Monday, October 28, 2019

Reject Medical Aid in Dying Act (Assisted Suicide & Euthanasia)

By Margaret Dore, Esq., MBA

Click the following links to view a pdf version of this document, consisting of: an indexlegal memorandum and appendix.

I.  INTRODUCTION

I am an attorney in Washington State where assisted suicide is legal.[1] Our law is based on a similar law in Oregon. Both laws are similar to the proposed bills, A 2694 and S 3947.[2]

The proposed bills amend New York’s public health law by adding a new article (28-F), the Medical Aid in Dying Act.[3] “Aid in Dying” is a euphemism for euthanasia and physician-assisted suicide.[4]

II.  DEFINITIONS (TRADITIONAL)

     A.  Physician-Assisted Suicide, Assisted Suicide and                        Euthanasia

The American Medical Association defines physician-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.”[5] For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[6]
Assisted suicide is a general term in which an assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent by another person.[7]

     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 patient. More importantly, the individual will not necessarily die. Consider this quote from Washington State regarding a man removed from a ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.[8]
III.  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.[9] Consider also Graham Morant, convicted of counseling his wife to kill herself in Australia, to get the life insurance.[10] The Court found:
[Y]ou counselled and aided your wife to kill herself because you wanted ... the 1.4 million.[11]
Medical professionals too can have an agenda. New York physician, Michael Swango, got a thrill from killing his patients.[12] 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.[13]

IV.  THE ACT WILL APPLY TO PEOPLE WITH YEARS TO LIVE

     A.  If New York Follows Oregon Practice, the Act Will Apply             to Young Adults With  Chronic Conditions Such as                       Diabetes

The Act applies to persons with a terminal illness or condition expected to produce death within six months. The Act states:
Terminal illness or condition” means an incurable and irreversible illness or condition that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. (Emphasis added).[14]
Oregon’s law has a similar criteria, as follows:
Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.[15]
In Oregon, this similar criteria is construed to include chronic conditions such as insulin dependent diabetes. This is because the six months to live is determined without treatment. Oregon doctor, William Toffler, explains:
5.  In Oregon, chronic conditions such as insulin dependent diabetes are sufficient for assisted suicide, if, without treatment, the patient has less than six months to live.
6.  This is significant when you consider that, without insulin, a typical insulin-dependent 20 year old will live less than a month. Such persons, with insulin, are likely to have decades to live. In fact, most diabetics have a normal life span given appropriate control of their blood sugar. (Emphasis added).[16]
       B. Predictions of Life Expectancy Can Be Wrong

Eligible persons may also have years to live because predictions of life expectancy can be wrong. This is true due to actual mistakes (the test results got switched), and because predicting life expectancy is not an exact science.

Consider John Norton, who was diagnosed with ALS 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.[21]
C. Treatment Can Lead to Recovery

Consider also Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use Oregon’s law.[22] Her doctor convinced her to be treated instead.[23] Her declaration states:
It has now been 19 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[24] 
 V. THE AMERICANS WITH DISABILITY ACT (ADA) WILL                  TRUMP THE PROPOSED ACT: EUTHANASIA WILL BE                    ALLOWED

The proposed act prohibits euthanasia as traditionally defined. The Act states:
A health care professional or other person shall not administer the medication [lethal dose] to the patient. (Emphasis added).[25]
If enacted, this prohibition will be unenforceable due to the Americans with Disabilities Act (“ADA”).
The ADA is “a federal civil rights law that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[26]  Here, the proposed act defines prescribing the lethal dose as a medical practice, which renders it a medical service.[27]
Per the ADA, “medical care providers are required to make their services available in an accessible manner.”[28] This includes:
[R]easonable modifications to policies, practices, and procedures when necessary to make healthcare 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).[29]
Here, the essential nature of the service is the provision of medication to end an individual’s life. If the individual is unable to self-administer, the ADA will require providers to make a reasonable modification to procedures so as to make the service fully available, for example, by providing the assistance of another person. In the context of administering a lethal dose, this is euthanasia as traditionally defined. The ADA will trump the proposed Act to allow euthanasia.

VI.   ACTION TAKEN IN ACCORDANCE WITH THE ACT WILL                NOT BE SUICIDE OR HOMICIDE        
Action taken in “accordance” with the proposed act will not be construed as suicide or homicide under the law. The Act states:Action taken in accordance with this article [the proposed act] shall not be construed for any purpose to constitute suicide, assisted suicide, attempted suicide, promoting a suicide attempt, euthanasia, mercy killing, or homicide under the law, including as an accomplice or accessory or otherwise. (Emphasis added).[30]
The Act does not define accordance. Dictionary definitions include “in the spirit of,” meaning “in thought or intention.” In other words, a mere thought or intention to comply with the Act is sufficient to prevent a death from being treated as suicide or homicide. Action taken in accordance with the Act will not be suicide or homicide as a matter of law.

