Tuesday, May 31, 2011

Assisted Suicide is not legal in Montana

Bradley Williams, the coordinator of Montanans Against Assisted Suicide recently responded to an article in the Montana Standard, in reference to the Suicide Kit debacle where he clarifies concerning the fact that assisted suicide is not actually legal in Montana. The media regularily states that assisted suicide is legal in Montana but when you readt he transcript from Senator Blewett's testimony you will notice that even he acknowledges that assisted suicide is not really legal in Montana.Williams writes.

This letter is in response to Tami Abdollah's letter to the editor, "Suicide kits rekindle debate on assisted suicide." (May 26, 2011). I make two points.

First, it is not true that physician-assisted suicide is legal in Montana. In the 2011 legislature, Senator Blewett's bill, which would have accomplished that goal, failed. During the hearing on the bill,

SB 167, Senator Blewett also conceded that physician-assisted suicide is not legal in Montana. He said: "[U]nder current law, there's nothing to protect the doctor from prosecution." See here for transcript of his quote and other quotes to that same effect: Link to the Blewett Transcript.

Second, SB 167 would have imposed Oregon-style assisted suicide on our state. We do not need the "Oregon Experience". Oregon's regular suicide rate increased after that state legalized physician-assisted suicide. This is consistent with the idea of a suicide contagion: normalizing one type of suicide can encourage other different suicides.

In other words, suicide begets suicide. Montana already has one of the highest suicide rates in the country. We do not

need any more.

Bradley Williams
Montanans Against Assisted Suicide

No place for euthanasia

Paul Russell, the founder of HOPE in Australia, has written an article for the Australia Ageing Agenda website.

Russell, a speaker at the Third International Symposium on Euthanasia and Assisted Suicide, later this week, is suggesting that excellent palliative care not only renders the desire for legal euthanasia, unnecessary, but euthanasia is not an appropriate mix with palliative care.

Russell is correct. His article follows.

No place for euthanasia

I have followed with great interest the discussions on euthanasia in the pages of the Australian Ageing Agenda website and I congratulate the editors for engaging in this most contentious of subjects.

Australian-born Professor of Law, Medicine and Ethics at McGill University in Canada, Margaret Somerville, suggests that we need to re-engage in what she calls ‘death talk’; a healthy conversation about our last moments. It is true that our modern societies have ‘sanitized’ death to a great degree. People die less and less in their own homes in familiar surroundings and with their loved ones than ever before. No matter how caring the hospital, hospice or aged care facility we all know that there’s something a little impersonal about the experience.

We also know that we’re living longer and more likely to die from a chronic illness than our forebears and that our aging population creates pressures on the health system generally and in services for the aging in particular. In that context it is understandable that people should be concerned for their welfare when nearing life’s end. But euthanasia is not a reasonable solution.

It is not a reasonable solution because it is bad public policy to include euthanasia as an ‘alternative’ to good care and pain management. If we have a problem, it’s really more that many doctors lack the skills, knowledge and training about palliative care services or where to go to access such care.

I have a friend who has worked 40 years in a really top quality palliative care and hospice environment. She told me once that in all her years and in all the different and difficult situations her patients have experienced she had never once heard anyone call out for euthanasia. Observing her work I must say I’m really not surprised. Why? Because good palliative care is not only about pain management; it’s also very much focused on empowering the patient and including their loved ones every step of the way. It is, in fact, the fear of loss of autonomy and power that rates far more highly, by a factor of more than four-to-one, than does the fear of unmanaged pain.

If we include euthanasia as an ‘option’ in critical care we’re making the patient the problem and not the condition. Once we begin to cross that line, does anyone really believe that the ‘cheaper, quicker option’ won’t begin to take precedence over good palliative care?

We should also consider the problem of elder abuse. As far back as 1994 a study in NSW found that something like 5% of people over the age of 65 were subjected to some form of elder abuse. Elder abuse has been called the epidemic of the century and is known to cost more than $2.6 billion in the US alone each year as the elderly are swindled out of their savings. Elder abuse can also be physical, emotional and even sexual and it’s not hard to imagine that, if euthanasia were an option, that vulnerable aged people might be swindled out of existence as well.

Readers will remember the famous case of Dr. Harold Shipman who, by his own admission, killed 600 elderly, vulnerable people in the UK by his own hand. With euthanasia we risk giving the protection of the law to this kind of behaviour. We must remember: Doctors are human too and suffer from all of the same kinds of urges and errors that we all might experience.

Ultimately it is the duty that we owe to the vulnerable in our community that, I believe is the strongest argument against euthanasia. Those who cannot speak for themselves; the frail aged, the disabled and the weak deserve our protection. How can we assert a ‘right to die’ if it means that these people will be at risk of losing their right to live? A recent survey in the UK said that 70% of people living with disabilities feared the advent of euthanasia and assisted suicide and more than 50% felt that their social standing would diminish. When people like Baroness Warnock can stand in front of an audience of disabled people, as she did in Belfast a few years ago, and tell them that they had a ‘duty to die’, then we know that the possibility of such abuses is all too real.

Living in a society places demands on all of us. Our freedoms are rightly limited by the fact that we cannot diminish the freedoms and rights of others at the same time. It’s a dynamic balance that must be respected lest society descend into chaos and anarchy. Euthanasia, the ‘right to die’ as it is often called, is one of those issues where we would be putting others at risk. We need to think about our children and grandchildren and those at risk and the society we leave for them and decide against crossing this line.

