Oregon offers terminal patients Doctor-Assisted Suicide instead of Medical Care

By Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Fox news reported that Randy Stroup (53) of Dexter Oregon, who has prostate cancer, received a letter from the (LIPA) who administer the Oregon Health plan in Lane county that the Oregon Health plan would not pay for expensive chemotherapy but they would pay for assisted suicide.

Stroup stated to Fox News: 

"It dropped my chin to the floor, (How could they) not pay for medication that would help my life and yet offer to pay to end my life?"

In the state of Oregon, assisted suicide has been legal for more than 10 years. It began as an option for terminally people who were suffering and it is now becoming a treatment offer for all people with terminal conditions.

This is not the first case like this that has been uncovered by the media.

Barbara Wagner

On June 3rd I wrote about the story of Barbara Wagner, who was prescribed a drug for her lung cancer but was told by (LIPA) that they would pay for palliative care or assisted suicide, but not the chemo pills that her oncologist had noted was an effective treatment for her condition.

In Wagner's case the pharmaceutical company offered her free access to the effective drug for one year. She was truly given the gift of life by the pharmaceutical company.

Barbara Wagner story:

How many other people have been denied effective, necessary, but expensive treatment for cancer or other conditions but offered payment by (LIPA) for palliative care or physician-assisted suicide.

Fox interviewed Dr. William Toffler, a professor of family medicine at Oregon Health & Science University.

Toffler stated that:

"Oregon doesn't cover life-prolonging treatment unless there is better than a 5 percent chance it will help the patients live for five more years - but it covers doctor-assisted suicide, defining it as a means of providing comfort, no different from hospice care or pain medication. 

"It's chilling when you think about it, It absolutely conveys to the patient that continued living isn't worthwhile," said Toffler.

Dr. John Sattenspiel, LIPA's senior medical director defends the measures by emphasizing preventative care and cost effectiveness.

"I have had patients who would consider knowing that this is part of the range of comfort care or palliative care services that are still available to them, they would be comforted by that."

Stroup has fought back. He said that suicide was never an option for him. The Oregon Health Plan eventually reversed its decision and is now paying for his chemotherapy. He has hope that he will be around a little longer for his 80-year-old mother and his five grandchildren.

Washington State voters need to read about Randy Stroup and Barbara Wagner before voting in favor of the I-1000 that would legalise Oregon style assisted suicide in that state.

The story:
http://www.foxnews.com/story/0,2933,392962,00.html

Recent story about Barbara Wagner:
http://www.kval.com:80/news/26140519.html

Persons Living with HIV/AIDS: Is This What You Want?

The following article was originally published on the Mass Against Assisted Suicide website.

Margaret Dore

By Margaret Dore, Esq.

Some HIV/AIDS groups have endorsed Ballot Question 2, which seeks to legalize assisted suicide in Massachusetts via a proposed act.  This post suggests that these groups and/or persons living with HIV/AIDS should give the issue a second look.

1. "Terminal" Does Not Mean "Dying" 

The proposed act applies to persons with a "terminal disease," defined in terms of less than six months to live.[1] In Oregon, where there is a similar act, the six months to live is determined without requiring treatment.[2]

In other words, a person living with HIV/AIDS, who is doing well, but who is dependent on treatment to live, is "terminal" for the purpose of assisted suicide eligibility.

2. The Significance of a Terminal Label

Once someone is labeled "terminal," an easy justification can be made that his or her treatment should be denied in favor of someone more deserving.  In Oregon, "terminal" patients are not only denied treatment, they are offered assisted suicide instead.  In a recent affidavit, Oregon doctor Ken Stevens states:

"9. Under the Oregon Health Plan, there is . . .  a financial incentive towards suicide because the Plan will not necessarily pay for a patient’s treatment.  For example, patients with cancer are denied treatment if they have a "less than 24 months median survival with treatment" and fit other criteria. . . . 12. All such persons . . .  will . . . be denied treatment. Their suicides under Oregon’s assisted suicide act will be covered."[3] 

Dr. Stevens concludes:

"14. The Oregon Health Plan is a government health plan administered by the State of Oregon. If assisted suicide is legalized in [your jurisdiction], your government health plan could follow a similar pattern. If so, the plan will pay for a patient to die, but not to live."[4]

Barbara Wagner

3. Barbara Wagner and Randy Stroup

In Oregon, the most well known persons denied treatment and offered suicide are Barbara Wagner and Randy Stroup.[5] Neither saw this event as a celebration of their "choice."  Wagner said: "I'm not ready to die."[6] Stroup said: "This is my life they’re playing with."[7]

4. Proposals for Expansion

I live in Washington State, where assisted suicide is legal under an act passed in 2008.[8] Four years later, there have already been proposals to expand our act to non-terminal people.[9] Moreover, this year, there was a Seattle Times column suggesting euthanasia as a solution for people unable to afford care, which would be involuntary euthanasia for those persons who want to live.[10]

Prior to our law's being passed, I never heard anyone talk like this.

Is this what you want?

To be just like us?

Legal assisted suicide puts anyone with a significant health condition at risk of being steered to suicide. For other reasons to vote against assisted suicide, please click here for talking points. I hope that AIDS groups and people living with AIDS reconsider any support of Ballot Question No. 2. Thank you.

