Margaret Dore: Analysis Opposing Victoria Australia Euthanasia Bill

Margaret Dore

I. Introduction

I am an attorney in Washington State USA where assisted suicide is legal.[1] I am also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. Last year, I met with a parliamentary delegation from the Legal and Social Issues Committee, Parliament of Victoria, to discuss Oregon’s law and related issues.

Washington’s law is based on Oregon’s law. Both laws are similar to the proposed bill, titled the “Voluntary Assisted Dying Bill.” The bill, however, is not limited to voluntary deaths or to people near death. I urge you to reject this measure.

II. Definitions

Assisted suicide occurs when a person provides the means or information for another person to commit suicide, for example, by providing a gun or lethal drug. If the assisting person is a physician, a more precise term is “physician-assisted suicide.”[2]

“Euthanasia” is the direct administration of a lethal agent to cause another person’s death.[3] Euthanasia is also known as “mercy killing.”[4]

III. Assisting Persons Can Have An Agenda

Persons assisting a suicide can have an agenda. Consider Tammy Sawyer, trustee for Thomas Middleton in Oregon. Two days after his death by assisted suicide, she sold his home and deposited the proceeds into bank accounts for her own benefit.[5]

In other US states, reported motives for assisting suicide include: the “thrill” of getting other people to kill themselves; a desire for sympathy and attention; and “want[ing] to see someone die.”[6]

Medical professionals too can have an agenda, for example, to hide malpractice. There is also the occasional doctor who just likes to kill people, for example, Michael Swango, now incarcerated.[7]

IV. Push-back Against Assisted Suicide

Several US states have strengthened their laws against assisted suicide. These states include Alabama, Arizona, Georgia, Idaho and Louisiana.[8]

Last year, the Supreme Court of the State of New Mexico overturned a decision recognizing physician aid in dying, meaning physician assisted suicide.[9] Physician-assisted suicide is no longer legal in the State of New Mexico.

V. Few States Allow Assisted Suicide

Oregon and Washington State legalized assisted suicide through ballot measures in 1997 and 2008, respectively. Since then, just three US states and the District of Columbia have passed similar laws.[10] In the fine print, these laws also allow euthanasia.

VI. How The Victoria Bill Works

The Victoria bill has an application process to obtain the lethal dose, which may be administered by the patient.[11]

In the case of administration by a patient, there is no required oversight.[12] No witness, not even a doctor, is required to be present at the death.[13]

VII. The Bill Applies To People With Years To Live

The bill applies to people with a “disease, illness or medical condition,” which is expected to cause death in less than twelve months.[14] Such persons may, in fact, have years to live. This is true for three reasons:

A. Treatment Can Lead to Recovery. 

In 2000, Jeanette Hall was diagnosed with cancer in Oregon and made a settled decision to use Oregon’s law.[15] Her doctor convinced her to be treated instead, which eliminated the cancer.[16] Her declaration states:

It has now been 17 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[17]

B. Predictions of Life Expectancy Can Be Wrong 

Eligible persons may also have years to live because predictions of life expectancy can be wrong. This is true due to actual mistakes (the test results got switched) and because predicting life expectancy is not an exact science.[18]

Consider John Norton, diagnosed with ALS at age 18.[19] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[20] Instead, the disease progression stopped on its own.[21] In a 2012 affidavit, at age 74, he states:

If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.[22] 

C. If Victoria Follows Oregon, the Bill Will Apply to People With Insulin Dependent Diabetes

The bill applies to people expected to die in less than twelve months due to a “disease, illness or medical condition.”[23] Oregon’s law applies to people expected to die in less than six months due to a terminal disease.[24]

In practice, Oregon’s law is interpreted to include chronic conditions such as “diabetes mellitus,” better known as diabetes.[25] These conditions qualify for assisted suicide when there is dependence on medication, such as insulin, to live. Oregon doctor, William Toffler, explains:

[P]eople with chronic conditions are “terminal” [such that they qualify for assisted suicide] if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old will live less than a month without insulin.[26]

Dr. Toffler adds:

Such persons, with insulin, are likely to have decades to live.[27]If Victoria enacts the proposed bill and follows Oregon practice, the bill will apply to people with insulin dependent diabetes. Such persons, with insulin, can have decades to live.

