Summary:
Because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

Discussion:
Baxter, four physicians, and Compassion & Choices brought an action in District Court challenging the constitutionality of the application of the Montana homicide statutes to physicians who provide aid in dying to terminally ill patients. Baxter wanted the option of ingesting a lethal dose of medication prescribed by his physician and self-administered at the time of Mr. Baxter’s own choosing. The District Court granted summary judgment in favor of Baxter holding that the Montana constitutional rights of individual privacy and human dignity encompass the right of a competent, terminally ill patient to die with dignity. The State appealed.

The Montana Supreme Court affirmed the grant of summary judgment, but vacated the District Court’s ruling on the constitutional issues – instead finding a statutory basis for the ruling.

Justice Leaphart wrote the opinion for the majority, joined by Justices Cotter, Warner, and Morris. Justice Warner also filed a concurring opinion encouraging the legislature to examine the issue. Justice Nelson wrote a special concurrence in which he joined the majority’s reasoning regarding the statutory basis for the decision, but argued that the Montana constitution also protected physician aid in dying. Justice Rice dissented and was joined by Hon. Joe D. Hegel (the District Court judge sitting for Chief Justice McGrath who had been involved with the case prior to joining the Court).

Despite the District Court’s reliance on the constitution, SCOMONT declined to address the constitutionality of the issue and instead found adequate statutory grounds for its decision.

Because suicide is not a crime under Montana law, the only person who might be prosecuted is the physician who prescribes a lethal dose of medication. MCA § 45-2-211(1) establishes consent as a defense to homicide stating that the “consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” There are 4 statutory exceptions to this defense, codified at MCA § 45-2-211(2). Because the first 3 are fact based, the Court focused on the fourth exception: when the conduct or resulting harm is against public policy.

In State v. Makrill, 2008 MT 297, the only Montana case to address the public policy exception to consent, SCOMONT held that the consent of a victim is not a defense to the charge of aggravated assault. Mackrill, ¶ 33. However, in Baxter the Court clarified that the “against public policy” exception to consent applies to conduct that disrupts public peace and physically endangers others. In this case, the majority believes that “the act of a physician handing medicine to a terminally ill patient, and the patient’s subsequent peaceful and private act of taking the medicine, are not comparable to the violent, peace-breaching conduct that this Court and others have found to violate public policy.” Baxter, ¶ 21.

The Court went on to acknowledge that the “against public policy” exception is not limited to violent breaches of the peace, but held that nothing in Montana case law facts or analysis suggests that a patient’s private interaction with his physician, and subsequent decision regarding whether to take medication provided by a physician, violate public policy.

The majority next examined Montana statutes and review of the Montana Rights of the Terminally Ill Act and the homicide statute lead the Court to conclude that physician aid in dying is not against public policy.

A person commits the offense of deliberate homicide, under MCA § 45-5-102, if the person purposely or knowingly causes the death of another human being. Because the physician is only making the medication available, and not administering it, the statute does not apply and, therefore, does not signify public policy against physician aid in dying.

The Court also thoroughly examined the Montana Rights of the Terminally Ill Act and held that it confers on terminally ill patients a right to have their end of life wishes followed, even if it requires direct participation by a physician through withdrawing or withholding treatment. “Nothing in the statute indicates it is against public policy to honor those same wishes when the patient is conscious and able to vocalize and carry out the decision himself with self-administered medicine and no immediate or direct physician assistance.” Baxter, ¶ 30.

In sum, because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

In a separate issue, SCOMONT also overturned the District Court’s award of attorney’s fees to Baxter because the basis of the decision was no longer constitutional, meaning that the private attorney general doctrine was now inapplicable.