The Carter Opinion: Unclear Legal Effect & Invalid Reasoning

By Margaret Dore

On June 15, 2012, Justice Lynn Smith of the BC Supreme Court issued an opinion purporting to legalize assisted suicide and euthanasia in Canada.[1]  As discussed below, the legal effect of this opinion is unclear.  The reasoning is also invalid. 

A.  Legal Effect 

The opinion was the result of a summary trial in which both the Attorney General of Canada and the Attorney General of British Columbia argued that the court had no power to do anything other than dismiss the case.  This was due to the Supreme Court of Canada's prior decision on similar facts (the Rodriguez case).  The opinion states:

"They [Canada and British Columbia] say that it is not open to this Court to do anything other than dismiss the plaintiffs' claim."[2]

If Canada and British Columbia are correct, the opinion is nothing more than an advisory document.  Unless and until this point is resolved, any person participating in a death under the opinion will remain at risk of criminal prosecution, civil lawsuits and/or professional discipline.

B.  Invalid Reasoning

The opinion is also written in double-speak, which means to say one thing and to mean another, sometimes the opposite.  Most centrally, the opinion bases the plaintiff's "right to die" on her "right to life" in the Canadian Charter of Rights and Freedoms.[3]  These are opposite concepts.[4] 

The opinion also argues that because Canadian law does not prohibit suicide as a crime, that commiting suicide is a right.[5]  This claim ignores other Canadian law  discouraging suicide. Indeed, a suicidal person can be committed against his or her will in order to prevent a suicide.[6]  With suicide actively discouraged under the law, it cannot be said that the law somehow grants a right to commit suicide.   Once again, the opinion's logic is flawed.

* * *

[1]  To view the opinion, click here.
[2]  Opinion, page 251, paragraph 891.
[3]  Id., pages 365-8.
[4]  See e.g., the opinion at 366, pargraph 1314, which states:  "Canada argues that the right to life does not include the right to choose death.  [Canada] submits that such an interpretation would directly contradict the plain and obvious meaning of a right to life and would mark a significant departure from existing Supreme Court of Canada jurisprudence."
[5]  See e.g., the opinion at 10, pargraph 15:  "The claim that the legislation infringes Ms. Taylor's equality rights begins with the fact that the law does not prohibit suicide.  However, persons who are physically disabled such that they cannot commit suicide without help are denied that option because s. 241(b) prohibits assisted suicide."
[6]  See BC Mental Health Act, Part 3, Section 22 (allowing involuntary admissions "to prevent the person's or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others").

From Afghanistan to Activist Against Assisted Suicide: "These are things worth fighting for"

By John Coppard

To view the original publication in Brain Tumour Magazine, click here.
To learn more about Brain Tumour Magazine, click here.

It was early summer 2009 and I was on my second “tour” in Kabul, Afghanistan, this time as NATO’s civilian spokesman.  I was responsible for representing NATO to media from the Alliance’s 28 member nations - regional powers such as Iran, Russia and Pakistan, and other troop contributing nations to the International Security Assistance Force, as well as Afghanistan’s own emerging media.  While my military counterpart handled military-specific issues, I was responsible for explaining the political and diplomatic aspects of NATO’s support to this brave and tragic country. With lukewarm support for the mission in many contributing nations, and a traumatised Afghan population bombarded by Taliban propaganda and wary of Western intentions, the stress of the job could be intense.

I felt up to the challenge.

In Oregon, other suicides have increased with legalization of physician-assisted suicide

Scott Helman's article about legalizing assisted suicide in Massachusetts implies that doing so will eliminate violent suicides.  I am physician in Oregon where assisted suicide is legal.  Official statistics from the state of Oregon do not support this claim.

Based on an Oregon Public Health report released in 2010, Oregon's overall suicide rate, which excludes suicide under Oregon's assisted suicide act, is 35% above the national average. The report documents that the rate has been "increasing significantly since 2000." 

Just three years prior, in 1997, Oregon legalized assisted suicide.  Suicide has thus increased, not decreased, with legalization of assisted suicide.  Moreover, many of these deaths are violent.  For 2007, which is the most recent year reported on Oregon's website, "[f]irearms were the dominant mechanism of suicide among men."  The claim that legalization prevents violent deaths is without factual support.

