Friday, May 10, 2013

Vermont: Vote "NO" on New Senate Version of S.77, Passed May 8, 2013

This memo to the Vermont House of Representatives details some of the major flaws of the amended version of S.77 passed by the Senate on May 8, 2013.  To view the memo's index and text,  click here  To see the attachments, click here .  Below is the memo's text:


I. OVERVIEW

I am an attorney in Washington State where physician-assisted suicide is legal.[1]  Our law is similar to S.77, which seeks to legalize physician-assisted suicide.[2]  Moreover, it’s well known that financial reasons are “an all too common motivation for killing someone.”[3]

S.77 allows an heir, or another person who will benefit financially from a patient’s death, to help the patient sign up for the lethal dose.  S.77 also allows an heir, or someone else who will benefit financially from the death, to pick up the lethal dose at the pharmacy.  Once the lethal dose is in the house, there is no oversight.

S.77 is sold as promoting patient choice and control.  The bill is instead a recipe for elder abuse.  Don’t make Washington’s mistake.


II. FACTUAL AND LEGAL BACKGROUND

A. Physician-assisted Suicide

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.”[4]  An example would be a doctor’s prescription of a lethal dose to facilitate a patient’s suicide.[5]  The AMA rejects this practice, stating:  "Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks."[6]


B. Most States Reject Assisted Suicide

Oregon and Washington are the only states where physician-assisted suicide is legal.  Oregon’s law was enacted by a ballot initiative in 1997.[7]  Washington's law was enacted by another initiative in 2008 and went into effect in 2009.[8]  No such law has made it through the scrutiny of a legislature despite more than 100 attempts.[9]  In a third state, Montana, there is a court decision that gives doctors who assist a suicide a defense to prosecution for homicide.  The meaning of this decision is subject to ongoing litigation.[10]

In the last two years, three states have strengthened their laws against assisted suicide.[11]  These states are: Idaho; Georgia; and Louisiana.[12]


III. THE BILL  

A. Patients are Not Necessarily Dying; They May Have Years to Live

S.77 applies to patients with a “terminal condition,” defined as having a medical prediction of less than six months to live.[13]  Such patients are not necessarily dying and may 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.[14]  Consider Oregon resident, Jeanette Hall, who was diagnosed with cancer in 2000 and wanted to do assisted suicide.[15]  Her doctor convinced her to be treated instead.[16]  In a 2012 affidavit, she states:

"This July, it was 12 years since my diagnosis.  If [my doctor] had believed in assisted suicide, I would be dead."[17]

B. How S.77 Works

S.77 has an application process to obtain a lethal dose, which includes a written request with two required witnesses.[18]

Once the lethal dose is picked up at the pharmacy, there is no oversight.[19]  The death is not required to be witnessed.  No one, not even a doctor, is required to be present.[20]


IV. ARGUMENT

A. Patient “Control” is an Illusion

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 death, to administer the lethal dose to the patient without his consent.  Even if the patient struggled, who would know?

Without disinterested witnesses, the patient’s choice and control over his death is not guaranteed.

2. Someone else is allowed to talk for the patient

Under S.77, patients obtaining the lethal dose are required to be “capable.”[21]  This is, however, a relaxed standard in which someone else is allowed to talk for the patient.  S.77 states:

"'Capable' means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communicating . . .”  (Emphasis added).[22]

The person talking for the patient is not required to be a trusted person designated by the patient, for example, an agent under an advanced directive.[23]  The person talking for the patient is allowed to be an heir.[24]  With this circumstance, the patient is not necessarily in control of his fate.

3. An heir is allowed to procure the patient’s request for the lethal dose

S.77 prohibits an heir from acting as a witness on the written request for the lethal dose.[25]  S.77 does not, however, prohibit an heir from procuring that request.[26]  An example of procuring would be: providing the written request to the patient; recruiting the witnesses; and supervising the signing.  S.77, which allows an heir to procure the request, does not promote patient choice and control.  It invites coercion.

