Saturday, October 24, 2015

Dore Professional Commentary
California's New Assisted Suicide Law: Whose Choice Will it Be?
JURIST Guest Columnist, Margaret Dore, Esq., MBA
Editor, Maria Coladonato

California has passed a bill to legalize physician-assisted suicide, which is scheduled to go into effect during 2016. "The End of Life Option Act" was sold as giving patients choice and control at the end of life. The bill, in fact, is about ending the lives of people who are not necessarily dying anytime soon and giving other people the "option" to hurry them along. The bill is a recipe for elder abuse and family trauma. 
The American Medical Association (AMA) 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."  The AMA gives the example: "[A] physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide." 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.
The AMA rejects assisted suicide and euthanasia stating that they are "fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks." 
In the last five years, four states have strengthened their laws against assisted suicide. Assisted suicide is no longer legal in New Mexico due to a court decision. There are just three states where assisted suicide is legal: Oregon, Washington and Vermont. In a fourth state, Montana, case law gives doctors who assist a suicide a potential defense to a homicide charge.

The California bill applies to persons with a "terminal disease," which is defined as having a medical prognosis of less than six months to live. Such persons can, in reality, have years to live, with the more obvious reasons being misdiagnosis and the fact that predicting life expectancy is not an exact science. Doctors can sometimes be very wrong.
In Oregon and Washington, where assisted suicide laws use a nearly identical definition of terminal disease, terminality is determined without treatment. Consider, for example, Oregon resident Jeanette Hall who was diagnosed with cancer in 2000 and wanted to do assisted suicide. Her doctor convinced her to be treated instead. Twelve years later, she stated: "This last July, it was 12 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead."  
Elder Abuse
Elder Abuse is a problem throughout the United States. Perpetrators are often family members, some of whom feel entitled to the older person's assets. They often start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or coercing victims to sign over deeds to their homes, change their wills or liquidate their assets. Victims may even be murdered. 
In California, prominent elder abuse cases include: Victorino Noval, whose daughters allegedly told doctors to medically kill him, so as to obtain inheritances; and the "Black Widow" murders in which two women insured the lives of homeless men and then killed them to collect the money. Paul Vados, a 73-year-old man, was one of the victims. 
How the California Bill Works
The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death.

ABX2-15 allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.  
Patients are also at risk due to the lack of oversight at the death. Alex Schadenberg, of the Euthanasia Prevention Coalition, explains: 
"With assisted suicide laws in Washington and Oregon [and with ABX2-15], 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 ... Even if a patient struggled, "who would know" (Emphasis added)."
In 2011, the lack of oversight over administration of the lethal dose in Oregon prompted Montana State Senator Jeff Essmann to observe that studies claiming that Oregon's assisted suicide law is safe are invalid. During a legislative committee hearing, 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 self-administered. 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."
The Death Must Be Certified as "Natural"
ABX2-15 states, "Actions taken in accordance with this [act] shall not, for any purposes, constitute suicide, assisted suicide, homicide or elder abuse under the law." In Washington State, similar language, interpreted by the Department of Health, requires Medical Examiners, Coroners and Prosecuting Attorneys to certify a death as "Natural" if Washington's assisted suicide law was used. If California follows this interpretation, no matter what the facts, even a "murder for the money" will be certified as natural if the California bill is used. The significance will be a lack of transparency and a legal inability to prosecute criminal behavior. The opportunity will be created for the perfect crime.
In 2012, a study was published addressing trauma suffered by people who witnessed a legal assisted suicide in Switzerland. The study found that one out of five family members or friends present at an assisted suicide were traumatized. These people "[E]xperienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide."
Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
How Did We Get Here?
ABX2-15 was passed by the California legislature via an expedited process during a special session. Many legislators debated the bill in religious, moral and personal terms; there was little debate over what the bill said and did. California Governor Jerry Brown, in a poignant letter explaining his decision to sign ABX2-15, continued this theme, stating that he had considered "theological and religious perspectives." He also said "The crux of the matter is whether the State of California should continue to make it a crime for a dying person to end his life..." There is, however, no such crime in California. Governor Brown did not understand what he was signing.
California's new law is promoted as assuring choice and control. The bill instead creates new paths of elder abuse, which will be legally permissible. There will be family trauma. Persons with years, even decades, to live will be encouraged to throw away their lives. In Vermont, which is the only other state to have enacted assisted suicide via a legislature, there is an active repeal movement. Californians should do the same. 
Margaret Dore is a lawyer in Washington State where assisted suicide is legal. She has been licensed to practice law in since 1986. She is 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. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. 
Suggested Citation: Margaret Dore California's New Assisted Suicide Law: Whose Choice Will it Be?, JURIST - Professional Commentary, October 24, 2015,