* * *

Margaret Dore is a lawyer in Washington State where assisted suicide is legal. She is also President of Choice is an Illusion, a non-profit corporation opposed to assisted suicide and euthanasia.  Ms. Dore has been licensed to practice law since 1986. She is a former Law Clerk to the Washington State Supreme Court. She has several published court cases and many published scholarly articles. Her viewpoint is that people should be in control of their own fates, but that assisted suicide laws do not deliver. This year, she had an editorial published in the NY Times: "Assisted Suicide: A Recipe for Elder Abuse." For more information see www.margaretdore.com and www.choiceillusion.org

* * * 

[1] The proposed Massachusetts act, Section 1(13) 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. To view the entire act, go here: http://www.massagainstassistedsuicide.org/p/initiatives-text.html
[2] For an example, see the affidavit of Oregon doctor Ken Stevens describing his patient Jeanette Hall. She had been given six months to a year to live by another doctor, i.e. without treatment, and had decided that she would use Oregon's law. Dr. Stevens convinced her to be treated instead. His affidavit can be viewed here: http://choiceisanillusion.files.wordpress.com/2012/10/signed-ken-stevens-affidavit_001.pdf. Oregon's definition of "terminal disease" can be viewed here: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx
[3] Dr. Stevens affidavit can be viewed here: http://choiceisanillusion.files.wordpress.com/2012/10/signed-ken-stevens-affidavit_001.pdf
[4] Id.
[5] Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008, available at: http://abcnews.go.com/Health/Story?id=5517492&page=1 and "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008, available at: http://www.katu.com/news/26119539.html
[6] KATU TV article at Note 5.
[7] ABC News article at Note 5.
[8] Washington State's assisted suicide law can be viewed here: http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245
[9] See e.g., 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
[10] Jerry Large, "Planning for old age at a premium," The Seattle Times, March 8, 2012 at: http://seattletimes.nwsource.com/text/2017693023.html. ("After Monday's column, some readers were unsympathetic [to people who couldn't afford their own care], a few 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.")

Deconstructing the Myth that Wealth Protects against the pressure to die by assisted suicide.

I was going through my past articles and I found this article that was posted by True Dignity Vermont entitled: Deconstructing the Myth that Wealth Protects against pressure to die by assisted suicide. True Dignity Vermont is a group of Vermont citizens who are opposed to assisted suicide. The following article is the full text of the original. Link to the original article.

By the Administrators

The August 13, 2012 edition of the New York Times contains a puff piece for assisted suicide that uses an anecdote about an Oregon physician to rehash the tattered argument that assisted suicide is safe because most of those who commit suicide where assistance is legal are affluent, insured, and well-educated. Because they could afford to pay for care, they are presumed not to be vulnerable to pressure.

Presumption is far from proof.

In an article published in November 2010 in the Journal of Medical Ethics, UK medical researchers I G Findlay and R. George go after the assumption that affluence equals invulnerability. That presumption, they write, sees “the concept of vulnerability from one perspective only”. They point out that many people, including some researchers, lack objectivity because “those who see a problem from within a set of values have difficulty imagining a view from elsewhere”. Findlay and George argue that it is entirely possible that the wealthy may in fact be more vulnerable than the poor to pressure to commit assisted suicide. The assumption that the poor are more vulnerable, they say, is based on a system of value judgments rather than solid research. An abstract and instructions for buying their article can be found at: http://jme.bmj.com/content/37/3/171.abstract. We will be glad to share our copy of the article with individuals on request.

Findlay and George list the following reasons why the affluent may be vulnerable:
1. “…illness and potential dependence are more frightening to them or because they have fewer psychosocial supports”
2. “ …they are people who are familiar with the intricacies of the law and can argue more persuasively with their physicians”
3. “… they may be vulnerable to factors invisible to rigid demographic analysis.”
4. “…stigmatization of illness and disability” may exist among the affluent.

Findlay and George also assert that the continued rise in the number of assisted suicide deaths in Oregon points to the need to investigate a possible role of “media coverage and possible contagion” and “subliminal unintended coercive influence from proponents of PAS….especially in consumerist societies in which citizens may be more sensitive to fashion and the new” and “to feel…that not to conform to the new way is in some manner politically incorrect”.

While Findlay and George don’t limit the possibility of this cultural coercion to the affluent, True Dignity, recognizing that we have our own set of values, believes that wealth creates its own set of pressures to die that come into play the moment assisted suicide is made legal anywhere.

Every Oregon annual report shows that most people dying under Oregon assisted law are over 60 (http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year14-tbl-1.pdf). It is a truism that elder abuse in this country is a huge problem and that much of the abuse is for financial gain. One has only to remember the abuse suffered by Brooke Astor, the NY socialite, widely reported a few years ago (http://en.wikipedia.org/wiki/Brooke_Astor). If wealth did not protect her from being pressured to change her will or from its being changed without her knowledge, why would it have protected her from pressure or coercion to die sooner so that the same people who caused her to change the will could inherit her wealth sooner? Pressure and coercian are antithetical to choice. Attorney Margaret Dore calls assisted suicide “a recipe for elder abuse and the illusion of choice”; she provides much evidence to back up this assertion (http://www.margaretdore.com/vermont.cfm).

Barbara Wagner

We know with certainty that the poor have already been pressured under Oregon’s assisted suicide laws. Two terminally ill Oregon Medicaid patients, Barbara Wagner and Randy Stroup, received letters from the state’s Medicaid program denying coverage for life-prolonging chemotherapy prescribed by their doctors and wanted by them and, in the same letter, offering coverage of assisted suicide (http://abcnews.go.com/Health/story?id=5517492&page=1#.UCkcpKOLU is, with Randy Stroup’s information on page 2). Stroup and Wagner perceived the letters as pressure to die, went public, and, in one case, got the decision overturned and in the other got free chemotherapy drugs from the company that made them. What we don’t know is how many patients received similar letters but did not go public and, whether they accepted the state’s offer of help in committing suicide or not, felt this pressure.

