I. INTRODUCTION
The bills are titled “Medical Aid in Dying.” There is, however, no requirement that patients be dying. “Eligible” patients may have years, even decades, to live. The bills are also sold as a promotion of patient choice and control. The bills are instead stacked against the patient and a recipe for elder abuse. Finally, the bills are deceptively written; they are not what they appear to be. I urge you to vote “No.”
II. FACTUAL AND LEGAL BACKGROUND
A. Definitions: Physician-Assisted Suicide; Assisted Suicide; and Euthanasia
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.”[3] The AMA gives this example:
[A] physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[4]“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.[5]
B. Withholding or Withdrawing Treatment Is Not Assisted Suicide or Euthanasia
Withholding or withdrawing treatment (“pulling the plug”) is not assisted suicide or euthanasia when the purpose is to withhold or remove burdensome treatment -- 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.[6]C. The AMA Rejects Assisted Suicide and Euthanasia
The AMA rejects assisted suicide and euthanasia, stating they are:
[F]undamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.[7]D. Elder Abuse Includes the Neglect, Financial Exploitation and Murder of Older Adults
Elder abuse is a problem throughout the United States, including New York.[8] Perpetrators are often family members who start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or to coercing victims to sign over deeds to their homes, to change their wills or to liquidate their assets.[9]
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| Melissa Ann Shepard |
[These men] sought companionship and found instead . . . someone who siphoned their savings, slipped drugs into their food and, in the case of one man, ran him over . . . and left him dead on a dirt road.[11]E. Victims Do Not Report
Elder abuse is a largely hidden problem, in part, due to the reluctance of victims to report. In the United States, it’s estimated that only 1 in 14 cases ever comes to the attention of the authorities.[12] In another study, it was 1 out of 25 cases.[13] Reasons for the lack of reporting include:
Older adults . . . feel ashamed or embarrassed to tell anyone they are being abused by someone they trust. They may fear retaliation or punishment, or they may have concerns about having to move from their home or community.[14]
Many . . . don’t want to report their own child as an abuser.[15]III. THE BILLS
A. Patients May Have Years, Even Decades, to Live
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| John Norton testifying against assisted suicide |
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.[21]B. How the Bills Work
The bills have an application process to obtain the lethal dose, which includes a request form with two required witnesses.[22] One of the witnesses is allowed to be the patient’s heir, who will benefit financially from the patient’s death.[23] Once the lethal dose is issued by the pharmacy, there is no required oversight.[24] The cause of death is reported on the death certificate as a terminal illness.[25]
C. A Comparison to Probate Law
When signing a will, having an heir act as a witness can support a finding of undue influence. Washington’s probate code, for example, states that when one of two witnesses is a taker under the will, there is a rebuttal presumption that the taker/witness:
procured the gift by duress, menace, fraud, or undue influence.[26]
The bills’ lethal dose request process, which allows the patient’s heir to act as a witness on the lethal dose request form, invites coercion.
D. Other People are Allowed to Communicate on the Patient’s Behalf
The proposed bills require a patient to have “capacity.”[27] This is a relaxed standard in which other people are allowed to communicate on behalf of the patient to his or her physician. The bills state:
"Capacity" or “capacity to make an informed decision" means the ability . . . to communicate health care decisions to a physician, including communication through persons familiar with the patient's manner of communicating . . . .[28]There is no requirement that the communicating person be the patient’s designated agent, for example, through a power of attorney.[29] The communicating person could also be the patient’s heir or a new “best friend.”[30] With someone else allowed to communicate for the patient, the patient’s choice and control is not guaranteed.
E. There is a Complete Lack of Oversight at the Death
There is no required oversight when the lethal dose is administered.[31] No doctor, not even a witness is required to be present at the death.[32]
Without oversight, the opportunity is created for someone else to administer the lethal dose to the patient without his or her consent, and with no one else to know what happened. The drugs used are water and alcohol soluble, such that they can be administered to a sleeping or restrained person.[33] The prior lethal dose request provides the alibi.
Possible motivations include an inheritance or other financial benefit as was the case with the Internet Black Widow, Melissa Ann Shepard.[34] Medical professionals too, can have financial motives, for example, to cover up malpractice. Darker motives include the occasional health care professional who just likes to kill people.[35] Even if the patient struggled, who would know?
F. Individual “Opt Outs” are Not Allowed
The proposed bills do not allow an individual to opt out of their provisions. Consider, for example, an older woman with a house and a bank account, concerned that her unemployed son will push her to assisted suicide. A possible deterrent is a will provision stating that the son will be disinherited if she dies under the bills. No such provision, however, is valid. The bills state:
No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication or take any other action under this article, shall be valid. (Emphasis added).[36]So much for personal choice and control.
