A number of the points made by you are incisive and helpful. I found your interpretation of section 27 of the Constitution particularly useful.... The argument will, amongst others, find its way into the final legal argument before the High Court, and the courts that follow.
Oregon’s Death with Dignity Act was passed by a citizens initiative in 1994 and went into effect in 1997. The Act was promoted as limited to physician-assisted suicide, with euthanasia prohibited. The Act, in fact, allows both practices, including on an involuntary basis.
The Act applies to persons aged 18 and up, predicted to have less than six months to live due to a terminal disease. In practice, such persons may have years or decades to live.
The Act employs euphemistic language. Consider the word, “medication,” normally meaning a substance to cure or treat a disease or condition. Per the Act, medication instead means a lethal dose to end a person’s life (kill the patient).
A. Physician-Assisted Suicide; Assisted Suicide and Euthanasia
The Act does not define physician-assisted suicide, assisted suicide or euthanasia. Per the American Medical Association, physician-assisted suicide occurs 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.” For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.Assisted suicide is a general term in which the assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent by another person. Euthanasia is also known as mercy killing.
B. Withholding or Withdrawing Treatment
Withholding or withdrawing treatment (“pulling the plug”) is not euthanasia if the purpose is to remove burdensome treatment, as opposed to an intent to kill the individual. More importantly, the individual will not necessarily die. Consider this quote regarding a man removed from a ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.III. FACTUAL AND LEGAL BACKGROUND
A. Assisting Persons Can Have an Agenda
Persons assisting a suicide or euthanasia can have an agenda. Consider Tammy Sawyer, trustee for Thomas Middleton in Oregon. Two days after his death by legal assisted suicide, she sold his home and deposited the proceeds into bank accounts for her own benefit. Consider also Graham Morant, convicted of counselling his wife to kill herself in Australia, to get the life insurance. The Court found:
[Y]ou counselled and aided your wife to kill herself because you wanted ... the 1.4 million.Medical professionals too can have an agenda. For an example closer to home, consider US physician, Mike Swango, who worked at the Mnene Lutheran Mission in Zimbabwe. He allegedly poisoned patients to get a thrill. He was eventually convicted of killing four patients in the US. Consider also Harold Shipman, a doctor in the UK, who not only killed his patients, but stole from them and in one case made himself a beneficiary of the patient’s will.
B. Most US States Reject Assisted Suicide and Euthanasia
In the US, 42 states do not allow assisted suicide and/or euthanasia. In 2016, the New Mexico Supreme Court overturned a lower court decision allowing physician aid in dying (meaning physician-assisted suicide). In the last ten years, nine states have strengthened their laws against assisted suicide and/or euthanasia.
C. The Swiss Study: Physician-Assisted Suicide Can Be Traumatic for Family Members
A European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland. The study found that one out of five family members or friends present at an assisted suicide was traumatized. These people,
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.IV. OREGON’S ACT APPLIES TO PEOPLE WITH YEARS OR DECADES TO LIVE
A. Chronic Conditions Can Be Sufficient for Death Via the Act
Oregon’s Act applies to people with a “terminal disease,” which is defined in terms of having less than six months to live. The Act states:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. (Emphasis added).In practice, this definition applies to people with chronic conditions such as diabetes, who are dependent on medication such as insulin to live. Oregon doctor, William Toffler, explains:
In Oregon, people with chronic conditions are "terminal," if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old will live less than a month without insulin. (Emphasis added).Dr. Toffler adds:
Such persons, with insulin, are likely to have decades to live. (Emphasis added).B. Doctor Predictions of Life Expectancy Can Be Wrong
Eligible persons may also have years or decades to live because predictions of life expectancy can be wrong, sometimes way wrong. This is due to misdiagnosis and the fact that predicting life expectancy is not an exact science.
Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18. He was told that he would get progressively worse (be paralyzed) and die in three to five years. Instead, the disease progression stopped on its own. In a 2012 affidavit, at age 74, he states:
If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.C. Treatment Can Lead to Recovery
Patients may also have years or decades to live because treatment can lead to recovery. Consider Oregon resident, Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use the Oregon’s Act. Her doctor convinced her to be treated for cancer instead. In a 2019 declaration, she states:
It has now been 19 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.V. HOW THE ACT WORKS
The Act has an application process to obtain the lethal dose.” Once the lethal dose is issued by the pharmacy, there is no oversight. No doctor, not even a witness, is required to be present at the death.
VI. THE ACT IS STACKED AGAINST THE INDIVIDUAL
A. Even If the Patient Struggled, Who Would Know?
The Act has no required oversight over administration of the lethal dose. The drugs used are water or alcohol soluble, allowing them to be injected into a sleeping or restrained person without consent. Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:
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 administration. Even if the patient struggled, “who would know?” (Emphasis added).B. The Act Allows Other People to Communicate on the Patient’s Behalf
The Act’s definition of “capable” allows other people to communicate on the patient’s behalf during the lethal dose request process. Such persons are not required to be the patient’s designated agent, such as a family member or guardian. The communicating person need only be “familiar with the patient’s manner of communicating.” The Act states:
"Capable" means that in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, . . . a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available. (Emphasis added).
Being familiar with a patient’s manner of communicating is a minimal standard. Consider, for example, a doctor’s assistant who is familiar with the patient’s manner of communicating in Chinese, but the assistant herself does not understand Chinese. That, however, would be good enough for her to communicate (agree to the lethal dose) on the patient’s behalf. Patients are not in control of their fate.
C. Attending Physician Responsibilities
The Act enumerates responsibilities that the attending physician “shall” perform prior to writing a prescription for the lethal dose. These responsibilities include making a determination as to whether the patient has a terminal disease, is capable and has made the initial determination to obtain the lethal dose voluntarily. The Act however, also features a different message, that the attending physician shall:
Ensure that all appropriate steps are carried out in accordance with [the Act]. (Emphasis added) .... The Act does not define “appropriate” or “accordance.” Dictionary definitions of appropriate include “suitable or proper in the circumstances.” Definitions of accordance include “in the spirit of,” meaning “in thought or intention.”
With this language, the attending physician’s assessment of what is suitable or proper, or had a thought or intention to do, is good enough.
VII. THE ACT ALLOWS EUTHANASIA AS TRADITIONALLY DEFINED
The Act refers to the lethal dose as “medication.” Generally accepted medical practice allows doctors and family members to administer medication to a patient. When the medication administered is a lethal dose, this is euthanasia as traditionally defined.
VIII. THE AMERICANS WITH DISABILITY ACT WOULD TRUMP ANY PROHIBITION OF EUTHANASIA
The Americans with Disability Act (ADA) is a US federal civil rights law “that prohibits discrimination against individuals with disabilities in every day activities, including medical services.” Here, the Oregon Act describes prescribing the lethal dose as part of a medical practice, which renders it a medical service.
Per the ADA, medical care providers are required “to make their services available in an accessible manner.” This includes:
reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services (i.e., alter the essential nature of the services). (Emphasis added).Here, the fundamental nature of the service is the provision of medication (the lethal dose) to end a patient’s life. If for the purpose of argument, the Oregon Act could somehow be read as requiring self-administration, the ADA would require providers to make a reasonable modification of procedures for individuals unable to self-administer, so as to make the service fully available, for example, by providing the assistance of another person to administer the lethal dose. This is euthanasia as traditionally defined.
IX. CLINICAL PROBLEMS CAN AND DO LEAD TO EUTHANASIA
In practice, physician-assisted suicide is not always successful to kill patients, which can lead to euthanasia. See, for example, Johanna H. Groenewoud, MD, et. al., “Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands,” New England Journal of Medicine, 24 February 2000.