Factual support for the above statistics:

Oregon Health Authority News Release September 9, 2010 athttp://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf and,

"Suicides in Oregon, Trends and Risk Factors," Executive Summary, p.4, at

http://public.health.oregon.gov/DiseasesConditions/InjuryFatalityData/Documents/Suicide%20in%20Oregon%20Trends%20and%20risk%20factors.pdf  

William L. Toffler MD

Professor of Family Medicine

Oregon Health & Science University

Posrtland OR

Massachusetts: Legal Challenge to Ballot Measure

Disability Rights Group Challenges Language for Assisted Suicide Ballot Measure as "Misleading, Inaccurate, and Euphemistic"

CONTACT  John Kelly 617-536-5140 

(Boston, MA) – On Thursday, May 17, 2012, Massachusetts voters including members of the disability rights group Second Thoughts filed a challenge before the Supreme Judicial Court regarding the proposed ballot language for the measure that, if approved, would legalize assisted suicide in the state.

"The ballot language is clearly misleading," said Second Thoughts director John Kelly of Boston. "We want the voters ofMassachusetts to know exactly what they are voting on this November," he said.

The petition asks the Supreme Judicial Court to remand the language to Massachusetts Attorney General Martha Coakley and Secretary of State William Galvin with the requirement that they amend the language for clarity and accuracy.

"The ballot language repeats the problems of the bill itself," said Second Thoughts member Paul Spooner of Taunton. "The title is euphemistic, with the word ‘medication’ twisted beyond recognition. People will be led to believe that the measure is about palliative care, when it is about taking a lethal overdose -- in other words, poison. Why not just call the act by its common and legal name, 'physician-assisted suicide?'"

"The way 'terminally-ill' is used in the description is clearly misleading ," said Kelly, "people will be encouraged to assume that being 'terminally ill' is a biological fact, rather than a human guess."

"People with disabilities are very familiar with so-called terminal diagnoses," said Second Thoughts member John Norton of Florence. "Everyone knows someone who has outlived their terminal diagnosis -- I was diagnosed with Lou Gehrig's Disease as a teenager; I'm alive and well fifty years later.  The ballot language misleads by implying that a 'terminally-ill' diagnosis actually leads to death within six months.  Instead, it should say ‘diagnosed as terminal’ or something similar in terms of accuracy."

"And what about choice?," asked Spooner. "There are no safeguards to protect patients from having the poison given to them by an heir or abusive caretaker. No witnesses are required under the law, so if someone else were to administer the drugs, who would know?"

The language submitted by the Attorney General Martha Coakley and Secretary of State is:

Title: Prescribing Medication to End Life [11-12] - Petition G

A YES VOTE would enact the proposed law allowing a physician licensed in Massachusetts to prescribe medication, at the request of a terminally-ill patient meeting certain conditions, to end that person’s life.

Second Thoughts has taken a leading role in opposing the ballot measure, and has been featured in the Boston Sunday Globe Magazine, the Wall Street Journal, and on local TV and radio.

Not Dead Yet: Minnesota Grand Jury Convening on Final Exit Network Member Charges

From Not Dead Yet:
http://notdeadyetnewscommentary.blogspot.com/2012/05/minnesota-dakota-grand-jury-convening.html  


Right now, this latest story involving the Final Exit Network (FEN) is getting only local coverage, but it could become a national story, depending on the outcome.  From the story, by reporter Laura Adelmann:

Apple Valley woman may have killed herself using information from Final Exit Network

In a March 26 letter to a defense attorney, Dakota County Attorney James Backstrom’s office stated it will convene a grand jury May 9-11 seeking an indictment to prosecute right-to-die advocates for their role in an Apple Valley woman’s May 30, 2007 suicide.

Doreen Nan (Gunderson) Dunn, then 57, suffered years of intense chronic pain and depression when she killed herself using a hood and helium gas, according to Robert Rivas, attorney for the Final Exit Network, a national nonprofit organization accused of assisting suicides and named in the investigation.

Before taking her life, Dunn had paid a $50 membership fee to Final Exit Network, according to a March 20 search warrant issued by the Georgia Bureau of Investigation detailing evidence forwarded to the Dakota County Attorney’s Office and obtained by Sun Thisweek.

The warrant cites phone records, documents, airline tickets and car rental contracts as evidence Dunn had contact with some Final Exit members months before taking her life and on the day she died.

Final Exit members named in the investigation are Thomas “Ted” Goodwin, former president of Final Exit Network; Roberta Massey, a Final Exit “case coordinator;” Jerry Dincin, then-Final Exit Network president; and Dr. Lawrence Egbert, Final Exit medical director who Newsweek dubbed “The New Doctor Death.”

