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Choice is an Illusion
Wednesday, July 10, 2013
Friday, June 7, 2013
Beware of Vultures
"[I]t seems odd that the top lobby spender in Montana this year was Compassion and Choices, a 'nonprofit' group that spent $160,356 advocating for legalization of assisted suicide."
By Senator Jennifer
Fielder
As we wrangled through the budget this spring, the beautiful state capitol began to feel like a big, ripe carcass with a dark cloud of vultures circling about.
 |
| Senator Jennifer Fielder |
The magnitude of money in government attracts far more folks who want to be on the receiving end than it does those who just want fair and functional government. Until that ratio improves, it may be impossible to rein in unnecessary regulation and spending.
Special interest groups spent over $6 million dollars on lobbyists to pressure Montana legislators during the 2013 session. Seems like a lot of money, until you compare it to the billions of taxpayer dollars at stake. Does the average taxpayer stand a chance against organized forces like that?
As your Senator one of my main duties is to sort out who wants your money, or a change in a law, and why. Getting to the bottom of it takes work. It would certainly help if well-intentioned citizens would do a little more research before clamoring onto any particular bandwagons as well.
We have to be careful not to be fooled by catchy slogans, shallow campaign propaganda, biased media reports, or plays on our emotions which, too often, conceal a multitude of hidden agendas.
For example, it seems odd that the top lobby spender in Montana this year was Compassion and Choices, a “nonprofit” group that spent $160,356 advocating for legalization of assisted suicide. The second biggest spender was MEA-MFT, the teachers and public employees union who spent $120,319 pushing for state budget increases.
I earned a reputation for asking a lot of questions. I certainly didn’t take this job to rubber stamp anything. It's my duty to determine whether a proposal relates to an essential, necessary service of fair and functional government, or if it is motivated by piles of money to be gained from ill-advised government decisions.
You see, there is so much money in government that almost everything in government is about the money. The usual tactic is to disguise a ploy as “the humane thing to do”. . . .
Some groups work very hard to provide factual information about their issue. Others stoop to the lowest of lows to invoke heart wrenching emotions, twisted half-truths, or outright lies. You really have to look carefully for all the angles.
Assisted suicide is another issue that can be highly emotional. There are deep and valid concerns on both sides of this life and death debate. But I found myself wondering, “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 their life early will help health insurance companies save a bundle on what would have been ongoing medical treatment? How much would the government gain if it stopped paying social security, Medicare, or Medicaid on thousands of people a few months early? How much financial relief would pension systems see? Why was the proposed law to legalize assisted suicide [SB 220] written so loosely? Would vulnerable old people be encouraged to end their life 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.
Public issues are not easy, and they are not always about money. But often times they are. If we want fair and functional government, we need to look deeper than most people are willing to look.. . .
* * *
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. Senator Fielder lives in Thompson Falls MT, representing Montana State Senate District 7.
Sunday, June 2, 2013
Maine House Says No to Physician-Assisted Suicide (95-43)
http://bangordailynews.com/2013/05/31/politics/maine-house-says-no-to-physician-assisted-suicide-law/print/
http://bangordailynews.com/2013/05/31/politics/maine-house-says-no-to-physician-assisted-suicide-law/ printed on June 2, 2013
Posted May 31, 2013, at 3 p.m.
AUGUSTA, Maine — The Maine House on Friday rejected a bill that
would allow terminally ill patients to order lethal doses of medication
from their doctors. The bill also would free doctors from legal
liability for helping to end a consenting patient’s life.
House members voted 95-43 against the measure, which is sponsored by Rep. Joseph Brooks, an independent from Winterport. The bill next heads to the Senate.
Brooks’ bill, LD 1065, would allow a patient and his or her doctor to sign companion end-of-life care agreements. Those agreements would be signed after the two have discussed the patient’s medical condition and treatment options and the patient has rejected life-extending treatments and agreed to accept “care that is ordered or delivered by the physician that may hasten or bring about the patient’s death.”
The bill also would free doctors from criminal liability or the possibility of professional discipline for helping a consenting patient end his or her life.
The vote followed an emotional debate on the House floor in which lawmakers described their experiences caring for parents and friends as their lives ended.