VIII. The Bill Applies To Older People

According to government statistics from Oregon and Washington State, most people who die under their laws are elders, aged 65 or older.[28] This demographic is already an especially at risk group for abuse and financial exploitation. This is true in both the US and Australia.

A. Elder Abuse and Financial Exploitation

Elder abuse and exploitation perpetrators are often family members.[29] They typically start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or to coercing victims to sign over deeds to their homes, to change their wills or to liquidate their assets.[30] Amy Mix, an elder law attorney in the US, explains why older people are especially vulnerable:

The elderly are at an at-risk group for a lot of reasons, including, but not limited to diminished capacity, isolation from family and other caregivers, lack of sophistication when it comes to purchasing property, financing, or using computers . . . .  

[D]efendants are family members, lots are friends, often people who befriend a senior through church . . . . We had a senior victim who had given her life savings away to some scammer who told her that she’d won the lottery and would have to pay the taxes ahead of time. . . . The scammer found the victim using information in her husband’s obituary.[31]

B. Elder Abuse and Financial Exploitation Are Sometimes Fatal

In some cases, elder abuse and financial exploitation are fatal. More notorious cases include California’s “black widow” murders, in which two women took out life insurance policies on homeless men.[32] Their first victim was 73 year old Paul Vados, whose death was staged to look like a hit and run accident.[33] The women collected $589,124.93.[34]

Consider also, People v. Stuart in which an adult child killed her mother with a pillow, allowing the child to inherit. The Court observed:

Financial considerations [are] an all too common motivation for killing someone.[35]

C. Victims Do Not Report

In both Australia and the US, victims do not report abuse. For example, in Victoria, it is estimated that there are more than 20,000 unreported cases of abuse, neglect and exploitation each year and approximately 100,000 in Australia nationwide.[36] Meanwhile, in the US, it’s estimated that only 1 in 14 cases ever comes to the attention of the authorities.”[37] In another study, it was 1 out of 25 cases.[38] Reasons for the lack of reporting include:

Many who suffer from abuse . . . don’t want to report their own child as an abuser.[39]

IX. The Bill Creates The Perfect Crime

A. “Even If a Patient Struggled, Who Would Know?

”The bill allows a patient to administer the lethal dose in private, without a witness or doctor present.[40] In addition, the drugs typically used are water and alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[41] 

Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:

With assisted suicide laws in Washington and Oregon [and with proposed bill], perpetrators can . . . take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. Even if a patient struggled, “who would know?” (Emphasis added).[42]

B. The Cause of Death Will Be Registered as a “Disease, Illness or Medical Condition,” Which Will Prevent Prosecution for Murder

The bill amends the Births, Deaths and Marriages Registration Act 1996, by requiring a death under the bill to be registered as a “disease, illness or medical condition.” The amendment states:

The Registrar, on being notified by a doctor of a death under section 37 and in accordance with section 67 of the Voluntary Assisted Dying Act 2017, must register the death in the Register by making an entry about the death that records the cause of death as the disease, illness or medical condition that was the grounds for a person to access voluntary assisted dying. (Emphasis changed).[43]

The significance of requiring a disease, illness or medical condition to be listed as the cause of death is that it creates a legal inability to prosecute. The official legal cause of death is a disease, illness or medical condition (not murder) as a matter of law.

X. Patients Otherwise Lack Protection

A. Participants in a Patient’s Death Are Merely Required to Act in “Accordance” With the Bill, Which Renders Patient Protections Unenforceable

The bill has page after page of patient protections, including that the co-ordinating medical practitioner “must” refer the person to another registered medical practitioner for a consulting assessment and that the person’s final request “must” be according to a specified time frame.[44]

The bill also holds medical practitioners and other participants in a patient’s death to an “accordance” standard.[45] Indeed, the bill uses the term nearly 50 times.[46]

The bill does not define accordance.[47] Dictionary definitions include “in the spirit of,” meaning “in thought or intention.”[48] With these definitions, a participant’s mere thought or intention to comply with the bill is good enough. Patient protections are not enforceable.