VII. DEATHS WILL BE REPORTED AS NATURAL

Death certificate forms provided by the New York State Department of Health have six categories for reporting the manner of death, four of which are substantive: (1) natural cause; (2) accident; (3) homicide; and (4) suicide. The two other categories are: undetermined circumstances; and pending investigation.[33]

As noted in the preceding section, a death occurring in accordance with the Act will not be suicide or homicide as a matter of law. The death will also not be an accident due its being an intended event.  This leaves “natural cause.”

The official legal manner of death will be natural cause, not homicide, suicide or accident.

VIII.  REPORTING DEATHS AS DUE TO A NATURAL CAUSE                    WILL BE CONSISTENT WITH WASHINGTON AND                        OREGON PRACTICE

Washington State’s death certificate instruction for medical examiners, coroners and prosecuting attorneys, states: “The manner of death must be marked as ‘Natural." Similarly, Oregon’s website states:
The Oregon Health Authority, Center for Health Statistics recommends that physicians record the underlying terminal disease as the cause of death and mark the manner of death “natural.”[35]
IX. 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.”[36] The inquiry also found:
that by issuing death certificates stating natural causes, the serial killer [Shipman] was able to evade investigation by coroners.[37]
Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[38] Instead, the Act moves in the opposite direction to require that deaths be reported as natural. If enacted, doctors and other perpetrators will be able to kill under mandatory legal cover.

X. PERPETRATORS WILL BE ALLOWED TO INHERIT

New York’s “slayer rule” provides that a person who kills another person (commits homicide) forfeits any interest in the victim’s estate.  New York attorneys, Ilene S. Cooper and Jaclene D’Agostino, explain:
The rational is simple - no one should financially benefit from his or her own crime.[40]
 As noted above, however, deaths occurring in accordance with the Act will not be homicide as a matter of law.  For this reason, there will be no slayer and therefore no crime. Perpetrators will be allowed to inherit.

XI. “EVEN IF THE PATIENT STRUGGLED, WHO WOULD KNOW?”

The proposed Act has no required oversight over administration of the lethal dose. In addition, the drugs used are water and alcohol soluble, such that they can 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 [and with the proposed Act], 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 a patient struggled, “who would know?”[43]  (Emphasis added).

XII.  INDIVIDUAL “OPT OUTS” WILL NOT BE VALID

The Act does not allow individuals to opt out of its provisions. Consider, for example, an elderly woman afraid that her son will push her to sign up for the lethal dose, and then push her to take it, to thereby allow him to inherit.

A possible deterrent would be a provision in her will, stating that he will be disinherited if she is found to have died pursuant to the Act. No such provision, however, will be valid. The Act states:
No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication [the lethal dose] or take any other action under this article, shall be valid.  (Emphasis added).[44]
So much for individual choice and control.

XIII.  PARTICIPANTS WILL BE TRAUMATIZED

A.  The Swiss Study: Physician-Assisted Suicide Can Be                    Traumatic for Family Members and Friends

A European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland.[45] 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.[46]
B. My Clients Were Traumatized

I have had two cases where my clients and their family members suffered severe emotional trauma due to legal assisted suicide. One case was in Oregon, the other case was in Washington State.

In the first case, one side of the family wanted my client’s father to take the lethal dose, while the other side did not. He (the father) spent the last months of his life caught in the middle and torn over whether he should kill himself. He did not take the lethal dose and died a natural death. My client, his adult child, was severely traumatized.

In the other case, my client was told that his father had died at the second of two suicide parties. A person in attendance at both parties told him that his father had refused to take the lethal dose at the first party, but had died via a lethal dose at the second party, while intoxicated on alcohol. My client, although he was not present, was severely traumatized by the incident.

XIV.  CONCLUSION

If passed into law, the proposed Act will apply to people with years to live. This will be especially true if New York follows Oregon practice to determine life expectancies without treatment. Young adults with chronic conditions, such as insulin dependent diabetes, will be considered terminal and therefore subject to the 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. The lack of required oversight at the death, coupled with the mandatory falsification of the death certificate to report a natural death, will create a perfect crime in which perpetrators will be legally allowed to inherit. 

The Act will render people with money, meaning the middle class and above, sitting ducks to their heirs and other predators.  Protect yourselves and the people you care about. Say “No” to A 2694 and S 3947.

Respectfully Submitted,

Margaret Dore, Esq., MBA
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corporation
www.margaretdore.org
www.choiceillusion.org
1001 4th Avenue, Suite 4400
Seattle, WA  98154
206 697 1217

Footnotes:

