Thursday, August 13, 2015

Memo to the California State Assembly: "No" on SB 128

The original pdf version of this memo has an executive summary and index, which can be viewed here. The attachments can be viewed here.


I am an attorney in Washington State where assisted suicide is legal.[1] Our law is based on a similar law in Oregon. Both laws are similar to the proposed California bill, SB 128.[2] 

Enactment of SB 128 will create new paths of elder abuse. “Eligible” patients will include people with years, even decades, to live.  

I urge you to reject this measure. Do not make Washington’s and Oregon’s mistake.


A. Physician-Assisted Suicide; Assisted Suicide; and Euthanasia.

The American Medical Association defines “physician-assisted suicide” as occurring when “a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[3] “Assisted suicide” is a general term in which the assisting person is not necessarily a physician. “Euthanasia,” by contrast, is the direct administration of a lethal agent with the intent to cause another person’s death.[4]

B. Withholding or Withdrawing Treatment.

Withholding or withdrawing treatment (“pulling the plug”) is  not assisted suicide or euthanasia:  The purpose is to withhold or remove burdensome treatment, i.e., as opposed to an intent to kill the patient.  More importantly, the patient does not necessarily die. Consider this quote from an article in Washington state regarding a man removed from a ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.[5]

A. In the Last Five Years, Four States Have Strengthened Their Laws Against Assisted Suicide.

In the last five years, four states have strengthened their laws against assisted suicide.  These states are: Arizona, Idaho, Georgia and Louisiana.  For more information, please see the materials attached here. 

B. Elder Abuse Is a Large and Uncontrolled Problem 

In 2009, MetLife Mature Market Institute released its landmark study addressing financial elder abuse nationwide.[6] The estimated financial loss by victims was $2.6 billion per year.[7]

The study describes financial elder abuse as a crime “growing in intensity.”[8] The study says that perpetrators are often family members, some of whom feel themselves “entitled” to the elder’s assets.[9] They often start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or coercing elders to sign over the deeds to their homes, change their wills, or liquidate their assets.[10]

Prominent cases include philanthropist Brooke Astor, whose son was convicted of financially exploiting her, having stolen millions, and the California “Black Widow” murders in which two elderly women insured the lives of homeless men and then killed them to collect the money.[11] Paul Vados, a 73-year-old man, was one of the victims.[12] Consider also People v. Stuart, 67 Cal.Rptr.3d 129 (2007), which states:
Financial considerations [are] an all too common motivation for killing someone.
C. Victims Do Not Report Abuse.

Elder abuse is prevalent in part because victims do not report. One study estimated that just one in 24 cases is reported to the authorities.[13] The California Department of Justice explains:
Elder abuse victims often live in silent desperation . . . .  Many remain silent to protect abusive family members . . . .[14]
IV. SB 128.

A. How the Bill Works.

SB 128 has an application process to obtain the lethal dose, which includes a lethal dose request form with two required witnesses.[15] One of the witnesses is allowed to be the patient’s heir who will financially benefit from the patient’s death.[16]

Once the lethal dose is issued by the pharmacy, there is no oversight.[17] No doctor or other medical person is required to be present when the lethal dose is administered.[18] Not even a witness is required.[19]

B. No Witness at the Death.

As noted above, SB 128 does not require a witness at the death.[20] Without disinterested witnesses, the opportunity is created for someone else to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?

Alex Schadenberg, chair for the Euthanasia Prevention Coalition, International, elaborates:
With assisted suicide laws in Washington and Oregon [and with SB 128], perpetrators can . . . take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. . . . [E]ven if a patient struggled, “who would know?” (Emphasis added).[21] 
C.  Any Study Claiming that Oregon’s Law is Safe, is Invalid.

In 2011, the lack of oversight over administration of the lethal dose in Oregon prompted Montana State Senator Jeff Essmann to make this observation:  the Oregon studies claiming that assisted suicide is safe are invalid. He stated:
[All] the protections end after the prescription is written. [The proponents] admitted that the provisions in the Oregon law would permit one person to be alone in that room with the patient.  And in that situation, there is no guarantee that that medication is [taken on a voluntary basis].
So frankly, any of the studies that come out of the state of Oregon’s experience are invalid because no one who administers that drug . . . to that patient is going to be turning themselves in for the commission of a homicide.[22]
D.  If California Follows Washington State, the Death Certificate Will Be Required to Reflect a Natural Death: This Will Allow the Perfect Crime.