Brooks said ill patients should be able to decide to end their lives when they can die in dignity.
“Dignity was important to this mill laborer,” he said of his father. “Had he been aware that he was lying in a hospital bed in the living room of his home not in control of anything, he would have probably said, ‘Please help me with this.’”
“How many of us have lost or seen others lose loved ones who linger painfully and unnecessarily for long periods?” asked Rep. Roberta Beavers, D-South Berwick. “We treat ill pets more humanely than we treat ill parents.”
But in letting doctors administer lethal doses of medication, the assisted-suicide bill would go too far, said Rep. Ann Dorney, D-Norridgewock. End-of-life care has changed for the better in recent years, said Dorney, a physician.
“We have very good end-of-life care. We have very good hospice care. We have very good palliative care,” she said. “I guess I’m not sure we need this bill.”
Dorney also worried about the prospect of a guardian who makes medical decisions for a patient making the decision to end that patient’s life.
Rep. Deborah Sanderson, R-Chelsea, said she wouldn’t want to rob a patient of a natural end to life.
“I sat with my mom the last five days of her life. I slept in a wheelchair by her bed,” Sanderson said. “The night before my mother passed, my mother said, ‘It’s not like what I thought it would be.’ She said, ‘It’s peaceful.’ And I was very glad to hear that.”
The Maine House’s rejection of the physician-assisted suicide legislation came more than a week after Vermont Gov. Peter Shumlin signed a similar measure into law in that state. Vermont’s law was the first in the nation to be approved through the legislative process.
Physician-assisted suicide measures on the books in Oregon and Washington passed through public votes.
In Maine, voters rejected a physician-assisted suicide ballot measure in 1990.
House members voted 95-43 against the measure, which is sponsored by Rep. Joseph Brooks, an independent from Winterport. The bill next heads to the Senate.
Brooks’ bill, LD 1065, would allow a patient and his or her doctor to sign companion end-of-life care agreements. Those agreements would be signed after the two have discussed the patient’s medical condition and treatment options and the patient has rejected life-extending treatments and agreed to accept “care that is ordered or delivered by the physician that may hasten or bring about the patient’s death.”
The bill also would free doctors from criminal liability or the possibility of professional discipline for helping a consenting patient end his or her life.
The vote followed an emotional debate on the House floor in which lawmakers described their experiences caring for parents and friends as their lives ended.
Brooks said ill patients should be able to decide to end their lives when they can die in dignity.
“Dignity was important to this mill laborer,” he said of his father. “Had he been aware that he was lying in a hospital bed in the living room of his home not in control of anything, he would have probably said, ‘Please help me with this.’”
“How many of us have lost or seen others lose loved ones who linger painfully and unnecessarily for long periods?” asked Rep. Roberta Beavers, D-South Berwick. “We treat ill pets more humanely than we treat ill parents.”
But in letting doctors administer lethal doses of medication, the assisted-suicide bill would go too far, said Rep. Ann Dorney, D-Norridgewock. End-of-life care has changed for the better in recent years, said Dorney, a physician.
“We have very good end-of-life care. We have very good hospice care. We have very good palliative care,” she said. “I guess I’m not sure we need this bill.”
Dorney also worried about the prospect of a guardian who makes medical decisions for a patient making the decision to end that patient’s life.
Rep. Deborah Sanderson, R-Chelsea, said she wouldn’t want to rob a patient of a natural end to life.
“I sat with my mom the last five days of her life. I slept in a wheelchair by her bed,” Sanderson said. “The night before my mother passed, my mother said, ‘It’s not like what I thought it would be.’ She said, ‘It’s peaceful.’ And I was very glad to hear that.”
The Maine House’s rejection of the physician-assisted suicide legislation came more than a week after Vermont Gov. Peter Shumlin signed a similar measure into law in that state. Vermont’s law was the first in the nation to be approved through the legislative process.
Physician-assisted suicide measures on the books in Oregon and Washington passed through public votes.
In Maine, voters rejected a physician-assisted suicide ballot measure in 1990.