The doctor in the NY Times article (not linked here, but easy to find online) mouths the slogan of the national assisted suicide movement to the reporter: “…it is my life, it is my death, and it should be my choice.”

We say to him that what may (or may not) be his free choice may not be a free choice at all for another, whether that other is rich or poor, insured or not, educated or not. Our personal choices end where they threaten others.

Legal assisted suicide is and will always be a threat to some. We need to do everything possible to keep it from spreading in our country.

Response to: Choosing when and how to die: Are we ready to perform therapeutic homicide?

The following article was published in the Canadian Medical Association Journal and titled: Response to Choosing when and how to die: Are we ready to perform therapeutic homicide?

Ken Stevens

Kenneth R. Stevens, Radiation Oncologist, MD

I am a cancer doctor in Oregon where physician-assisted suicide is legal. This letter responds to the editorial by Dr. Flegel and Dr.Fletcher, "Choosing when and how to die: Are we ready to perform therapeutic homicide?" (June 25 2012)

In Oregon, the combination of assisted-suicide legalization and prioritized medical care based on prognosis has created a danger for my patients on the government run Oregon Health Plan (Medicaid).

The Plan limits medical care and treatment for patients with a likelihood of a 5% or less 5-year survival. My patients in that category, who say, have a good chance of living another three years and who want to live, cannot receive surgery, chemotherapy or radiation therapy to obtain that goal. The Plan guidelines state that the Plan will not cover "chemotherapy or surgical interventions with the primary intent to prolong life or alter disease progression." The Plan WILL cover the cost of the patient's suicide.

Barbara Wagner

Under our law, a patient is not supposed to be eligible for voluntary suicide until they are deemed to have six months or less to live. In the well publicized cases of Barbara Wagner and Randy Stroup, neither of them had such diagnoses, nor had they asked for suicide. The Plan, nonetheless, offered them suicide.

In Oregon, the mere presence of legal assisted-suicide steers patients to suicide even when there is not an issue of coverage. One of my patients was adamant she would use the law. I convinced her to be treated. Now twelve years later she is thrilled to be alive. I hope that you can avoid Oregon's mistake.

[Support for this letter regarding Barbara Wagner and Randy Stroup can be found in these articles: http://www.katu.com/news/26119539.html & http://abcnews.go.com/Health/story?id=5517492&page=1 My patient's letter in the Boston Globe describing her then being alive 11 years later can be read here: http://articles.boston.com/2011-10- 04/bostonglobe/30243525_1_suicide-doctor-ballot-initiative]

Quick facts about Assisted Suicide

The following article was originally published by Montanans Against Assisted Suicide website.

Margaret Dore

By Margaret Dore, Esq.*

For a print version, click here.

1. Assisted Suicide

Assisted suicide means that someone provides the means and/or information for another person to commit suicide. When a physician is involved, the practice is physician-assisted suicide.[1]

2. The Oregon and Washington Laws

In Oregon, physician-assisted suicide was legalized in 1997 via a ballot measure.[2] In Washington State, a similar law was passed via another ballot measure in 2008 and went into effect in 2009.[3] No such law has made it through the scrutiny of a legislature despite more than 100 attempts.[4]

Jeanette Hall

3. Patients are Not Necessarily Dying

The Oregon and Washington laws are restricted to patients predicted to have less than six months to live.[5] Such persons are not necessarily dying. Doctors can be wrong.[6] Moreover, treatment can lead to recovery. Consider Jeanette Hall, who was diagnosed with cancer and given six months to a year to live.[7] She was adamant that she would "do" Oregon’s law, but her doctor, Ken Stevens, convinced her to be treated instead.[8] She is still alive 12 years later.[9]

4. A Recipe for Elder Abuse

The Washington and Oregon laws are a recipe for elder abuse. The most obvious reason is due to a lack of oversight when the lethal dose is administered.[10] For example, there are no witnesses required at the death; the death is allowed occur in private.[11] With this situation, the opportunity is created for an heir, or some other person 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?

Barbara Wagner

5. Empowering the Healthcare System

In Oregon, patients desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.

The most well known cases involve Barbara Wagner and Randy Stroup.[12] Each wanted treatment.[13] The Plan denied their requests and steered them to suicide by offering to pay for their suicides.[14] Neither Wagner nor Stroup saw this scenario as a celebration of their "choice." Wagner said: "I'm not ready to die."[15] Stroup said: "This is my life they’re playing with."[16]

Wagner and Stroup were steered to suicide. Moreover, it was the Oregon Health Plan, a government entity, doing the steering.[17]

6. Suicide Contagion

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[18]

Just three years prior, Oregon legalized physician-assisted suicide. This increased suicide rate is consistent with a suicide contagion. In other words, legalizing one type of suicide encouraged other suicides. Montana already has one of the highest suicide rates in the nation.[19]

7. A "Wedge" Issue

In Washington State, where assisted suicide was legalized four years ago, there is already a discussion to expand its law to direct euthanasia for non-terminal people.[20] Indeed, last month, there was a column describing reader suggestions for euthanasia for people unable to afford care, which would be on an involuntary basis for people who want to live.[21]

* 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. For more information, see www.margaretdore.com and www.choiceillusion.org

-----------------

[1] Compare: American Medical Association, Code of Medical Ethics, Opinion 2.211, available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page

[2] The Oregon and Washington laws are similar. For a short article about Washington’s law, see Margaret K. Dore, "'Death with Dignity': What Do We Advise Our Clients?," King County Bar Association, Bar Bulletin, May 2009, available at: https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm

[3] Id.

