By Margaret Dore, Esq.I. OVERVIEW
Oregon’s Death with Dignity Act was passed by a ballot measure in 1994 and went into effect in 1997.[1] The Act had been and is also currently promoted as a type of voluntary physician-assisted suicide.[2] The Act, in fact, also allows euthanasia, on both a voluntary and involuntary basis.
The Act applies to persons aged 18 and up, predicted to have less than six months to live due to a terminal disease.[3] In practice, some such persons have lived far longer.
The Act employs euphemistic
language. Consider the word, “medication,” normally meaning a substance
to cure or treat a disease or condition.[4] Per the Act, medication instead means a lethal dose to end a person’s life (kill the
patient).[5]
The Act does not define physician-assisted suicide, assisted suicide or euthanasia.[6] Per the American Medical Association, physician-assisted suicide occurs 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.”[7] For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[8]Assisted suicide is a general term in which the assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent by another person.[9] Euthanasia is also known as mercy killing.[10]
B. Withholding or Withdrawing Treatment
Withholding
or withdrawing treatment (“pulling the plug”) is not euthanasia if the
purpose is to remove burdensome treatment, as opposed to an intent to
kill the individual. More importantly, the individual will not
necessarily die. Consider this quote regarding a man removed from a
ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.[11]III. FACTUAL AND LEGAL BACKGROUND
A. Assisting Persons Can Have an Agenda
Persons assisting a suicide or euthanasia can have an agenda. Consider Tammy Sawyer, trustee for Thomas Middleton in Oregon. Two days after his death by legal assisted suicide, she sold his home and deposited the proceeds into bank accounts for her own benefit.[12] Consider also Graham Morant, convicted of counselling his wife to kill herself in Australia, to get the life insurance.[13] The Court found:
[Y]ou counselled and aided your wife to kill herself because you wanted ... the 1.4 million.[14]Medical professionals too can have an agenda. For an example closer to home, consider US physician, Mike Swango, who worked at the Mnene Lutheran Mission in Zimbabwe.[15] He allegedly poisoned patients to get a thrill.[16] He was eventually convicted of killing four patients in the US.[17] Consider also Harold Shipman, a doctor in the UK, who not only killed his patients, but stole from them and in one case made himself a beneficiary of the patient’s will.[18]
B. Most US States Reject Assisted Suicide and Euthanasia
In
the US, 42 states do not allow assisted suicide and/or euthanasia. In
2016, the New Mexico Supreme Court overturned a lower court decision
allowing physician aid in dying (meaning physician-assisted
suicide).[19] In the last ten years, nine states have strengthened their
laws against assisted suicide and/or euthanasia.[20]
C. The Swiss Study: PAS Can Be Traumatic for Family
A
European research study addressed trauma suffered by persons who
witnessed legal physician-assisted suicide in Switzerland.[21] The study
found that one out of five family members or friends present at an
assisted suicide was traumatized. These people,
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[22]IV. THE ACT FOR PEOPLE WITH EVEN DECADES TO LIVE
A. Chronic Conditions Can Be Sufficient for Death
Oregon’s Act applies to people with a “terminal disease,” which is defined in terms of having less than six months to live. The Act states:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. (Emphasis added).[23]In practice, this definition applies to people with chronic conditions such as diabetes, who are dependent on medication such as insulin to live.[24] Oregon doctor, William Toffler, explains:
In Oregon, people with chronic conditions are "terminal," if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old will live less than a month without insulin. (Emphasis added).[25]Dr. Toffler adds:
Such persons, with insulin, are likely to have decades to live. (Emphasis added).[26]B. Doctor Predictions of Life Expectancy Can Be Wrong
Eligible persons may also have years or decades to live because predictions of life expectancy can be wrong, sometimes way wrong. This is due to misdiagnosis and the fact that predicting life expectancy is not an exact science.[27]
Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18.[28] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[29] Instead, the disease progression stopped on its own.[30] 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.[31]C. Treatment Can Lead to Recovery
Patients may also have years or decades to live because treatment can lead to recovery. Consider Oregon resident, Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use the Oregon’s Act. Her doctor convinced her to be treated for cancer instead.[32] In a 2019 declaration, she states:
It has now been 19 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[33]V. HOW THE ACT WORKS
The Act has an application process to obtain the lethal dose.”[34] Once the lethal dose is issued by the pharmacy, there is no oversight.[35] No doctor, not even a witness, is required to be present at the death.[36]
VI. THE ACT IS STACKED AGAINST THE INDIVIDUAL
A. Even If the Patient Struggled, Who Would Know?
The
Act has no required oversight over administration of the lethal
dose.[37] The drugs used are water or alcohol soluble, allowing them to
be injected into a sleeping or restrained person without consent.[38]
Alex Schadenberg, Executive Director for the Euthanasia Prevention
Coalition, puts it this way:
With assisted suicide laws in ... Washington and Oregon, 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 the patient struggled, “who would know?” (Emphasis added).[39]B. Allows Other People to Communicate for Patient
The Act’s definition of “capable” allows other people to communicate on the patient’s behalf during the lethal dose request process. Such persons are not required to be the patient’s designated agent, such as a family member or guardian. The communicating person need only be “familiar with the patient’s manner of communicating.” The Act states:
"Capable" means that in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, . . . a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available. (Emphasis added).[40]
Being familiar with a patient’s manner of communicating is a minimal standard. Consider, for example, a doctor’s assistant who is familiar with the patient’s manner of communicating in Chinese, but the assistant herself does not understand Chinese. That, however, would be good enough for her to communicate (agree to the lethal dose) on the patient’s behalf. Patients are not in control of their fate.