Tuesday, May 21, 2013
Vermont: Jackowski: Assisted suicide is not the answer
http://vtdigger.org/2013/05/20/jackowski-assisted-suicide-is-not-the-answer/
Posted By Opinion On May 20, 2013 @ 11:00 pm
Posted By Opinion On May 20, 2013 @ 11:00 pm
Editor’s note: This op-ed is by
Rosemarie Jackowski, an advocacy journalist and peace activist who is
the author of “Banned in Vermont.”
The “assisted suicide bill” does exactly what it is designed not to do. It will eliminate choice for the most vulnerable. Unintended consequences are sure to follow. We need more, not fewer rights. Government-approved suicide as an end-of-life option does not give more rights — in reality it takes them away.
Some legislators promise “safeguards.” There are no safeguards that can ensure that there will not be abuse. Some of the most vulnerable will be pressured to end it all for the convenience and sometimes for the financial benefit of others. Patients will be unduly influenced into giving in to family members. Many elderly/disabled have loving supportive families. It is those who do not who are at the highest risk. There is no way that abuse can be prevented. Imagine being isolated with caregivers — Stockholm syndrome.
The assisted suicide law will deprive many of choice. Recent history shows that more than 300 cases of reported abuse of the disabled/elderly have been ignored by the state. This is evidence that the state cannot protect the vulnerable. The assisted suicide law will add another layer of risk. It will make things worse.
The “assisted suicide bill” does exactly what it is designed not to do. It will eliminate choice for the most vulnerable. Unintended consequences are sure to follow. We need more, not fewer rights. Government-approved suicide as an end-of-life option does not give more rights — in reality it takes them away.
Some legislators promise “safeguards.” There are no safeguards that can ensure that there will not be abuse. Some of the most vulnerable will be pressured to end it all for the convenience and sometimes for the financial benefit of others. Patients will be unduly influenced into giving in to family members. Many elderly/disabled have loving supportive families. It is those who do not who are at the highest risk. There is no way that abuse can be prevented. Imagine being isolated with caregivers — Stockholm syndrome.
The assisted suicide law will deprive many of choice. Recent history shows that more than 300 cases of reported abuse of the disabled/elderly have been ignored by the state. This is evidence that the state cannot protect the vulnerable. The assisted suicide law will add another layer of risk. It will make things worse.
Saturday, May 18, 2013
Not what Vermont needs
http://www.timesargus.com/apps/pbcs.dll/article?AID=/20130517/OPINION02/705179982?template=printart
May 17, 2013
By Rep. Anne Donahue
Wake up, Dorothy. You’re not in Oregon anymore.
The final week of the political path to death with dignity in Vermont was a reminder of how a cadre of politicians can want something so desperately that they push it through even if abandoning key promises.
For months — no, for years — Vermonters have been told that Oregon’s experience of physician-assisted suicide has demonstrated that extending this compassionate option to persons who want it comes at no risk to the vulnerable.
The mantra has been Oregon. Oregon protections. Oregon data. Everything has worked flawlessly in Oregon, so if we follow the exact model as Oregon, we can ignore the fears of the naysayers.
When the Senate was short one vote in February to pass the Oregon model, it sent a narrow bill to the House that focused instead on independent actions of a patient rather than on prescriptions for intentionally lethal medication. It was roundly criticized for lacking the protections of the Oregon bill.
The House restored the Oregon, active-prescription version. Proponents were emphatic on the House floor that it was because every one of the Oregon protections were locked into place that members could be assured there could be no coercion, no errors in diagnosis, and no one making the choice lacking full informed consent.
When it pingponged back, the Senate still couldn’t muster the votes to pass it. So a few backers patched and pasted an assorted set of new and old language together directed exclusively at gaining the one extra vote needed.
Gone were both the Oregon model and any model that left the doctor out of the role of prescribing lethal drugs. Enter the land of political Oz.
Sen. Claire Ayer, who had been the most vigorous in attacking what the Senate had passed via a floor amendment in February, now pressed for the new hybrid, though acknowledging that it was drafted “on the fly.”
Eradicated by the Senate were fully 29 separate protective provisions that the House had required in its Oregon version, some of them small, some of them huge. Among the huge ones:
— There is no longer any written informed consent required.
— A guardian or an agent for an advance directive is no longer barred from taking the place of a direct patient request.
— There is no longer any requirement that the patient actually be able to “self-administer.”