[4] http://epcdocuments.files.wordpress.com/2011/10/attempts_to_legalize_001.pdf

[5] See ORS 127.800 s.1.01(12) and RCW 70.245.010(13).

[6] See e.g., Nina Shapiro, "Terminal Uncertainty: Washington’s new "Death With Dignity" law allows doctors to help people commit suicide­once they’ve determined that the patient has only six months to live. But what if they’re wrong?," 01/14/09, available at: http://www.seattleweekly.com/2009-01-14/news/terminal-uncertainty

[7] See Jeanette Hall, Letter to the editor, "She pushed for legal right to die, and - thankfully - was rebuffed, Boston Globe, October 4, 2011 ("I am so happy to be alive!), available at: http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2011/10/04/she_pushed_for_legal_right_to_die_and___thankfully___was_rebuffed/ Kenneth Stevens MD, Letter to the Editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho State Bar, Sept. 2010, (scroll down to last letter at: www.margaretdore.com/info/Stevens.pdf).

[8] Id.

[9] Per her telephone call today.

[10] The Oregon and Washington Acts can be viewed in their entirety here and here.

[11] Id.

[12] See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008, at: http://abcnews.go.com/Health/story?id=5517492&page=1; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008, at: http://www.katu.com/news/specialreports/26119539.html; and Ken Stevens, MD, Letter to Editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho State Bar, September 2011, to view, scroll down to bottom of second page here: http://www.margaretdore.com/info/September_Letters.pdf

[13] Id.

[14] Id.

[15] KATU TV at note 12

[16] ABC News at note 12

[17] See also Affidavit of Ken Stevens MD (Leblanc v. Canada), with attachments, available at: http://maasdocuments.files.wordpress.com/2012/09/signed-stevens-aff-9-18-12.pdf

[18] See "Suicides in Oregon: Trends and Risk Factors," Oregon Department of Human Services, Public Health Division, September 2010, page 6, ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report"), available at: http://epcdocuments.files.wordpress.com/2011/10/or_suicide_report_001.pdf

See also Oregon Health Authority, News Release, "Rising suicide rate in Oregon reaches higher than national average," September 9, 2010, ("suicide rates have been increasing significantly since 2000") available at: http://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf [19] Cindy Uken, "State of Dispair: High-Country Crisis, Montana’s suicide rate leads the nation," Billings Gazetter, November 25, 2012, http://billingsgazette.com/news/state-and-regional/montana/montana-s-suicide-rate-leads-the-nation/article_b7b6f110-3e5c-5425-b7f6-792cc666008d.html?print=true&cid=print

[20] See 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

[21] See Jerry Large, "Planning for old age at a premium," The Seattle Times, March 8, 2012 at: http://seattletimes.nwsource.com/text/2017693023.html ("After Monday's column, some readers were unsympathetic, a few 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.")

Quick Facts About Assisted Suicide

Margaret Dore

By Margaret Dore, Esq.*

1.  Assisted Suicide
Assisted suicide means that someone provides the means and/or information for another person to commit suicide. When a physician is involved, the practice is physician-assisted suicide.[1]

2. The Oregon and Washington Laws
In Oregon, physician-assisted suicide was legalized in 1997 via a ballot measure.[2] In Washington State, a similar law was passed via another ballot measure in 2008 and went into effect in March 2009.[3] 

3.  Throwing Away Your Life
The Oregon and Washington laws apply to state residents predicted to have less than six months to live.[5] Such persons are not necessarily dying.  Doctors can be wrong.[6] Moreover, treatment can lead to recovery. Consider Jeanette Hall, who was diagnosed with cancer and given six months to a year to live.[7] She was adamant that she would "do" Oregon’s law, but her doctor, Ken Stevens, convinced her to be treated instead.[8] She is still alive today, 13 years later.[9]

With legal assisted suicide, people with many quality years to live are encouraged to throw away their lives.

4.  A Recipe for Elder Abuse
The Washington and Oregon laws are a recipe for elder abuse. The most obvious reason is due to a lack of oversight when the lethal dose is administered.[10] For example, there are no witnesses required at the death; the death is allowed occur in private.[11] With this situation, the opportunity is created for an heir, or some other person who will benefit from the patient’s death, to administer the lethal dose to the patient without her consent.  Even if she struggled, who would know?

For more detail about Washington's law, which is similar to Oregon's law, read a short article by clicking here. 

5. Empowering the Healthcare System
In Oregon, patients desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.

The most well known cases involve Barbara Wagner and Randy Stroup.[12] Each wanted treatment.[13] The Plan denied their requests and offered to pay for their suicides instead.[14] Neither Wagner nor Stroup saw this scenario as a celebration of their "choice." Wagner said: "I'm not ready to die."[15] Stroup said: "This is my life they’re playing with."[16]

Wagner and Stroup were steered to suicide. Moreover, it was the Oregon Health Plan, a government entity, doing the steering.[17] For more detail about the current situation, read the affidavit of Kenneth Stevens, by clicking here.

6.  Increased Suicide in Oregon

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[18]

Just three years prior, Oregon legalized physician-assisted suicide. This increased suicide rate is consistent with a suicide contagion in which removing the stigma from one type of suicide encouraged other suicides. Montana already has one of the highest suicide rates in the nation.[19]

7.  Proposed Expansion in Washington State
Washington State legalized physician-assisted suicide in March 2009. Just three years later, there were already discussions to expand that law to direct euthanasia of non-terminal people.[20] For example, on March 8, 2012, there was a Seattle Times column suggesting 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," The Seattle Times, March 8, 2012 at: http://seattletimes.nwsource.com/text/2017693023.html ("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).

