Pages

Saturday, September 1, 2012

Montana State Senator Greg Hinkle Corrects New England Journal of Medicine

Assisted Suicide is Not Legal in Montana
 
Dear Editor:

I am a Montana State Senator.  I disagree with your article, "Redefining Physicians' Role in Assisted Dying," claiming that assisted suicide is legal in Montana.  At the very least, Montana law is unclear.

Last year, Senate Bill 167, which would have legalized assisted suicide in Montana, failed.  This leaves assisted suicide governed by a Montana Supreme Court case, Baxter v. Montana.  An analysis by attorneys Greg Jackson and Matt Bowman describes Baxter as follows:


"The Montana Supreme Court s assisted-suicide decision . . . didn't even 'legalize' assisted-suicide. . . . After Baxter, assisted-suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[1]

Since then, competing articles have appeared in the official Montana State Bar publication disputing whether Baxter legalized assisted suicide.[2]  The editor's headline states: "Court ruling still leaves the issue open to argument." [3]

Correct reporting would be that assisted suicide is not legal in Montana and/or hotly disputed.  Thank you for your attention to this matter.


Senator Greg Hinkle
Thompson Falls, MT 


* * *

[1] Greg Jackson, Esq., and Matt Bowman, Esq., "Analysis of Implications of the Baxter Case on Potential Criminal Liability," Montanans Against Assisted Suicide & For Living with Dignity, April 2010, available at
http://montanansagainstassistedsuicide.org/wp-content/uploads/2011/05/Analysis-of-Baxter.pdf                                                
[2] Senator Anders Blewett (pro article), Senator Jim Shockley and Margaret Dore (con article), "The aid-in-dying debate: Can a physician legally help a patient die in Montana?  Court ruling still leaves the issue open to argument," The Montana Lawyer, November 2011, available at http://maasdocuments.files.wordpress.com/2012/07/montana-lawyer-pro-con-articles-nov-2011.pdf[3]  Id.

Friday, August 31, 2012

New England Journal of Medicine Article Misleading

Dear Editor:

I am a lawyer in Washington State, one of two states where assisted-suicide is legal.  The other state is Oregon, which has a similar law.  Lisa Lehmann's article, "Redefining Physicians' Role in Assisted Dying," is misleading regarding how these laws work.

First, the Oregon and Washington laws are not limited to people in their "final months" of life.[1,2]  Consider for example, Jeanette Hall, who in 2000 was persuaded by her doctor to be treated rather than use Oregon's law.  She is alive today, twelve years later.[3]

Second, these laws are not "safe" for patients.[4][5]  For example, neither law requires a witness at the death.  Without disinterested witnesses, the opportunity is created for the patient's heir, or someone else who will benefit from the patient's death, to administer the lethal dose to the patient without his consent.  Even if he struggled, who would know?  

Third, the fact that persons using Oregon's law are "more financially secure" than the general population is consistent with elder financial abuse, not patient safety.  Do not be deceived. 

* * *

[1]  Margaret K. Dore, "Aid in Dying: Not Legal in Idaho; Not About Choice," The Advocate, official publication of the Idaho State Bar, Vol. 52, No. 9, pages 18-20, September 2010, available athttp://www.margaretdore.com/pdf/Not_Legal_in_Idaho.pdf.
[2]  Kenneth Stevens, MD, Letter to the Editor, "Oregon mistake costs lives," The Advocate, official publication of the Idaho State Bar, Vol. 52, No. 9, pages 16-17, September 2010, available athttp://www.margaretdore.com/info/September_Letters.pdf 
[3]  Ms. Hall corresponded with me on July 13, 2012.
[4]  See article at note 1.  See also Margaret Dore, "Death with Dignity": A Recipe for Elder Abuse and Homicide (Albeit Not by Name)," at 11 Marquette Elder's Advisor 387 (Spring 2010), original and updated version available at http://www.choiceillusion.org/p/the-oregon-washington-assisted-suicide.html 
[5]  Blum, B. and Eth, S.  "Forensic Issues: Geriatric Psychiatry." InKaplan and Sadock's Comprehensive Textbook of Psychiatry, Seventh Edition, B. Sadock and V. Sadock editors.  Baltimore, MD: Lippincott, Williams and Wilkins, pp. 3150-3158, 2000. 

Tuesday, April 24, 2012

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


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

April 19, 2012

Lawyer cautions against legislating through courts

By Mike Youds, Daily News Staff Reporter
 
Margaret Dore (L) and Wanda Morris (R)

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York Times: Assisted Suicide: A Recipe for Elder Abuse


April 10, 2012 

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


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

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

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

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

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

Thursday, March 1, 2012

The Massachusetts Assisted-Suicide Initiative Fact Check: The Baloney Meter is Running High


Margaret Dore
March 1, 2012
1.  Legalization will Empower the Government

Proponents claim that legalizing assisted suicide will keep the government out of people's lives.  The opposite is true.

Fact check:  In Oregon, where assisted suicide is legal, legalization has allowed the Oregon Health Plan, a government entity, to steer people to suicide.  The most well known cases involve Barbara Wagner and Randy Stroup.  Each wanted treatment.  The Plan denied coverage and steered them to suicide by offering to cover the cost of their suicides instead.  See  See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008; and "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008.


2.  The Initiative Allows Someone Else to Administer the Lethal Dose

Proponents claim that only the patient may administer the lethal dose.  This is not true.