C. Attending Physician Responsibilities
The Act enumerates responsibilities that the attending physician “shall” perform prior to writing a prescription for the lethal dose.[41] These responsibilities include making a determination as to whether the patient has a terminal disease, is capable and has made the initial determination to obtain the lethal dose voluntarily.[42] The Act however, also features a different message, that the attending physician shall:
Ensure that all appropriate steps are carried out in accordance with [the Act]. (Emphasis added) .... [43]The Act does not define “appropriate” or “accordance.”[44] Dictionary definitions of appropriate include “suitable or proper in the circumstances.” Definitions of accordance include “in the spirit of,” meaning “in thought or intention.”[45]
With this language, the attending physician’s assessment of what is suitable or proper, or had a thought or intention to do, is good enough.
VII. THE ACT ALLOWS EUTHANASIA
The
Act refers to the lethal dose as “medication.”[46] Generally accepted
medical practice allows doctors and family members to administer
medication to a patient.[47] When the medication administered is a
lethal dose, this is euthanasia as traditionally defined.[48]
VIII. OREGON'S ACT AND AMERICANS WITH DISABILITY ACT
The Americans with Disability Act (ADA) is a US federal civil rights law “that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[49] Here, the Oregon Act describes prescribing the lethal dose as part of a medical practice, which renders it a medical service.[50]
Per the ADA, medical care providers are required “to make their services available in an accessible manner.”[51] This includes:
reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services (i.e., alter the essential nature of the services). (Emphasis added).[52]Here, the fundamental nature of the service is the provision of medication (the lethal dose) to end a patient’s life. If for the purpose of argument, the Oregon Act could somehow be read as requiring self-administration, the ADA would require providers to make a reasonable modification of procedures for individuals unable to self-administer, so as to make the service fully available, for example, by providing the assistance of another person to administer the lethal dose. This is euthanasia as traditionally defined.
IX. CLINICAL PROBLEMS CAN AND DO LEAD TO EUTHANASIA
In
practice, physician-assisted suicide is not always successful to kill
patients, which can lead to euthanasia. See, for example, Johanna H.
Groenewoud, MD, et. al., “Clinical Problems with the Performance of
Euthanasia and Physician-Assisted Suicide in the Netherlands,” New England Journal of Medicine, 24 February 2000.
X. DEATHS ARE “NATURAL” AS A MATTER OF LAW
A. Oregon DOH Recommends Reporting Death as Natural
The
Oregon Department of Health recommends that deaths per the Death with
Dignity Act be reported as “natural.”[53] This result is also required
as matter of law, which is explained is in the next section.
B. The Death Must Be Reported as Natural
Oregon’s death certificate statute has six categories for reporting the manner of death, five of which are substantive: (1) natural; (2) accidental; (3) suicidal; (4) homicidal; and (5) legal intervention.[54] Legal intervention means an execution pursuant to ORS 137.463 (death warrant hearing) and other legal uses of force resulting in death.[55]
Per the Death with Dignity Act, death occurring in accordance with the Act does not constitute suicide or homicide as a matter of law.[56] The death is also not an accident or legal intervention. This leaves natural. The manner of death is natural as a matter of law.
XI. DR. SHIPMAN, A CALL FOR DEATH CERTIFICATE REFORM
Per a 2005 article in the UK’s Guardian newspaper, there was a public inquiry regarding Dr. Shipman’s conduct, which determined that he had “killed at least 250 of his patients over 23 years.”[57] The inquiry also found:
that by issuing death certificates stating natural causes, the serial killer [Shipman] was able to evade investigation by coroners. (Emphasis added).[58]Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[59] Oregon instead has moved in the opposite direction to require that deaths be reported as natural.
XII. OREGON RESIDENTS ARE SUBJECT TO PREDATORS
Per
Oregon inheritance law, a “slayer” of the decedent is not allowed to
inherit from a person that he or she kills.[60] The rational is that a
criminal should not be allowed to benefit from his or her crime.[61]
Under the Oregon Death with Dignity Act, however, a person who
intentionally kills another person is allowed to inherit. This is due to
the death being certified as natural.
With the passage of the
Act, Oregon residents with money, meaning the middle class and above,
have been rendered sitting ducks to their heirs and other financial
predators.
XIII. CONCLUSION
In
the event this court recognizes the proposed right to die, the right
will necessarily include involuntary euthanasia. This will similarly be
true in the event this court would order the adoption of an Oregon-style
Death with Dignity Act.
Assisting persons, including doctors and family members, can have an agenda, with the more obvious reasons being inheritance and life insurance, but also, as in the case of Dr. Swango, the thrill of seeing someone die.
I urge you to reject the proposed right to die.
Dated this 29th day of January 2021,
/s/
Margaret Dore, Esq., MBA
Endnotes:
To view original memo, click here. To view the memo's appendix, click Part 1 pages 1-43 and Part 2 to page 84.
Actions taken in accordance with [the Act] shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. (Emphasis added)