Monday, May 30, 2011

How to Die in Oregon – or how to sidestep hard questions

The following essay was written by Michael Goldberg and Matt Goldberg and printed in the Washington Post on May 27, 2011. The essay concerns the airing by HBO of the film "How to die in Oregon". How to Die in Oregon was produced by Peter Richardson and is promoted as a documentary but in fact it is more of a propaganda piece for the suicide lobby and the group Compassion & Choices, that Stephen Drake from Not Dead Yet refers to as "Conflation and Con Jobs". The following article by Goldberg and Goldberg poses more questions than the film is willing to answer.

How to Die in Oregon – or how to sidestep hard questions

Thursday night, HBO aired How to Die in Oregon, the winner of this year’s Grand Jury Prize in the documentary category at Sundance. The film, though emotionally powerful, is intellectually flabby, repeatedly shirking weighty questions surrounding the end of life.

The documentary’s springboard is Oregon’s 1994 “Death with Dignity Act” permitting assisted suicide for the terminally ill. Glaringly, however, the legislation, while replete with qualifiers and conditions, nowhere states exactly what it means by dignity. Instead, it simply takes the term as virtually self-evident and thus universally shared.

But what, precisely, does “dignity” mean in terms of someone’s dying? From the perspective of many of the documentary’s subjects, dying with dignity is synonymous with having the individual choice of the time, place, and manner of one’s death. But what, then, do we make of those who don’t – or can’t – exercise choice in the way they die? Does someone who dies suddenly on the battlefield lack dignity? Does a good per-son who unexpectedly dies of a heart attack lose her dignity at that moment? And, perhaps most relevant to the documentary and its rhetoric, what do we say about terminal patients who choose not to avail themselves of physician-assisted suicide: are their deaths shameful?

Not surprisingly, as the film reduces dignity to a matter of individual choice, it spotlights the advocacy group, “Compassion and Choices.” But in so doing, the documentary comes to bandy about “compassion” with all the analytical abandon with which it characterizes “dignity.” If the root meaning of “compassion” is “to suffer with,” how seriously does that apply to Compassion and Choices, whose volunteers drop by to drop off counsel and assistance vis-à-vis the fatal dose? More genuine compassion may well be found among those relatives or friends who spend months or years as long-suffering companions or caregivers at the bedsides of the sick and dying over the course of their chronic, debilitating, painful illnesses.

A belief in someone’s innate “right to die” – a term nowhere to be found in the Oregon statute – as an exercise of one’s autonomous choice has no more empirical basis than a tale about a man, a woman, and a talking serpent in a garden. As the oxymoron “physician-assisted suicide” attests, the choices afforded individual Oregonians are manifestly not choices merely up to them alone; other agents’ choices are involved besides. Not only must an Oregon physician first decide whether to write a prescription for a lethal dosage of some drug, an Oregon pharmacist must then decide whether to fill it, and an Oregon health insurance company representative must decide afterwards whether to reimburse it. And, of course, the Oregon electorate had to decide whether to legalize all of it in the first place.

Strikingly, How to Die in Oregon fails to explore another option at the end of life: hospice. Researchers such as Dr. Linda Ganzini at the Oregon Health and Science University have surmised that one reason for the low number of suicides since the law’s inception is the quality of care afforded terminal patients by Oregon’s fifty-two licensed hospices. Unfortunately, hospice tends to market itself far less effectively than do “death-with-dignity” supporters, relying not on high-profile documentaries, but instead (naively) on word-of-mouth and such circumlocutions as “palliative” - hardly a term of common parlance, which the film mentions in passing but never explains.

Although this essay obviously appears in the “On Faith” section of The Post, not one of its points rests on some religious ground – a claim death-with-dignity proponents frequently level against any criticism of their position. Revealingly, perhaps, How to Die in Oregon, in failing even to address the questions raised here, much less answer them, seems as dogmatic as any fundamentalist tract.

Michael Goldberg, PhD, lives in the San Francisco Bay Area and is the author of several books, including, most recently, Raising Spirits: Stories of Suffering and Comfort.

Matt Goldberg lives in Atlanta and is managing editor of Collider.com.

Elderly patients dying of thirst.

A recent report from the NHS in the UK is suggesting that the neglect of the elderly has become so widespread that some physicians are prescribing water for their patients in order to ensure that they receive basic care.

In an article in the Mail Online on Friday, May 27, it was reported that:
The snapshot study, triggered by a Mail campaign, found staff routinely ignored patients’ calls for help and forgot to check that they had had enough to eat and drink.

Dehydration contributes to the death of more than 800 hospital patients every year.

Another 300 die malnourished. The latest report – by the Care Quality Commission – found patients frequently complained they were spoken to in a ‘condescending and dismissive’ manner.

The watchdog said three of 12 NHS trusts visited in the past three months were failing to meet the most basic standards required by law.

The findings follow a joint campaign by the Mail and the Patients Association last year which exposed shocking examples of substandard care.

Similar failings were highlighted earlier this year by the Health Service Ombudsman who cited cases of patients left to become so thirsty they could not cry for help.

Before you suggest, isn't it terrible in the UK, you need to remember a series of articles in the Toronto Star in 2003 that exposed similar problems in Canada. Link to one of the articles.

Did we fix the problem in Canada? If you read more recent articles concerning the neglect of seniors you will notice that many of the same problems continue to exist. Link to one of many articles.

The polling by the Euthanasia Prevention Coalition proves that many people fear living in undignified conditions and they suggest that euthanasia may be an alternative. When asked whether we should legalize euthanasia or improve care, the majority, by far, state that we should improve care.