B. In an Orwellian Twist, the Term, “Self-Administer,” May Allow Someone Else to Administer the Lethal Dose to the Patient

The bill repeatedly describes the lethal dose as being “self-administered” by the patient, a term which is not defined.[49] The term or a variation thereof is used in the bill at least 50 times.[50]

The bill does not define “self-administer.”[51] In Washington State, the term is specially defined to allow someone else to administer the lethal dose to the patient. Washington’s law states:

“Self-administer” means a qualified patient’s act of ingesting medication to end his or her life . . . (Emphasis added).[52]

Washington’s law does not define “ingest.” Dictionary definitions include:

[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing. (Emphasis added).[53]

With these definitions, someone else putting the lethal dose in the patient’s mouth qualifies as self-administration because the patient will be “swallowing” the lethal dose, i.e., “ingesting” it. Someone else placing a medication patch on the patient’s arm will qualify because the patient will be “absorbing” the lethal dose, i.e., “ingesting” it. Gas administration, similarly, will qualify because the patient will be “inhaling” the lethal dose, i.e., “ingesting” it.

With the bill’s failure to define “self-administer,” and given Washington’s definition, the bill may be determined to allow someone else, such as a family member, to administer the lethal dose. Family members are common abusers.[54] Patients will not necessarily be in control of their fate.

XI. Other Considerations

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

A European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland.[55] The study found that one out of five family members or friends present at an assisted suicide was traumatized. These people,

experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[56]

B. My Clients Suffered Trauma in Oregon and Washington State

I have had two cases where my clients suffered trauma due to legal assisted suicide. In the first case, one side of my client’s family wanted her father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client was severely traumatized. The father did not take the lethal dose and died a natural death.

In the other case, my client’s father died via the lethal dose at a suicide party. It’s not clear, however, that administration of the lethal dose was voluntary. A man who was present told my client that his father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." The man also said that my client’s father took the lethal dose the next night when he (the father) was already intoxicated on alcohol. The man who told this to my client subsequently changed his story.

My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.

C. In Oregon, Other Suicides Have Increased with Legalization of Physician-Assisted Suicide

Government reports from Oregon show a positive correlation between the legalization of physician-assisted suicide and an increase in other (conventional) suicides. This correlation is consistent with a suicide contagion in which legalizing physician-assisted suicide encouraged other suicides. Consider the following:

Oregon's assisted suicide act went into effect “in late 1997.”[57]

• By 2000, Oregon's conventional suicide rate was "increasing significantly."[58] 
• By 2007, Oregon's conventional suicide rate was 35% above the national average.[59]
• By 2010, Oregon's conventional suicide rate was 41% above the national average.[60]
• By 2012, Oregon's conventional suicide rate was 42% above the national average.[61]

For a more detailed discussion of suicide contagion in Oregon, see Margaret Dore, “In Oregon, Other Suicides Have Increased with Legalization of Assisted Suicide.”[62]

D. The Oregon Statistics Provide Little, If Any, Support for the Idea That the Passage Is Needed Due to Physical Pain

I am not aware of any case in which Oregon’s law has been used for physical pain. According to Oregon’s most recent annual report, there were 47 people who died under the law in 2016 who expressed the following concern:

Inadequate pain control or concern about it. (Emphasis added).[]

With use of the word, “or,” the total number of persons who had inadequate pain control could be zero. In the alternative, the total number could be as high as 47.

If, for the purpose of argument, all 47 had inadequate pain control, this would be 47 people out of approximately 35,000 deaths in Oregon, which is far less than one percent (.127%) and/or not statistically significant.

The Oregon statistics provide little, if any, support for the idea that passage of the bill is needed due to physical pain. The argument is not supported by the evidence.

XII. Conclusion
The bill allows administration of the lethal dose to occur in private without a doctor or witness present. Even if a patient struggled, who would know? The death record will list a “disease, illness or medical condition” as the legal cause of death, which will prevent prosecution for murder. The bill, if enacted, will create the perfect crime.

Elder abuse and financial exploitation are already a problem in Victoria. Passage of the bill will make a bad situation worse. People with years or decades to live will have their lives ended due to the desires, wants and greed of other people.

I urge you to reject the proposed bill seeking to legalize assisted suicide and euthanasia.

