals
who are at imminent risk of harm if the Act is allowed to go into effect. To protect themselves
from this fast-approaching threat, Plaintiffs bring this action to stop Defendants, government
officials, from putting in place this deadly and discriminatory system. The Act—if allowed to go
into effect—will steer people with life-threatening disabilities away from necessary lifesaving and
mental health care, medical care, and disability supports, and toward death by suicide under the
guise of “mercy” and “dignity” in dying.
Throughout the country, a state-endorsed narrative is rapidly spreading that threatens people with disabilities: namely, that people with life-threatening disabilities should be directed to suicide help and not suicide prevention. This world view is being touted as a common-sense objective: people who have life-threatening disabilities should be able to readily obtain physician-assisted suicide. At its core, this is discrimination plain and simple. With cuts in healthcare spending at the federal level, persons with life-threatening disabilities are now more vulnerable than ever.
EOLOA’s passage is clear and present danger to people with life-threatening
disabilities in Delaware. Persons who are identified as “terminal”—i.e., people with life-threatening disabilities- are able to obtain assisted suicide. The new law does not require any evaluation, screening, or treatment by a mental health professional for serious mental illness, depression, or treatable suicidality, all of which could are necessary for informed consent and a
truly autonomous choice, before the lethal prescription is written. The provider need not have
expertise with the patient’s specific illness or condition and need not be trained on mental health
symptoms or side effects associated with the patient’s illness or treatment. While the provider is
supposed to discuss “feasible” alternatives to suicide, including available treatment options and
the foreseeable risks and benefits of each, the provider is not required to do anything to help the
patient obtain access to these frequently difficult-to-obtain services, nor are insurers required to
cover them.
- Assisted suicide under EOLOA violates federal disability rights laws and the U.S.
Constitution’s Equal Protection clause, which protects people with disabilities from discrimination,
exclusion, and life-threatening state action. Under federal law, a public entity may not withhold
services or make services available on unequal terms based on disability. EOLOA, however, does
just that. EOLOA is offered to people with life-threatening disabilities. Not only is this facially
discriminatory, it also places persons with disabilities in a much more vulnerable position.
The lawsuit makes several other important points. I suggest anyone concerned with this issue read them all, especially those of us fighting assisted suicide laws before they are introduced in our own states.
nancyvalko 