Until we can provide quality care for most Canadians, legalizing euthanasia or assisted suicide will only create new paths for abuse and neglect for the elderly and the vulnerable Canadians who have become dependent on care.

Link to the Dignity and Nutrition for older people report.

Thursday, May 26, 2011

Assisted Suicide Opponents Respond to the Shut Down of Assisted Suicide Kit Business in San Diego

For Immediate Release
Thursday, May 26, 2011 Contact: Tim Rosales (916) 475-4900

Assisted Suicide Opponents Respond to the Shut Down of Assisted Suicide Kit Business in San Diego

Sacramento – While the action by law enforcement to shut down a troubling helium-hood assisted suicide kit business operating in San Diego County is a positive development, there are still groups and organizations promoting the spread of assisted suicide as mainstream public policy. The practice of assisted suicide, legal only in Oregon and Washington, present very real and dangerous public policy and societal implications, particularly to people living with depression, serious disease or disability. For example in 2008, Oregon television station KATU ran a story about cancer patient Barbara Wagner who was denied chemotherapy medication by the Oregon state health plan, and instead was told the state would pay for assisted suicide. Link to Barbara Wagner story.

Californians Against Assisted Suicide is a broad based coalition of healthcare, disability rights, patients rights and civil rights organizations that has fought legalization of assisted suicide since 2005. Below is an excerpt of an opinion piece written in opposition to a 2007 assisted suicide legalization bill in California by Disability Rights, Education and Defense policy analyst Marilyn Golden. This legislation was ultimately defeated on a bipartisan vote:

Why Progressives Should Oppose Assisted Suicide


Marilyn Golden
Perhaps the most significant reason is the deadly mix between assisted suicide and profit-driven managed health care. Again and again, health maintenance organizations (HMOs) and managed care bureaucracies have overruled physicians’ treatment decisions, sometimes hastening patients’ deaths. The cost of the lethal medication generally used for assisted suicide is about $35 to $50, far cheaper than the cost of treatment for most long-term medical conditions. The incentive to save money by denying treatment already poses a significant danger. This danger would be far greater if assisted suicide is legal.

If patients with limited finances are denied other treatment options by their insurance, they are, in effect, being steered toward assisted death. It is no coincidence that the author of Oregon’s assisted suicide law, Barbara Coombs Lee, was an HMO executive when she drafted it.

A 1998 study from Georgetown University’s Center for Clinical Bioethics underscores the link between profit-driven managed health care and assisted suicide. The research found a strong link between cost-cutting pressure and a willingness to prescribe lethal drugs to patients, were it legal to do so. The study warns that there must be “a sobering degree of caution in legalizing [assisted suicide] in a medical care environment that is characterized by increasing pressure on physicians to control the cost of care.”

Each year, Oregon publishes a statistical report that leaves out more than it states. For example, several of these reports have included language such as “We cannot determine whether assisted suicide is being practiced outside the framework of the law.” The statute provided no resources or even authority to detect violations. All we know comes from doctors who prescribed the drugs, not family members or friends who probably have additional information about the patients. Doctors that fail to report their lethal prescriptions face no penalty. The state doesn’t even talk to doctors who refused to assist the very same patients other physicians later helped to die, though these doctors who first said “no” may have viewed the patients as not meeting legal requirements, important information if one wishes to evaluate the law’s outcomes. Autopsies are not required, so there’s no way to ascertain the deceased was actually terminally ill, opening the door to another Dr. Kevorkian. The state’s research has never reported on several prominent cases inconsistent with the law – these cases came to light only via the media. Last March, an editorial in The Oregonian complained that the law’s reporting system “seems rigged to avoid finding” the answers.

We must separate our private wishes for what we each may hope to have available for ourselves someday and, rather, focus on the significant dangers of legalizing assisted suicide in this society as it operates today. This column is sure to bring howls from those already ideologically supportive of legalization, but anyone who wants to look deeper, beyond the simplistic mantras of choice and “right to die,” are encouraged to read other articles and testimony that can be found in these locations:

* A longer article by Marilyn Golden at: http://dredf.org/assisted_suicide/97-DREDF-website-version.html
* Dr. Herbert Hendin, Medical director of the American Foundation for Suicide Prevention, at: http://www.psychiatrictimes.com/p040201b.html
* Testimony by Dr. Gregg Hamilton, Physicians for Compassionate Care, at:  http://www.pccef.org/articles/art32HouseOfLords.htm

Exoo, Exit, Derek Humphry and assisted suicide.

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

With all the suicide cases related to the Final Exit Network in Australia, the Gladd Asphyxiation mail order (Exit Hoods) and the connection of Derek Humphry who is promoting these assisted suicide groups, it is important view the documentary by UK documentary producer Jon Ronson titled: Reverend Death that is about the suicide activist and assisted suicide promoter, Rev. George Exoo.

In 2010, George Exoo made plans to open a suicide clinic in Gastonia North Carolina, that was designed to be similar to the Dignitas suicide Clinic in Switzerland. Link to article.

The documentary, Reverend Death was shown on BBC. It can be found on U-Tube in 9 parts. It is a sad story but worth watching. 

If you are living with depression or if you are feeling suicidal go to the Your Life Counts Online Lifeline.