* 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. For more information, see: www .margaretdore.com and www.choiceillusion.org 

Assisted suicide/euthanasia case is a recipe for elder abuse and a threat to individual patient rights

NEWS RELEASE

Euthanasia Prevention Coalition (EPC)
Euthanasia Prevention Coalition, BC (EPC - BC)

Assisted suicide/euthanasia case is a recipe for elder abuse and a threat to individual patient rights


November 9, 2011 - For immediate release

Vancouver, BC: On November 14, 2011, trial will begin in Carter v. Attorney General of Canada, which seeks to legalize assisted suicide and euthanasia. Last year, Parliament defeated a bill seeking a similar result. The vote was 228 to 59. EPC was an instrumental force in obtaining this overwhelming defeat.

EPC and EPC - BC have intervenor standing in Carter. They oppose assisted suicide because legalization is a recipe for elder abuse and a threat to individual patient rights.

A recipe for elder abuse 

Will Johnston, a Vancouver physician and Chair of the EPC - BC states:

"I see elder abuse in my practice, often perpetrated by family members and caregivers. A desire for money or an inheritance is typical. To make it worse, the victims protect the perpetrators. In one case, an older woman knew that her son was robbing her blind and lied to protect him. Why? Family loyalty, shame, and fear that confronting the abuser will cost love and care.

Under current law, abusers take their victims to the bank and to the lawyer for a new will. With legal assisted suicide, the next stop would be the doctor’s office for a lethal prescription. How exactly are we going to detect the victimization when we can’t do it now?"

 If assisted suicide were to be legalized under Carter's Amended Notice of Civil Claim, new paths of abuse would be created. A more obvious path is due to a lack of oversight when the lethal dose is administered. This situation creates an opportunity for a family member or someone else to administer the lethal dose to the patient without his consent. Even if he struggled, who could know?

Preventing elder abuse is official Government of Canada policy.

A threat to individual patient rights

In Oregon, where assisted suicide has been legal since 1997, people desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.  The most well known cases involve Barbara Wagner and Randy Stroup.  Each wanted treatment.  The Plan offered them assisted suicide instead.

Neither Wagner nor Stroup saw this scenario as a celebration of their individual rights.  Wagner said: “I'm not ready to die.”  Stroup said: “This is my life they’re playing with.”

Wagner and Stroup were steered to suicide. Moreover, it was the Oregon Health Plan, a government entity, doing the steering. If assisted suicide were to be legalized in Canada, the Canadian health care system would be similarly empowered to steer patients to suicide.

Alex Schadenberg, Executive Director of EPC, states: 

 "With legal assisted suicide, the healthcare system, doctors and the government would be empowered, not individual patients."

Learn more

To learn more about problems with the Carter case, click here:  http://alexschadenberg.blogspot.com/2011/11/carter-case-and-assisted-suicide-recipe.html

MEDIA CONTACTS

Will Johnston, MD, williardjohnston@shaw.ca (604) 220 2042
Alex Schadenberg, info@epcc.ca (519) 851 1434

'Right to die' can become a 'duty to die'

The insightful Wesley Smith has directly connected euthanasia and assisted suicide to the Duty to Die. Wesley is always clear. People need to heed his warning.

Vulnerable people can be bullied into assisted suicide, believes Wesley Smith.

By Wesley Smith
Daily Telegraph - Feb 21, 2009

Imagine that you have lung cancer. It has been in remission, but tests show the cancer has returned and is likely to be terminal. Still, there is some hope. Chemotherapy could extend your life, if not save it. You ask to begin treatment. But you soon receive more devastating news. A letter from the government informs you that the cost of chemotherapy is deemed an unjustified expense for the limited extra time it would provide. However, the government is not without compassion. You are informed that whenever you are ready, it will gladly pay for your assisted suicide.

Think that's an alarmist scenario to scare you away from supporting "death with dignity"? Wrong. That is exactly what happened last year to two cancer patients in Oregon, where assisted suicide is legal.

Barbara Wagner had recurrent lung cancer and Randy Stroup had prostate cancer. Both were on Medicaid, the state's health insurance plan for the poor that, like some NHS services, is rationed. The state denied both treatment, but told them it would pay for their assisted suicide. "It dropped my chin to the floor," Stroup told the media. "[How could they] not pay for medication that would help my life, and yet offer to pay to end my life?" (Wagner eventually received free medication from the drug manufacturer. She has since died. The denial of chemotherapy to Stroup was reversed on appeal after his story hit the media.)

Despite Wagner and Stroup's cases, advocates continue to insist that Oregon proves assisted suicide can be legalised with no abuses. But the more one learns about the actual experience, the shakier such assurances become.

At a meeting in the House of Commons on Monday night hosted by the anti-euthanasia charity Alert and Labour MP Brian Iddon, I hope to bring home to MPs and the British public just how dangerous it would be to legalise euthanasia. The Oregon experiment shows how easily the "right to die" can become a "duty to die" for vulnerable and depressed people fearful of becoming a burden on the state or their relatives. I know that a powerful and emotive campaign is being waged in the UK media – using heart-rending cases such as multiple sclerosis sufferer Debbie Purdy – to inveigle Parliament into changing the law.

Miss Purdy, who lost in the Appeal Court on Thursday, wants to secure a legal guarantee that her husband would not be prosecuted if he accompanied her to the Dignitas clinic in Switzerland – one of the few places where euthanasia is legal. Much as I sympathise with her plight, such a guarantee would lure us on to the slippery slope where the old and the sick come under pressure to end their lives.

