Montanans Against Assisted Suicide Pushes Legal Challenge Forward

By Margaret Dore

July 6, 2012, Montanans Against Assisted Suicide (MAAS) filed documents with the Montana Medical Examiner Board for the purpose of vacating Position Statement No. 20, titled "Physician Aid in Dying."  The documents filed included: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law," which states: 

"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued.  Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or  predators.  With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."

To view the above document in its entirety, read the text below or click here to read the hard copy filed with the Board.  Other documents filed with the Board included a cover letter and a proposed order. 

The Text: 

1.  On March 16, 2012, the Board adopted a revised version of  Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]

2.  The term, “aid in dying,” means assisted suicide and euthanasia.[2]

3.  On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.”  Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]

4.  Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4]  In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5] 

5.  In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]

6.  The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7]  These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8]  These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.

7.  Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board.  With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.”  Position Statement 20 is null and void.

8.  The Board’s lack of authority is a lack of subject matter jurisdiction and requires Position Statement No. 20 to be vacated to the extent that it purports to legalize “aid in dying” and/or refers to “aid in dying” as an “end-of-life” matter.

9.  Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]

10.  Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment.  § 2-4-302(4), MCA  states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shallschedule an oral hearing.”  (Emphasis added).  A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.”  In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11]  The Board knew of “widespread citizen interest” as a matter of law.  The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public.  For this reason also, the statement is null and void.  

11. Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.”  This is the function of the Legislature, not the Board.  Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).

12.  Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued.  Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or  predators.  With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).

13.  For the above reasons, Position Statement No. 20 is null and void as a matter of law.  It must be vacated and removed from the Board’s website." 

* * *

[1]  The revised statement [titled Physician Aid in Dying] says: "The Montana Board of Medical Examiners has been asked if it will discipline physicians for participating in  aid-in-dying.  This statement reflects the Board’s position on this controversial question. [paragraph break] The Board recognizes that its mission is to protect the citizens of Montana against the unprofessional, improper, unauthorized and unqualified practice of medicine by ensuring that its licensees are competent professionals.  37-3-101, MCA.  In all matters of medical practice, including end-of-life matters, physicians are held to professional standards.  If the Board receives a complaint related to physician aid-in-dying, it will evaluate the complaint on its individual merits and will consider, as it would any other medical procedure or intervention, whether the physician engaged in unprofessional conduct as defined by the Board’s laws and rules pertinent to the Board."  [To view the statement of the Board's website, click here.] 
[2]  Model Aid-in-Dying Act, § 1-102(3), atwww.uiowa.edu/~sfklaw/euthan.html  Note the letters “euthan” in the link. 
[3]  See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available athttp://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), athttp://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available athttp://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.
[4]  Id.
[5]  See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”).  (Attached hereto at B-1 to B-3). [To view, click here]
[6] See Detailed bill information page, attached hereto at B-4. [To view, click here]
[7]  For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10.  A copy of the Act and other statutes are attached thereto at A-1 through A-28
[8]  Id.
[9]  See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above]
[10]  § 2-4-102(12)(a). 
[11]  Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45.  [To view citations, use links at note 7, above]

False & Misleading "Aid in dying" Letter

Below, a letter to physicians responding to a prior "false and misleading" letter claiming that assisted suicide is legal in Montana. To see a hard copy of this letter as sent, click here.


Dear Physician:


I represent Montanans Against Assisted Suicide & For Living with Dignity.  You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012.  The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009.  This is untrue.  I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.

"Especially if older people have money or real estate, our laws against assisted suicide are there to protect them"

http://www.abbotsfordtimes.com/news/Assisted+suicide+answer/6840769/story.html

Editor, the Times:

Assisted suicide should not be legal because older people are at great risk for abuse. In my experience as a licensed practical nurse working with older people in home care, I have come across many concerning situations.  I have seen firsthand a family fighting over the will of their parents while they are still alive.


I see that this greatly affects the way the parent feels as they grow older.  They feel as if the family wants them to die so they can have their money.  Some express the pain that they feel when they see loved ones discussing their money as if they have already passed away.


If assisted suicide was legal, some older people would feel the need to say yes - to die - because they are given the message that they are a burden to their family. Some of these older people can be easily convinced and put their trust fully in their caregivers and families.


If assisted suicide were legal, then some would really not make the decision, but let someone else make the decision for them. How is this right?  


Especially if older people have money or real estate, our laws against assisted suicide are there to protect them.


Changing the law to allow assisted suicide would violate their right to be protected in this way.


Arlena Vane Aldergrove

Canada, Carter & Outrage!

"Canada will be known as the country where a Provincial Judge has more power than the Federal Government. "

* * *

Dear Ms. Kerry-Lynne Findlay MP,

I am angry and upset about Justice Lynn Smith's decision in the Carter case, giving Ms. Carter the "right" to assisted suicide/euthanasia. 

This erroneous and presumptuous decision by Justice Smith is a guarantee of elder abuse unto death. We already have a problem with elder abuse in Canada. I witnessed this firsthand with my mother, when, after a mild stroke, the relative holding power of attorney decided my mother would have no treatment. I sat by my mother's bedside in a Nova Scotia nursing home, unable to do anything except hold her hand while she suffered for six days, before finally succumbing to dehydration and starvation. If Justice Smith's decision is allowed to stand, there will be no need for inconvenienced or greedy relatives to wait for even this questionable medical procedure of withholding treatment.

It appears that Justice Smith holds herself above the Government of Canada. She has given our elected representatives, such as yourself, a year to comply with her decision to allow people to "help" kill other Canadians. This is the right to commit homicide. The Federal Government of Canada decided many years ago that Canada would not kill convicted murderers, even if they want to die, but now Justice Smith had deemed that anyone in Canada can kill another person who allegedly asks to be killed. 

MP Findlay, the "right" to kill someone is not a decision for a Provincial Court Justice to make. If Justice Smith's decision is upheld, Canada will be a place of supreme irony. We will have the distinction of protecting the lives of convicted murders, while allowing our vulnerable elders and others to be subject to human error or deliberate murder. We will also be, I believe, unique as a nation: Canada will be known as the country where a Provincial Judge has more power than the Federal Government. 

I look forward to your response on this matter.

Thank you.

Yours truly,

Kate Kelly, B.A., B. Ed.

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.