HELENA, Mont. — Assisted suicide can now be legally performed in the state of Montana, but for doctors participating, it can be tricky.

The Montana Supreme Court, in a Dec. 31 ruling, reversed a lower-court ruling that Montanans had a state constitutional right to physician-assisted suicide. But it ruled that state law allows patients to consent to their own deaths and protects doctors in the state from prosecution for assisting in a suicide.

In a 5-2 decision, the court found “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid-in-dying is against public policy.”

Jeff Renz, clinical professor of law at the University of Montana Law School, said that instead of addressing the state constitutional issue of physician-assisted suicide, the court said suicide is not a crime under Montana law.

According to the high court, he said, “if a ‘competent’ adult, ‘terminally ill’ patient with the patient’s subsequent ‘peaceful and private act’ of taking a lethal dose of medicine (with most of these terms undefined) wants to kill himself or herself, the doctor prescribing the medication can invoke the ‘consent of the victim’ defense to homicide charges.”

Justice Jim Rice, dissenting from the decision, argued that the court had badly misinterpreted public policy and that assisting a suicide has been explicitly and expressly prohibited by state law for the past 114 years.

With regard to the consent of the victim, Rice wrote: “The policy of the law is to protect human life, even the life of a person who wishes to destroy his own. To prove that the victim wanted to die would be no defense to murder.”

While the high-court decision makes Montana the third state to allow physician-assisted suicide, some see technicalities interfering with applicability.

First, the court did not “legalize” assisted suicide in Montana, as Compassion & Choices, the group formerly known as the Hemlock Society, would like the public to believe. Compassion & Choices’ legal director, Kathryn Tucker, was quoted as saying “the Montana Supreme Court has determined that this is a choice that state law entrusts to Montana patients, not to the government.”

Compassion & Choices filed the original physician-assisted suicide case in Judge Dorothy McCarter’s Helena District Court. In December 2008, she found a state constitutional right for physician-assisted suicide under the Montana state constitution’s unique dignity and privacy clauses. Her decision was appealed to the state’s highest court by Montana’s attorney general. The attorney general’s office said the opinion shows that the issue still needs to be resolved by lawmakers.

Matt Bowman, legal counsel with the Alliance Defense Fund in Washington, said, “If a Montana doctor prescribes a lethal dose of medication under circumstances that do not amount to a patient’s free informed consent to or self-administration of suicide, the court’s decision would not prevent a doctor from being convicted of murder and liable to lawsuits.”

Bowman said the court did not discuss the fact that consent is often clouded by depression, delusion, disabilities, the adverse influence of greedy relatives, badgering the elderly, and a lack of full and clear information on alternative options of palliative care — and that this decision therefore opens the floodgates to the real possibility of abuse.

“Vulnerable populations — the elderly, the poor and the disabled — can very easily be manipulated into accepting a prescribed death if they feel they are a financial or emotional burden to their families,” said Bishop Michael Warfel of Great Falls-Billings, Mont. “Proper health care should address the problem, not accept prearranged death as the appropriate solution.”

Lee Bruner, a Montana attorney with extensive medical practice experience, said the issues of consent, mental status and appropriate standard of care in Montana have yet to be determined. “Physicians who find themselves in violation of a law yet to be written could face severe criminal and malpractice liability.”

Possible Legislation

The Montana Supreme Court said nothing to prevent the state Legislature from declaring that assisting a suicide is against public policy for purposes of the consent statute. Montana law already states that assisted suicide is homicide. The next biennial legislative session in 2011 could make assisting in a suicide a criminal offense, or it could regulate the practice or invoke other options.

This causes some concern for Niki Zupanic, public policy director of the American Civil Liberties Union of Montana. She is worried the recent decision will be short-lived.

“The court has left [it] open for the Legislature to come back and amend state law, and the right of patients and protection for doctors could go away,” she said.

According to Dr. Craig Terptow of Great Falls, physicians want to treat patients with care and compassion. “Deadly drugs aren’t the answer,” he said.

Depending on possible future legislation, a second constitutional court challenge could be mounted based on the privacy and dignity clauses in the Montana Constitution that the court avoided this time. As for now, however, such a judicial decision and its impact in Montana and at the national level is pure speculation.

Cort Freeman writes from Butte, Montana.