Part 1. http://www.youtube.com/user/slackmaster2000#p/u/23/0VR7mK5hZwU

Part 2. http://www.youtube.com/user/slackmaster2000#p/u/22/SoNowKhO2os

Part 3. http://www.youtube.com/user/slackmaster2000#p/u/21/o-c1RyplBig

Part 4. http://www.youtube.com/user/slackmaster2000#p/u/20/fhGbUKp1fzc

Part 5. http://www.youtube.com/user/slackmaster2000#p/u/19/vctGiwee2m4

Part 6. http://www.youtube.com/user/slackmaster2000#p/u/18/qePaKDg4gtk

Part 7. http://www.youtube.com/user/slackmaster2000#p/u/17/x460pGXVlw4

Part 8. http://www.youtube.com/user/slackmaster2000#p/u/16/4ed5_wAgZ3c

Part 9. http://www.youtube.com/user/slackmaster2000#p/u/15/2iWYrExUceo

When watching Reverend Death, you will notice how the father of the assisted suicide lobby, Derek Humphry, refers people, for suicide assistance, to Exoo when they are not mentally stable. You will also notice at the NuTech meeting when Exoo announces that he was going to commit suicide that the participants, particularly Russel Ogden, the founder of the Farewell Foundation, are more concerned about the method rather than whether or not he should die. Finally you will hear how Exoo appears to have a sexual reaction when he is involved with assisting the suicide deaths of others.

It is important to understand that the concepts of choice and autonomy are really how the assisted suicide lobby sells assisted suicide to the public. The assisted suicide lobby is about a group of people who have become part of a death cult who view themselves as freeing the world of pain and suffering but in reality are working to remove the protections that exist in law for vulnerable people.

Link to an article about Susan Wilson's profitable assisted suicide trip to New Zealand.

Link to an article about the role in the euthanasia lobby in sending depressed and mentally unstable people to George Exoo for assisted suicide.

Suicide/Asphyxiation Kit company raided by FBI

By Alex Schadenberg,
Executive Director - Euthanasia Prevention Coalition

It has been confirmed by several media reports that the FBI raided the home/business of Sharlotte Hydorn was has been selling Suicide/Asphyxiation Exit Kits by mail order upon request. Hydoorn who operates the online mail order suicide kit business, GLADD, opened her door this morning to 12 FBI agents who had a Search Warrant.

Earlier this month, the Oregon State Senate unanimously voted to ban the sale of Suicide Kits in Oregon after the death of Oregon resident Nick Klonoski (29) who was living with chronic depression.

Senator Floyd Prozanski
State Senator Floyd Prozanski, who sponsored the bill stated:
"Any kid who suffers from depression after losing their first boyfriend or girlfriend and thinking the world is over has access to this right now,"
Link to an article on the bill to ban suicide kits.

Hydorn reportedly said that officials took about 20 suicide kits that were ready to mail out. Officials also showed her a list of kits she put in the mail Tuesday and that they were intercepted at the post office.

Hydorn has acknowledged that she does not screen buyers of her product, which she sells with instructions. She confirmed that Klonoski purchased one of her kits last June, though he gave no reason.

Dr. Eric Hollander
Dr. Eric Hollander, clinical professor of psychiatry and behavioral sciences at Albert Einstein College of Medicine in New York, told ABC News that it is critical that individuals with psychiatric disorders resist acting on suicidal thoughts or impulses by helping them view their situation in a more realistic perspective.

Hollander stated:
"The problem is that with increased access to such a device to terminate life, some individuals might be enabled to act on a whim or impulse to kill themselves, whereas if this was not readily available, patients might obtain help for their underlying mental disorder, or view their situation from alternative or more realistic perspectives,"
Agents also seized Hydorn's computers and sewing machine, and her correspondence with individuals at the Final Exit Network.

Nick Klonoski
Once again, the mail order distribution of the Asphyxiation Bag proves that the suicide lobby is not concerned with whether or not a person is competent, terminally ill or actually suffering. They are only concerned with promoting a philosophical point of view, that death is an answer to difficult personal situations.

Vulnerable people need to be protected from those who would promote suicide as an answer to difficult personal situations. Hydorn suggests that dying by asphyxiation is simply a matter of choice. The family of Nick Klonoski understood that when someone is living with chronic depression that the sale of Exit Bags via the internet steered Nick to suicide, whereas he otherwise might have sought help.

Wednesday, May 25, 2011

The Third - International Symposium on Euthanasia and Assisted Suicide Vancouver BC - June 3 - 4, 2011

Celebrating our successes; preparing for new challenges.

You will learn from leaders who are making a difference in Canada, USA, Australia, England, Netherlands, Quebec and Scotland.

Register Information:

Vancouver Airport Marriott Hotel in beautiful Vancouver BC. Call 1-877-323-8888 for room rates. For more information about the hotel, go here:

When: Start: Friday, June 3, 2011 at 9 am. -
Ends: Saturday, June 4, 2011 at 4:30 pm

The registration fee is: $199 regular or $149 for a student or a person with a disability (does not include banquet fee). The Friday night banquet is $50.00. Registration form.

Donations Appreciated!

Consider donating $199 to enable a student or a person with a disability to attend the Symposium at no cost. Link for donations.

Euthanasia Prevention Coalition (EPC), Care Not Killing Alliance - UK, HOPE - Australia, Vivre dans la Dignite - Quebec, EPC - BC, No Less Human - UK, Compassionate Healthcare Network, True Dignity Vermont, Montanans Against Assisted Suicide and for Living with Dignity, Physicians for Compassionate Care, Signal Hill - BC, HLI, World Congress of Families.

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).

Texas Futile care laws must change.