G. If New York Follows Washington State, the Death Certificate Will Report a Natural Death Without Even a Hint That the Actual Cause of Death Was Assisted Suicide or Euthanasia
The proposed bills state:
Action taken in accordance with this article shall not be construed for any purpose to constitute suicide, assisted suicide, attempted suicide, promoting a suicide attempt, mercy killing [another term for euthanasia], or homicide under the law, including as an accomplice or accessory or otherwise. (Emphasis added).[37]The bills also state that the cause of death on the death certificate will be the patient’s “underlying terminal illness.”[38]
In Washington State, similar language is interpreted by the Washington State Department of Health to require the death certificate to list a natural death without even a hint that the actual cause of death was assisted suicide or euthanasia. The Department’s “Death Certificate Instructions for Medical Examiners, Coroners and Prosecuting Attorneys,” states:
Washington’s [law] . . . states that, “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 the decedent used [Washington’s law], you must comply with the strict requirements of the law when completing the death record:1. The underlying terminal disease must be listed as the cause of death.
2. The manner of death must be marked as “Natural.”
3. The cause of death section may not contain any language that indicates that [Washington’s law] was used, such as:
a. Suicide
b. Assisted suicide
c. Physician-assisted suicide
d. Death with Dignity
e. I-1000 [Washington’s law was passed by I-1000]
f. Mercy killing
g. Euthanasia
h. Secobarbital or Seconal
i. Pentobarbital or Nembutal (Emphasis added.) [39]
If New York enacts the proposed bills and follows Washington’s example, death certificates will list death caused by a terminal illness. The significance is a legal inability to prosecute homicide, even in the case of an outright murder for the money. The cause of death will be a “terminal illness” as a matter of law.
H. The “Rule of Lenity” Requires That Conflicting Criminal Provisions Be Construed in Favor of Potential Defendants
New York follows the rule of lenity, which gives defendants the benefit of the doubt when criminal statutes contain ambiguous provisions. People v. Walters, 30 Misc.3d 737, 745 (2010).
The rule is relevant to the proposed bills, which contain conflicting provisions. For example, in § 2899-m, doctors and other participants in a patient’s death, who act in good faith, “shall not be subject to civil or criminal liability or professional disciplinary action.”[40] In the very next paragraph, there is the opposite idea, that “[n]othing in this section shall limit criminal or civil liability.”[41] With the rule of lenity, the bills will likely be construed in favor of potential defendants (doctors, heirs, etc). Once again, the patient will be unprotected.
IV. OTHER CONSIDERATIONS
A. Compassion & Choices’ Mission is to Promote Suicide
Passage of the proposed bills is being spearheaded by the suicide advocacy group, Compassion & Choices, which was formed in 2004 as the result of a merger/takeover of two other organizations.[42] One of these organizations was the former Hemlock Society, originally formed by Derek Humphry.[43]
In 2011, Humphry was the keynote speaker at Compassion & Choices’ annual meeting here in Washington State.[44] He was also in the news as a promoter of mail-order suicide kits.[45] This was after a depressed 29 year old man used one of the kits to kill himself.[46] Compassion & Choices’ newsletter, promoting Humphry’s presentation, references him as “the father of the modern movement for choice.”[47] Compassion & Choices’ mission is to promote suicide.
B. “Beware of Vultures”: Compassion & Choices’ Mission is Financial, Involving “Millions, Maybe Billions of Dollars”
In 2013, Montana State Senator Jennifer Fielder published an article titled “Beware of Vultures,” discussing Compassion & Choices.[48] The article said:
“Where does all the lobby money come from?” If it really is about a few terminally ill people who might seek help ending their suffering, why was more money spent on promoting assisted suicide than any other issue in Montana? . . .
Could it be that convincing an ill person to end [his or her] life early will help health insurance companies save a bundle on what would have been ongoing medical treatment? . . . How much financial relief would pension systems see? . . . Would vulnerable old people be encouraged to end their [lives] unnecessarily early by those seeking financial gain?
When considering the financial aspects of assisted suicide, it is clear that millions, maybe billions of dollars, are intertwined with the issue being marketed as “Compassion and Choices”. Beware.C. Compassion & Choices” Mission is to Reduce Access to Cures
For more information, see Bradley Williams (with Margaret Dore), “Assisted suicide is not legal, not the answer,” The Missoulian, August 21, 2014.
D. Physician-Assisted Suicide Can Be Traumatic for Family Members
In 2012, a research study was released addressing trauma suffered by persons who had witnessed a legal assisted suicide in Switzerland. The study found that one out of five family members or friends present at an assisted suicide was traumatized.[49] These people,
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[50]E. My Clients Were Traumatized by Legal Assisted Suicide in Washington State and Oregon
In Washington and Oregon, I have had two cases where my clients suffered trauma in connection with legal assisted suicide. In the first case, one side of the family wanted my client’s 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 my 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 he (the father) took the lethal dose the next night when he was intoxicated on alcohol. My client, although he was not present at the death, was traumatized over the incident, and also by the sudden loss of his father.
F. Any Study Claiming that Oregon’s Law is Safe, is Invalid
In 2011, the lack of supervision over administration of the lethal dose in Oregon prompted Montana State Senator Jeff Essmann to observe that any studies claiming that Oregon’s law 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.[51]V. CONCLUSION
In the best of circumstances, victims of elder abuse are unlikely to report that they are being abused. The proposed bills allow the abuse to be taken to a whole new level. Don’t be fooled. Vote “No” on A. 10059 and S. 7579.
* * *
[1] I am an elder law/appellate attorney licensed to practice law since 1986. I am also 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. In addition, I am president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. For more information, see www.margaretdore.com and www.choiceillusion.org
[2] The bills, A. 10059 and S. 7579, can be viewed at http://nyassembly.gov/leg/?bn=A10059&term=2015 and http://nyassembly.gov/leg/?term=2015&bn=S07579
[3] The AMA Code of Medical Ethics, Opinion 2.211, Physician-Assisted Suicide, at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page
[4] Id.
[5] The AMA Code of Medical Ethics, Opinion 2.211, Physician-Assisted Suicide, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion221.page?#
[6] 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, available at https://choiceisanillusion.files.wordpress.com/2015/08/terminal-uncertainty-w-o-ad.pdf
[7] AMA Code of Medical Ethics, Opinions 2.211 and 2.21, supra at notes 3 & 5.
[8] 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-broken-trust.pdf; Anemona Hartocollis, “Manhattan Doctor is Accused of Fleecing Mother Out of $800,000, New York Times, January 24, 2008, at http://www.nytimes.com/2008/01/24/nyregion/24badson.html and Robert D. McFadden, “Anthony D. Marshall, Astor Son Who Was Convicted in Swindle, Dies at 90,” New York Times, December 1, 2014, at http://www.nytimes.com/2014/12/02/nyregion/anthony-d-marshall-son-of-brooke-astor-convicted-in-swindle-dies-at-90.html
[9] MetLife Mature Market Institute, supra.
[10] See Cassie Williams, CBC News, “Internet Black Widow Melissa Ann Shepard arrested in Halifax,” April 12, 2016, at http://www.cbc.ca/news/canada/nova-scotia/internet-black-widow-breaches-conditions-of-release-1.3531910
[11] Yanan Wang, “This 80-year-old ‘Black Widow,’ who lured lonesome old men to horrible fates, is out of prison again,” Washington Post, March 21, 2016, available at https://www.washingtonpost.com/news/morning-mix/wp/2016/03/21/this-80-year-old-black-widow-who-lured-lonesome-old-men-to-horrible-fates-is-out-of-prison-again/
[12] National Center on Elder Abuse, Administration on Aging, http://www.ncea.aoa.gov/Library/Data
[13] Id.
[14] Facts on Elder Abuse, Government of Canada, “Elder abuse: It’s Time to Face the Reality,”
at http://www.seniors.gc.ca/eng/pie/eaa/elderabuse.shtml
[15] “Adult Abuse,” District of Columbia, DHS, http://dhs.dc.gov/service/adult-abuse
[16] The bills, § 2899-d.17, state: “'Terminal illness' means an illness that will, within reasonable medical judgment, result in death within six months, whether or not treatment is provided.” Available at http://nyassembly.gov/leg/?bn=A10059&term=2015 and http://nyassembly.gov/leg/?term=2015&bn=S07579
[17] See Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 4/17/14, available at http://www.cbsnews.com/news/12-million-americans-misdiagnosed-each-year-study-says; and 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, at https://choiceisanillusion.files.wordpress.com/2015/08/terminal-uncertainty-w-o-ad.pdf
[18] Affidavit of John Norton, ¶ 1, available at https://choiceisanillusion.files.wordpress.com/2014/01/signed-john-norton-affidavit_001.pdf
[19] Id., ¶ 1.
[20] Id., ¶ 4.