Respectfully Submitted,

Margaret Dore, Esq., MBA
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corporation
www.margaretdore.com
www.choiceillusion.org
www.margaretdore.org
1001 4th Avenue, Suite 4400
Seattle, WA USA 98154
001 206 697 1217

Endnotes

[1] For more information, see my CV at this link: https://choiceisanillusion.files.wordpress.com/2016/04/dore-cv-04-22-16.pdf
[2] See e.g., The American Medical Association Code of Medical Ethics, Opinion 5.7 (defining physician-assisted suicide).
[3] Id., Opinion 5.8, “Euthanasia,” (lower half of the page).
[4] “Mercy killing” - The Free Legal Dictionary
[5] KTVZ.com, “Sawyer Arraigned on State Fraud Charges,” 07/14/11, at https://choiceisanillusion.files.wordpress.com/2016/10/sawyer-arraigned-a-63.pdf
[6] See: Associated Press for Minnesota, “Former nurse helped instruct man on how to commit suicide, court rules,” The Guardian, 12/28/15 (“he told police he did it ‘for the thrill of the chase’”) a; “Woman in texting suicide wanted sympathy, attention, prosecutor says,” CBS News, June 6, 2017; and Ben Winslow, “Teen accused of helping friend commit suicide could face trial for murder,” (Deputy Utah County Attorney argued that the defendant “wanted to see someone die”). Available at https://www.aol.com/article/news/2017/10/12/teen-accused-of-helping-friend-commit-suicide-could-face-trial-for-murder/23241619/
[7] See: CBSNEWS.COM STAFF, “Life in Jail for Poison Doctor, July 12, 2000, at https://www.cbsnews.com/news/life-in-jail-for-poison-doctor; James B. Stewart, “Blind Eye: The Terrifying Story of a Doctor Who Got Away With Murder,” Simon and Schuster, copyright 1999; and https://en.wikipedia.org/wiki/Michael_Swango
[8] See Margaret Dore, Alabama: Assisted Suicide Ban Act to Go Into Effect,” http://www.choiceillusion.org/2017/07/alabama-assisted-suicide-ban-act-to-go.html; Kansascity.com, “Brewer signs bill targeting assisted suicide,” available http://www.choiceillusion.org/2014/05/arizona-strengthens-its-law-against.html; Georgia General Assembly printout 06/08/15; Margaret Dore,“Idaho Strengthens Law Against Assisted-Suicide,” July 4, 2011, at http://www.choiceillusionidaho.org/2011/07/idaho-strengthens-law.html; and Associated Press, “La. assisted-suicide ban strengthened,” April 24, 2012.
[9] Morris v. Brandenburg, 376 P.3d 836 (2016). See also “New Mexico Upholds Assisted Suicide Prohibition,” July 1, 2016 at http://newmexicoagainstassistedsuicide.org/2016/07/new-mexico-upholds-assisted-suicide.html
[10] Vermont, California and Colorado.
[11] Bill Clause 45 (allowing a patient to “use and self-administer” a lethal substance). The bill also allows a medical practitioner to administer the lethal dose. See Clause 46 (allowing a “co-ordinating medical practitioner” to administer a lethal substance to cause the person’s death).
[12] See the bill in its entirety, available at http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/D162E1F2FCC3F7C3CA2581A1007A8903/$FILE/581392bi1.pdf
[13] Id.
[14] The bill, Clause 9(1)(d), states:
[T]he person must be diagnosed with a disease, illness or medical condition that -
(i) is incurable; and
(ii) is advanced, progressive and will cause death; and
(iii)is expected to cause death within weeks or months, not exceeding 12 months ...
[15] Affidavit of Kenneth Stevens, MD, Hall declaration, in the appendix at A-33
[16] Id.
[17] Affidavit of Jeanette Hall, ¶ 4.
[18] Cf. Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 4/17/14, and Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09.
[19] Affidavit of John Norton, 08/18/12
[20] Id., ¶ 1
[21] Id., ¶ 4
[22] Id., ¶ 5
[23] Bill Clause 9(1)(d).
[24] Oregon’s law 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. Or. Rev. Stat. 127.800 s.1.01(12)
[25] “Diabetes mellitus” is listed as a qualifying terminal disease in Oregon government reports. See Declaration of William Toffler, MD, pp. A-14 to A-15, ¶¶ 2-4, and report excerpts at A-17 & A-18.
[26] Toffler Declaration at A-15, ¶ 5.
