This report originally appeared in the February 2010 issue of DOTmed Business News

The Montana Supreme Court has ruled that physician-assisted suicide is not illegal in the state. The decision makes Montana the third state to allow physician-assisted suicide along with Oregon and Washington. Plaintiff Robert Baxter, a terminally ill man, brought the suit along with four physicians and the group Compassion & Choices challenging the application of Montana homicide statutes to physicians who provide aid in dying to mentally competent, terminally ill patients.

The State of Montana had appealed an order of the First Judicial District Court

granting summary judgment in favor of the plaintiffs, and from the District Court's decision that a competent, terminally ill patient has a right to die with dignity under the Montana Constitution-that includes protection of the patient's physician from prosecution under the homicide statutes. The District Court had held that a patient may use the assistance of his physician to obtain a prescription for a lethal dose of medication and then decide whether to self-administer the dose and cause his or her own death.

Suicide is not illegal under Montana law, so the Court considered if consent of the patient to his or her physician's aid in dying could constitute a statutory defense to a homicide charge against the physician, and whether that consent is rendered ineffective by statute because permitting the conduct or resulting harm is against public policy. The Court said no, because the "against public policy" exception to consent applied to conduct that disrupts public peace and physically endangers others. By comparison, the court said, a physician who aids a terminally ill patient in dying is not directly involved in the final decision or the final act, but works with the patient to control his or her own mortality, and this does not breach public peace or endanger others.

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