A study published in the Journal of Internal Medicine last year, for example, found that doctors in Oregon write lethal prescriptions for patients who are not experiencing significant symptoms and that assisted suicide practice has had little do with any inability to alleviate pain – the fear of which is a chief selling point for legalisation.

The report said that family members described loved ones who pursue "physician-assisted death" as individuals for whom being in control is important, who anticipate the negative aspects of dying and who believe the impending loss of self and quality of life will be intolerable. They fear becoming a burden to others, yet want to die at home. Concerns about what may be experienced in the future were substantially more powerful reasons than what they experienced at that point in time.

When a scared and depressed patient asks for poison pills and their doctor's response is to pull out the lethal prescription pad, it confirms the patient's worst fears – that they are a burden, that they are less worth loving. Hospices are geared to address such concerns. But effective hospice care is undermined when a badly needed mental health intervention is easily avoided via a state-sanctioned, physician-prescribed overdose of lethal pills.

Do the guidelines protect depressed people in Oregon? Hardly. The law does not require treatment when depression is suspected, and very few terminal patients who ask for assisted suicide are referred for psychiatric consultations. In 2008 not one patient who received a lethal prescription was referred by the prescribing doctor for a mental health evaluation.

As palliative care physician Dr Kathleen Foley and psychiatrist Herbert Hendin, an expert on suicide prevention, wrote in a scathing exposé of Oregon assisted suicide, physicians are able to "assist in suicide without inquiring into the source of the medical, psychological, social and existential concerns that usually underlie requests … even though this type of inquiring produces the kind of discussion that often leads to relief for patients and makes assisted suicide seem unnecessary."

Oregon has become the model for how assisted suicide is supposed to work. But for those who dig beneath the sloganeering and feel-good propaganda, it becomes clear that legalising assisted suicide leads to abandonment, bad medical practice and a disregard for the importance of patients' lives.

Wesley Smith is a lawyer, associate director of the International Task Force on Euthanasia and Assisted Suicide and senior fellow at the Discovery Institute

Link to the article:
http://www.telegraph.co.uk/comment/personal-view/4736927/Right-to-die-can-become-a-duty-to-die.html

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

Margaret Dore, an elder law attorney from Seattle Washington debunks the false premise that the Baxter decision legalized assisted suicide in Montana. Her latest blog article looks at the current law in Montana and even quotes Senator Blewett, who sponsored the bill to legalize assisted suicide in Montana.

The Baxter decision did not legalize assisted suicide in Montana, the debate during the 2011 legislative session in the Montana Senate Judiciary Committee concerning the Hinkle and Blewett bill's clarified that assisted suicide was not legal in Montana. The suicide lobby, under the leadership of Compassion & Choices, has intentionally misled the public in order to possibly encourage doctors to assist the suicides of patients, with the possible intention of bringing another case through the courts to strike down the law preventing assisted suicide. Margaret's article follows.

* * *

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

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.

B. 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." (AMA 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.

Assisted suicide is also opposed by disability rights groups such as the Disability Rights and Education Defense Fund, and Not Dead Yet.

C. Current Law

Under current Montana law, assisting a suicide exposes the assister to civil and criminal liability. Doctors and others can be held civilly liable for: (1) causing another to commit suicide; or (2) failing to prevent a suicide in a custodial situation where the suicide is foreseeable.[1] This latter situation would typically occur in a hospital or prison.[2] Those who assist a suicide can also be prosecuted for homicide under Mont. Code Ann. § 45-5-102(1). Doctors, however, have the right to assert an affirmative defense based on the victim’s consent and other factors. This is due to the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234, ¶¶ 10 & 50, 224 P.3d 1211 (2009).[3]

D. 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 affirmative defense; and SB 167, which would have legalized assisted suicide by providing doctors and others with immunity from civil and criminal liability.

During a hearing on SB 167, the bill's sponsor, Senator Anders Blewett, said:

"Under current law, . . . there’s nothing to protect the doctor from prosecution."[4]

E. Legalization Will Create New Paths of Abuse

In Montana, there has been a rapid growth of elder abuse.[5] Elders’ vulnerabilities and larger net worth make them a prime target for financial abuse.[6] The perpetrators are often family members interested in an inheritance.[7]

In Montana, preventing elder abuse is official state policy.[8] If Montana would legalize physician-assisted suicide, a new path of abuse would be created against the elderly. 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?"[9]

F. "Terminally Ill" Does Not Mean Dying

Baxter’s affirmative defense applies when patients are "terminally ill," a term that Baxter does not define. During the Baxter litigation, the plaintiffs offered this definition:

"'Terminally ill adult patient' means '[an adult] who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of his or her attending physician, result in death within a relatively short time.'"[10]

This definition is broad enough to include patients with chronic conditions who could "live for decades." Attorney Theresa Schrempp and doctor Richard Wonderly state:

"[The] definition is broad enough to include an 18 year old who is insulin dependent or dependent on kidney dialysis, or a young adult with stable HIV/AIDS. Each of these patients could live for decades with appropriate medical treatment. Yet they are 'terminally ill' according to the definition promoted by advocates of assisted suicide."[11]

G. 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, ABC News).[12] 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." Stroup said:

"This is my life they’re playing with." Wagner said: "I’m not ready to die."

Stroup and Wagner were steered to suicide. Moreover, it was the Oregon Health Plan doing the steering. Oregon’s law empowered the Oregon Health Plan, not individual patients.