— There is no longer a second opinion required to assess whether a patient has the rational judgment capacity to make an informed decision.
— There are no requirements for follow-up by the Department of Health. The required review of patient files is gone. The requirement to collect statistical data and publish annual reports is gone.
This last is particularly ironic, because it has been the patient information and report data from Oregon that has been the basis for assuring Vermonters that all is well in Oregon.
The new Vermont bill sunsets even the “Oregon-lite” approach in 2016, then eliminates all remaining structural protections. But there isn’t any data being required to assess how the process works in those first three years.
Despite all this, House members who wanted to see a bill pass stuck by what they had so strongly criticized before: a bill that no longer maintained many of the long-promised protections. Only a few looked twice and voted against accepting what the Senate had done. The winning vote margin dropped from 17 to 10.
Our radical new social policy that endorses having doctors write prescriptions that will kill their patients, cobbled together by just a few individuals from bits and pieces of language drafted on the fly, was passed by two votes in the Senate and 10 votes in the House.
But no, Dorothy. We’re no longer in Oregon.
Rep. Anne Donahue, a Republican from Northfield, is a member of the House Human Services Committee, which passed the Oregon-style bill on a 7-4 vote in April. She was an opponent.
May 17, 2013
By Rep. Anne Donahue
Wake up, Dorothy. You’re not in Oregon anymore.
The final week of the political path to death with dignity in Vermont was a reminder of how a cadre of politicians can want something so desperately that they push it through even if abandoning key promises.
For months — no, for years — Vermonters have been told that Oregon’s experience of physician-assisted suicide has demonstrated that extending this compassionate option to persons who want it comes at no risk to the vulnerable.
The mantra has been Oregon. Oregon protections. Oregon data. Everything has worked flawlessly in Oregon, so if we follow the exact model as Oregon, we can ignore the fears of the naysayers.
When the Senate was short one vote in February to pass the Oregon model, it sent a narrow bill to the House that focused instead on independent actions of a patient rather than on prescriptions for intentionally lethal medication. It was roundly criticized for lacking the protections of the Oregon bill.
The House restored the Oregon, active-prescription version. Proponents were emphatic on the House floor that it was because every one of the Oregon protections were locked into place that members could be assured there could be no coercion, no errors in diagnosis, and no one making the choice lacking full informed consent.
When it pingponged back, the Senate still couldn’t muster the votes to pass it. So a few backers patched and pasted an assorted set of new and old language together directed exclusively at gaining the one extra vote needed.
Gone were both the Oregon model and any model that left the doctor out of the role of prescribing lethal drugs. Enter the land of political Oz.
Sen. Claire Ayer, who had been the most vigorous in attacking what the Senate had passed via a floor amendment in February, now pressed for the new hybrid, though acknowledging that it was drafted “on the fly.”
Eradicated by the Senate were fully 29 separate protective provisions that the House had required in its Oregon version, some of them small, some of them huge. Among the huge ones:
— There is no longer any written informed consent required.
— A guardian or an agent for an advance directive is no longer barred from taking the place of a direct patient request.
— There is no longer any requirement that the patient actually be able to “self-administer.”
— There is no longer a second opinion required to assess whether a patient has the rational judgment capacity to make an informed decision.
— There are no requirements for follow-up by the Department of Health. The required review of patient files is gone. The requirement to collect statistical data and publish annual reports is gone.
This last is particularly ironic, because it has been the patient information and report data from Oregon that has been the basis for assuring Vermonters that all is well in Oregon.
The new Vermont bill sunsets even the “Oregon-lite” approach in 2016, then eliminates all remaining structural protections. But there isn’t any data being required to assess how the process works in those first three years.
Despite all this, House members who wanted to see a bill pass stuck by what they had so strongly criticized before: a bill that no longer maintained many of the long-promised protections. Only a few looked twice and voted against accepting what the Senate had done. The winning vote margin dropped from 17 to 10.
Our radical new social policy that endorses having doctors write prescriptions that will kill their patients, cobbled together by just a few individuals from bits and pieces of language drafted on the fly, was passed by two votes in the Senate and 10 votes in the House.
But no, Dorothy. We’re no longer in Oregon.