SB 128 states:
Actions taken in accordance with this part shall not, for any purposes, constitute suicide, assisted suicide, homicide, or elder abuse under the law.[23]
Washington State’s law has similar language, as follows: 
Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.
In Washington State, this similar language is interpreted to require the death certificate to reflect a natural death if Washington’s law was used.  Moreover, there must not be even a hint that the actual cause of death was assisted suicide or euthanasia.  The Washington State Department of Health, “Instructions for Medical Examiners, Coroners and Prosecuting Attorneys:  Compliance with the Death with Dignity Act,” states:
Washington’s Death with Dignity Act (RCW 70.245) states . . . “Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.”
If you know that the decedent used the Death with Dignity Act, you must comply with the strict requirements of the law when completing the death record: . . .
2. The manner of death must be marked as “Natural.”
3. The cause of death section may not contain any language that indicates that the Death with Dignity Act was used, such as:
a.  Suicide
b.  Assisted suicide
c.  Physician-assisted suicide
d.  Death with Dignity
e.  I-1000
f.  Mercy killing
g.  Euthanasia
h.  Secobarbital or Seconal
i.  Pentobarbital or Nembutal  (Emphasis added).
With the death required to be treated as “Natural” simply because the act was used, there is no criminal recourse if the patient was pressured into taking the lethal dose, or even outright murdered via the lethal dose. The Medical Examiner, the Coroner and the Prosecutor must certify the death as Natural without any indication of the true cause of death.

If California adopts a similar interpretation based on SB 128's similar language, there will be a similar result: Patients will be unprotected under the law no matter how egregious the facts. Even in a case of outright murder, there will be no legal ability to prosecute. SB 128 will create the “perfect crime.”

E. “Eligible” Patients May Have Years, Even Decades, to Live.

SB 128 applies to “terminal” patients, meaning those predicted to have less than six months to live. Such persons may actually have years, even decades, to live. This is true for at least three reasons:
1.  If California follows Oregon’s interpretation of “terminal disease,” assisted suicide will be legalized for people with chronic conditions such as diabetes.
 SB 128 states:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.[25]
Oregon’s law has a nearly identical definition:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.[26]
In Oregon, this nearly identical definition is interpreted to include chronic conditions such as chronic lower respiratory disease and insulin dependent diabetes. Indeed, government reports from Oregon list these conditions as qualifying underlying illnesses for the purpose of assisted suicide. See, for example, Oregon’s assisted suicide report at pages A-33 and A-34 (listing these conditions).[27]

Chronic conditions qualify as a “terminal disease” because terminality is determined without treatment. A person is considered “terminal” even if there is medication available to keep the person alive. Oregon doctor William Toffler explains:
Our law applies to "terminal" patients who are predicted to have less than six months to live. In practice, this idea of terminal has recently become stretched to include people with chronic conditions . . . .  Persons with these conditions are considered terminal if they are dependent on their medications, such as insulin, to live.  (Emphasis added).[28]
If California enacts SB 128 and follows Oregon’s interpretation of “terminal disease,” assisted suicide will be legalized for people with chronic conditions such as diabetes.  Dr. Toffler states:
Such persons, with treatment, could otherwise have years or even decades to live.[29]
2. Misdiagnosis occurs; predictions of life expectancy can be wrong.
Patients may also have years to live due to misdiagnosis and because predicting life expectancy is not an exact science.  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?,” The Seattle Weekly, January 14, 2009.

Consider also John Norton who was diagnosed with ALS (Lou Gehrig’s Disease) at age 18.[30] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[31] Instead, the disease progression stopped on its own.[32] In a 2012 affidavit, at age 74, he states:
If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.
Affidavit of John Norton, ¶ 5.
3. Treatment can lead to recovery.
Oregon resident Jeanette Hall was diagnosed with cancer in 2000 and wanted to do assisted suicide.[33] Her doctor convinced her to be treated instead.[34] In a 2012 affidavit, she states:
This last July, it was 12 years since my diagnosis.  If [my doctor] had believed in assisted suicide, I would be dead.[35]
F.  If SB 128 Is Enacted, There Will Likely be Pressure to Expand.

In Washington State, we have had informal “trial balloon” proposals to expand our law to non-terminal people.  For me, the most disturbing one was in the Seattle Times, our largest paper.  A columnist quoted his readers who suggested euthanasia as “a solution” for people without funds in their old age, which could be any of us, say if the company pension fund went broke.[36]
If SB 128 is enacted in California, it’s not unlikely that there will be a similar push for expansion to “non-terminal” people.  

