T.P.I. -- CRIM. 7.10

ASSISTED SUICIDE

            Any person who commits the offense of assisted suicide is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A:

            (1)  that the defendant provided another person with the means by which

                   the person directly or indirectly brought about [his] [her] own death;

and

            (2)  that the defendant provided the means:

                        (a)  with actual knowledge that the other person intended to bring

                              about [his] [her] own death;

and

                        (b)  with the clear intent that the other person bring about [his] [her]

                              own death;

and

            (3)  that the defendant acted intentionally.]

or

[Part B:

            (1)  that the defendant participated in a physical act by which another

                   person directly and intentionally brought about [his] [her] own death;

and

            (2)  that the defendant participated in the physical act:

                        (a)  with actual knowledge that the other person intended to bring

                              about [his] [her] own death;

and

                        (b)  with the clear intent that the other person bring about [his] [her]

                              own death;

and

            (3)  that the defendant acted intentionally.]

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or the result of the conduct when it is the person's objective desire to engage in the conduct or cause the result.²

            [It is an exception to this offense that the person:

            (A)  [withheld] [withdrew] medical care;

 or

            (B)  prescribed, dispensed, or administered medication or performed

                   medical procedures calculated or intended to relieve another person's

                   pain or discomfort (but not calculated or intended to cause death),

                   even if the medications or medical procedures may have hastened or

                   increased the risk of death;

 or

            (C)  failed to prevent another from bringing about [his] [her] own death.³

If the defendant proves this exception by a preponderance of the evidence,⁴ you must find [him] [her] not guilty.]

            ["Medical care" means any procedure or treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease, illness or injury.  These include, but are not limited to: surgery; drugs; transfusions; mechanical ventilation; dialysis; cardiopulmonary resuscitation; artificial or forced feeding of nourishment, hydration or other basic nutrients, regardless of the method used; radiation therapy; or any other medical act designed for diagnosis, assessment or treatment or to sustain, restore or supplant vital body function.  This shall not be interpreted to allow the withholding or withdrawal of simple nourishment or fluids so as to condone death by starvation or dehydration unless the provisions of the instrument which creates a living will or durable power of attorney for health care include the following or substantially the following:  "I authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids."]⁵

            ["Health care provider" means a person, facility or institution licensed or authorized to provide health or medical care.]⁶

            ["Living will" means a written declaration, stating the declarant's desires for medical care or noncare, including palliative care, and other related matters such as organ donation and body disposal.]⁷

            ["Palliative care" includes any measure taken by a physician or health care provider designed primarily to maintain the patient's comfort.  These also include, but are not limited to, sedatives and pain-killing drugs, nonartificial oral feeding, suction, hydration and hygienic care.]⁸

            ["Durable power of attorney for health care" means a durable power of attorney to the extent that it authorizes an attorney in fact to make health care decisions for the principal.]⁹

            ["A durable power of attorney" means a power of attorney by which a principal designates another his or her attorney in fact in writing and the writing contains the words, "This power of attorney shall not be affected by subsequent disability or incapacity of the principal," or "This power of attorney shall become effective upon the disability or incapacity of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity.]¹⁰

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-216(a).

  2.  Tenn. Code Ann. § 39-11-106(a)(18).

  3.  Tenn. Code Ann. § 39-13-216(b).

  4.  Tenn. Code Ann. § 39-11-202(b)(2).  The trial judge should utilize T.P.I. --

       CRIM. 42.01 (Preponderance of the Evidence).

  5.  Tenn. Code Ann. § 32-11-103(5).

  6.  Tenn. Code Ann. § 32-11-103(3).

  7.  Tenn. Code Ann. § 32-11-103(4).

  8.  Tenn. Code Ann. § 32-11-103(6).

  9.  Tenn. Code Ann. § 34-6-201(1).

10.  Tenn. Code Ann. § 34-6-102.  The trial judge may wish to refer to § 34-6-

       203 to instruct on whether the durable power of attorney is effective.

COMMENTS

            1.  Assisted suicide is a Class D felony.  Tenn. Code Ann. § 39-13-216(g).

     2.  The Committee is of the opinion that the language of Tenn. Code Ann. § 39-13-213(b) are words "of similar import" as the term is used in Tenn. Code Ann. § 39-11-202 (Exceptions).