H. In Oregon, Legalization of Physician-Assisted Suicide is Correlated to an Increase in Other Suicides

Oregon's suicide rate, which excludes suicide under Oregon's physician-assisted suicide law, has been "increasing significantly" since 2000.[13] Just three years prior, in 1997, Oregon legalized physician-assisted suicide. [14] In Oregon, legalization of physician-assisted suicide is statistically correlated with an increased rate of other suicides.

I. The Oregon Reports do not Prove That Assisted-Suicide is "Safe"

During the 2011 legislative session in Montana, proponents claimed that annual reports from Oregon demonstrated the safety of physician-assisted suicide. These reports do not discuss whether the people who died consented when the lethal dose was administered. During a hearing on SB 167, Senator Jeff Essmann made a related point, as follows:

"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 against – to that patient is going to be turning themselves in for the commission of a homicide."[15]

J. SB 167 was Defeated in the Senate Judiciary Committee

During the hearing on SB 167, Senator Essman also stated:

"There’s inadequate protection in [SB 167] for the powerless. It’s our obligation to protect the powerless. . . . I’m going to vote no."[16]

SB 167, seeking to legalize physician-assisted suicide in Montana, was defeated in the Senate Judiciary Committee.[17]

K. Conclusion

Under current Montana law, a doctor who causes or assists another person’s suicide is subject to civil and criminal liability. As noted by Senator Blewett:

"There’s nothing to protect the doctor from prosecution."

* * *

[1] Krieg v. Massey, 239 Mont. 469, 472-3, 781 P.2d 277 (1989).
[2] Id.
[3] To view Baxter, go here. To view an analysis of Baxter, go here.
[4] Go here to see a transcript of this quote and other quotes by Senator Blewett.
[5] Great Falls Tribune, "Forum will focus on the rapid growth in abuse of elders," June 10 2009 ("The statistics are frightening, and unless human nature takes a turn for the better, they’re almost certain to get worse"). See also Nicole Grigg, Elder Abuse Prevention, Kulr8.com, June 15, 2010 and Big Sky Prevention of Elder Abuse Program, What is Elder Abuse.
[6] MetLife Mature Market Institute Study: Broken Trust: Elders, Family, and Finances, 2009.
[7] Id.
[8] See e.g., the "Montana Elder and Persons With Developmental Disabilities Abuse Prevention Act," 52-3-801, MCA; the Protective Services Act for Aged Persons or Disabled Adults, 52-3-201, MCA; and the "Montana Older Americans Act," 52-3-501, et. al., MCA. Also go here.
[9] Alex Schadenberg, Letter to the Editor, "Elder abuse a growing problem," The Advocate, official publication of the Idaho State Bar, October 2010, page 14, available at http://www.isb.idaho.gov/pdf/advocate/issues/adv10oct.pdf.
[10] Plaintiffs’ Answer to Interrogatory No. 4, available at page 3, go here.
[11] Opinion Letter from Dr. Richard Wonderly and Theresa Schrempp, Esq., to Alex Schadenberg, available here.
[12] See Susan Harding and KATU web staff, "Letter noting assisted suicide raises questions," July 30, 2008 and Susan Donaldson James, "Death drugs Cause Uproar in Oregon," ABC News, August 6, 2008. See also Ken Stevens, MD, "Oregon mistake costs lives," official publication of the Idaho State Bar, September 2010, pages 16-17, available at. ("In Oregon, the mere presence of legal assisted-suicide steers patients to suicide . . . ").
[13] See Oregon Government News Release, September 9, 2010 ("suicide rates have been increasing significantly since 2000"); and "Suicides in Oregon, Trends and Risk Factors, September 2010 ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report").
[14] See e.g., "Oregon's Death with Dignity Act: The First Year's Experience," page 1 ("On October 27, 1997, physician-assisted suicide became a legal medical option for terminally ill Oregonians").
[15] Montana Senate Judiciary Hearing, February 10, 2011, Transcript, p. 15, lines 1 to 11, available here.
[16] Id., lines 12 to 14.
[17] See Montana Legislative website at link (SB 167 was tabled in Committee on February 10, 2010).

The Carter Case and Assisted Suicide: A Recipe for Elder Abuse and a Threat to Individual Rights

"Those who believe that legal assisted suicide . . . will assure their autonomy and choice are naive."

William Reichel, MD
Montreal Gazette, May 30, 2010[1]

By: Will Johnston, MD, Margaret Dore, JD, and Alex Schadenberg

A.  Introduction
Carter vs. Attorney General of Canada brings a constitutional challenge to Canada's laws prohibiting assisted suicide and euthanasia.[2] Carter also seeks to legalize these practices as a medical treatment.[3] Last year, a bill in Parliament seeking a similar result was overwhelmingly defeated.[4]

This article's focus is physician-assisted suicide.

Legalizing this practice would be a recipe for elder abuse. Legalization would also empower the Canadian health care system to the detriment of individual patient rights. There would be other problems.

The Leblanc Case in Quebec: A Recipe for Elder Abue and a Threat to the Individual

"Those who believe that legal assisted suicide/ euthanasia will assure their autonomy and choice are naive."

William Reichel, MD

Montreal Gazette, May 30, 2010[1]

By Margaret Dore

January 26, 2012

A. Introduction

Leblanc vs. Attorney General of Canada brings a constitutional challenge to Canada's law prohibiting aiding or abetting a suicide. Leblanc also seeks to legalize assisted suicide and euthanasia as a medical treatment. In 2010, a bill in the Canadian Parliament seeking a similar result was overwhelmingly defeated.

Legalization of assisted suicide and/or euthanasia under Leblanc will create new paths of elder abuse. This is contrary to Canadian public policy. Legalization will also empower the healthcare system to the detriment of individual patients. There will be other problems.