Charges the grand jury will be asked to consider are aiding suicide, conspiracy to commit the crime of aiding suicide and interference with a dead body, according to the search warrant.

Those names should look familiar.  Goodwin and Egbert were both involved in the suicide of John Celmer, a man in Georgia who committed suicide after successful cancer treatment left him distressed about his appearance after surgery.  Massey and Egbert were defendants in the case involving Jana Van Voorhis, a woman with no serious physical problems but who had a long history of emotional and psychological issues.

The reporter is pretty careful in most cases in this story to qualify statements about FEN practices with wording such as "the website states."

That's important because not all of what the FEN website claims is true. Take this, for example, from the latest article:

A Final Exit Medical Committee reviews information, and if approved, an “Exit Guide” is assigned who provides detailed information how a person may purchase equipment and take steps to end their own life, according to the website.

“The Network never supplies equipment,” the website states.

That right there - about FEN never supplying equipment.  It's not true.  How do we know?  The overly-modest and zealous Dr. Larry Egbert told us so, in an interview that appeared in the Washington Post in January:

Egbert tells me that years ago he asked someone who was about to “exit” if he could reuse the hood to save future patients the cost of buying a new one. The patient was delighted with the idea, Egbert says. He started asking everyone.

The hood in my bare hands feels slightly slick. So, this one, the one I’m holding, has been used to end someone’s life? I ask. Egbert tells me it has surely been used at least once, and maybe several times, and the same could be said for most of the other 17 hoods in the garbage bag. 

So, Egbert, by his own admission, has provided equipment on a regular basis in his work as an 'exit guide.'  That might seem like a minor point to some in and of itself, but the fact is, there is no way for us - the public - to verify any claim FEN makes.  It's only when someone like Egbert gets to talking and bragging we get to hear some facts that depart from the established script.

We don't know who else has supplied equipment to 'clients.'  We don't know how many FEN members 'pushed' so-called 'clients' with second thoughts to get on with it, not wanting their valuable times wasted.  We don't know how if any of the FEN members have held down the hands of a person trying desperately to tear the bag off.

We don't know.  And even Robert Rivas (FEN atty.) and Jerry Dincin cannot swear that they know the parameters of what has gone on in each and every so-called 'peaceful exit.'  They weren't there and they don't know.  When they try to tell us that everyone is behaving responsibly, remind them that Egbert already revealed one lie about their practices and we're not inclined to believe any other unverified claims they make.  --Stephen Drake

Washington Assisted Suicide Report: No Information About Consent

By Margaret Dore

Washington assisted suicide act was enacted via a ballot initiative in 2008 and went into effect in 2009.[1]  During the election, proponents claimed that its passage would ensure individuals control over their deaths.  A glossy brochure declared, "Only the patient — and no one else — may administer the [lethal dose]."[2]  The Act, however, does not say this anywhere.


Today, the Washington State Department of Health issued its annual report about Washington's act.[3]  That report, similarly, does not demonstrate that individuals are in control. The report provides no information as to whether the people who died under the act consented and/or acted voluntarily at the time of death.  The report instead talks about "ingestion" of the lethal dose.  A drug can be "ingested" while a person is asleep, sedated and/or not aware of his or her surroundings.


For more information about Washington's act, See Margaret Dore, "'Death with Dignity': What Do We Advise Our Clients?," Bar Bulletin, May 2009.[4]  

* * *

[1]  Washington's act was passed by in November 2008 as Initiative 1000 and has now been codified as RCW chapter 70.245.
[2]   I-1000 color pamphlet, "Paid for by Yes! on 1000."
[3]  See News Release here and report here.
[4]  Further information can be viewed here.

Not Dead Yet: A Deeper Look at Elderly Homicide-Suicides

From Not Dead Yet.


"society cannot lose sight of the fact that a person's life was taken, often without their consent." 


May 1, 2012


Last September, this blog discussed an article from a Pennsylvania newspaper that took a thoughtful, in-depth look at the tragically growing trend of elderly homicide/suicides.  When that story was written, there had been three such cases in the state since June of that year.

The number is now up to at least 6 in the last year.  Terrie Morgan-Besecker takes another in-depth look at elderly homicide/suicides and interviews a number of people about the larger picture (including me) to get beyond the 'mercy killing' theme that dominates the coverage of these tragedies.

An excerpt that includes a bit from my interview is below.  From The Abington Journal, here is a sample of 'Loved to Death':

But researchers who have studied murder-suicides among the elderly say they're troubled by society's tendency to view such deaths as mercy killings.