[27] Id., ¶ 6
[28] Appendix, at A-34 and A-35
[29] See Met Life Mature Market Institute, Broken Trust: Elders, Family and Finances,” March 2009, https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf and Facts on Elder Abuse - Australia, at http://www.ohchr.org/Documents/Issues/OlderPersons/Submissions/ElderAbusePreventionAssociation.pdf
[30] Metlife supra, at p.14.
[31] Kathryn Alfisi, “Breaking the Silence on Elder Abuse,” Washington Lawyer, February 2015. https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/february-2015-elder-abuse.cfm
[32] See People v. Rutterschmidt, 55 Cal.4th 650 (2012) and https://en.wikipedia.org/wiki/Black_Widow_Murders
[33] Rutterschmidt, at 652-3.
[34] Id. at 652.
[35] 67 Cal.Rptr.3d 129, 143 (2007).
[36] Facts on Elder Abuse-Australia, available at http://www.ohchr.org/Documents/Issues/OlderPersons/Submissions/ElderAbusePreventionAssociation.pdf
[37] Nat’l Center on Elder Abuse, http://www.ncea.aoa.gov/Library/Data/
[38] Id.
[39] “Adult Abuse,” District of Columbia, Department of Human Services, as of April 5, 2016. See also http://dhs.dc.gov/service/adult-abuse
[40] See the bill in its entirety, at http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/D162E1F2FCC3F7C3CA2581A1007A8903/$FILE/581392bi1.pdf
[41] The drugs typically used in Oregon and Washington State include Secobarbital, Pentobarbital and Phenobarbital, which are water and/or alcohol soluble. See excerpt from Oregon’s and Washington’s most recent annual reports, in the appendix at A-44 & A-45 (listing these drugs). See also http://www.drugs.com/pr/seconal-sodium.html, http://www.drugs.com/pro/nembutal.html and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[42] 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.margaretdore.com/info/October_Letters.pdf
[43] The Bill, Clause 117.
[44] Id., Clauses 22 and 38.
[45] See, for example, the Bill, Division 2, “Protection from liability for those who assist, facilitate, do not act or act in accordance with this Act.” (Emphasis added). See also Bill Clause 79, which states:
A person who in good faith does something or fails to do something
(a) that assists or facilitates any other person who the person believes on reasonable grounds is requesting access to or is accessing voluntary assisted dying in accordance with this Act; and
(b) that apart from this section, would constitute an offence at common law or under any other enactment-does not commit the offense.
[46] See the bill in its entirety
[47] Id.
[48] See definitions in the appendix at A-57 and A-58.
[49] See the bill in its entirety
[50] Id.
[51] Id.
[52] RCW 70.245.010(12), in the appendix at A-67.
[53] www.yourdictionary.com, in the appendix at A-59.
[54] Facts on Elder Abuse-Australia, p. 2, in the appendix at A-49, "Victimisation Facts” (“Among known perpetrators of abuse and neglect, the perpetrator is a family member in 90 percent of the cases. Two-thirds of the perpetrators are adult children or spouses. The offender is most commonly a close relative ....”)
[55] “Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf (Cover page in the appendix at A-60)
[56] Id.
[57] Oregon’s assisted suicide report for 2014, first line, at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf
[58] See Oregon Health Authority News Release, 09/09/10. ("After decreasing in the 1990s, suicide rates have been increasing significantly since 2000"). (Attached in the appendix at A-61).
[59] Report excerpts in the appendix at A-62 & A-63.
[60] Oregon Health Authority Report excerpts, attached in the appendix at A-64 & A-65.
[61] Oregon State Report attached in the appendix at A-66
[62] And http://www.choiceillusionsouthdakota.org/2017/06/in-oregon-other-suicides-have-increased_18.html (a different version)
[63] Oregon report excerpt for 2016 in the appendix at A-68. To view the entire 2016 report, click here
[64] See Oregon’s report for 2016 attached in the appendix at A-69 (listing 35,709 Oregon resident deaths in 2015).