Kevin Díaz, national director of legal advocacy for Compassion & Choices

Compassion & Choices and Patient Choices Vermont today filed a motion to strike from the court record the state’s Consent Agreement with physician plaintiffs in a dismissed federal lawsuit seeking to limit information provided to patients under Vermont law. The case sought to weaken the physicians’ duty to inform patients about all of their end-of-life care options. The groups oppose the Consent Agreement because it causes confusion about physician obligations to patients under Vermont law.

“Act 39 enables people near the end of life to intentionally live their remaining weeks or months knowing that they have the means for a simple and peaceful ending. Our goal is to make sure that all Vermonters know about this option and can make fully informed decisions about their end-of-life choices,” said Betsy Walkerman, president of Patient Choices Vermont. “That’s why it is critical that the court clarify the record and remove the Consent Agreement.”

“The Consent Agreement appeared to suggest legal and professional obligations that apply to medical providers to counsel or refer patients when they ask about medical options at the end of life somehow didn’t apply to plaintiffs,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices. “The court should strike this agreement because it impacts the rights of patients by attempting to establish an unreasonably restrictive interpretation of Vermont law that directly contradicts the plain language of the statute and the court’s order.”

Last April, U.S. District Court Judge Geoffrey W. Crawford dismissed the suit filed in July 2016 against the state of Vermont by Alliance Defending Freedom on behalf of the plaintiffs, Vermont Alliance for Ethical Healthcare and Tennessee-based Christian Medical and Dental Association. The groups claimed Vermont’s Patient’s Bill of Rights for Palliative Care and Pain Management violated their religious rights by requiring doctors to discuss all end-of-life care options with their patients. Judge Crawford’s ruling concluded the Patient’s Bill of Rights for Palliative Care and Pain Management and another Vermont law, Limitation of Medical Malpractice Action Based on Lack of Informed Consent, “continue to govern physicians in all aspects of their care of the terminally ill. Under these provisions, physicians must inform patients about all choices and options relevant to their medical treatment.” [See page 8 of opinion here].

The plaintiffs then negotiated a Consent Agreement with the Vermont attorney general without consulting parties to the lawsuit, including Compassion & Choices and Patient Choices Vermont. The plaintiffs filed the Consent Agreement with the court on May 5, the day of the appeal deadline, without notifying the attorney general, Compassion & Choices or Patient Choices Vermont.

The Consent Agreement and Stipulation states:

1. Plaintiffs and similarly situated medical providers do not have a legal or professional obligation to counsel and refer patients for the Patient Choice at End of Life process under [Vermont’s Patient Choice at End of Life Act (Act 39)]…the Patient’s Bill of Rights…or the Informed Consent Act…
2. Plaintiffs and similarly situated medical professionals have a professional obligation to provide relevant and accurate information regarding the Patient Choice at End of Life process upon a patient’s request, or if unwilling to provide the information personally, to make a referral or otherwise reasonably ensure that the patient will be able to obtain relevant and accurate information about the process … Plaintiffs hereby waive their right to seek reconsideration of, or file notice of appeal … .

In response to a request by Compassion & Choices and Patient Choices Vermont to clarify physician obligations under Vermont law as described in the Consent Agreement, the attorney general’s office wrote:

“In accordance with the Consent Agreement, the State has included a revised question and answer for “Are doctors required to tell patients about this medical aid in dying?” on the “frequently asked questions” section of the Vermont Department of Health’s website about Act 39 … Nothing in the Consent Agreement gives up any legal rights of patients [but] The State will not oppose a motion to strike the Consent Agreement from the district court’s docket … ”

“By stipulating that ‘medical providers do not have a legal or professional obligation to counsel and refer patients for the Patient Choice at End of Life process,’ the stipulating parties are causing confusion about the rights of patients to such counseling and referral,” said David Bassett of WilmerHale, co-counsel on behalf of Compassion & Choices, Patient Choices Vermont and two Vermont patients, Benedict Underhill and Monica van de Ven (who died peacefully in January by utilizing Vermont’s Patient Choice at End of Life Act). “By limiting Act 39’s informed consent obligation — a critical aspect of the law — the Consent Agreement not only interferes with the prerogatives of Vermont courts and the legislature, but also impedes the successful implementation of the law,” concluded Bassett.

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