Fact check:  The initiative, H.3884, states that patients "may" self-administer the lethal dose. There is no language stating that administration “must” be by self-administration.  "Self-administer" is also a specially defined term that allows someone else to administer the lethal dose to the patient.  See here.

3.  An Heir is Allowed to Witness the Lethal Dose Request

Proponents claim that the lethal dose request form must be "independently witnessed" by two people.  This is not true. 

Fact check:  The initiative, Sections 3 and 21, provides that one of two witnesses on the lethal dose request form cannot be a patient’s heir or other person who will benefit financially from the patient's death; the other witness can be an heir or other person who will benefit financially from the death.


4.  Substantial Compliance

Proponents claim that the initiative has "strict safeguards" to protect patients.  The initiative, however, only requires "substantial compliance" with its provisions.  Section 18(1)(a) states:  "A person who substantially complies in good faith with provisions of this chapter shall be deemed to be in compliance with this chapter."

5.  Assisted Suicide is a Recipe for Elder Abuse

Proponents claim that the initiative is safe, which is not true.

Fact check:  The initiative does not require witnesses at the death.  Without disinterested witnesses, the opportunity is created for an heir, or someone else who will benefit financially from the death, to administer the lethal dose to the patient without the patient's consent.  Even if he struggled, who would know?


6.  Patients are not Necessarily Dying

Proponents imply that the initiative only applies to people in their "final days." This is untrue.

Fact check:  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; and Jeanette Hall, "She pushed for legal right to die, and - thankfully - was rebuffed," Boston Globe, October 4, 2011.

7.  Assisted Suicide is a Wedge Issue
 
Proponents deny that assisted suicide is a "wedge issue" to legalize direct euthanasia of non-terminal people.

Fact check:  In Washington state, where assisted suicide has been legal since 2009, there has been a proposal to expand Washington's law to direct euthanasia for non-terminal people.  See Brian Faller, "Perhaps it's time to expand Washington's Death with Dignity Act," The Olympian, November 16, 2011.


8.  Legal Assisted Suicide Threatens People with Disabilities

Proponents claim that people with disabilities are not at risk from legalization of assisted suicide, which is untrue.

Fact check:  Disability rights groups such as Not Dead Yet oppose assisted suicide as a threat to their lives.  In Oregon and Washington, official government forms for assisted suicide acts in those states promote disability as a reason to commit suicide.[1]  People with disabilities are thereby devalued.  In 2009, there was a proposed assisted suicide bill in New Hampshire that squarely applied to people with disabilities.[2]  If the initiative were to be passed now, people with disabilities see themselves as potentially next in line under a future expansion of that law.  As noted above, there has already been a proposal in Washington state to expand its law to direct euthanasia for non-terminal people.
 

* * * 


[1]  See e.g. "Oregon Death with Dignity Act Attending Physician Follow-up Form," question 15, providing seven suggested answers as to why there was a lethal dose request.  Some of the answers are written in terms of disability being an acceptable reason to kill yourself.  These answers include:  "[A] concern about . . . the loss of control of bodily functions."
[2]  Stephen Drake and Not Dead Yet, "New Hampshire Poised to Redefine "Terminally Ill" - to PWDs and others for Assisted Suicide Eligibility," January 30, 2009 (regarding New Hampshire's 2009 assisted suicide bill, HB 304, which applied to people with disabilities, people with HIV/AIDS and other non-dying people).

Saturday, November 19, 2011

A Better Response Would be to Repeal Washington's Act as a Fraud on the Voters

On November 16, 2011, an article appeared in a Washington State newspaper arguing for expansion of Washington's physician-assisted suicide act to direct euthanasia and to persons without a terminal disease.[1]  The author, Brian Faller, candidly admitted:  "To improve the chances of passage, the Death with Dignity Act was written to apply only to the choices of the terminally ill who are competent at the time of their death."[2]  Now, he shows the other side's true colors.

In any case, this is my response:

Dear Editor:

I am an attorney who has written multiple articles about our physician-assisted suicide act. I am also President of Choice is an Illusion, a non-profit corporation opposed to assisted-suicide. I disagree with Brian Faller that our physician-assisted act should be expanded to include direct euthanasia. A better course would be to repeal that act as a fraud on the voters.

Our assisted-suicide act was enacted as Initiative 1000 in 2008 and went into effect in 2009. During the election, proponents claimed that its passage would assure individuals control over their deaths. The act is instead a recipe for elder abuse. Key provisions include that a patient’s heir, who will benefit financially from his death, is allowed to actively assist him to sign up for the lethal dose. Specifically, an heir is allowed to be one of two witnesses on the lethal dose request form. In the context of a will, the same situation would create a presumption "duress, menace, fraud, or undue influence." (RCW 11.12.160(2)).

There are also no witnesses required at the death. Without disinterested witnesses, the opportunity is created for someone else, including an heir, to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?

The idea that our act promotes patient control or individual liberty is untrue. Our act instead puts older people and others in the cross-hairs of abuse. For more information, please see www.choiceillusion.org and click on the page for Washington State.

* * *
[1]  Brian Faller, "Perhaps it's time to expand Washington's Death with Dignity Act, The Olympian, November 16, 2011, available at http://www.theolympian.com/2011/11/16/1878667/perhaps-its-time-to-expand-washingtons.html
[2]  Id.

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: