Baxter v. State of Montana.

• Author: Bostrom, Barry A.
• Position: Nota Bene

HELD: The Montana statutory consent defense applies to physicians who participate in physician-assisted suicide and patient consent to such assistance is not against public policy.

In December 2008, the District Court issued its Order and Decision, holding that the Montana constitutional rights of individual privacy and human dignity, together, encompass the right of a competent, terminally ill patient to die by physician-assisted suicide. The District Court held that a patient may use the assistance of his physician to obtain a prescription for a lethal dose of medication. The patient would then decide whether to selfadminister the dose and cause his own death. The District Court further held that the patient's right to "die with dignity" includes protection of the patient's physician from prosecution under the State's homicide statutes. The State appealed.

The Montana Supreme Court (hereinafter "the Court") begins its analysis with the proposition that suicide is not a crime under Montanalaw. In physician-assisted suicide, the only person who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal drug dose. Since the physician plaintiffs claim that they are subject to prosecution, the Court examined whether the consent of the patient to assistance in suicide is a statutory defense to a homicide charge against the physician.

The issue was whether the consent statute shields physicians from homicide liability if, with the patients' consent, the physicians provide assistance in suicide to terminally ill, mentally competent adult patients. The Court considered: (1) whether a statutory consent defense applied to physicians who provide aid in dying, and (2) whether patient consent is rendered ineffective by Montana Code [section] 45-2-211(2)(d), because permitting the conduct or resulting harm "is against public policy."

Section 45-5-102(1) states that a person commits the offense of deliberate homicide if "the person purposely or knowingly causes the death of another human being.... "Section 45-2-211(1) establishes consent as a defense, stating that the "consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense." Thus, if the State prosecutes a physician for providing assisted suicide, the physician may be shielded from liability pursuant t o the consent statute. This consent defense, however, is only effective if none of the statutory exceptions to consent...