Tuesday, November 5, 2019

ADA Will Trump Euthanasia Prohibition

By Margaret Dore, Esq., MBA

Bills in New York State seek to pass a medical aid in dying act.[1] "Aid in dying" is a euphemism for active euthanasia, meaning the administration of a lethal agent to another person.[2][3]

The act also prohibits euthanasia, stating:
A health care professional or other person shall not administer the medication [lethal dose] to the patient. (Emphasis added).[4]
This prohibition is, however, unenforceable. This is due to the Americans with Disabilities Act (“ADA”).

The ADA is “a federal civil rights law that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[5] Here, the proposed act defines prescribing the lethal dose as a medical practice, which renders it a medical service.[6]

Per the ADA, “medical care providers are required to make their services available in an accessible manner.”[7] This includes:
[R]easonable modifications to policies, practices, and procedures when necessary to make healthcare services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services (i.e., alter the essential nature of the services).[8]
Here, the essential nature of the service is the provision of medication to end an individual’s life. If the individual is unable to self-administer, the ADA will require providers to make a reasonable modification to procedures so as to make the service fully available, for example, by providing the assistance of another person. In the context of administering a lethal dose, this is active euthanasia as traditionally defined. The ADA will trump the proposed act to allow active euthanasia.

Footnotes:

[1]  See New York State bills A 2694 1 and S 3947 1.
[2]  Craig A. Brandt, Model Aid-in -Dying Act, Iowa Law Review, 1989 Oct;75 (1) ; 125-215, ("Subject: Active Euthanasia...."), at
https://repository.library.georgetown.edu/handle/10822/738671
[3]  The AMA Code of Medical Ethics, Opinion 5.8, "Euthanasia," available at https://choiceisanillusion.files.wordpress.com/2019/03/ama-code-of-medical-ethics-opn-5.8.pdf
[4]  Bill A. 2694 5, lines 5-6 and Bill S. 3947 5, lines 3-4, attached in the appendix at pages A-10 and A-23.
[5]  U.S. Department of Justice, Civil rights Division, Disability Rights Section and the U.S. Department of Health and Human Services, Office for Civil Rights, "Americans with Disabilities Act: Access to Medical Care for Individuals with Mobility Disabilities," July 2010, available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm
[6]  The proposed act, § 2899-e Definitions.8, states:
"Medical aid in dying" means the medical practice of a physician prescribing medication to a qualified individual that the individual may choose to self-administer to bring about death. (Emphasis added).
Attached in the appendix at pages A-7 and A-20.
[7]  U.S. Department of Justice, supra at note 5.
[8]  Id.