"One of the concerns is you don't want to make it sound like it's a viable thing to do," said Sonia Salari, a professor in the Department of Family and Consumer Studies at the University of Utah."  If we romanticize it, it makes it sound like it's OK."

Statistics regarding the number of elderly murder-suicides committed each year are difficult to come by, as no agency specifically tracks that category of deaths, Salari said.

In a 2005 study, Salari analyzed 225 intimate partner murder-suicides involving couples where either the victim or perpetrator was at least age 60. She gathered the data from news reports, police reports and obituaries published from 1999 to 2005.

The research showed that in 55 percent of the cases, health issues   involving either the victim or perpetrator were cited as a contributing factor. Approximately 7.5 percent of the victims had some sort of dementia.

Compassion or murder?

Salari said that, while she sympathizes with survivors who view the deaths as an act of compassion, society cannot lose sight of the fact that a person's life was taken, often without their consent.

"Some people don't consider it domestic violence, but we need to see it as that," she said. "You have two deaths. Most of the time the victim is not in on the plan."

Stephen Drake, a spokesman for Not Dead Yet, a nonprofit group that opposes assisted suicide laws, also expressed concern over how murder-suicides among the elderly are viewed.

"These are acts usually of desperation, not compassion," he said. "These are people who are feeling depressed or overwhelmed. It's often a consequence of an emotional crisis."

Please read the rest of the article here.  --Stephen Drake 

Louisiana Assisted-Suicide Ban Strengthened

http://www.dailycomet.com/article/20120424/WIRE/120429820/1223?Title=La-assisted-suicide-ban-strengthened


The Associated Press


Published: Tuesday, April 24, 2012 at 8:37 a.m.

BATON ROUGE -- The House unanimously backed a proposal Monday to strengthen Louisiana’s ban on euthanasia and assisted suicide.

House Bill 1086 by Rep. Alan Seabaugh, R-Shreveport, would spell out that someone authorized to approve medical procedures for another person may not approve any procedure that would be considered assisted suicide. That prohibition also would be extended to include surgical or medical treatment for the developmentally disabled or nursing home residents who may be unable to make their own medical decisions.

Louisiana already has a prohibition in criminal law against euthanasia and assisted suicide. But Seabaugh said he wanted to make sure it was clear in the state’s medical consent law.

Dore v. Morris: Assisted suicide debate deals with abuse, compassion

http://www.kamloopsnews.ca/article/20120419/KAMLOOPS0101/120419759/-1/kamloops01/assisted-suicide-debate-deals-with-abuse-compassion

Lawyer cautions against legislating through courts

By Mike Youds, Daily News Staff Reporter
 

Margaret Dore (L) and Wanda Morris (R)

A right to medically assisted suicide may sound compassionate and just, but beware the details when it comes to the act itself, a U.S. lawyer warned Wednesday in a debate at TRU.

Margaret Dore shared some of her experiences with assisted suicide in Washington State, where the practice became legal through a ballot measure four years ago.

 "A lot of people think this is a great idea until they start thinking and reading about how you do it," she told an audience of about 30 people in the Irving K. Barber Centre.

In effect, laws in Washington and Oregon empower people who may choose to abuse the responsibility, Dore said.

"Your heir can be there to help you sign up. Once the legal dose leaves the pharmacy, there is no oversight whatsoever."

Wanda Morris, head of the Canadian charity Dying With Dignity, advocated for the right to choose to end life humanely.

"These are individuals who want to live, but they are individuals facing a horrific death," she said. "The fundamental difference is choice. Choice is important in Canada. Why is it, at the time of life when we're facing our toughest decision we could ever make, that choice is taken away?"

The issue has long been debated in Canada, where two years ago Parliament easily defeated a bill that would have permitted assisted suicide and euthanasia. Recently the subject has made headlines again with two court high-profile court cases in B.C. and Quebec.

"Autonomy is such a critical value, it is a cornerstone of modern medicine," Morris continued. "Nothing can be done without consent. And yet here, at the end of life, I'm not given that choice."

Dore said she agrees that people should have the right to choose how they die, but the U.S. laws don't give that. Four days after the Washington State law passed, the adult son of a care facility resident showed up asking how "to get them pills," she said.

"Who's choice?," she asked rhetorically. An adult child can administer the lethal dose with no one else to tell whether it was a matter of consent. "There is no oversight over administration."

