Tuesday, May 14, 2013

Vermont: House Passes Irresponsible Assisted Suicide Law

By Margaret Dore, Esq.

A.  Introduction

Yesterday, the Vermont House passed S.77, which if signed by the Governor, will create new legal paths of abuse and exploitation against persons who fall within its terms.  This article focuses on two of those paths.

B.  Abuse and Exploitation in the United States

Met Life Mature Market Institute has issued two landmark studies on elder abuse in the United States.  In the first study, from 2009, the estimated annual financial loss by victims was $2.6 billion.[1]  In the second study, from 2011, the estimated annual loss was increased to $2.9 billion.[2]  Again, these are yearly figures.

The Met Life studies also describe how financial abuse can be a catalyst for other types of abuse.  These are three examples from the second report:
  • Two elderly women were beaten to death with a crowbar by their trusted handyman.  He took and pawned all of their valuables.
  • A 74-year-old man was stomped to death during a home invasion burglary.
  • A son and his two friends extracted money from his dying mother by threatening to burn down her home and throw her dog against a wall.[3]
Abuse and exploitation are not limited to the elderly.  Last year, a 46 year old lottery winner died the day after receiving his winnings.[4] The cause of death was found to be cyanide poisoning.[5]

C.  S.77

1.  Patients may have years to live

S.77 legalizes physician-assisted suicide, which means that a doctor writes a prescription for a lethal dose of medication for the purpose of a patient's committing suicide.[6]  Under S.77, the patient is required to have a "terminal condition," defined as having a medical prediction of less that six months to live.[7]  Such patients are not necessarily dying and can have years to live.  This is because doctor predictions of life expectancy can be wrong and because the requirement of six months to live is based on the patient' s not being treated.[8]  

2.  How S.77 works

Under S.77, there is a formal application process to obtain a lethal dose.[9]  S.77 also requires that in 2016, that this formal process be replaced with a streamlined procedure with these five requirements:

(1) the physician determines that the patient is capable and does not have impaired judgment;
(2) the physician informs the patient of all feasible end-of-life services, including palliative care, comfort care, hospice care, and pain control;
(3) the physician prescribes a dose of medication that may be lethal to the patient;
(4) the physician advises the patient of all foreseeable risks related to the prescription; and
(5) the patient makes an independent decision to self-administer a lethal dose of the medication.[10]

Also, when applying for the lethal dose, patients may be requesting it "just in case." i.e., without a definite intent to take it.[11]

Once the lethal dose is picked up at the pharmacy, there is no oversight.[12]  The death is not required to be witnessed.[13] Indeed, no one is required to be present.[14] 

D.  New Paths of Abuse

1.  No witnesses at the death

As noted above, S.77 does not require witnesses at the death. Without disinterested witnesses, the opportunity is created for the patient’s heir, or for another person who will benefit financially from the patient's death, to administer the lethal dose to the patient without his consent.  Even if he struggled, who would know? 

2.  An expansion of scope 

Under the streamlined procedure scheduled to come into effect in 2016, the scope of S.77 will be expanded to patients who have no intention of engaging in assisted suicide.  As described below, patients prescribed medication for the purpose of cure or treatment will be at risk of being killed under S.77. 

Consider this scenario in which all five requirements of the streamlined procedure are met:

The patient is a competent woman with cancer.  Without surgery, she is terminal as defined in S.77 (she is expected to die in less than six months).  But, with surgery, her  prospects are good.  As part of informed consent, the doctor informs her about the risks of the surgery and end of life services including palliative care, comfort care, hospice care, and pain control.

With the stress of her situation, the woman has been experiencing insomnia, for which the doctor prescribes Pentobarbital (nembutal).[15]   If taken in excess, Pentobarbital may be lethal.[16].  He prescribes a month's supply and advises the woman of the foreseeable risks.  She obtains the prescription but doesn't take any.  The bottle with the unused prescription is in her home. She is scheduled for surgery in a few days.  She has no intention of killing herself.  The doctor has no intention of her killing herself.

A family member, interested in an inheritance, tricks the woman into drinking the pentobarbital mixed with water by saying that it's another medication - say for sinus congestion.[17]

He leaves.  She dies.

The situation looks like a suicide.

If it comes out later that the family member was present when the woman "self-administered" the drug, he's  immune from liability. This is because S.77 states:
"[N]o person shall be subject to civil or criminal liability solely for being present when a patient with a terminal condition self-administers a lethal dose of medication or for not acting to prevent the patient from self-administering a lethal dose of medication."[18]
So the woman was not in control of her fate.  She is legally murdered by her heir.

E.  Conclusion

S.77, as passed by the House for the Governor's signature, is a dangerous and irresponsible bill, in which there is no oversight over administration of the lethal dose such that it can be administered without the patient's consent.  Once the streamlined procedure goes into effect, patients engaged in drug treatments will also be unwittingly under its scope.  Their doctors and the medical profession will also be compromised.  Even if you are for assisted suicide, not this bill.

[1]  The MetLife Study: "Broken Trust:  Elders, Family and Finances, " 2009, available at https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf
[2] "The MetLife Study of Elder Financial Abuse:  Crimes of Occasion, Desperation, and Predation Against America's Elders," 2011, available at https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf
[3]  Id., page 17.
[4]  Associated Press, "Urooj Khan Update:  Widow, siblings of poisoned Chicago lottery winner battle over estate, documents say," available at http://www.cbsnews.com/2102-504083_162-57563293.html
[5]  Id.
[6]  Cf. AMA Code of Medical Ethics, Opinion 2.211, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page 
[7]  A copy of S.77, "An act relating to patient choice and control at end of life," as passed by the Senate and the House, can be viewed here:  http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf  The definition of "terminal condition" is in § 5281(a)(10)("Terminal condition" means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months).
[8]  See Nina Shapiro, Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?, Seattle Weekly, January 14, 2009, available at www.seattleweekly.com/2009-01-14/news/terminal-uncertainty.  See also Affidavit of Kenneth Stevens, MD, September 18, 2012, available at http://choiceisanillusion.files.wordpress.com/2012/10/signed-ken-stevens-affidavit_001.pdf ; and Affidavit of John Norton (when he was eighteen years old, he was told that he would die of ALS and paralysis in three to five years; he is now 75 years old).  Available at http://www.massagainstassistedsuicide.org/2012/09/john-norton-cautionary-tale.html
[9]  In S.77, the formal application process is contained in § 5283, Requirements for Prescription and Documentation, available at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[10]  S.77, Sec. 2, Repeal (stating that 5283 will be repealed on July 1, 2016).  See also S.77, Sec. 3 (providing that § § 5289 and 5290 will take effect on July 1, 2016)
[11]  I have had two cases in which my client's parent signed up for the lethal dose.  In both cases, the parents did not have a set wish to take the lethal dose. They signed up "just in case."
[12]  See S.77 in its entirety, at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[13]  Id.
[14]  Id.
[15]  See http://www.drugs.com/mtm/pentobarbital.html
[16]  Id.
[17]  Pentobarbital is water and alcohol soluble so that it could be put in a cold medicine solution.  See http://www.drugs.com/pro/nembutal.html 
[18]  S.77 § 5284