I. INTRODUCTION
Aid in dying has been a euphemism for physician-assisted suicide and euthanasia since at least 1992.[1] The proposed Act is based on similar acts in Oregon and Washington State. Oregon’s Death with Dignity Act went into effect in 1997. Washington’s nearly identical act went into effect in 2009.
All three acts apply to persons with a six month or less life expectancy. Such persons may in fact have years or decades to live. A well known example is Jeanette Hall. In 2000, she made a settled decision to use Oregon’s act. Her doctor convinced her to be treated for cancer instead, such that she is alive today, twenty-two years later.
II. QUALIFICATIONS
I am a guardianship and elder law attorney, licensed to practice law in Washington State. In that capacity, I have seen the terrible things that people do to each other for money, especially in the inheritance context. This same or similar issue is a problem in Delaware.[2] My publications include: “Preventing Abuse and Exploitation, A Personal Shift in Focus (An Article About Guardianship, Elder Abuse and Assisted Suicide).”[3]
I am also an appellate lawyer and former Law Clerk to the Washington State Supreme Court and the Washington State Court of Appeals. I have been in private practice since 1990. I worked for a year with the United States Department of Justice. I am also president of two nonprofit corporations opposed to assisted suicide and euthanasia: Choice is an Illusion, a 501(c)4 nonprofit corporation; and the Foundation for Choice is an Illusion, a 501(c)3 public charity.
I have personally appeared and testified against assisted suicide and euthanasia in 20 US legislatures and also internationally. A copy of my curriculum vitae can be viewed in the appendix, at pages A-9 through A-12. A copy of the proposed Act is also attached in the appendix, at pages A-13 through A-24.
III. DEFINITIONS
A. Physician-assisted Suicide, Assisted Suicide and Euthanasia
The proposed Act does not define physician-assisted suicide or euthanasia.[4] Per the American Medical Association, “physician-assisted suicide” occurs when a physician facilitates a patient’s death by providing the necessary means or information to enable the patient to perform the life-ending act.[5] For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[6]
“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.[7] Euthanasia is also known as “mercy killing.”
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 patient. More importantly, the individual will not necessarily die. Consider this quote from Washington State regarding a man removed from a ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.[8]
C. Word Play
The proposed Act allows assisted suicide and euthanasia in substance, but terms these practices medical aid in dying. The Act also defines assisted suicide and euthanasia out of the Act, stating:
Nothing in this chapter authorizes a physician, APRN, or any other person to end an individual’s life by infusion, intravenous injection, mercy killing, or euthanasia.
A request for medication to end life in a humane and dignified manner under this chapter, or the fact that medication to end life in a humane and dignified manner is prescribed or dispensed under this chapter, does not, for any purpose, constitute elder abuse, suicide, assisted-suicide, homicide, or euthanasia. (Emphasis added).[9]
IV. HOW THE ACT WORKS
A. “Eligible” Persons May Have Years or Decades to Live
The Act applies to persons with a “terminal illness,” meaning those predicted to have six months or less to live.[10] Such persons may in fact have years or decades to live. This is true based on the Oregon and Washington experience with their similar Acts, and common knowledge that predictions of illness and death can be wrong, sometimes way wrong.[11]
Patients may also have years or decades to live because treatment can lead to recovery. This was the case with Jeanette Hall, discussed supra, who initially made a settled decision to use Oregon’s Act. In a recent declaration, she states:
It has now been 21 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[12]
B. 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.[13] Consider also Graham Morant, convicted of counseling his wife to kill herself in Australia, to get the life insurance. 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. New York physician, Michael Swango, got a thrill from killing his patients.[15] 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.[16]
C. Voluntariness Is Not Assured
1. No oversight at the death
The Act has a formal application process to obtain the lethal dose.[17] Once the lethal dose is issued by the pharmacy, there is no oversight. [18] No witness, not even a doctor, is required to be present at the death.[19]
2. Even if the patient struggled, who would know?
The Act has no required oversight over administration of the lethal dose.[20] In addition, the drugs used are water or alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[21] Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:
With assisted suicide laws in Washington and Oregon [and with the proposed Delaware Act], 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).[22]
D. The Act Allows Euthanasia as Traditionally Defined
1. Self-administration is not required
The Act repeatedly describes the lethal dose as being self-administered.[23] There is no language, however, that self-administration is required.