G. SB 128 Legalizes Euthanasia. 

Generally accepted medical practice allows a doctor, or “a person acting under the direction of a doctor,” to administer drugs to a patient.[37] Common examples of persons acting under the direction of a doctor, include:  (1) nurses who administer drugs to patients in a hospital setting; (2) parents who administer drugs to their children in a home setting; and (3) adult children who administer drugs to their parents in a home setting.[38] 

Under SB 128, an “aid-in-dying drug” is a drug that a patient “may choose to self-administer” to bring about his or her death.[39] There is, however, no language making self-administration mandatory.[40] For example, there is no language stating that administration of the drug “must” be by self-administration.[41]

With self-administration not mandatory, generally accepted medical practice allows a doctor, or a person working under the direction of a doctor, to administer an aid-in-dying drug to a patient.  This is euthanasia under generally accepted medical terminology.  The AMA Code of Ethics, Opinion 2.21, states:
Euthanasia is the administration of a lethal agent by another person to a patient . . . .  (Emphasis added).[42]
SB 128 legalizes euthanasia.
H. Euthanasia Is Not Prohibited.

Proponents may argue that euthanasia is prohibited under SB 128, § 443.18, which states:
Nothing in this part may be construed to authorize a physician or any other person to end an individuals’s life by lethal injection, mercy killing, or active euthanasia.
128, § 443.18.

This prohibition is, however, defined away in the next sentence, which states:
Actions taken in accordance with this part shall not, for any purposes, constitute suicide, assisted suicide, homicide [another word for “euthanasia”], or elder abuse under the law. 

I.  The Provision Making “Undue Influence” a Felony Is Too Vague to Be Enforced.

SB 128 imposes criminal liability for “undue influence,” which is not defined.  There are also no elements of proof.  SB 128 merely states:
Knowingly coercing or exerting undue influence on an individual to request an aid-in-dying drug for the purpose of ending his or her life or to destroy a withdrawal or rescission of a request is punishable as a felony.  (Emphasis added).[43] 
In California’s Welfare and Institutions Code, by contrast, a determination of undue influence is based on a list of enumerated factors, for example, that the victim was ill and the person influencing her was a health care professional.[44]

This scenario is specifically allowed by SB 128.  Under the bill, an “attending physician” is permitted to “counsel” (influence) an ill person to end her life.[45]

How do you prove that criminal “undue influence” occurred under SB 128, when the bill: does not define it; provides no elements of proof; and specifically allows conduct used to prove undue influence in another context?  It’s hard to say.

When reasonable people must guess at the meaning of a criminal statute, which is the case here, the statute is too vague to be enforced.  People v. Acosta, 226 Cal.App.4th 108, 116-117, 171 Cal.Rptr.3d 774 (2014), states:
A statute which . . . forbids . . . the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the due process requirement of adequate notice.  (Internal punctuation removed). 
With SB 128's prohibition against undue influence too vague to be enforced, the purported liability for violating that prohibition is illusory.  Patients are not protected.


A. Assisted Suicide Can Be Traumatic for Family Members as Well as Patients.

1. The Swiss study.

In 2012, a study was published, addressing trauma suffered by persons who witnessed a legal assisted suicide in Switzerland.  The study found that 1 out of 5 family members or friends present at an assisted suicide were traumatized.  These persons:
[E]xperienced full or sub-threshold PTSD [Post Traumatic Stress Disorder] related to the loss of a close person through assisted suicide.[47]
2. My cases involving the Oregon and Washington assisted suicide laws.

I had two clients whose fathers signed up for the lethal dose.[48] In the first case, one side of the family wanted the father to take the lethal dose, while the other did not. The father spent the last months of his life caught in the middle and traumatized over whether or not he should kill himself. My client, his adult daughter, was also traumatized. The father did not take the lethal dose and died a natural death.

In the other case, it's not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client’s father refused to take the lethal dose when it was delivered (“You’re not killing me.  I’m going to bed”), but then he took it the next night when he was high on alcohol.

B.  Enacting SB 128 Will Allow California Health Care Providers to Steer Patients to Suicide.

If SB 128 is enacted, California health care providers and  insurers will be able to steer patients to suicide through coverage incentives, a practice that is well documented in Oregon. For more information, see the affidavit of Oregon doctor Kenneth Stevens at pages A-39 through A-48.