[1]   See Margaret Dore CV, attached in the appendix at pages A-1 to A-4.
[2]  The Bills are attached in the appendix, beginning at pages A-5 and A-19
[3]  See the bills, A 2694 1 and S 3947 1, attached at pages A-5 and A-19
[4]  Cf. Craig A. Brandt, Model Aid-in -Dying Act, Iowa Law Review, 1989 Oct;75 (1) ; 125-215, ("Subject: Active Euthanasia...."); and Maria T. CeloCruz, "Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?," American Journal of Law and Medicine, 1992; 18 (4): 369-394. For more information, view the appendix at pp. A-32 and A-33.
[5]  The AMA Code of Medical Ethics, Opinion 5.7, in the appendix at page A-34.
[6]  Id.
[7]  Opinion 5.8, “Euthanasia,” attached in the appendix at page A-35.
[8]  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, 01/13/09, attached at pp. A-36 to A-39; quote at A-38.
[9]  "Sawyer Arraigned on State Fraud Charges," KTVZ.COM, 08/16/16, attached in the appendix at page A-40.
[10]  R v Morant [2018] QSC 251, Order, 11/02/18, excerpts in the appendix at pp. A-41 and A-42.  Full opinion available here: https://archive.sclqld.org.au/qjudgment/2018/QSC18-251.pdf
[11]  Morant opinion, ¶ 78, attached hereto at A-42.
[12]  Charlie Leduff, “Prosecutors Say Doctor Killed to Feel a Thrill,” The New York Times, 09/07/00, attached in the appendix at pages A-43 to A-45, https://choiceisanillusion.files.wordpress.com/2019/03/ny-times-killed-to-feel-a-thrill-1.pdf (“Basically, Dr. Swango liked to kill people. By his own admission in his diary, he killed because it thrilled him.”)
[13]  David Batty, “Q & A: Harold Shipman,” The Guardian, 08/25/05, at https://www.theguardian.com/society/2005/aug/25/health.shipman. (Attached hereto at A-46 to A-48).
[14]  Bills A. 2694 3, lines 16-18, and S. 3947, lines 13-15, attached in the appendix at pages A-7 and A-21, respectively.
[15]  Or. Rev. Stat. 127.800 s.1.01 (12), attached in the appendix at p. A-52
[16]  Declaration of William Toffler, MD, May 1, 2018, attached in the appendix at pages A-49 through A-54, quoted material can be viewed at page A-50. See also Oregon report excerpt, attached to Dr. Toffler's declaration at page A-53 (listing diabetes as an underlying illness sufficient for assisted suicide).
[17]  Cf. Jessica Firger, "12 Million Americans Misdiagnosed Each Year," CBS News, April 17, 2014, attached in the appendix, at page A-55; and Nina Shapiro, "Terminal Uncertainty..," supra, excerpts attached at A-36 to A-39.
[18]  Affidavit of John Norton, attached hereto at A-56 to A-58.
[19]  Id., at A-56, ¶ 1
[20]  Id., at A-57, ¶ 4
[21]  Id.,  ¶ 5
[22]  Declaration of Kenneth Stevens, MD, ¶ ¶ 3 to 7; attached in the appendix at A-59 to A-61; Hall declaration attached at A-62
[23]  Id.
[24]  Hall Declaration, ¶ 4, attached in the appendix at A-62
[25]  Bill A. 2694 5, lines 5-6 and Bill S. 3947 5, lines 3-4. Attached in the appendix at pages A-10 and A-23, respectively.
[26]  U.S. Department of Justice, Civil rights Division, Disability Rights Section and the U.S. Department of Health and Human Services, Office for Civil Rights, "Americans with Disabilities Act: Access to Medical Care for Individuals with Mobility Disabilities," July 2010, excerpts attached hereto at A-68 to A-69, quote at A-69. Also Available at  https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm
[27]  The proposed act states:
"Medical aid in dying" means the medical practice of a physician prescribing medication to a qualified individual that the individual may choose to self-administer to bring about death.
[28]  U.S. Department of Justice, supra at note 26.
[29]  Id.
[30]  Bill A. 2694 10, lines 20 to 24 and Bill S. 3947  10, lines 16 to 20. Attached in the appendix at pages A-16 and A-29 to A-30.
[31]  See definitions in the appendix at pages A-66 and A-67.
[32]  See New York State Certificate of Death in the appendix at A-70.
[33]  Id.
[34]  Washington State Department of Health, "Instructions for Medical Examiners, Coroners, and Prosecuting Attorneys: Compliance with the Death with Dignity Act, attached hereto at A-74. Also available at https://www.doh.wa.gov/Portals/1/Documents/Pubs/422-148-DWDAinstructionsForMedicalExaminers.pdf.
[35]  https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/faqs.aspx#deathcert
[36]  David Batty, supra, attached in the appendix at page A-46.
[37]  Id., attached hereto at A-48
[38]  Press Association, "Death Certificate Reform Delays 'incomprehensible'," The Guardian, January 21, 2015, attached hereto at A-71 to A-72.
[39]  Ilene S. Cooper and Jaclene D’Agostino, Forfeiture and New York’s “Slayer Rule,” NYSBA Journal, March/April 2015, attached hereto at A-73
[40]  Id.
[41]  See the bills in their entirety, beginning at A-5 and A-19, respectively.
[42]  The drugs used include Secobarbital, Pentobarbital, Phenobarbital and Morphine Sulfate, which are water and /or alcohol soluble. See Oregon and Washington report excerpts, in the appendix at pp. A-63 and A-64 (listing these drugs). See also http://www.drugs.com/pro/nembutal.html and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[43]  Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010.
[44]   Bill A.2694 10, lines 25 to 29 and Bill S. 3947 10, lines 16 to 20. Attached in the appendix at pages A-16 and A-30.
[45]  “Death by request in Switzerland: Post-traumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf 
[46]  Id.