2. The lethal dose is “medication”
The proposed Act repeatedly refers to the lethal dose as “medication” to end a patient’s life.[25] The lethal dose is also a prescription drug (or drugs). Generally accepted medical practice allows doctors and family members to administer prescription drugs to a patient.[26] If the medication/prescription drug administered is a lethal dose, this is euthanasia as traditionally defined.
3. The Americans With Disability Act would override any prohibition of euthanasia
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.”[27] Here, the proposed Act refers to the lethal dose as a medication to be prescribed, thereby rendering it a medical service.
Per the ADA, medical care providers are required “to make their services available in an accessible manner.”[28] 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 ....[29]
Per the proposed Act, the fundamental nature of the services is the provision of a lethal dose of medication to end a patient’s life. If, for the purpose of argument, the proposed Act can be read as requiring self-administration, the ADA would nonetheless require providers to make a reasonable modification for individuals unable to self-administer. For example, by providing the assistance of another person to administer the lethal dose. This would be euthanasia as traditionally defined.
E. Administration of the Lethal Dose Is a “Right”
The proposed Act describes individuals as having a right to self-administer medication to end their lives. The Act states:
A terminally ill adult individual who has decision-making capacity has the right to request and self-administer medication to end their life in a humane and dignified manner. (Emphasis added).[30]
In 2016, the Supreme Court of New Mexico addressed the practical consequence of such a right, that it would lead to voluntary or involuntary euthanasia. The Court stated:
[W]e agree with the legitimate concern that recognizing a right to physician aid in dying [meaning physician-assisted suicide] will lead to voluntary or involuntary euthanasia because if it is a right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self-administer the life-ending medication.... (Emphasis added).[31]
F. Deaths Via the Act Will Be Natural as a Matter of Law
Delaware death certificates have six categories for reporting the manner of death, four of which are substantive: suicide; homicide; accident; and natural.[32]
In the event that the proposed Act is enacted, deaths per the Act will not constitute suicide or homicide. The Act states:
[T]he fact that medication to end life in a humane and dignified manner is prescribed or dispensed under this chapter, does not, for any purpose, constitute elder abuse, suicide, assisted-suicide [or] homicide, or euthanasia. (Emphasis added).[33]
Resulting deaths will also not be an accident, due to deaths having been an intended event per the Act. This leaves the fourth and last substantive category: “natural.” Deaths occurring pursuant to the Act will be natural as a matter of law.
G. Delaware Residents Will Be Rendered Sitting Ducks to Their Heirs and Other Predators
Delaware’s slayer statute prevents a person who commits homicide against a decedent, from inheriting from said decedent. The statute’s definition of slayer includes:
Any person ... who is determined beyond a reasonable doubt by a court of competent jurisdiction to have committed a homicide against a decedent.[34]
The rationale is that a criminal should not be allowed to benefit from his or her crime.[35]
Per the proposed Act, however, a person who intentionally kills another person pursuant to the Act will be allowed to inherit. This is due to the language set forth above, providing that deaths occurring pursuant to the Act be certified as natural.
More to the point, in the event of the Act’s passage, Delaware residents with money, meaning the middle class and above, will be rendered sitting ducks to their heirs and other financial predators.
H. Dr. Shipman and the Call for Death Certificate Reform
Per a 2005 article in the UK’s Guardian newspaper, there was a public inquiry regarding Dr. Shipman, which determined that he had “killed at least 250 of his patients over 23 years.”[36] 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).[37]
Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[38] Here, the proposed Act is a move in the opposite direction to require that deaths via assisted suicide and euthanasia be reported as natural. If enacted, doctors and other involved persons will be legally enabled to kill under mandatory legal cover. Perpetrators will be allowed to inherit and keep the money.
I. Purported Responsibilities Are Illusory and Unenforceable
The Act features 14 responsibilities that the attending physician or attending APRN must do prior to prescribing the lethal dose.[39] On close examination, however, compliance with the 14 responsibilities is not actually required. This is due to responsibility No. 13, providing that the physician or APRN is merely to ensure that all “appropriate” steps are carried out in “accordance” with the Act.[40]
The Act does not define “appropriate” or “accordance.”[41] Dictionary definitions of appropriate include “suitable or proper” in the circumstances.[42] Dictionary definitions of accordance include “in the spirit of,” meaning “in thought or intention.”[43]
Per these definitions, the view of the attending physician or attending APRN as to what is “suitable or proper” is sufficient for compliance with the 14 responsibilities. The “thought or intention” of the attending physician or attending APRN is similarly sufficient. The Act’s 14 responsibilities are thereby neutralized to whatever the attending physician or attending APRN views as suitable or proper, or has a thought or intention to do. More to the point, the purported mandatory responsibilities are illusory and unenforceable.
J. The Act’s Preambles Must Give Way
A preamble is an introductory statement, especially “the introductory part of a constitution or statute stating the reasons for and intent of a law.” [44]
A preamble “should be read in harmony with the statute that it introduces, whenever possible.” However, “[t]o the extent that the preamble is at variance with the clear and unambiguous language of the statute, the preamble must give way.” (Citations omitted; emphasis added).[45]
Here the Act has two preambles. The first preamble consists of five “whereas” statements, which can be viewed in the appendix at page A-13. The second preamble consists of § 2501B, titled “Purpose and Intent,” attached in the appendix at pages A-13 and A-14. Both preambles are at variance with the body of the Act, such that they must be ignored or set aside. Please see below.
1. The first preamble
The first preamble, set forth in the Act at lines 1 to 13, implies that persons using the Act will be “free from coercion.”[46] This, of course, will not be the case given the complete lack of oversight at the death: “Even if the patient struggled, ‘who would know?’”[47]
2. The second preamble
The second preamble states that an individual “should not be coerced, pressured, or otherwise compelled to take medication to end their life.”[48] “Should not” does not mean “must not.” The second preamble is, regardless, contrary to the Act because it implies that the Act is safe for patients, which is not true. The Act’s second preamble must give way.
K. Civil and Criminal Liability
Persons who attempt to protect another person from the Act, for example, by seeking the appointment of a guardian to prevent the person’s death, will risk civil and criminal liability for negligence, recklessness, or intentional misconduct. The Act, § 2513B, states:
(c) A request for medication to end life in a humane and dignified manner under this chapter, or the fact that medication to end life in a humane and dignified manner is prescribed or dispensed under this chapter, does not solely constitute neglect or elder abuse for any purpose or provide the sole basis for the appointment of a guardian or involuntary mental health treatment.
(d) This section does not limit civil or criminal liability for negligence, recklessness, or intentional misconduct. (Emphasis added).[49]
V. CONCLUSION
Adults in Delaware are already a target of abuse and exploitation. With legal assisted suicide and euthanasia, the abuse will be final. The proposed Act must be rejected.
ENDNOTES:
[1] Cf. Maria T. CeloCruz, “Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?,” American Journal of Law and Medicine, 1992. Abstract attached in the appendix at page A-1.
[2] Delaware Department of Justice Brochure, “Stop Abuse of the Vulnerable and Elderly,” in the appendix, at pages A-2 and A-3.
[3] The Voice of Experience, American Bar Association, Volume 25, No. 4, Winter 2014. Copy in the appendix, at pages A-4 to A-8.
[4] The Act can be viewed in the appendix at pages A-13 through A-24.
“Terminal illness” means an incurable and irreversible disease, illness, or condition that as a medical probability, will result in death within 6 months.
Generally accepted medical practice allows a doctor, or a person acting under the direction of a doctor, to administer prescription drugs to a patient. Common examples of persons acting under the direction of a doctor include: nurses and other healthcare professionals who act under the direction of a doctor to administer drugs in a hospital setting; ... and adult children who act under the direction of a doctor to administer drugs to their parents in a home setting. (Emphasis added).
An attending physician or attending APRN must do all of the following before prescribing medication to an individual who provides a document under § 2505B of this title that will end the individual’s life in a humane and dignified manner: ...
Ensure that all appropriate steps are carried out in accordance with this chapter before writing a prescription for medication [lethal dose] to end the individual’s life.... (Emphasis added).
[41] See the Act in its entirety, in the appendix at pages A-13 to A-24.