The affidavit describes steerage to suicide in the Oregon Health Plan (Medicaid).  The Plan will not necessarily pay for a patient’s treatment, but it will pay for the patient’s suicide.  Dr. Stevens explains:
The Oregon Health Plan is a government health plan administered by the State of Oregon. If assisted suicide is legalized in [your state], your government health plan could follow a similar pattern. Private health plans could also follow this pattern. If so, these plans would pay for you . . . to die, but not to live.  (Emphasis added).[49] 
C.  In Oregon, Other (Conventional) Suicides Have Increased with Legalization of Physician-Assisted Suicide; the Financial Cost is “Enormous.”

Government reports from Oregon show a positive statistical correlation between the legalization of physician-assisted suicide and an increase in other (conventional) suicides. The statistical correlation is consistent with a suicide contagion in which legalizing and normalizing physician-assisted suicide encouraged other suicides. Please consider the following:
Oregon's assisted suicide act went into effect “in late 1997.”[50]
By 2000, Oregon's conventional suicide rate was "increasing significantly."[51]
By 2007, Oregon's conventional suicide rate was 35% above the national average.[52]
By 2010, Oregon's conventional suicide rate was 41% above the national average.[53]
According to the Oregon Health Authority, the financial cost of these other suicides is “enormous” for Oregon, a much smaller population state than California.[54] The Oregon Health Authority states:
The cost of suicide [and attempted, but unsuccessful suicides] is enormous [for Oregon].  In 2010 alone, self-inflicted injury hospitalization charges exceeded 41 million dollars; and the estimate of total lifetime cost of suicide in Oregon was over 680 million dollars.[55]
Oregon is the only state where there has been legalization of assisted suicide long enough to have statistics over time. The significant financial cost due to increased conventional suicides in Oregon, positively correlated to physician-assisted suicide legalization, is a significant factor for this body to consider regarding SB 128, which seeks to legalize physician-assisted suicide in California.

If California with its tenfold larger population enacts SB 128 and has the same experience as Oregon, the cost could be substantial.


A.  SB 128 Will Still Allow the Perfect Crime,  and Will Encourage People with Years to Live Fulfilling and Productive Lives to Cut Their Lives Short.

The bill analysis for SB 128, prepared by the Assembly Health Committee on July 2, 2005, suggests amendments regarding data collection, reporting and who may act as a witness on the lethal dose request form. A copy of these suggested amendments can be viewedat this link.

These amendments do not remove the bill’s major problems: (1) There is still a complete lack of oversight when the lethal dose is administered with not even a witness required (if the patient struggled, who would know?); (2) The death certificate is still required to reflect a natural death (preventing prosecution even in a case of outright murder); and (3) “Eligible” persons still include people with years, even decades, to live.

SB 128 will still allow the “perfect crime.” The bill will still encourage people with years to live fulfilling and productive lives to cut their lives short.

B.  The Suggested Amendments Promote the Idea That People are “Burdens” Who Should be Killed, Which is Contrary to California Public Policy.

The suggested amendments propose a check-the-box form for doctors to complete, in which people who died under SB 128 will be referred to as having been a “burden.” (Pages A-80 and A-81 at this link). Referring to someone as a “burden” is a recognized warning sign of abuse.[56] The proposed amendments promote the idea that California residents are burdens who should be killed. This notion should be clearly and strongly rejected.


If SB 128 becomes law, people with years to live will be encouraged to throw away their lives; patients and their families will be traumatized.

With the required falsification of the death certificate, the bill allows the “perfect crime.” Even if you are for the concept of assisted suicide, SB 128 is the wrong bill.


Margaret Dore, Esq., MBA
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corp.
* * *
[1] I have been licensed to practice law in Washington State since 1986. My practice has included appeals and elder law (wills, probate and guardianships). I am a former Law Clerk to the Washington State Supreme Court and a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. I am also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. See
[2]  A copy of SB 128 as of August 6, 2015, can be viewed here:
[3]  AMA Code of Medical Ethics, Opinion 2.211, Physician-assisted suicide, which can be viewed here:
[4]  AMA Code of Medical Ethics, Opinion 2.21, Euthanasia, which can be viewed here: 
[5]  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, at the following link; the quote is at page A-15:
[6]  "Broken Trust: Elders, Family, and Finances," MetLife Mature Market Institute, available at
[7]  Id., p.4, Key Findings.
[8]  Id., p.16.
[9]  Id., pp.13-14.
[10]  Id., p.14.
[11]  See Kathryn Alfisi, “Breaking the Silence on Elder Abuse,”Washington Lawyer, February 2015 (regarding Astor, other elder abuse victims and elder abuse generally), at v. Rutterschmidt et al, 147 Cal.Rptr.3d 518 (2012)(affirming the “black widow” convictions); LAPD Blog, “Two Elderly Women Arrested for Insurance Fraud,” May 19 2006, at; and CrimeJail Editor, “American Greed: The Black Widows (Helen Golay and Olga Rutterschmidt),” January 31, 2014, at
[12]  See Id.
[13]  Kathryn Alfisi, at page A-20, at this link:
[14]  California Department of Justice, “A Citizen’s Guide to Preventing and Reporting Elder Abuse,” page 4, available at
[15]  See SB 128, § 443.11(a) (describing the form), at pp. A-5 and A-6, at 
[16]  Id. at page A-6 (allowing one of two witnesses be an heir “entitled to a portion of the person’s estate upon death”).
[17]  See SB 128 in its entirety, at
[18]  Id.
[19]  Id.
[20]  Id.
[21]  Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010, page 14, available at
[22]  Hearing Transcript for the Montana Senate Judiciary Committee on SB 167, February 10, 2011, at
[23]  SB 128, § 443.18, second sentence, at page A-9, at
[24]  RCW 70.245.180, second sentence, at
[25]  SB 128, § 443.1(q).
[26]  Or. Rev. Stat. 127.800 s.1.01(12), at
[27]  The entire report is attached at
[28]  Letter to the Editor, William Toffler MD, New Haven Register, February 24, 2014, ¶2,  available at (I verified the content with him),
[29]  Id.
[30]  Affidavit of John Norton, ¶ 1, available at
[31]  Id.
[32]  Id, ¶4.
[33]  Affidavit of Kenneth Stevens, MD ¶¶ 5-9, Jeanette Hall discussed beginning at page A-40.
[34]  Id.
[35]  Affidavit of Jeanette Hall, ¶ 4. Jeanette is still alive today, fifteen years later.
[36]  Jerry Large, “Planning for old age at a premium,” The Seattle Times, March 8, 2012, at (“[A] few [readers] suggested that if you couldn’t save enough money to see you through your old age, you shouldn’t expect society to bail you out.  At least a couple mentioned euthanasia as a solution.”)
[37]  Declaration of Dr. Kenneth Stevens, MD, ¶10.  (Attached A-54).
[38]  Id.
[39]  SB 128, § 443.1(b) states: "'Aid-in-dying drug' means a drug determined and prescribed by a physician for a qualified individual, which the qualified individual may choose to self-administer to bring about his or her death due to a terminal disease."  (Emphasis added)
[40]  See SB 128 in its entirety, at
[41]  Id.
[42]  AMA Code of Ethics, Opinion 2.21 -“Euthanasia,” at
[43]  SB 128, § 443.17(b), page A-9, at
[44]  Welfare and Institutions Code, § 15610.70(a), at
[45]  See e.g., SB 128, § 443.5(a)(5).
[46]  “Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at
[47]  Id.
[48]  These cases are described in: Margaret Dore, "Preventing Abuse and Exploitation:  A Personal Shift in Focus (an article about elder abuse, guardianship abuse and assisted suicide),” The Voice of Experience, ABA Senior Lawyers Division Newsletter, Vol. 25, No. 4, Winter 2014, available at
[49]  Stevens’ Affidavit, ¶16, at page A-42 at
[50]  Oregon’s assisted suicide report for 2014, first sentence.
[51]  See Oregon Health Authority News Release, September 9, 2010, at  ("After decreasing in the 1990s, suicide rates have been increasing significantly since 2000").
[52]  Id.
[53]  Oregon Health Authority Report, Suicides in Oregon, Trends and Risk Factors (2012 Report),  page A-77 at this link:
[54]  Oregon has 3.9 million people compared to California, at 39 million people.  See
[55]  Quoted material can be viewed at page A-78 at this link:
[56] See this link from Idaho Adult Protective Services, at page 4 (referring to a vulnerable adult “as a burden or nuisance” as a warning sign of abuse). See  See also, page 2 (“Warning signs:  Does someone you know... put you down, make you feel worthless,useless, or a burden”) and (“Talks of older adult as a burden”)