4. An heir is allowed to pick up the lethal dose at the pharmacy

S.77 allows the lethal dose to be picked up at the pharmacy by “an expressly identified agent of the patient.”[27]  S.77 does not prohibit an heir, or another person who will benefit financially from the death, from being this agent.[28]


B. Legalization will Create New Paths of Elder Abuse

 In Vermont, there are an estimated 3,750 cases of violence and abuse against elders each year.[29]  Nationwide, elder financial abuse is a crime growing in intensity, with perpetrators often family members.[30]  There are also victims reported murdered for their funds.[31]

Elder abuse is often difficult to detect.  This is largely due to the unwillingness of victims to report. “Shame, dependence on the abuser, fear of retribution, and isolation from the community are significant obstacles that discourage elders from reporting these crimes.”[32]

In Vermont, preventing abuse of vulnerable adults, which includes the elderly, is official state policy.[33]  If assisted suicide is legalized via S.77, new paths of abuse will be created against the elderly, which is contrary to that policy.  Alex Schadenberg, chair for the Euthanasia Prevention Coalition, International, states:

"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 the administration. . . . [E]ven if a patient struggled, “who would know?”[34]


C. Any Study Claiming that Oregon’s Law is Safe, is Invalid

During Montana’s 2011 legislative session, the lack of oversight over administration in Oregon’s law prompted Senator Jeff Essmann to make the following observation: The Oregon studies are invalid.  Senator Essmann, who is now President of the Senate, 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."[35]

D. My Cases

In my law practice, I have had two clients whose parents signed up for the lethal dose.

In one case, one side of the family wanted the parent to take the lethal dose while the other did not.  The parent spent the last months of his life struggling over the decision of whether or not to kill himself.  My client, who was fearful that the other side of the family would use the lethal dose to kill the parent, who was no longer competent, was also torn and traumatized.  The parent did not take the lethal dose and died a natural death.

In the other case, the parent reportedly refused to take the lethal dose at his first suicide party (“I’m going to bed.  You’re not killing me”) and was high on alcohol the next night when he took the dose at his second party.  The person who told this to my client subsequently recanted.  My client did not want to pursue the matter further.  As a lawyer who has worked on divorce cases, I couldn’t help but notice that if the parent's much younger wife had divorced him, he would have got the house.  This way, she got everything.

V. CONCLUSION

If S.77 is enacted, patients affected by its passage will not necessarily be dying and may have years to live.  S.77's assurance of patient choice and control is also untrue.  The bill is instead a recipe for elder abuse.  The most obvious problem is a complete lack of oversight over administration of the lethal dose.  No doctor, not even a lay witness is required.  Even if the patient struggled, who would know?

Don’t make Washington’s mistake.  Reject S.77.

Respectfully submitted May 10, 2013

__________________________________
Margaret Dore, Attorney at Law    
Law Offices of Margaret K. Dore, P.S.
1001 4th Avenue, 44th Floor
Seattle, WA 98154
206 389 1754 main reception line
206 389 1562 direct line  


