Wednesday, April 11, 2012

Massachusetts assisted suicide bill is a "Doctor & Heir Protection Bill"


A "Doctor & Heir Protection Bill"


Margaret Dore
By Margaret Dore

On April 2, 2012, the Massachusetts Attorney General issued a draft ballot question title and draft yes/no statements for the assisted suicide initiative. Below please find my objection based on the initiative's being a doctor and heir protection bill. For a print copy, please click here

I.  INTRODUCTION

The proposed act in Petition 11-12 protects persons who cause or assist the death and/or suicide of another person. This memo discusses why the draft title and one-sentence statements for the act are misleading and should be amended.

II.  THE ACT

A.  The Act Protects People who Cause or Assist a Patient’s Death and/or Suicide

Under current law, people who cause or assist another person’s death or suicide face serious legal consequences. They can be convicted of a crime, including murder.[1] They can be found civilly liable for assisting a suicide, committing malpractice and/or causing a wrongful death.[2] They can also be deprived of an inheritance or life insurance proceeds payable due to the death.[3]

With the proposed act, however, persons who cause or assist another person’s death and/or suicide are protected from these consequences. The act also opens the door to new paths of elder abuse.

How the act works, some of its protections and how it will promote elder abuse are described below.

B.  How the Act Works

The act has an application process to obtain a lethal dose for the purpose of causing a patient’s death.[4] The application process includes a written request form with two required witnesses.[5] One of the witnesses is allowed to be an heir who will benefit financially from the patient’s death.[6]

The act also requires that the patient be “terminal,” which does not necessarily mean that the patient is dying anytime soon.[7] The act states that only substantial compliance is required with its provisions.[8]

Once the lethal dose is issued by the pharmacy, there is no oversight.[9] The death is not required to be witnessed.[10] Indeed, no one is required to be present.[11]

C.  Protections

The proposed act protects persons who cause or assist a patient’s death and/or suicide, as follows.

1.  Secrecy, privacy and protection from inquiry

Under the act, § 4(2), the death certificate is required to list a terminal disease as the cause of death, not the true cause of death, a lethal dose.[12] This makes it less likely that anyone will know that the person died under the act.

Under the act, § 12, required record keeping regarding a doctor’s compliance with the act is maintained in the patient’s medical record, which is a private document protected by HIPPA.[13] This makes it less likely that any lack of compliance by the doctor will be exposed.

Under the act, §15, the department of public health is to collect data for the purpose of an annual statistical report.[14] The data is to be self-reported by doctors and dispensers of the lethal dose.[15] In the event a report is incomplete, the department is charged with contacting the person “to request” a complete report.[16] No investigation is authorized.[17] Moreover, the data collected:
"shall not be a public record to the extent it contains material or data that could be used to identify individual patients, physicians, or other health care providers."[18]
In Oregon, one of just two states with a similar law, the Oregon Health Authority has interpreted a similar provision to prevent legal representatives and law enforcement from obtaining access to the information.[19] Once again, it is less likely that any lack of compliance will be exposed.

2.  No witnesses

As noted above, the act does not require witnesses at the death. This creates the opportunity for an heir, or another person who will benefit from the patient’s death, to administer the lethal dose to the patient without his consent, in private. Even if the patient struggled, who would know?

3. Immunity

Under the act, persons who cause or assist a patient’s death and/or suicide are given immunity from criminal and civil liability, and also immunity from professional discipline. § 18(1)(a) states:
"No person shall be subject to civil or criminal liability or professional disciplinary action by any regulatory agency for any actions undertaken in compliance with this chapter."
4. More immunity

The act also provides that deaths and/or suicides under the act:
"shall not constitute suicide, assisted suicide, mercy killing or homicide under any criminal law of the commonwealth."[20]
In Washington state, the other state with a similar law, similar language has been interpreted to require medical examiners, coroners and prosecuting attorneys to treat the death as “Natural.”[21] If so interpreted in Massachusetts, persons who cause or assist a patient’s death and/or suicide would be given another layer of protection against prosecution.

5. Substantial compliance and good faith

As noted above, the act only requires substantial compliance with its provisions, which makes it less likely that persons who cause or assist a person’s death and/or suicide will run afoul of the act. The act also holds participants to a “good faith” standard, as follows:
"A person who substantially complies in good faith with the provisions of this chapter shall be deemed to be in compliance with this chapter."[22]
The act does not define what is meant by good faith. In the context of former G.L. c. 106, § 65(2), “good faith” was  interpreted to mean “in fact done honestly, whether it be done negligently or not.”[23] If so interpreted here, the above provision gives participants a further protection from liability.