[21] Id., ¶ 5.
[22] Bills, § 2899.l
[23] Id.
[24] See both bills in their entirety.
[25] Bills, § 2899.q.2
[26] Wash. Rev. Code § 11.12.160(2), available at http://www.margaretdore.com/pdf/D-RCW-11.12.160_001.pdf
[27] Bills, § 2899-d.15 (requiring a “qualified individual" to have “capacity”).
[28] § 2899-d.3 states: "'Capacity' or 'capacity to make an informed decision' means the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision and to communicate health care decisions to a physician, including communication through persons familiar with the patient's manner of communicating if those persons are available. (Emphasis added).
[29] See both bills in there entirety at http://nyassembly.gov/leg/?bn=A10059&term=2015 and http://nyassembly.gov/leg/?term=2015&bn=S07579
[30] Id.
[31] Id.
[32] Id.
[33] The drugs used for assisted suicide in Oregon and Washington include Secobarbital and Pentobarbital (Nembutal), which are water and alcohol soluble. See "Secobarbital Sodium Capsules, Drugs.Com, at http://www.drugs.com/pr/seconal-sodium.html and http://www.drugs.com/pro/nembutal.html See also Oregon’s government report, page 6 (listing these drugs), available at https://choiceisanillusion.files.wordpress.com/2016/06/drugs-used_001.pdf
[34] Cassie Williams, CBC News, “Internet Black Widow Melissa Ann Shepard arrested in Halifax,” April 12, 2016, at http://www.cbc.ca/news/canada/nova-scotia/internet-black-widow-breaches-conditions-of-release-1.3531910; and Yanan Wang, “This 80-year-old ‘Black Widow,’ who lured lonesome old men to horrible fates, is out of prison again,” Washington Post, March 21, 2016, available at https://www.washingtonpost.com/news/morning-mix/wp/2016/03/21/this-80-year-old-black-widow-who-lured-lonesome-old-men-to-horrible-fates-is-out-of-prison-again/
[35] See James B. Stewart, “Blind Eye,”, Simon & Schuster 1999 (“Michael Swango at first seemed the model physician. Then his patients began dying under suspicious circumstances”); https://en.wikipedia.org/wiki/Michael_Swango and http://books.simonandschuster.com/Blind-Eye/James-B-Stewart/9780684865638#sthash.sbqXh1bF.dpuf
[36] Bills, § 2899-o.2(a)
[37] Id., § 2899-l.(b)
[38] Id., § 2899-q.2
[39] Washington State Department of Health Death Certificate Instruction, available here: https://choiceisanillusion.files.wordpress.com/2012/04/death_certificate_instructions.pdf
[40] § 2899-m can be viewed at http://nyassembly.gov/leg/?bn=A10059&term=2015 and http://nyassembly.gov/leg/?term=2015&bn=S07579
[41] Id.
[42] Ian Dowbiggin, A Concise History of Euthanasia 146 (2007)(“In 2003, [the] Hemlock [Society] changed its name to End-of-Life Choices, which merged with Compassion in Dying in 2004, to form Compassion & Choices.”). Accord. Compassion & Choices Newsletter, attached at https://choiceisanillusion.files.wordpress.com/2016/06/derek_001.pdf (“Years later, the Hemlock Society would become End of Life Choices and then merge with Compassion in Dying to become Compassion & Choices”).
[43] Id.
[44] Compassion & Choices Newsletter, attached at https://choiceisanillusion.files.wordpress.com/2016/06/derek_001.pdf
[45] See Jack Moran, "Police kick in door in confusion over suicide kit,” The Register-Guard, September 21, 2011 (“"A spotlight was cast on the mail-order suicide kit business after a 29-year-old Eugene man committed suicide in December using a helium hood kit. The Register-Guard traced the $60 kit to [the company, which] has no website and does no advertising; clients find [the] address through the writings of Humphry.")(Emphasis added)
[46] Id.
[47] Compassion & Choices Newsletter, supra at note 44.
[48] Published as Communication from Your State Senator, "Beware of Vultures," by Montana State Senator Jennifer Fielder, Sanders County Ledger, http://www.scledger.net, page 2, 6-4-13 (Internet re-publication is attached hereto at http://www.choiceillusion.org/2013/12/beware-of-vultures-senator-jennifer.html
[49] “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 http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf (First page attached at A-43).
[50] Id.
[51] Hearing Transcript for the Montana Senate Judiciary Committee on SB 167, February 10, 2011,at http://www.margaretdore.com/pdf/senator_essmann_sb_167_001.pdf