Rep. Anne Donahue, a Republican from Northfield, is a member of the House Human Services Committee, which passed the Oregon-style bill on a 7-4 vote in April. She was an opponent.
Tuesday, May 14, 2013
Vermont: House Passes Irresponsible Assisted Suicide Law
By Margaret Dore, Esq.
A. Introduction
Yesterday, the Vermont House passed S.77, which if signed by the Governor, will create new legal paths of abuse and exploitation against persons who fall within its terms. This article focuses on two of those paths.
B. Abuse and Exploitation in the United States
Met Life Mature Market Institute has issued two landmark studies on elder abuse in the United States. In the first study, from 2009, the estimated annual financial loss by victims was $2.6 billion.[1] In the second study, from 2011, the estimated annual loss was increased to $2.9 billion.[2] Again, these are yearly figures.
The Met Life studies also describe how financial abuse can be a catalyst for other types of abuse. These are three examples from the second report:
- Two elderly women were beaten to death with a crowbar by their trusted handyman. He took and pawned all of their valuables.
- A 74-year-old man was stomped to death during a home invasion burglary.
- A son and his two friends extracted money from his dying mother by threatening to burn down her home and throw her dog against a wall.[3]
Abuse and exploitation are not limited to the elderly. Last year, a 46 year old lottery winner died the day after receiving his winnings.[4] The cause of death was found to be cyanide poisoning.[5]
C. S.77
1. Patients may have years to live
S.77 legalizes physician-assisted suicide, which means that a doctor writes a prescription for a lethal dose of medication for the purpose of a patient's committing suicide.[6] Under S.77, the patient is required to have a "terminal condition," defined as having a medical prediction of less that six months to live.[7] Such patients are not necessarily dying and can 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.[8]
2. How S.77 works
Under S.77, there is a formal application process to obtain a lethal dose.[9] S.77 also requires that in 2016, that this formal process be replaced with a streamlined procedure with these five requirements:
Also, when applying for the lethal dose, patients may be requesting it "just in case." i.e., without a definite intent to take it.[11]
Once the lethal dose is picked up at the pharmacy, there is no oversight.[12] The death is not required to be witnessed.[13] Indeed, no one is required to be present.[14]
D. New Paths of Abuse
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 patient's death, to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?
2. An expansion of scope
Under the streamlined procedure scheduled to come into effect in 2016, the scope of S.77 will be expanded to patients who have no intention of engaging in assisted suicide. As described below, patients prescribed medication for the purpose of cure or treatment will be at risk of being killed under S.77.
Consider this scenario in which all five requirements of the streamlined procedure are met:
The patient is a competent woman with cancer. Without surgery, she is terminal as defined in S.77 (she is expected to die in less than six months). But, with surgery, her prospects are good. As part of informed consent, the doctor informs her about the risks of the surgery and end of life services including palliative care, comfort care, hospice care, and pain control.
With the stress of her situation, the woman has been experiencing insomnia, for which the doctor prescribes Pentobarbital (nembutal).[15] If taken in excess, Pentobarbital may be lethal.[16]. He prescribes a month's supply and advises the woman of the foreseeable risks. She obtains the prescription but doesn't take any. The bottle with the unused prescription is in her home. She is scheduled for surgery in a few days. She has no intention of killing herself. The doctor has no intention of her killing herself.
A family member, interested in an inheritance, tricks the woman into drinking the pentobarbital mixed with water by saying that it's another medication - say for sinus congestion.[17]
He leaves. She dies.
The situation looks like a suicide.
If it comes out later that the family member was present when the woman "self-administered" the drug, he's immune from liability. This is because S.77 states:
- "[N]o person shall be subject to civil or criminal liability solely for being present when a patient with a terminal condition self-administers a lethal dose of medication or for not acting to prevent the patient from self-administering a lethal dose of medication."[18]
E. Conclusion
S.77, as passed by the House for the Governor's signature, is a dangerous and irresponsible bill, in which there is no oversight over administration of the lethal dose such that it can be administered without the patient's consent. Once the streamlined procedure goes into effect, patients engaged in drug treatments will also be unwittingly under its scope. Their doctors and the medical profession will also be compromised. Even if you are for assisted suicide, not this bill.
Footnotes
[1] The MetLife Study: "Broken Trust: Elders, Family and Finances, " 2009, available at https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf
[2] "The MetLife Study of Elder Financial Abuse: Crimes of Occasion, Desperation, and Predation Against America's Elders," 2011, available at https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf
[3] Id., page 17.
[4] Associated Press, "Urooj Khan Update: Widow, siblings of poisoned Chicago lottery winner battle over estate, documents say," available at http://www.cbsnews.com/2102-504083_162-57563293.html
[5] Id.
[6] Cf. 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
[7] A copy of S.77, "An act relating to patient choice and control at end of life," as passed by the Senate and the House, can be viewed here: http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf The definition of "terminal condition" is in § 5281(a)(10)("Terminal condition" means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months).
[8] 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
[9] In S.77, the formal application process is contained in § 5283, Requirements for Prescription and Documentation, available at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[10] S.77, Sec. 2, Repeal (stating that 5283 will be repealed on July 1, 2016). See also S.77, Sec. 3 (providing that § § 5289 and 5290 will take effect on July 1, 2016)
[11] I have had two cases in which my client's parent signed up for the lethal dose. In both cases, the parents did not have a set wish to take the lethal dose. They signed up "just in case."
[12] See S.77 in its entirety, at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[13] Id.
[14] Id.
[15] See http://www.drugs.com/mtm/pentobarbital.html
[16] Id.
[17] Pentobarbital is water and alcohol soluble so that it could be put in a cold medicine solution. See http://www.drugs.com/pro/nembutal.html
[18] S.77 § 5284
[1] The MetLife Study: "Broken Trust: Elders, Family and Finances, " 2009, available at https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf
[2] "The MetLife Study of Elder Financial Abuse: Crimes of Occasion, Desperation, and Predation Against America's Elders," 2011, available at https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf
[3] Id., page 17.
[4] Associated Press, "Urooj Khan Update: Widow, siblings of poisoned Chicago lottery winner battle over estate, documents say," available at http://www.cbsnews.com/2102-504083_162-57563293.html
[5] Id.
[6] Cf. 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
[7] A copy of S.77, "An act relating to patient choice and control at end of life," as passed by the Senate and the House, can be viewed here: http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf The definition of "terminal condition" is in § 5281(a)(10)("Terminal condition" means an incurable and irreversible disease which would, within reasonable medical judgment, result in death within six months).
[8] 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
[9] In S.77, the formal application process is contained in § 5283, Requirements for Prescription and Documentation, available at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[10] S.77, Sec. 2, Repeal (stating that 5283 will be repealed on July 1, 2016). See also S.77, Sec. 3 (providing that § § 5289 and 5290 will take effect on July 1, 2016)
[11] I have had two cases in which my client's parent signed up for the lethal dose. In both cases, the parents did not have a set wish to take the lethal dose. They signed up "just in case."
[12] See S.77 in its entirety, at http://choiceisanillusion.files.wordpress.com/2013/05/s-77-senate-version-as-of-05-08-13.pdf and http://choiceisanillusion.files.wordpress.com/2013/05/s-77-house-final-version-05-13-13.pdf
[13] Id.
[14] Id.
[15] See http://www.drugs.com/mtm/pentobarbital.html
[16] Id.
[17] Pentobarbital is water and alcohol soluble so that it could be put in a cold medicine solution. See http://www.drugs.com/pro/nembutal.html
[18] S.77 § 5284
Saturday, May 11, 2013
Man given incorrect death diagnosis of six months to live by VA doctor awarded $59,000
http://helenair.com/news/local/crime-and-courts/man-given-incorrect-death-diagnosis-by-va-doctor-awarded/article_647c5fae-b833-11e2-86ce-0019bb2963f4.html
A man who thought he would be dead within six months after
being incorrectly diagnosed with brain cancer at the Fort Harrison VA
Medical Center has been awarded $59,820 for the grief and stress it
caused him and his family.
In documents filed this week, U.S. District Court Judge Donald Molloy wrote that Mark Templin and his family’s distress was caused by Dr. Patrick Morrow’s “negligent failure to meet the standard of care” while Templin was a patient of Morrow’s at the VA.
“It is difficult to put a price tag on the anguish of a man wrongly convinced of his impending death,” Molloy wrote. “Mr. Templin lived for 148 days … under the mistaken impression that he was dying of metastatic brain cancer.”
Molloy noted that at one point, Templin considered suicide so that his family wouldn’t have to watch him wither away.
The case began on Jan. 28, 2009, when Templin arrived at the VA northwest of Helena complaining of acute chest pain. He had a stent inserted and appeared to be recovering well, but a week later he developed problems with his memory, vision and speech, and was having headaches.
Morrow, an internist at the VA, referred Templin to an ophthalmologist, who suspected Templin had suffered a stroke and recommended a CT scan, which was administered. The scan showed brain abnormalities, which Morrow discussed with a neuroradiologist, who told him Templin could be suffering from a variety of diagnoses, including a brain tumor or a stroke.
The neuroradiologist added that further diagnostic testing was needed be more definitive. However, later that day, Morrow met with the VA’s tumor board and presented the case as a strong suspicion of brain cancer, but apparently didn’t mention that it could have been a stroke, according to court documents.
Morrow testified that he told Templin and his family that his “greatest fear” was brain cancer and that further diagnostics were needed, and that he advised Templin to undergo an MRI.
However, Molloy wrote that there was no indication in Templin’s medical records that Morrow suggested any further diagnostic workup and that Templin and his family understood that he had brain cancer and was expected to die within six months.
Molloy wrote that one of Templin’s daughters asked Morrow how her father would die and “he explained one of the tumors would grow ‘like cauliflower’ and Templin would die from a brain bleed.”
They talked about cancer treatment, but after learning that it would only ease his pain and not cure him, Templin decided that he didn’t want to sacrifice the “quality of his life for any potential increase in quantity,” according to court documents.
Templin was prescribed two drugs used to treat brain cancer, one of which is not supposed to be given to stroke patients. He also was ordered hospice care, which is for terminally ill patients not expected to live longer than six months.
He sold his truck, quit his job and put his affairs in order, which included prominently displaying a “Do Not Resuscitate” notice on his refrigerator so any emergency medical responders would let him die. His family held a “last birthday” dinner from him and he arranged and paid for his funeral service. His son-in-law made a wooden box for his ashes.
Molloy wrote that after Templin’s discharge in February 2009, hospice records say he was “very depressed and preoccupied with his diagnosis.” Templin testified at a recent court hearing that he cried often and considered shooting himself to spare his family from going through the pain and distress associated with his diagnosed terminal illness.
“While under the impression that he was afflicted with metastatic brain cancer, Mr. Templin wondered each day whether it would be his last,” Molloy wrote.
Yet he started feeling better, and in June he terminated hospice care. In July, he underwent additional testing at Fort Harrison, and this time a doctor told him the CT scan showed multiple small strokes, but no brain cancer. An MRI in December 2009 confirmed that it was a stroke, not brain cancer, that caused his symptoms earlier in the year.
Molloy wrote that Faust Alvarez, the chief of staff at the VA at the time, sent Templin a letter confirming that he suffered a stroke, not brain cancer, although Faust later testified that the statements weren’t an admission of fault or that the diagnosis was faulty.
“Dr. Alvarez’s testimony regarding investigation and fault is not credible,” Molloy added. “The letter intended to communicate and actually did communicate an acceptance of fault by Fort Harrison VA Medical Center for the misdiagnosis of Mark Templin.”
Molloy decided to award $500 per day for the initial period of severe mental and emotional distress from Feb. 4, 2009 to April 15, 2009, and $300 per day for the latter period until his new diagnosis. He also ordered the VA to repay Templin for the cost of his “last” birthday celebration and for the prearranged funeral service.
Assistant U.S. Attorney Jessica Fehr, with the U.S. Attorney’s Office in Billings, which represents the VA, said they have 30 days to decide whether to file an appeal and hadn’t made a decision yet on whether to do so.
Reporter Eve Byron: 447-4076 or eve.byron@helenair.com Follow Eve on Twitter @IR_EveByron
May 09, 2013 12:00 am •
In documents filed this week, U.S. District Court Judge Donald Molloy wrote that Mark Templin and his family’s distress was caused by Dr. Patrick Morrow’s “negligent failure to meet the standard of care” while Templin was a patient of Morrow’s at the VA.
“It is difficult to put a price tag on the anguish of a man wrongly convinced of his impending death,” Molloy wrote. “Mr. Templin lived for 148 days … under the mistaken impression that he was dying of metastatic brain cancer.”
Molloy noted that at one point, Templin considered suicide so that his family wouldn’t have to watch him wither away.
The case began on Jan. 28, 2009, when Templin arrived at the VA northwest of Helena complaining of acute chest pain. He had a stent inserted and appeared to be recovering well, but a week later he developed problems with his memory, vision and speech, and was having headaches.
Morrow, an internist at the VA, referred Templin to an ophthalmologist, who suspected Templin had suffered a stroke and recommended a CT scan, which was administered. The scan showed brain abnormalities, which Morrow discussed with a neuroradiologist, who told him Templin could be suffering from a variety of diagnoses, including a brain tumor or a stroke.
The neuroradiologist added that further diagnostic testing was needed be more definitive. However, later that day, Morrow met with the VA’s tumor board and presented the case as a strong suspicion of brain cancer, but apparently didn’t mention that it could have been a stroke, according to court documents.
Morrow testified that he told Templin and his family that his “greatest fear” was brain cancer and that further diagnostics were needed, and that he advised Templin to undergo an MRI.
However, Molloy wrote that there was no indication in Templin’s medical records that Morrow suggested any further diagnostic workup and that Templin and his family understood that he had brain cancer and was expected to die within six months.
Molloy wrote that one of Templin’s daughters asked Morrow how her father would die and “he explained one of the tumors would grow ‘like cauliflower’ and Templin would die from a brain bleed.”
They talked about cancer treatment, but after learning that it would only ease his pain and not cure him, Templin decided that he didn’t want to sacrifice the “quality of his life for any potential increase in quantity,” according to court documents.
Templin was prescribed two drugs used to treat brain cancer, one of which is not supposed to be given to stroke patients. He also was ordered hospice care, which is for terminally ill patients not expected to live longer than six months.
He sold his truck, quit his job and put his affairs in order, which included prominently displaying a “Do Not Resuscitate” notice on his refrigerator so any emergency medical responders would let him die. His family held a “last birthday” dinner from him and he arranged and paid for his funeral service. His son-in-law made a wooden box for his ashes.
Molloy wrote that after Templin’s discharge in February 2009, hospice records say he was “very depressed and preoccupied with his diagnosis.” Templin testified at a recent court hearing that he cried often and considered shooting himself to spare his family from going through the pain and distress associated with his diagnosed terminal illness.
“While under the impression that he was afflicted with metastatic brain cancer, Mr. Templin wondered each day whether it would be his last,” Molloy wrote.
Yet he started feeling better, and in June he terminated hospice care. In July, he underwent additional testing at Fort Harrison, and this time a doctor told him the CT scan showed multiple small strokes, but no brain cancer. An MRI in December 2009 confirmed that it was a stroke, not brain cancer, that caused his symptoms earlier in the year.
Molloy wrote that Faust Alvarez, the chief of staff at the VA at the time, sent Templin a letter confirming that he suffered a stroke, not brain cancer, although Faust later testified that the statements weren’t an admission of fault or that the diagnosis was faulty.
“Dr. Alvarez’s testimony regarding investigation and fault is not credible,” Molloy added. “The letter intended to communicate and actually did communicate an acceptance of fault by Fort Harrison VA Medical Center for the misdiagnosis of Mark Templin.”
Molloy decided to award $500 per day for the initial period of severe mental and emotional distress from Feb. 4, 2009 to April 15, 2009, and $300 per day for the latter period until his new diagnosis. He also ordered the VA to repay Templin for the cost of his “last” birthday celebration and for the prearranged funeral service.
Assistant U.S. Attorney Jessica Fehr, with the U.S. Attorney’s Office in Billings, which represents the VA, said they have 30 days to decide whether to file an appeal and hadn’t made a decision yet on whether to do so.
Reporter Eve Byron: 447-4076 or eve.byron@helenair.com Follow Eve on Twitter @IR_EveByron
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.
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
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.
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
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
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