Pages

Showing posts with label Essmann. Show all posts
Showing posts with label Essmann. Show all posts

Monday, January 27, 2014

"Is there a way to allow a person to end his life without making someone else a criminal?"

By Margaret Dore, Esq.

A legislator considering an assisted suicide law asked me this question: "Is there a way to allow a person to end his life without making someone else a criminal?"

This was my (slightly edited) response:

People take their lives all the time.  One of my cousins shot himself and another threw himself in front of a train.  There was no criminality involved.  Also, if people are in pain, palliative care laws allow medical personnel to give patients copious amounts of drugs, including up to sedation, which can hasten the patient's death. This is the principal of double effect.  This is legal.  For more information, read theAffidavit of Kenneth Stevens, MD, page 3, paragraph 13.

There is also palliative care abuse in which no one seems to be held accountable, except for maybe one case in California where doctors relied on a wealthy patient's daughters, who said that their father was really bad off and didn't want treatment, which was not the case.  At least, that's what's claimed by the man's son. See William Dotinga, "Grim Complaint Against Kaiser Hospital," Court House News Service, February 6, 2012.

I've had like 15-20 contacts in the past year by people upset about their family member being suddenly off'd by medical personnel and/or having DNR's put on family members/friends without the patient's consent.  My caregiver friends also talk about guarding their patients in the hospital.  Here are some letters from Montana.  http://www.montanansagainstassistedsuicide.org/2013/04/dont-give-doctors-more-power-to-abuse.html

Here's a letter from Washington State where assisted suicide is legal. The letter talks about doctors being quick with the morphine and also regarding the conduct of an adult son shortly after our assisted suicide law was passed ("an adult child of one of our clients asked about getting the pills [to kill the father].  It wasn't the father saying that he wanted to die"). http://www.montanansagainstassistedsuicide.org/2012/07/dear-montana-board-of-medical-examiners.html  Here's a letter from a wife about how she was afraid to leave her husband alone after a doctor pitched assisted suicide to her husband. http://www.montanansagainstassistedsuicide.org/2013/01/i-was-afraid-to-leave-my-husband-alone.html

There is also the issue that people who say they want to die don't mean it, as with any suicide.  See http://www.montanansagainstassistedsuicide.org/p/what-people-mean-when-they-say-they.html

I've had two clients whose fathers signed up for the Oregon/Washington assisted suicide acts.  With the first case, one side of the family wanted the father to use the act and the other side didn't.  He spent the last months of his life torn over whether of not he should kill himself.  His daughter was also traumatized.  He died a natural death.  There is a Swiss study that you might be interested in, that 1 out of 5 family members were traumatized by witnessing the legal assisted suicide of a family member.  See http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf

In my other case, the father had two suicide parties and it's not clear that it was voluntary.  My client, his son, was told that his dad had said "You're not killing me, I'm going to bed").  Regarding the next day, my client was told that his dad was already high on alcohol when he drank the lethal dose.  But then the person telling him this changed his story.  In Montana, Senator Jeff Essman, made a relevant observation regarding this point:
"[All] the protections [in Oregon's law] 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."
Senate Judiciary Hearing on SB 167 on February 10, 2011

I, however, doubt that a person in Oregon could be prosecuted.  If you read the act carefully, there is no requirement of patient consent to administration of the lethal dose, and to the extent that's ambiguous, there's the rule of lenity.  In Washington State, prosecutors are required to report assisted suicide deaths as "Natural" - no matter what - at least, that's what the regulation says: http://www.doh.wa.gov/portals/1/Documents/5300/DWDAMedCoroner.pdf   How can you prosecute someone for homicide if the death is required to be reported as "Natural?"

Here in Washington, we have already had some informal proposals to expand the scope of our assisted suicide act.  One in particular disturbed me.  A Seattle Times column suggested euthanasia as a solution for people unable to support themselves, which would be involuntary euthanasia.  See Jerry Large, "Planning for old age at a premium," March 8, 2012, which states:
"After Monday's column,  . . . a few [readers] suggested that if you couldn't save enough money to see you through your old age, you shouldn't expect society to bail you out. At least a couple mentioned euthanasia as a solution."  (Emphasis added)
So, if you worked hard and paid taxes all your life and then your company pension plan goes belly up, this is how you want society to pay you back?