6. Patients are not allowed to opt out

Persons who cause or assist a patient’s death and/or suicide are also protected because patients are not allowed to opt out of the act’s provisions. Consider, for example, a wealthy gentleman concerned that his daughters are more interested in his money than him and/or that they will be pushing him to request a lethal dose. A counter-move would be for him to make their inheritance contingent on his death not being via a lethal dose. Under the act, however, any such provision in a contract and/or will is invalid. The act, § 16(1) states:
"No provision in a contract, will, insurance policy, annuity, or other agreement, whether written or oral, made on or after January 1, 2013, shall be valid to the extent the provision would condition or restrict a person’s decision to make or rescind a request for medication to end his or her life in a humane and dignified manner."
D. The Act will Promote Elder Abuse

In Massachusetts, elder abuse is on the rise.[24] If the proposed act is enacted, new paths of abuse will be created against the elderly, with the most obvious path being due to the lack of witnesses at the death. Even if the elder struggled, who would know?

E.  The Title and One Sentence Statements

The Attorney General’s Office has provided the following ballot question title and one sentence statements:

"Title:  Prescribing Medication to End Human Life

A Yes vote would enact the proposed law allowing a physician licensed in Massachusetts to prescribe medication, at a qualifying, terminally-ill patient’s request, to end that person’s life. 

A No vote would make no change in the laws relating to prescribing medication to end human life."

III.  ISSUES


A.  Whether the ballot question title should be amended and replaced because it is misleading?

B.  Whether the one-sentence statements should be amended and replaced because they are misleading?

C.  Whether the replacement title and statements proposed herein should be adopted?

IV.  ARGUMENT

A. The Law G.L. c. 54, § 53 states that one-sentence statements describing “the effect of a yes or no vote” shall be “fair and neutral.” § 53 also states that a court may issue an order requiring an amendment when the ballot question title or the one-sentence statements are “misleading.”

B. The Title is Misleading

As described above, the proposed act is a multi-layer protection bill for people who cause or assist a patient’s death and/or suicide. The persons protected include heirs and other people who benefit financially from the deaths. The act is also a major change in the law, for example, conduct that is now “murder” would be  legalized and/or allowed to occur without penalty. 

In this context, the draft title, “Prescribing Medication to End Human Life,” is misleading for three reasons:  First, the title’s central thrust, “prescribing medication,” is only a small part of the act and a side issue to the act’s central effect, which is the protection of people who cause or assist a patient’s death and/or suicide.   

Second, with the title’s focus on “prescribing medication,” there is the implication that the act is limited to doctors or healthcare, when the act also protects heirs.  

Third and finally, the title uses the term, “human life,” which is not a term used by the act. In common parlance, “human life” includes the unborn. Reading the title, a voter could reasonably understand that the act seeks to legalize a “morning after” pill or some other method of prescription abortion.

C. A Fair and Neutral Title

A “fair and neutral” title would instead capture the central  effect of the act, which is the protection of people who cause or assist a patient’s death and/or suicide under the act. A fair and neutral title would therefore be along these lines: “Protection for Persons who Cause or Assist Deaths and/or Suicides.”

D. The Yes Statement is Misleading

The Yes statement states:
"A Yes vote would enact the proposed law allowing a physician licensed in Massachusetts to prescribe medication, at a qualifying, terminally-ill patient’s request, to end that person’s life."
The above statement is misleading because it focuses on “medication,” not the essence of the act, which is to protect people who cause or assist a patient’s death and/or suicide. The statement is also misleading because it refers to a patient’s “request,” thereby implying that the act is always voluntary for patients, which is not the case. As described above, the act does not allow patients to opt out of its provisions. There is also a complete lack of oversight when the lethal dose is administered. Even if the patient struggled, who would know?

E. A Fair and Neutral Yes Statement

A fair and neutral yes statement would describe the effect of the act if enacted, which would be something along these lines:
"A Yes vote would enact the proposed law providing protections for persons who cause or assist a patient’s death and/or suicide, under circumstances that would not necessarily be voluntary for the patient."
F. The No Statement is Misleading

The No statement states:
"A No vote would make no change in the laws relating to prescribing medication to end human life."
The statement is misleading due to its use of the term, “human life,” which again, is not a term used by the act and which also connotes abortion. The statement is also misleading because with the last part of the statement, “relating to prescribing medication to end human life,” there is the implication that a No vote might change some other law (not “relating to prescribing medication to end human life”).

G.  A Fair and Neutral No Statement.

To be fair and neutral, the no statement should read:  “A No vote would make no change in the law.”