Morris insisted that the law her organization has long pushed for would only apply to individuals with six months or less to live. Dore countered that such a restriction does not apply in the U.S. and pointed to a case where an Oregon woman, who was talked out of suicide by her doctor, remains thankful she has survived another 12 years.

There was a $5.4-million lobby for assisted suicide in Washington, a machine that was up against a volunteer group, she said.

"In Canada and the U.S., there is a very significant funder in this debate and it is the Catholic church," Morris said.

Opponents of assisted suicide argue from dogmatic positions and cannot be satisfied, she said.

"Excuse me, but I never said anything about Catholic dogma," Dore replied.

She warned that Canada, having rejected the idea in Parliament, is facing the possibility of legislating it through the courts with the Carter and Leblanc court cases.

"We have a blank slate and we can write in whatever controls we want to protect the weak and the vulnerable," Morris said.

NY Times: Assisted Suicide: A Recipe for Elder Abuse

April 10, 2012
http://www.nytimes.com/roomfordebate/2012/04/10/why-do-americans-balk-at-euthanasia-laws/assisted-suicide-laws-are-a-recipe-for-elder-abuse

Margaret Dore, a lawyer in Washington State where assisted suicide is legal, is the president of Choice is an Illusion, a nonprofit organization opposed to assisted suicide.

Assisted suicide means that one person provides the means or information for another person to commit suicide. In Oregon and Washington, assisted-suicide laws were passed by ballot measures. No such law has made it through the scrutiny of a legislature despite more than 100 attempts.

The Oregon and Washington acts apply to "terminal" patients, defined as patients predicted to have no more than six months to live. Doctor prognoses, however, can be wrong. Moreover, treatment can lead to recovery. My friend Jeanette Hall was adamant that she would "do" Oregon's act. She had been diagnosed with cancer and was given six months to a year to live. Her doctor convinced her to be treated. That was nearly 12 years ago.

Proponents tout assisted suicide as providing "choice" over the timing of one's death. But choice under the Oregon and Washington acts cannot be assured. For example, neither act requires witnesses at the death. Without disinterested witnesses, the opportunity is created for an heir, or someone else who will benefit from the patient's death, to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?

Assisted suicide is a concept contrary to public safety and a recipe for elder abuse.  Americans are right to be skeptical of these laws.

Canadian Debates: Vancouver this coming Thursday!

Dr. Will Johnston, Chair of the Euthanasia Prevention Coalition, BC, will be debating Wanda Morris, Executive Director, Dying with Dignity Canada, this coming Thursday!  See below:

Vancouver: April 12, 2012

Time: 7:00 pm

Location: Simon Fraser University

Venue: SFU-Harbourside Campus Room 1900;

515 West Hastings Street, V6B 5K3

Dr. Johnston and Ms. Morris are both skilled debaters.  It will be an interesting program.  Please show up to give Dr. Johnston your support!

More information:

The debate is the second in a series of debates to be held across Canada over the next few months.  The debate coordinator is the Centre for Inquiry.  Future debates are scheduled for Kamloops, Kelowna, Calgary, Saskatoon and Toronto.  Specifics:

Kamloops: April 18, 2012

Time: 7:00 pm

Location: 900 McGill Road, Kamloops B.C.

Venue: Irving K. Barber Centre, Thompson Rivers University

Debaters:  Margaret Dore, President of "Choice is an Illusion," vs Wanda Morris, Executive Director of Dying with Dignity Canada

Kelowna: April 19, 2012

Time: 7:00pm

Location: Mary Irwin Theatre, at the Rotary Centre for the Arts

Venue: 421 Cawston Avenue, Kelowna, BC, Canada
Debaters:  Margaret Dore, President of "Choice is an Illusion," vs Wanda Morris, Executive Director of Dying with Dignity Canada

Calgary: April 22, 2012

Time: 3:30 pm

Location: Science Theatre Bldg, Room ST140

Venue: University of Calgary, 2500 University Dr. N.W., Calgary
Debaters:  Dr. Will Johnston, Chair of the Euthanasia Prevention Coalition, BC vs Wanda Morris, Executive Director of Dying with Dignity Canada

Saskatoon: May 3, 2012

Time: 7:00 pm

Location, etc.: To be determined 

Toronto: June 6, 2012

Time: 7:00 pm

Location, etc.: To be determined.

For more up to date information, contact the debate host and coordinator,  the Centre for Inquiry, or the individual speakers.  Dr. Johnston can be reached at  604 220 2042.  Margaret Dore can be reached at 206 697 1217.
     

Hope to see you there!