Recent articles concerning the "futile care" laws in Texas indicate that many families of patients who are deemed to be dying or in a PVS state are demanding that the system for deciding to withdraw life-sustaining medical treatment needs to be improved to improve the respect that is given to people in these conditions and to bring a greater level of caution to these irreversible conditions.

The Euthanasia Prevention Coalition recently obtained intervener status in the Rasouli case in Ontario. The Rasouli case is about who has the right to decide to withdraw life-sustaining treatment.

The doctors have argued that they have the unilateral right to withdraw treatment. The lower court decision by Justice Himel stated that the doctors cannot withdraw treatment without consent and if consent cannot be obtained they are obligated to bring their case to the Consent and Capacity Board for a decision. The family argued that Mr. Rasouli is not PVS, he is improving, and that they would accept the decision if it is made by the Consent and Capacity Board and the Euthanasia Prevention Coalition argued that withdrawing life-sustaining treatment is not a purely medical decision, that it should not be treated lightly, that consent must be obtained before withdrawal and if consent cannot be attained, the proper body to decide is the Consent and Capacity Board.

A recent article
stated that a proposed amendment to End-of-Life care legislation in Texas appears to be dead. The bill was titled "treat or transfer."

Representative Bryan Hughes stated:
"As time has passed, more and more families have come forward and told us their horror stories of how they were treated, how their loved ones were treated in this process," Hughes said. "We’re very thankful that most hospitals and most doctors are not abusing the law, but some are. And real people are being affected."

The author of the article concluded it by stating:
Currently, doctors and hospitals, in conjunction with an ethics panel, can decide that continuing to treat a patient is futile or, in some cases, injurious to the patient. They can give families 10 days to find another placement for the patient, or else discontinue treatment. Hospital data show it costs between $60,000 and $80,000 a year to provide life-sustaining treatment for a patient in a vegetative state.

The Texas House voted 96 - 47 to study the issues related to end-of-life treatment decisions.

While sitting in the courtroom listening to the legal arguments in the Rasouli case, one of the justices made a statement that appears to also apply to Texas. He asked the lawyers for the doctors if the case was really about money. Mr Underwood, the lawyer for the doctors stated that it wasn't. The Justice did not appear that he accepted that answer.

In many of the cases concerning end-of-life treatment decisions - the elephant in the room is the cost of medical care. Cost of medical care is a reality, especially in Canada where there is a universal health care system. But society must obtain a balance where decisions are being made in the best interests of the patient and not based on money, futile care theory, or the values that the doctor is choosing to impose on the patient.

Tuesday, May 24, 2011

North Carolina reports drastic increase in the abuse of the elderly and other vulnerable adults.

An article from the Ashville Citizen-Times reports that Buncombe County North Carolina has experienced double the cases of elder abuse and abuse of other vulnerable persons in the past five years.

The article states:
In Buncombe County, protective services workers responded to 797 reports of adult abuse last year, compared with 318 cases in 2005, The Asheville-Citizen Times reported Monday.

Nancy Warren, program administrator for the N.C. Division of Aging and Adult Services, said incidents of elder abuse are also rising elsewhere.

"We're definitely seeing the same pattern across the state," Warren said.

And national research indicates that for every adult abuse complaint filed, as many as two dozen more go unreported, Warren said.

"I don't know what we would do if the actual numbers were reported," Warren said. "It's an enormous problem."

Warren admits in the article that more active reporting accounts for some of the increase, but she states that insufficient services for people with disabilities and a lack of follow-up when someone is released from medical care is also a problem.

The reality is that society is experiencing a scourge of elder abuse and abuse of vulnerable persons. That most of the abuse is not reported the perpetrator is most often a friend or a family member. The reality is that vulnerable people experienced a devalued existence within society and become often become the outlet of abuse. Abuse is most often financial, but physical abuse and homicide also occurs.

The concept of legalizing euthanasia and/or assisted suicide within the context of the real life abuse that exists for seniors and other vulnerable people will in fact create new paths for abuse, this abuse would be carried out under the guise of "choice" and "compassion".

"Brain Dead" woman wakes up.

During a process of cleaning up emails, I found this recent article that needs to be published.

The article is about Gloria Cruz (56), from Darwin Australia, who after surgery for a brain tumor, went into coma. Her doctors stated that her husband Tani Cruz, that the case was hopeless.

The doctors agreed to put a breathing tube in before the ventilator was withdrawn. Three days after the ventilator was withdrawn Gloria Cruz woke up.

The article in Fox News reported:

When a doctor recommended that the ventilator be removed and Gloria Cruz be allowed to die, her husband told them, "I'm a Catholic -- I believe in miracles.”

“I told him that God knows how much I love her -- that I don't want her to suffer but I don't want her to leave us,” he said.

A doctor described her recovery as "a miracle."

Mrs Cruz is now alert and getting around in a wheelchair at the hospital.

"She's well on the way to recovery,” her husband said.