As a Democrat, I see us as looking out for the little guy, not passing laws to protect perpetrators, healthcare systems, etc. from legitimate claims.  I hope that you will vote against any effort to legalize assisted suicide/euthanasia.

Thank you for writing me back.

Margaret Dore

Wednesday, November 9, 2011

"No, physician-assisted suicide is not legal in Montana: It's a recipe for elder abuse and more"

By State Senator Jim Shockley and Margaret Dore
Published in The Montana Lawyer
The State Bar of Montana[1]

Introduction

There are two states where physician-assisted suicide is legal: Oregon and Washington.  These states have statutes that  give doctors and others who participate in a qualified patient’s suicide immunity from criminal and civil liability.  (ORS 127.800-995 and RCW 70.245). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a patient’s suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a suicide will qualify for the defense.  Some assisted suicide proponents nonetheless claim that Baxter has legalized assisted suicide in Montana.

Legalizing assisted suicide in Montana would be a recipe for elder abuse.  The practice has multiple other problems.

What is physician-assisted suicide?

The American Medical Association (AMA) states: “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.”  (Code of Medical Ethics Opinion 2.211).  For example, a “physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.”  (Id.)

The Baxter decision

Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy.  (354 Mont. at 240, ¶¶ 13, 49-50).  Based on this finding, the Court held that a patient’s consent to aid in dying “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, overlooked elder abuse.  The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”  (354 Mont. at 239, ¶ 11).  The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.

Baxter also overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide.  See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Baxter is, regardless, a narrow decision in which doctors cannot be assured that a suicide will qualify for the defense.  Attorneys Greg Jackson and Matt Bowman provide this analysis:

If the idea of suicide itself is suggested to the patient first by the doctor or even by the family, instead of being on the patient's sole initiative, the situation exceeds "aid in dying" as conceived by the Court.  If a particular suicide decision process is anything but "private, civil, and compassionate," . . . , the Court's decision wouldn't guarantee a consent defense.  If the patient is less than "conscious," is unable to "vocalize" his decision, or gets help because he is unable to "self-administer," or the drug fails and someone helps complete the killing, Baxter would not apply. . . .
No doctor can prevent these human contingencies from occurring in a given case . . . in order to make sure that he can later use the consent defense if he is charged with murder.
“Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at  http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html


The 2011 Legislative Session

The 2011 legislative session featured two bills in response to Baxter, both of which failed: SB 116, which would have eliminated Baxter’s potential defense; and SB 167, which would have legalized assisted suicide by providing doctors and others with immunity from criminal and civil liability.

During a hearing on SB 167, the bill's sponsor, Senator Anders Blewett, said:  “[U]nder current law, ... there’s nothing to protect the doctor from prosecution.”  ( http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf ).  Dr. Stephen Speckart made a similar statement: "[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision."  (Id. at p.2)

Legalization would create new paths of abuse

In Montana, there has been a rapid growth of elder abuse.  Elders' vulnerabilities and larger net worth make them a target for financial abuse.  The perpetrators are often family members motivated by an inheritance.  See e.g.  www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf .

Preventing elder abuse is official Montana state policy.  See e.g., 52-3-801, MCA.  If Montana would legalize physician-assisted suicide, a new path of abuse would be created against the elderly, which would be contrary to that policy.  Alex Schadenberg, Chair of 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?
http://www.isb.idaho.gov/pdf/advocate/issues/adv10oct.pdf, p. 14.

