MONTANA

Assisted Suicide Conviction is Unclear for Any Act by a Health Care Professional; Recent Legislation Attempts To Ensure Criminalization

Health care professionals who prescribe lethal drugs to patients may still be charged with a criminal offense, but under the Montana Supreme Court’s Baxter v. Montana ruling, they may use consent of the patient in their defense. Physicians and health care professionals engage in assisted suicide at the peril of prosecution. See the 2009 entry for a summary of the Court decision.

2023—SB210 ensures criminalization of physician-assisted suicide, stating that such action is against public policy and consent of the patient is not a defense against a homicide charge against the prescribing physician. The bill passed the Senate on the 2nd reading, but failed in the 3rd reading 24–26.

2021—SB290 ensures criminalization of physician-assisted suicide, stating that such action is against public policy and consent of the patient is not a defense against a homicide charge against the prescribing physician. It fails in the Senate 25–25 and it set aside 29–21.

2019—HB284, declaring that consent to physician-assisted suicide is “not a defense to a charge of homicide,” passes House 53–46, but fails in Senate 22–27.

2017—HB536, declaring that consent to physician-assisted suicide is “not a defense to a charge of homicide,” passes House 52–48 on 2nd reading but fails on 3rd reading, 50-50.

2015—HB328, which would have criminalized physician-assisted suicide and removed the option of using patient consent as a defense, missed the deadline for general bill transmittal.

HB477, which would prohibit assisted suicide and declare it opposed to public policy, is introduced but fails.

SB202, which would legalize physician-assisted suicide fails to pass out of the Judiciary Committee.

2013—HB 505, which would have criminalized physician-assisted suicide and removed the option of using patient consent as a defense, fails to advance.

SB220, which would legalize physician-assisted suicide fails to pass out of committee.

2011—SB116, which would have criminalized physician-assisted suicide and removed the option of using patient consent as a defense, fails to pass out of committee.

SB 167, which would legalize physician-assisted suicide fails to pass out of committee.

2009—Montana Supreme Court Baxter v. Montana ruling: Under 45-2-211, Montana Code Annotated (MCA), the consent of a victim is a defense to a criminal offense. Consent is ineffective under several circumstances, including if “it is against public policy to permit the conduct or the resulting harm, even though consented to.” In Baxter v. Montana, 2009 MT 449, 354 Mont. 234, the Montana Supreme Court rules 5–2 that physician-assisted suicide, which the Court characterized as a physician making “medication available for a terminally ill patient who requests it, and the patient would then choose whether to cause his own death by self-administering the medicine”, is not against public policy under 45-2-211, MCA, and, therefore, a physician who aided a terminally ill patient in suicide and who was subsequently charged with a criminal offense for those actions could assert consent as a defense. The Montana Supreme Court did not address whether physician-assisted suicide is protected under the Montana Constitution. (See Montana Legislative Services Topic Primer on this topic.)

Justice Jim Rice’s dissent is convincing that the majority “badly misinterpreted our public policy: assisting suicide has been explicitly and expressly prohibited by Montana law for the past 114 years” (p. 53, paragraph 96 in Baxter v. Montana). He also points out the majority’s error in failing to distinguish between a physician’s intent to cause death in prescribing lethal drugs as opposed to the intent to remove an onerous treatment when withholding or withdrawing support (p. 53, paragraph 97). Note that the cause of death differs between these actions: when withholding or withdrawing support at the request of a patient or his/her representative, the cause of death is the patient’s underlying disease; but with assisted suicide, the cause of death is the prescribed lethal drugs. The physician is not complicit in the death when withdrawing or withholding support with the patient’s consent; sometimes patients do not die, or take longer to die than expected when support is withdrawn or withheld. But a physician is complicit in the death of a patient to whom lethal drugs have been prescribed, as the physician’s prescription is the cause of death.