Link to an article from Australia

Friday, May 20, 2011

People with Disabilities in the UK fear assisted suicide

By Alex Schadenberg
International Chair - Euthanasia Prevention Coalition

Peter Saunders
Peter Saunders, the campaign director for the Care Not Killing Alliance in the UK, recently published an article concerning the Comres opinion poll that found that 70% of people with disabilities were concerned that if legal, they would be pressured into dying by assisted suicide. Saunders stated:
Changing the law on assisted suicide would put pressure on people with disabilities to die by assisted suicide, according to new research. The new Comres poll found that 70% of people with disabilities were concerned that such a change would lead to ‘pressure being placed on people with disabilities to end their lives prematurely’ 
The survey, commissioned by Scope, the leading disability charity, also showed that over one in three (35%) of people with disabilities believed any move to decriminalise assisted suicide would place that sort of pressure on them personally. 
Amongst blind and visually impaired people the figure was 49%. 
Over half (56%) of all people with disabilities surveyed also said it would mean that it would be ‘detrimental to the way that people with disabilities are viewed by society as a whole’.
Richard Hawkes, chief executive of Scope, is reported in the Daily Telegraph as saying:
Assisted suicide is a complex and emotional issue, and there are loud and passionate voices on both sides of the debate… But while high profile lawyers, doctors and celebrities such as Terry Pratchett and Patrick Stewart grab the headlines, the views of the thousands of ordinary disabled people who could be affected by this issue are rarely listened to. 
Our survey findings confirm that concerns about legalising assisted suicide are not just held by a minority, but by a substantial majority of those this law would affect. 
‘Disabled people are already worried about people assuming their life isn't worth living or seeing them as a burden, and are genuinely concerned that a change in the law could increase pressure on them to end their life.’
Mr Hawkes also called on the Government to establish a new independent commission to explore the question of whether assisted dying should be legalised.

Lord Falconer’s highly controversial Commission on Assisted Dying, due to report this autumn, has been criticised for being ‘unnecessary, unbalanced and lacking in transparency’.

In particular, whilst the five leading disability rights groups in the UK (SCOPE, NCIL, UKDPC, RADAR and Not Dead Yet) oppose any change in the law, the only disabled person on the panel is an advocate for decriminalising assisted suicide who acts as a spokesperson for Dignity in Dying, formerly the Voluntary Euthanasia Society.

Under the Suicide Act 1961 those who ‘encourage or assist’ someone else to commit suicide may face a prison sentence of up to 14 years. But the Director of Public Prosecutions, in new guidelines issue in February 2010, has indicated that people who are ‘wholly motivated by compassion’ are less likely to face charges.

The fact that there have been very few prosecutions under this new arrangement has worried disability rights groups who are concerned that some people believe people with disabilities are better off dead and will put subtle pressure on them to end their lives out of 'misguided compassion'.

They need a strong law in place to act as a deterrent in order that they may feel safe. It was precisely for this reason that the group 'Not Dead Yet' launched their 'Resistance Campaign' last June aimed at stopping any further erosion of the existing law.

Last November Margo Macdonald’s End of Life Assistance (Scotland) Bill, which would have legalised both assisted suicide and euthanasia for disabled people was rejected by the Scottish Parliament by an overwhelming majority of 85 to 16 after the general public expressed fears about disabled and other vulnerable people being put under pressure to end their lives.

The latest poll result will come as a blow to Dignity in Dying who have campaigned for a change in the law.

Whilst they have insisted that they want a change in the law only for mentally competent people who are terminally ill, some of their spokespeople, amongst them multiple sclerosis campaigner Debbie Purdy, have a disability but are not dying.

This has raised serious questions about their real agenda.

The fact is that legalizing assisted suicide threatens people with disabilities and other vulnerable people who are already devalued by society. Negative attitudes and perceptions of people with disabilities will create subtle pressure that they "choose" assisted suicide.

But since when was this issue ever about choice?

End-of-life decision rests with family, not doctors

Rosie DiManno, a regular columnist with the Toronto Star, wrote an excellent column that was published on May 19 concerning her experience with the death of her father.

The importance of DiManno's column is how it shows that the medical dimension is important when considering end-of-life medical decisions, but it is not the only factor. Families have should have the right to consider the options and make decisions based on their values and personal experiences.

DiManno's column has much to offer to the debate over the Rasouli case and thus I am reprinting it here.

Dimanno: End-of-life decision rests with family, not doctors

When my father was in an irreversible coma, a neurologist broke the news bluntly and briskly. There’s no brain activity, she said. There’s no hope, she said. End it now.

What she meant was, remove the life support.

But I did not believe her. When I touched my father’s gangrenous foot, he flinched.

"That doesn’t matter," she said, arguing that the movement was a muscle reflex. I was convinced my father felt pain, which indicated some level of brain function, however minimal. And I would not hurry my dad to death, nor sentence my mother to a lifetime of guilt by allowing her to sign the consent form that would permit ICU personnel to shut off the machines.

The doctor was displeased with what she clearly viewed as recalcitrance on my part. She mumbled something about physicians having the right to make these life-or-death decisions.

I went to the chief of the ICU and begged: Please don’t do this, not yet.

He looked over the brain scan imagery. "There's some activity here still," he concluded. "We won't remove the life support until the family agrees it's time."

The chief assured me — from his many decades of critical care experience — that I would sense when that time came; that my father’s failing body would let it be known.

I took that on faith, and he was right.

Two weeks later, after other complications had developed, my mother and I concurred that time had come — though the burden of execution, as I felt it, will never be lifted from my conscience.

Most people who find themselves in this horrible position — making end-of-life decisions for a loved one — do know when it's time. For those incapable or unwilling to let go, perhaps because they disagree with the assessment of expert physicians — there must be some procedure for appeal that respects all parties, some higher court of consideration and review that can weigh the evidence in as nonconfrontational a way as is possible under such distressing circumstances.

It can't be a unilateral decision by the attending physicians. They don’t have the right, morally. They shouldn’t have the right, legally.

That unconscious person is more than a patient. He or she is a human being for as long as a single breath can be taken, even when a machine is doing the breathing.