X. DEATHS ARE “NATURAL” AS A MATTER OF LAW
A. The Oregon Department of Health Recommends Reporting the Death as Natural
The Oregon Department of Health recommends that deaths per the Death with Dignity Act be reported as “natural.” This result is also required as matter of law, which is explained is in the next section.
B. The Death Must Be Reported as Natural
Oregon’s death certificate statute has six categories for reporting the manner of death, five of which are substantive: (1) natural; (2) accidental; (3) suicidal; (4) homicidal; and (5) legal intervention. Legal intervention means an execution pursuant to ORS 137.463 (death warrant hearing) and other legal uses of force resulting in death.
Per the Death with Dignity Act, death occurring in accordance with the Act does not constitute suicide or homicide as a matter of law. The death is also not an accident or legal intervention. This leaves natural. The manner of death is natural as a matter of law.
XI. DR. SHIPMAN AND THE CALL FOR DEATH CERTIFICATE REFORM
Per a 2005 article in the UK’s Guardian newspaper, there was a public inquiry regarding Dr. Shipman’s conduct, which determined that he had “killed at least 250 of his patients over 23 years.” The inquiry also found:
that by issuing death certificates stating natural causes, the serial killer [Shipman] was able to evade investigation by coroners. (Emphasis added).Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety. Oregon instead has moved in the opposite direction to require that deaths be reported as natural.
XII. OREGON RESIDENTS HAVE BEEN RENDERED SITTING DUCKS TO THEIR HEIRS AND OTHER PREDATORS
Per Oregon inheritance law, a “slayer” of the decedent is not allowed to inherit from a person that he or she kills. The rational is that a criminal should not be allowed to benefit from his or her crime. Under the Oregon Death with Dignity Act, however, a person who intentionally kills another person is allowed to inherit. This is due to the death being certified as natural.
With the passage of the Act, Oregon residents with money, meaning the middle class and above, have been rendered sitting ducks to their heirs and other financial predators.
XIII. ANN JACKSON’S TESTIMONY MUST BE DISALLOWED
A. No Claimed Legal Training
I have been provided with the following documents regarding Ms. Jackson’s opinion as to the Oregon Death with Dignity Act:
All three documents describe Ms. Jackson’s education as: (1) “Bachelor of Science, Elementary Education,” and (2) “Master of “Business Administration, Not-for-Profit Management.”(1) Sheena Swemmer, Centre for Applied Legal Studies’ Summary Notice in Terms of Rule 36(9)(b), 20 April 2020 (CALS 9, attached in the appendix at pages 66 to 82);
(2) Ann Jackson, M.B.A., Bio Curriculum Vitae, 19 May 2019 (CALS 3, attached in the appendix at pages at 84 to 97); and(3) Ann Jackson, “Supporting Affidavit,” 23 February 2016, submitted in Minister of Justice and Correctional Service and Others v Estate Late James Stransham-Ford (531/2015) (CALS 2, attached at pages 98 to 126) (Emphasis added).
Per these documents, Ms. Jackson makes no claim to legal training and/or as to being qualified to give a legal opinion regarding Oregon’s Act.
B. Oregon’s Act Does Not Require Self-Administration
Ms. Jackson’s supporting affidavit says that the patient "must be able to self-administer [the lethal dose]."
[T]he patient must be able to self-administer and ingest the medication themselves. (Emphasis added).
There is no such requirement in Oregon’s Act. Indeed, the Act does not and has never used the term, “self-administer.” A proposal to add the term in 2019 failed. Ms. Jackson’s purported expert opinion, claiming that the Act requires self-administration, which has now been endorsed by CALS, is false and must be disallowed.
C. The Act Is Not Limited to Dying People
Ms. Jackson’s affidavit describes Oregon’s Act as having legalised “physician-assisted dying.” Indeed, her affidavit uses the term at least 10 times. CALS’ Summary Notice similarly describes the Act as having to do with dying, i.e., by repeatedly using the term “medical aid-in-dying.”