Footnotes:
[1]  I am an elder law/appellate attorney in Washington state who has been licensed to practice law since 1986.  I am a former Law Clerk to the Washington State Supreme Court.  I am 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.  See www.margaretdore.com and www.choiceillusion.org
[2]  S.77, as passed by the Senate on May 8, 2013, can be viewed at this link: http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf
[3]  People v. Stuart, 67 Cal. Rptr. 3rd 129, 143 (2007).
[4]   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
[5]  Id.
[6]  Id.
[7]  Oregon’s physician-assisted suicide act was passed as Ballot Measure 16 in 1994 and went into effect after a referendum in 1997.
[8]  Washington’s act was passed as Initiative 1000 on November 4, 2008 and went into effect on March 5, 2009.  See http://www.doh.wa.gov/dwda/default.htm
[9]  See tabulation at http://epcdocuments.files.wordpress.com/2011/10/attempts_to_legalize_001.pdf
[10]  See Matt Gouras, Associated Press, “Fight over assisted suicide moves back to court,” Billings Gazette, May 8, 2013, available at http://billingsgazette.com/news/state-and-regional/montana/fight-over-assisted-suicide-moves-back-to-court/article_7985baad-87a0-592a-b6dd-187073a4c47f.html?print=true&cid=print
[11]  See Margaret Dore, “US Overview,” updated July 30, 2012, at http://www.choiceillusion.org/p/us-overview.html
[12]  Id.
[13]  S.77, § 5281(a)(10).
[14]  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
[15].  Affidavit of Kenneth Stevens, MD, ¶¶ 3-7, at http://choiceisanillusion.files.wordpress.com/2012/10/signed-ken-stevens-affidavit_001.pdf   Affidavit of Jeanette Hall Opposing Assisted Suicide, August 17, 2012, at http://choiceisanillusion.files.wordpress.com/2013/05/jeanette-hall-affidavit.pdf
[16]  Id.
[17]  Affidavit of Jeanette Hall, ¶ 4, at http://choiceisanillusion.files.wordpress.com/2013/05/jeanette-hall-affidavit.pdf
[18]  See § 5283(a)(4)
[19]  See S.77 in its entirety, at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf
[20]  Id.
[21]   § 5281(a)(2)
[22]   § 5281(a)(2) states: "'Capable' means that a patient has the ability to make and communicate health care decisions to a physician, including communication through  persons familiar with the patient's manner of communicating if those persons are available."
[23]  See S.77 in its entirety, at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf.
[24]  S.77 does not prohibit heirs, or other persons who benefit financially from the patient’s death, to talk for the patient during the lethal dose request process.  See S.77 in its entirety.
[25]  See § 5281(a)(6)(defining “interested persons,” including an heir) and § 5283(a)(4)(regarding “interested persons”).
[26]  See S.77 in its entirety.
[27]  § 5283(a)(13)(B)(ii)
[28]  See S.77 in its entirety.
[29]  Elder Abuse Public Education Campaign, Vermont Center for Crime Victim Services, at http://www.ccvs.state.vt.us/pub_ed/index.html  (last visited April 29, 2013).
[30]  See MetLife Mature Market Institute, Broken Trust: Elders, Family and Finances, A Study on Elder Abuse Prevention, March 2009, at http://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf (last visited April 29, 2013); Miriam Hernandez, ‘Black Widows’ in court for homeless murders, March 18, 2008, ABC Local, http://abclocal.go.com/kabc/story?section=news/local&id=6027370 (last visited October 2, 2010) (elderly homeless men killed as part of an insurance scam); and People v. Rutterschmidt, 98 Cal.Rptr.3rd 390 (2009) (regarding this same case).  
[31]  Id.  See also People v. Stuart, 67 Cal. Rptr. 3d 129, 143 (where daughter killed her mother with a pillow, “financial considerations [are] an all too common motivation for killing someone . . .”).
[32]  Elder Abuse Public Education Campaign, supra at note 29.
[33]  See, e.g., Vermont Adult Protective Services Statute, “Reports of Abuse, Neglect and Exploitation of Vulnerable Adults,” 33 V.S.A. § 6902(14)(D)(defining a “[v]ulnerable adult" as a person 18 years of age or older who “is impaired due to . . . infirmities of aging . . .”  
[34]  Alex Schadenberg, Letter to the Editor, Elder abuse a growing problem, The Advocate, the official publication of the Idaho State Bar, October 2010, page 14, available at http://www.margaretdore.com/info/October_Letters.pdf
[35]  See link to hearing transcript for SB 167, February 10, 2011,  http://www.margaretdore.com/pdf/senator_essmann_sb_167_001.pdf


Wednesday, May 8, 2013

Montana: Fight Over Assisted Suicide Moves Back to Court

http://billingsgazette.com/news/state-and-regional/montana/fight-over-assisted-suicide-moves-back-to-court/article_7985baad-87a0-592a-b6dd-187073a4c47f.html?print=true&cid=print

Matt Gouras, AP

HELENA — The fight over physician-assisted suicide in Montana is moving back to the courtroom after the Legislature failed this session to clarify that the practice is specifically legal or illegal.

Montanans Against Assisted Suicide is trying to strike the state Board of Medical Examiners' policy that guides doctors in the matter.

A Helena judge has scheduled oral arguments for next month in the case. The lawsuit was filed in December.    Since then, the Montana Legislature failed in efforts to either clarify that the practice is specifically legal or illegal. It was the second straight session where lawmakers couldn't agree on which direction to take the state.

[To view the lawsuit's petition and attachments, click here , here and here]

Supporters of the procedure argue that Montanans should be allowed to decide themselves how to die when facing terminal illness. Opponents argue physician-assisted suicide is a recipe for elder abuse and the government has a responsibility to protect the vulnerable older population.

The procedure has been surrounded by various interpretations since the Supreme Court ruled in 2009 that nothing in state law prohibits physician-assisted suicide - but it did not rule on whether the practice is a constitutionally protected right. The decision said nothing in state law, or precedent, makes the procedure illegal.