No doctor is God, though far too many seem to think otherwise. And yes, the ethical dilemmas are profound in a modern world where medical advances have blurred the definition of life, where debate rages over the difference between brain-dead and heart-dead — a distinction poorly understood by many who might some day have to confront the question of organ donation. It is not as simple, or obvious, as we have been led to believe.

The huge ethical quandary surrounding end-of-life decisions is now in the hands of a three-member Ontario Court of Appeal panel. Judges heard arguments Wednesday on whether the law requires doctors to obtain consent before withdrawing life-support from an unconscious patient or if they are entitled to make unilateral decisions to “pull the plug’’ — a grotesque expression — when families are vehemently opposed.

The matter arises from a specific case — a 59-year-old unconscious patient at Sunnybrook Health Sciences Centre. The man’s wife (herself a doctor) and two children are insistent the man can hear and understand their voices, to the extent he would somehow make them understand if heroic measures at sustaining life were not desired.

His doctors claim the man is in a permanent vegetative — another grotesque term — state, nothing more can be done, and their medical judgment compels them to remove the ventilation keeping the patient alive.

Ontario, unlike some other jurisdictions, has a venue for weighing such delicate conundrums. The Consent and Capacity Board is a provincial body that mediates end-of-life disputes so that doctors can’t proceed in the face of opposition until all parties are heard. But the two Sunnybrook doctors are seeking the right to go ahead and withdraw life support without first seeking permission from the board. A lower court decision has already ruled the doctors can’t unilaterally stop treatment.

For the life of me, I can’t understand the doctors’ recalcitrance. I’m deeply disturbed that any physician would presume superiority for deciding what’s in a patient’s best interest and attempt to deny the family even a vote. An unconscious patient needs advocates, not a summary death sentence.

Patients have rights, even those barely clinging to their mortal coil. Families have rights, and that includes resisting the bullying of doctors who always profess to know what’s best, as if they were infallible. They’re not ethicists, they’re not priests and the existence of life, however feeble, can’t be measured solely by scientific apparatus and brain graphs.

There is such a thing, as that ICU chief impressed on me, as communing with the near-dead. Or maybe it’s just a matter of being allowed the space to resign oneself, to accept the rarity of miracles, to release a loved one and be released from doubt in turn.

The ICU chief who allowed my family time for reflection was a wise man and compassionate.

Justice Michael Moldaver, a member of the appeal court that heard this case — its judgment pending — I also know to be a man of immense wisdom and integrity.

He posed a question to the doctors' lawyer: "Are we that impoverished a society that we'll say, 'We'll just let him go?' Why wouldn't we look at it the other way and say, 'Let this person keep going?'"

Dying should never be the expedient option.

It is important that the DiManno column emphasizes the need for a nonconfrontational way to make medical decisions that cannot be reversed and that effect the family throughout their lives.

It is also important to note how she expresses the importance of the rights of the families and the fact that, as important as physicians are, they should not be the arbiters of who will live and who will die.

Thursday, May 19, 2011

Rasouli case: Who has the right to decide to withdraw life-sustaining medical treatment

Yesterday I was in a court room in Toronto to witness the arguments being made in the Rasouli case. The Euthanasia Prevention Coalition (EPC) was granted intervener status in the case and we were represented by Hugh Scher and Mark Handelman. Link to previous article.

Mr Underwood, the lawyer for the doctors, argued that according to common law, doctors are not required to obtain consent before withdrawing medical treatment that the doctor believes to be futile. He suggested that this position must be upheld or the medical system will face many unforeseen circumstances.

Mr. Hodder, the lawyer for Hassan Rasouli, questioned the PVS diagnosis and emphasized the high rate of misdiagnosis in the case of PVS. Hodder took the position that withdrawing a ventilator falls within the definition of medical treatment in Ontario. He quoted the very wide definition by the Ontario government and he stated that withdrawing a ventilator would fall within the definition of a medical act and therefore requires consent.

The assistant lawyer for the Rasouli family emphasized that the Common law has been misinterpreted. He explained the history of the Bland case and then showed how, even in the UK, where the Bland decision was made, that a process exists for making similar decisions as the Rasouli decision. Therefore, even in the UK doctors do not have the unilateral right to decide.

Mr. Sher argued on behalf of EPC that Justice Himel was correct when she stated that doctors did not have the unilateral right to withdraw life-sustaining treatment and where a disagreement exists, that these decisions are rightly decided by the Consent and Capacity board. Sher also argued that medical treatment is defined as part of a treatment plan. That withdrawing life-sustaining medical treatment, when it is a change in a treatment plan, requires consent.

Withdrawing Life-Sustaining medical treatment or care often results in the death of the person. Society needs to be very careful with decisions to withdraw life support and granting doctors the unilateral right does not protect people who are misdiagnosed or not actually dying and it doesn't respect the beliefs and values of people who live with a faith tradition that includes certain ethical traditions.

For more information, Robert Cribb wrote a pretty good article titled - Should doctors be permitted to unilaterally pull the plug, that was published in the Toronto Star today. Link to the article. I have reprinted a few of the comments from Robert Cribb:
Hassan Rasouli’s wife and two children see something in him that doctors do not.

Lying unconscious at Sunnybrook Health Sciences Centre with tough odds of recovery, he can nevertheless communicate silently with them, hear and understand their voices and somehow make them understand his wish for a chance at life, they insist.

“He talks to us with his eyes,” says Rasouli’s 27-year-old daughter, Mojgan. “We want my father alive.”