The Oregon Act, itself, does not use the word “dying.” More importantly, the Act instead has a six months to live criteria, which in practice applies to people with years or decades to live. Ms. Jackson’s affidavit and the CALS’ Summary Notice, both of which repeatedly imply that the Act is limited to dying people, are materially misleading. For this reason also, Ms. Jackson’s opinion and the CALS document are false and misleading and must be disallowed.
D. Misreading the Act
Ms. Jackson’s supporting affidavit states that patients can “only” be prescribed the lethal dose “after meeting with a number of legal safeguards,” which include:
The Act, in fact, uses different terminology. Patients are described as “capable,” not “competent.” Moreover, as discussed supra, capable is a specially defined term, allowing another person to speak for the patient during the lethal dose request process.b. The patient must be mentally competent; and
c. The patient must be diagnosed with a terminal illness or condition that will lead to their death within 6 months.
XIV. THE PROPOSED RIGHT TO DIE
The Centre for Applied Legal Studies (CALS) seeks to establish a “right to die” in South Africa. If granted, the right will allow the non-voluntary killing of South African persons. For this reason alone, the proposed right must be rejected and the case dismissed.
B. The Proposed Right to Die must Be Rejected
1. Establishing a right to die will lead to involuntary killing, which is unconstitutional
The Constitution of the Republic of South Africa, Chapter 2, sets forth a Bill of Rights, including Section 11, titled “Life.” The section simply states: “Everyone has the right to life.”
Consistent therewith, the Republic of South Africa supports suicide prevention efforts, to preserve life. Indeed, the South Africa Mental Health Care Act allows the non-voluntary commitment of suicidal individuals, to prevent their suicides. CALS instead wants to establish a right to die. In 2016, the Supreme Court of New Mexico (USA) addressed the practical consequence of such a right, that it would lead to involuntary euthanasia. The Court stated:
[W]e agree with the legitimate concern that recognizing a right to physician aid in dying [meaning physician-assisted suicide] will lead to voluntary or involuntary euthanasia because if it is a right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self-administer the life-ending medication... (Emphasis added).For this reason alone, the proposed right to die must be rejected.
2. Section 27 of the South Africa Constitution, providing a right to health care services, does not support a right to die
Z v Commissioner for the South African Revenue Service (13472)  ZATC 2 (18 November 2014), states:
The rule of construction known as the ejusdem generis-rule is sometimes expressed by the maxim noscitur a sociis, that is the measuring of a word may be ascertained by reference to those associated with it.
In other words, where two or more words which are susceptible of analogous meaning are coupled noscitur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general. (Emphasis Added, Spacing Changed).
CALS argues that denial of the right to die is an unjustifiable limitation on the right to health set forth in Section 27 of the South Africa Constitution, titled “Health Care, Food, Water and Social Security.” Section 27(1) states:
(1) Everyone has the right to have access to—Per the above rule of construction, the general phrase in subsection (a), “health care services, including reproductive health care,” must be restricted to a sense analogous to the less general terms in subsections (b) and (c), both of which support life, i.e., through “sufficient food and water” and “social security, including ... appropriate social assistance.”
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance (Emphasis added).
More to the point, Section 27 is concerned with promoting life, not death. For this reason, Section 27 cannot somehow be read as promoting the claimed right to die. For this reason also, the proposed right to die must fail.
In the event this court recognizes the proposed right to die, the right will necessarily include involuntary euthanasia. This will similarly be true in the event this court would order the adoption of an Oregon-style Death with Dignity Act.
Assisting persons, including doctors and family members, can have an agenda, with the more obvious reasons being inheritance and life insurance, but also, as in the case of Dr. Swango, the thrill of seeing someone die.
I urge you to reject the proposed right to die.
Dated this 29th day of January 2021,
Margaret Dore, Esq., MBA
Actions taken in accordance with [the Act] shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. (Emphasis added)