VI.  CONCLUSION

The draft title and one-sentence statements are misleading. They should be amended and replaced as submitted herein.

Respectfully submitted this 9th day of April 2012,

Margaret Dore
Law Offices of Margaret K. Dore, P.S.
www.margaretdore.com1001 4th Avenue, 44th Floor
Seattle, WA 98154
206 389 1754

FOOTNOTES:
[1] See Commonwealth v. Bowen, 13 Mass. 356 (1816)("If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the advisor is guilty of murder, as principal"); and In re Joseph G., 194 Cal.Rptr 163, 165-167 (1983), citing Bowen, supra, as authoritative.
[2] See Nelson v. Massachusetts Port Authority, 55 Mass.App.Ct. 433, 435-6, 771 N.E.2d 209 (2002) (These cases fit into two patterns: (1) the defendant's negligence was the cause of the decedent's uncontrollable suicidal impulse; or (2) the decedent was in the defendant's custody and the defendant had knowledge of the decedent's suicidal ideation); Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997)(affirming a large judgment against a physician who had prescribed an "excessively large dosage" of barbiturates to a foreseeably suicidal patient who killed herself via the barbiturates); and Cramer v. Slater, 146 Idaho 868, 878, 204 P.3d 508 (2009), stating that doctors "can be held liable for [a] patient's suicide."  In Cramer, doctors negligently informed a patient about his HIV/AIDS status, which allegedly caused him to commit suicide.  For another example, see William Dotinga, “Grim Complaint Against Kaiser Hospital,” at
http://www.courthousenews.com/2012/02/06/43641.htm (Patient’s son suing Kaiser Foundation Hospitals and affiliates, a doctor and two social workers arising out of the intentional death of his father via a "terminal extubation").
[3] See  Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 3 N.E.2d 17 (1936), (“It is settled law that a mentally responsible person who commits murder loses all right to the proceeds of a life insurance policy on the life of the person murdered”) An inheritance can be set aside for undue influence, for example, when an heir actively participated in the making of the will and/or was present when the will was executed. See e.g., M.G.L.A. 190B § 2-505(b) and Burns v. Kabboul, 595 A.2d 1153, 1163 (Pa. Super. Ct. 1991)("It will weigh heavily against the proponent [of the will] on the issue of undue influence when the proponent was … present at [its] dictation …”).
[4] The act, §§ 2-13, and 21.
[5] Id., §§ 3 and 21.
[6] Id. (providing that one of two required witnesses on the lethal dose request form cannot be a patient’s heir or other person who will benefit financially from the death; the other witness may be an heir or other person who will benefit financially from the death).
[7] See act, § 1(3) and 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, available at www.seattleweekly.com/2009-01-14/news/terminal-uncertainty
[8] The act, § 18(1)(a) states: “A person who substantially complies in good faith with the provisions of this chapter shall be deemed to be in compliance with this chapter.”
[9] See the act in its entirety.
[10] Id.
[11] Id.
[12] § 4(2) states: “The attending physician may sign the patient’s death certificate which shall list the underlying disease as the cause of death.”
[13] § 12.
[14] § 15. 
[15] § 15(1).
[16] Id.
[17] See entire act.
[18] § 15(2).
[19] See E-mail from Alicia Parkman, Mortality Research Analyst with the Oregon Health Authority, to Margaret Dore, January 4, 2012 (“We have been contacted by law enforcement and legal representatives in the past, but have not provided identifying information of any type”), available here.
[20] The Act, § 18(1)(b).
[21] See: Washington State Department of Health, “Instructions for Medical Examiners, Coroners, and Prosecuting Attorneys: Compliance with the Death with Dignity Act,” Revised April 8, 2009, available here and at http://www.doh.wa.gov/dwda/forms/MEsAndCoroners.pdf
[22] §18(1)(a).
[23] See Westlaw printout attached here.
[24] Madeline McNeilly, “Elder Abuse is a growing problem that’s underreported,” The Sun Chronicle, August 14, 2011, at  http://www.thesunchronicle.com/articles/2011/06/15/columns/9727616.txt .  See also: Jaclyn Reiss, “Elder-abuse cases on the rise in Massachusetts,” Metro West Daily News, February 19, 2011, at http://www.metrowestdailynews.com/lifestyle/health/x268608620/Elder-abuse-cases-on-the-rise-in-Massachusetts ; and Steve Adams, “Elder abuse and neglect  complaints on rise in Massachusetts,” Gate House News Service, September 6, 2010, at http://www.wickedlocal.com/swansea/archive/x128163064/Elder-abuse-and-neglect-complaints-are-on-the-rise-in-Massachusetts#axzz1V1xksjt4

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