Category: Proposed Laws

Protection of conscience provision biased against objectors

Sean Murphy*

New Hampshire House Bill 1659 would legalize assisted suicide. Parts of the bill relevant to protection of conscience are reproduced on the Project website.

The bill permits physician assisted suicide for New Hampshire residents 18 years of age and older who have been diagnosed with a terminal illness likely to cause death within six months. Candidates who are capable of making and  communicating health care decisions must apply in writing for a lethal prescription (137-M:3); the application must be witnessed by two independent witnesses (137-M:4).  The candidate must apply personally; substitute medical decision makers cannot apply on behalf of a patient (137-M:3.III).

The bill imposes a number of obligations on physicians primarily responsible for treating a patient’s terminal illness (137-M:5) and upon physicians consulted by them about the illness (137-M:6).  These would be unacceptable to physicians who refuse to participate in assisted suicide for reasons of conscience.

Section 137-M:14 (Immunities) is the provision that is intended to protect objecting health care providers, which includes individuals and health care facilities.  The protection offered is biased in favour of those willing to participate in assisted suicide and insufficient to protect those unwilling to do so.  Specifically:

• 139-M:14.I limits protection against civil, criminal and professional liability to persons willing to participate in assisted suicide; no protection is provided for those who refuse. It also prevents objecting institutional health care providers from taking action against employees who participate in assisted suicide on their premises.

• 139-M:14.II protects both participants and non-participants equally, but also prevents objecting institutional health care providers from taking action against individuals who ignore prohibitions against assisted suicide on their premises.

• 139-M14.III protects those providing assisted suicide drugs against negligence complaints, but does not similarly protect those who refuse to provide assisted suicide drugs.

• 139-M14.IV declares that no health care provider is under a duty to participate in assisted suicide.  However, the provision is ambiguous because it is inconsistent with the lack of protection noted in 139-M4.I and III.