“Terminally Ill” Does Not Mean Dying

Baxter’s potential defense applies when patients are "terminally ill," which Baxter does not define.  In Oregon, “terminal” patients are defined as those having less than six months to live.  Such persons are not necessarily dying.  Doctors can be wrong.  Moreover, treatment can lead to recovery.  Oregon resident, Jeanette Hall, who was diagnosed with cancer and told that she had six months to a year to live, said:


I wanted to do our [assisted suicide] law and I wanted my doctor to help me.  Instead, he encouraged me to not give up . . .  I had both chemotherapy and radiation. . . .
It is now 10 years later.  If my doctor had believed in assisted suicide, I would be dead. 
http://mtstandard.com/news/opinion/mailbag/article_aeef3982-9a98-11df-8db2-001cc4c002e0.html 
Legal physician-assisted suicide empowered the Oregon Health Plan, not individual patients 

Once a patient is labeled “terminal,” an easy argument can be made that his or her treatment should be denied.  This has happened in Oregon where patients labeled “terminal” have not only been denied coverage for treatment, they have been offered assisted-suicide instead.

The most well known cases involve Barbara Wagner and Randy Stroup.  (KATU TV, at http://www.katu.com/news/26119539.html , ABC News, at http://www.abcnews.go.com/Health/Story?id=5517492  Ken Stevens, MD, at pp. 16-17, at http://choiceillusionoregon.blogspot.com/p/oregons-mistake-costs-lives.html).  The Oregon Health Plan refused to pay for their desired treatments and offered to pay for their suicides instead.  Neither Wagner nor Stroup saw this as a celebration of their “choice.”  Wagner said: “I’m not ready to die.”  Stroup said: “This is my life they’re playing with.”
            
Stroup and Wagner were steered to suicide and it was the Oregon Health Plan doing the steering.  Oregon’s law empowered the Oregon Health Plan, not individual patients.

Oregon’s studies are invalid

Oregon’s statute does not require a doctor to be present when the lethal dose is administered.  (ORS 127.800-995).  During a hearing on SB 167, Senator Jeff Essmann made a related point, as follows:
[A]ll the protections [in Oregon’s law] 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.
Senate Judiciary Hearing Transcript, February 10, 2011, p.15, at http://www.margaretdore.com/pdf/senator_essmann_sb_167_001.pdf

Public confusion

In Montana, the moving force behind legalizing assisted suicide is Denver-based Compassion & Choices.  On September 15, 2011, that organization’s president published an article on Huffington Post claiming that under Baxter physicians in Montana are “safe from prosecution.”  ( http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html )  This is clearly not the case and  propaganda.  A physician relying on her advice could be charged with homicide.

Conclusion  

Baxter is a flawed decision that overlooked elder abuse.  Baxter has created confusion in the law, which has put Montana citizens at risk.  Neither the legal profession nor the medical profession has the necessary guidance to know what is lawful. 


Legalizing assisted suicide is bad public policy.  Doctors’ diagnoses can be wrong and legalization is a recipe for abuse.  Legalization would also allow the state government to encourage citizens to kill themselves.  This is an area where the government does not belong.  Montana consistently has one of the highest suicide rates in the nation.   Montana doesn’t need the “Oregon Experience.”


Legislation should be enacted to overrule Baxter and clearly declare that assisted suicide is not legal in Montana.  
      
* * *

Senator Jim Shockley, of Victor, is a Republican State Senator, probate lawyer, and an adjunct instructor at the University of Montana School of Law. 

Margaret Dore is an attorney in Washington State where assisted suicide is legal.  She is also President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide.  (www.choiceillusion.org)  She is a Democrat.  

* * *

[1] To read this article as published in The Montana Lawyer and the opposing article by Senator Anders Blewett, go here:

Tuesday, May 24, 2011

Physician-Assisted Suicide: Not Legal in Montana; A Recipe for Elder Abuse and More

For a print version of this article, go here.

By Margaret Dore

A. Introduction

 Proponents claim that physician-assisted suicide is legal in Montana. This is untrue. A bill that would have accomplished that goal was defeated in the 2011 legislature.

Legal physician-assisted suicide is a recipe for elder abuse. It empowers heirs and others at the expense of older people. It empowers health care providers at the expense of patients.  In Oregon, where physician-assisted suicide is legal, legalization is statistically correlated to an increase in other suicides.