His doctors at Sunnybrook say they’ve done all they can do for Rasouli, that he is in a permanent vegetative state and that their medical judgment compels them to remove the ventilation keeping him alive.

The intractable life-or-death dispute over the 59-year-old Iranian mechanical engineer spilled into the Ontario Court of Appeal Wednesday where a three-member panel of judges will eventually render what experts are calling a landmark decision with far-reaching implications for the province’s most sick.

The medically and ethically fraught questions before them: Does the law require doctors to obtain consent before withdrawing life-support from an unconscious patient? Or should they, based on their own considered medical judgment, be permitted to act unilaterally in pulling the plug on patients whose families vehemently reject the idea?

This is the latest in a series of high-profile disputes in Ontario over end-of-life care reported by the Star in recent months and the third case involving doctors at Sunnybrook.

“We’re still without an authoritative answer to a very pressing question,” Harry Underwood, the lawyer representing Rasouli’s doctors, told the court. “How are patients’ best interests to be protected?”

In Canada, that matter sits in a legal and ethical gray area.

Courts have been unsettled on the issue. And debate rages even within the profession on end-of-life protocols.

A lower court decision on the Rasouli case in April (Himel decision) ruled life support may not be withdrawn without consent of the patient or their substitute decision-maker, and that doctors cannot unilaterally stop treatment without first filing an application to the Consent and Capacity Board, a provincial body that mediates disputes over end-of-life cases.

Rasouli’s two Sunnybrook doctors — Brian Cuthbertson and Gordon Rubenfeld — insist that order is too restrictive and that physicians should have the ability to withdraw life support without seeking permission from the Consent and Capacity Board.

“Doctors are obliged to offer treatment that can benefit the patient, and they are obliged not to offer treatment that is futile,” reads their factum in court.

Life and death decisions are not the sole realm of medical judgment, said lawyers representing Rasouli and his family.

“Deciding whether someone should or should not have rights is not the purview of a doctor,” Gardner Hodder said.

Rasouli suffered bacterial meningitis after a surgery to remove a benign brain tumour at Sunnybrook last October. The infection spread throughout his brain, causing “severe and diffuse damage,” say court records.

He has been unconscious since then.

“It is as certain as anything ever is in medicine that he will never recover any degree of consciousness,” say the doctors’ submissions to the court.

He remains alive with the assistance of a ventilator and tube feeding.

Parichehr Salasel, Rasouli’s wife and substitute decision-maker, refused his doctor’s wishes to remove ventilation and move him to palliative care.

A doctor in Iran prior to the family’s arrival in Canada a year ago, she believes he is improving and that removal from the ventilator would breach his Muslim beliefs.

“Life is a gift from God,” she said Wednesday, looking upward to the sky. “He would want to live.”

Her son, 23-year-old Mehran, said he’s seen improvement in his father over the past few weeks sitting at his bedside.

“When I speak to him, he opens his eyes. He knows me.”

Their lawyer, Hodder, told the court that even if Rasouli has been correctly diagnosed as being in a vegetative state — “a perilous area for misdiagnosis” — his wife is “willing to see this play out and to keep him alive a bit longer to see if he fits in the small percentage that recovers.”

At the core of end-of-life disputes lies the question of what constitutes a patient’s “best interests.” The Sunnybrook doctors argue that a doctor’s sole consideration in determining the best interests of a patient is medical benefit.

“If medicine can achieve nothing for the patient, it is not in the patient’s best interests,” Underwood told the panel.

It’s a controversial argument.

Some medical ethicists and doctors believe a patient’s beliefs and values must be incorporated into decisions about a patient’s best interests.

The argument was raised by the judges as well.

“It may be in the patients’ best interests to carry on because the patient believes it is what he has to do to get his eternal reward,” said Justice David Doherty.

Justice Michael Moldaver posed this question to Underwood: “Are we that impoverished a society that we’ll say, ‘We’ll just let him go?’ Why wouldn’t we look at it the other way and say, ‘Let this person keep going?’ ”

If Sunnybrook’s physicians are successful in the appeal, it would set a precedent empowering all doctors in Ontario to make unilateral decisions about end-of-life treatment, said Mark Handelman, a Toronto lawyer and former adjudicator with the board.

“There should be a review of these decisions,” said Handelman who represented the Euthanasia Prevention Coalition, an intervenor in the case. “At stake is the autonomy of individuals at the end of life to contribute to the definition of their own best interests.”

Consent and Capacity Board hearings ensure a speedy (usually within a week) and lost-cost dispute resolution that would disappear if families were suddenly forced to take their grievances to court in order to keep loved ones alive, he said.

The court process is both expensive and time consuming, often outlasting the patient lives under consideration.

“Justice delayed is often justice dearly departed,” said Handelman.

Ontario is the only province with a Consent and Capacity Board. In other provinces, families are forced to go to court to challenge the wishes of doctors who remove life-sustaining treatment.

The panel reserved judgment following arguments Wednesday.

The fact is that if the position of the doctors is upheld, doctors will not be required to obtain consent before they withdraw life-sustaining treatment that the doctor deems to be futile.

The definition of life-sustaining treatment includes the ventilator, hydration and nutrition (fluids and food), anti-biotics, etc, etc.

The one suggestion by Mr. Hodder, the lawyer for the Rasouli family, that since the court has jurisdiction in these cases that, if the doctors win the case, that families will need to be prepared to suffer the expense of going to the court to protect a family member, when a dispute occurs.

An article was also printed in the London Free Press. Link.