A Board of Medical Examiners rule adopted last year says it would consider, on an individual basis, any complaints filed against a doctor for providing "aid-in-dying." Without formal laws guiding the procedure, there are no other state reporting or other requirements and it is unknown how common the practice is.

Montanans Against Assisted Suicide argues in its court case that it believes the Supreme Court never legalized the procedure with its 2009 decision, which it argues is much narrower than others are interpreting it. The group also argues that the board implemented its new rule without sufficient public notice.

The group argues that the board's position on the matter attempts to convince more doctors they will be protected if they assist a patient with suicide, which can be done with a prescription of drugs.

The lawsuit calls the rule "a significant toe in the door to the attempted backdoor legalization of assisted suicide."

The Montana Board of Medical Examiners has said that it wrote its position paper based on a request from a member. The board said its position does not pass judgment on the procedure one way or another.

The board said at the time it put the rule into place that the position paper was neither an administrative rule or a law, but merely informative guidance to its regulated members.

Monday, May 6, 2013

VT: Vote No on S.77 - Do Not be Fooled

Dear Senators:

This letter addresses assisted suicide and the windfall profit issue.  By this, I mean the situation where people pay for health insurance, but don't use it much.  Then, if assisted suicide is legal and they do get sick, the insurer can legally encourage them to kill themselves.  If this occurs, there is financial gravy for the insurer.

In the US, the head of the main group promoting assisted suicide is a former "managed care executive."  See http://www.margaretdore.com/info/coombs_lee_bio_001.pdf   In 2009, she wrote an op-ed defending the Oregon Health Plan after it denied coverage to a patient.  Her op-ed also encouraged readers to support a public policy discouraging patients from seeking cures, presumably by reducing coverage options.  See here:   http://www.margaretdore.com/pdf/Coombs_Lee_against_Wagner.pdf 

Here in Washington State, her group was the leading force in a ballot measure campaign that legalized assisted suicide.  Our law, like the House Version of S.77, contains coercive provisions, which make it less likely that patients will get their choices.  For example, in both laws, there is no oversight when the lethal dose is administered.  Even if the patient struggled, who would know?

To view a short analysis of the House Version of S.77, go here: http://www.choiceillusion.org/2013/04/vote-no-on-s77-legal-analysis.html 

To view a short article about Washington's law, go here:  https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm

Do not be fooled.

Please vote No.

Margaret Dore
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corporation
www.margaretdore.com
www.choiceillusion.org
1001 4th Avenue, 44th Floor
Seattle, WA  98154
206 389 1754
206 389 1562

Monday, April 29, 2013

Vote NO on S.77, A Legal Analysis

Updated May 8, 2013
Dear Vermont Legislator:

This letter provides a legal analysis of the assisted suicide bill, S.77.  To view my memo containing that analysis, click here.  To view the memo's attachments, which include a copy of S.77, click here.

The memo's main points include:

1.  The bill is not limited to people who are dying.  Some of the people at issue will have years to live.  The bill encourages such persons to throw away their lives.

2.  The claim that the bill will assure patient control is untrue.

3.  There is a complete lack of oversight over administration of the lethal dose, which allows it to be administered without patient consent (and without anyone knowing that administration was without patient consent).

4.  The application process has problems:  (1) an heir who will benefit from death is allowed to talk for the patient during the lethal dose request process; and (2) there is nothing to prevent an heir from procuring the patient's signature under circumstances that would constitute undue influence in the context of a will. 

5.  Legalization will create new paths of elder abuse.  I give the example of Thomas Middleton in Oregon.

6.  Guardians and Conservators will not be able to protect their wards from being pushed to suicide and/or other involuntary death.

7.  Legalization will bring stress, trauma and fear (with examples from Oregon and Washington).

8.  In Washington, where we have now had legal assisted suicide for just four years, we have already had proposals to expand our law to direct euthanasia of non-terminal people.  There has also been the the suggestion that we should employ euthanasia as a solution for people who can't afford their own care, which would be involuntary euthanasia.

9.  Any claim that legalization will end murder-suicide and/or violent suicides is baloney.

Margaret Dore
Law Offices of Margaret K. Dore, P.S.
www.margaretdore.com
www.choiceillusion.org
1001 4th Avenue, 44th Floor
Seattle, WA  98154
206 389 1754
206 389 1562 direct line 

Wednesday, April 24, 2013

Vermont: Vote "NO" on S.77

I am a lawyer and a Democrat from Washington State where assisted suicide is legal.  I hope that you will vote "No" on S.77, which seeks to legalize assisted suicide.

 In 2011, I published an article in the Vermont Bar Journal, titled "Physician-Assisted Suicide:  A Recipe for Elder Abuse and the Illusion of Personal Choice."  A copy can be viewed here:   http://choiceisanillusion.files.wordpress.com/2012/12/dore-vermont-bar-journal.pdf   

The flaws that I identified in the above article are present in S.77, with the most obvious being a complete lack of oversight over administration of the lethal dose.  This creates the opportunity for an heir, or someone else who will benefit from the patient's death, to administer the dose to the patient without his consent.  For example, when the patient is asleep (the drugs used are water and alcohol soluble so that they can be injected).

You may also be interested in the following: 

1.  A Legal Analysis

Two years ago, I performed a legal analysis of H.274 and S.103, which are essentially the same bill as the current S.77.  The flaws I identified in my analysis also exist in S.77 although some of the wording and citations are different.  To view that analysis, go here:  http://www.vermontagainstassistedsuicide.org/p/legal-analysis-of-h274-s103.html 

2.  The Thomas Middleton case

This is a case from Oregon in which physician-assisted suicide was part of an elder abuse fraud. See

3.  My cases

In my law practice, I have had two clients whose parents signed up for the lethal dose.

In one case, one side of the family wanted the parent to take the lethal dose while the other did not.  The parent spent the last months of his life traumatized and/or struggling over the decision of whether or not to kill himself.  My client was also traumatized.  The parent did not take the lethal dose and died a natural death.

In the other case, the parent reportedly refused to take the lethal dose at his first suicide party ("I'm going to bed.  You're not killing me") and was high on alcohol the next night when he took the dose at a second party.  The person who told this to my client then recanted, apparently concerned about his own criminal liability.  My client did not want to pursue the matter further.  As a lawyer, I couldn't help but notice that if the parent's much younger wife had divorced him, he would have got the house.  This way, she got everything. 
 

4.  Washington's "Expansion" Issue

In 2009, our assisted suicide law went into effect.  By 2011, there were newspaper proposals to expand that law to direct euthanasia for non-terminal persons.  In 2012, a friend sent me this article suggesting euthanasia for people unable to afford their own care, which would be involuntary euthanasia.  See Jerry Large, "Planning for old age at a premium," The Seattle Times, March 8, 2012, at  http://seattletimes.nwsource.com/text/2017693023.html ("After Monday's column, . . . 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.") (Emphasis added). 

Don't make our mistake.

Margaret Dore
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corporation
1001 4th Avenue, 44th Floor
Seattle, WA 98154 USA
206 389 1754 

Monday, April 22, 2013

Protect Health Care; Keep Assisted Suicide Out of Montana

http://www.ravallirepublic.com/news/opinion/mailbag/article_03dfa5e3-26fa-588f-8765-b85fc6f81622.html?comment_form=true


April 22, 2013

I was disturbed to see the (April 7) opinion by Eric Kress promoting physician-assisted suicide. I am a cancer doctor with more than 40 years experience in Oregon, where physician-assisted suicide is legal. I am also a professor emeritus and former chair of the Department of Radiation Oncology at Oregon Health and Science University.

I first became involved with the assisted-suicide issue shortly before my first wife died of cancer in 1982. We had just made what would be her last visit with her doctor. As we were leaving, he had suggested that she overdose herself on medication. I still remember the look of horror on her face. She said “Ken, he wants me to kill myself.”

In Oregon, the combination of assisted suicide legalization and prioritized medical care based on prognosis has created a danger for my patients on the Oregon Health Plan (Medicaid). First, there is a financial incentive for patients to commit suicide: the plan will cover the cost. Second, the plan will not necessarily cover the cost of treatment due to statistical criteria. For example, patients with cancer are denied treatment if they are determined to have “less than 24 months median survival with treatment” and fit other criteria. Some of these patients, if treated, would however have many years to live, as much as five, 10 or 20 years depending on the type of cancer. This is because there are always some people who beat the odds. The plan will cover the cost of their suicides.

In Oregon, the mere presence of legal assisted-suicide steers patients to suicide even when there is no coverage issue. One of my patients was adamant she would use the law. I convinced her to be treated instead. Twelve years later she is thrilled to be alive.

Don’t make Oregon’s mistake.

Kenneth Stevens, MD,
Sherwood, Ore.