B. Parliament Rejected Assisted Suicide and Euthanasia

On April 21, 2010, Parliament defeated Bill C-384, which would have legalized assisted suicide and euthanasia in Canada.[2] The vote was 228 to 59.[3]

C. The Notice of Civil Claim

In Leblanc, the Notice of Civil Claim seeks to strike down § 241(b) of the Criminal Code of Canada as contrary to the Canadian Charter of Rights and Freedoms.[4] § 241(b) states:

"Every one who . . . (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years."[5]

If § 241(b) would be struck down, it appears that any person, without restriction, would be allowed to assist another person's suicide.

The Notice of Claim also seeks to allow a healthcare professional, not necessarily a doctor, and/or a person acting under the professional's supervision, to "obtain and/or administer medication and/or the necessary treatment to end [the plaintiff's] life."[6] This request, to allow someone to actively administer a lethal modality to another person, is a request for euthanasia. The Canadian Medical Association states:

"Euthanasia means someone taking active measures to end life."[7]

In the context of traditional medical treatment, a person acting under the "supervision" of a healthcare professional would include a family member.[8] An example would be an adult child who administers medication to a parent under the supervision of a doctor who is not present.[9] This would typically be in a home setting.[10]

The Notice of Claim does not define any particular eligibility for assisted suicide/euthanasia other than a description of the plaintiff.[11] She is a disabled woman with ALS.[12]

D. A Comparison to the United States

In the United States, there are two states where assisted suicide is legal: Oregon and Washington.[13] The laws in these states were enacted via ballot initiatives, which are similar to a referendum in Canada.[14] No such law has made it through the scrutiny of a legislature despite more than 100 attempts.[15]

The Oregon and Washington laws apply to patients predicted to have less than six months to live, who are typically age 65 or older.[16] The statutes have safeguards, for example, two doctors are required to approve a lethal prescription; there are also waiting periods.[17] These laws nonetheless leave patients unprotected against elder abuse, coercion and even murder. Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, states:

"With assisted suicide laws in Washington and Oregon, [elder abuse] 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?'" [18]

E. Elder Abuse

Preventing elder abuse is official Government of Canada policy.[19] Elder abuse includes physical, psychological and financial abuse.[20] Financial abuse is the most commonly reported type.[21] Elder abuse is, however, largely unreported and can be very difficult to detect.[22] This is due in part to the reluctance of victims to report. The Government of Canada website states:

"Older adults may feel ashamed or embarrassed to tell anyone that they are being abused by someone they trust."[23]

Will Johnson, MD, echoes these themes as follows:

"I see elder abuse in my practice, often perpetrated by family members and caregivers. A desire for money or an inheritance is typical. To make it worse, the victims protect the perpetrators. In one case, an older woman knew that her son was robbing her blind and lied to protect him. Why? Family loyalty, shame, and fear that confronting the abuser will cost love and care. . . .

Under current law, abusers take their victims to the bank and to the lawyer for a new will. With legal assisted suicide, the next stop would be the doctor’s office for a lethal prescription. How exactly are we going to detect the victimization when we can’t do it now?"[24]

If assisted suicide and/or euthanasia are legalized via Leblanc, new paths of abuse will be created against the elderly, which is contrary to Government of Canada public policy. For this reason alone, the relief requested in Leblanc should be denied.

F. Empowering the Healthcare System

In Oregon, where assisted suicide has been legal since 1997, patients desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.[25] The most well known cases involve Barbara Wagner and Randy Stroup.[26] Each wanted treatment.[27] The Plan offered them suicide instead.[28]

Neither Wagner nor Stroup saw this scenario as a celebration of their "choice." Wagner said: “I'm not ready to die.”[29] Stroup said: “This is my life they’re playing with.”[30]

Wagner and Stroup were steered to suicide. Moreover, it was the Oregon Health Plan, a government entity, doing the steering. If assisted suicide and/or euthanasia are legalized in Canada, the Canadian health care system will be similarly empowered. Indeed, even the plaintiff could find herself pushed to her death before she is ready. She could be a Canadian "Barbara Wagner." Her "choice" would be compromised and/or denied.

F. Suicide Contagion.

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[31] Just three years prior, Oregon legalized assisted suicide.[32] This increased suicide rate is consistent with a suicide contagion.[33] In other words, legalizing one type of suicide encouraged other suicides. In Canada, preventing suicide is a significant public health issue.[34]

G. Conclusion

In Leblanc, the relief requested should be denied.

***

Margaret Dore

Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia with a focus on the US and Canada. In November 2010, she appeared as an expert witness before the Select Committee on Dying with Dignity of the National Assembly of Quebec, Canada. She was an amicus curie in Baxter v. Montana, which is similar to Leblanc v. Attorney General of Canada.

Ms. Dore has been licensed to practice law in Washington State since 1986. She is a former Law Clerk to the Supreme Court of the State of Washington. She worked for the United States Department of Justice for one year. She has published multiple articles on elder abuse topics and against assisted suicide and euthanasia.

For more information, see: http://www.choiceillusion.org/ and http://www.margaretdore.com/.

Physician-assisted suicide is not legal in Montana

Senator Jim Shockley

The following article was written by Montana Senator Jim Shockley and published in the current edition of the Montana Lawyer. Senator Shockley is arguing that physician-assisted suicide is not legal in Montana.

"No, physician-assisted suicide is not legal in Montana: It's a recipe for elder abuse and more". [1] 

By State Senator Jim Shockley and Margaret Dore
Published in The Montana Lawyer - The State Bar of Montana

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.  

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:

http://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf

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: