Dore Legal Analysis Opposing Bill H 7297

I. INTRODUCTION 

I am an attorney in Washington State where assisted suicide is legal.[1] Our law is based on a similar law in Oregon.[2]  Both laws are similar to the proposed bill, H 7297.[3] H 7297 seeks to legalize assisted suicide and euthanasia as those terms are traditionally defined. If enacted, the bill will apply to people with years to live.  The bill will also apply to older people, especially the elderly. The bill is stacked against the individual and a recipe for elder abuse. I urge you to reject H 7297.


II. DEFINITIONS (TRADITIONAL)

“Euthanasia” means the direct administration of a lethal agent to cause another person’s death.[4]  Euthanasia is also known as “mercy killing.”[5] Assisted suicide occurs when a person provides the means or information for another person to commit suicide, for example, by providing a rope or lethal drug.[6]  If the assisting person is a physician, a more precise term is “physician-assisted suicide.”[7]

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.[8] In other states, reported motives include: the “thrill” of getting other people to kill themselves; and “wanting to see someone die.”[9]

Doctors too can have an agenda, for example, to hide malpractice, or to obtain an inheritance or other financial gain.[10]

IV. PUSHBACK AGAINST ASSISTED SUICIDE

A. This Year, Utah Passed Legislation to Clarify That Assisted Suicide a Crime  

This year, Utah amended its manslaughter statute to make it clear that assisted suicide is a crime.[11]  The bill passed the Utah State Legislature by a 2 to 1 margin.[12]

B. Last Year, Alabama Passed an Act Banning Assisted Suicide

Last year, Alabama passed the “Assisted Suicide Ban Act,” which renders any person who deliberately assists a suicide, guilty of a felony.[13]  The vote to pass was nearly unanimous.[14]

C. Two Years Ago, the New Mexico Supreme Court Overturned Assisted Suicide

Two years ago, the New Mexico Supreme Court overturned a lower court decision recognizing a right to physician aid in dying, meaning physician assisted suicide.[15]  Physician-assisted suicide is no longer legal in New Mexico.

V. HOW THE BILL WORKS

The bill has an application process to obtain the lethal dose.[16]  Once the lethal dose is issued by the pharmacy, there is no oversight.[17]  No witness, not even a doctor, is required to present at the death.[18]

VI. DECADES TO LIVE

The bill applies to persons with a “terminal condition,” meaning those predicted to have less than six months to live. Such persons may, in fact, have years or decades to live.  This is true for three reasons.

A. If Rhode Island Follows Oregon, the Bill Will Apply to People With Chronic Conditions Such as Insulin Dependent Diabetes

     The bill states:

"Terminal condition" means an incurable and irreversible disease which could within reasonable medical judgment, result in death within six (6) months or less.[19]

Oregon’s law has a similar definition:

“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.[20]

In Oregon, this similar definition is interpreted to include chronic conditions such as diabetes.[21]  Oregon doctor, William Toffler, explains:

 In Oregon, chronic conditions such as diabetes are sufficient for assisted suicide, if, without treatment such as insulin, the patient has less than six months to live.[22]

Dr. Toffler also addresses the Rhode Island definition of “terminal condition” set forth above.  He states:

In my professional judgment, this definition includes insulin dependent diabetes because the final stage of the disease is a failure to produce insulin, such that the affected person is dependent on insulin to live.

The disease at that point is an incurable and irreversible medical condition that will cause death within six months without treatment.

In short, if Rhode Island follows Oregon practice to determine eligibility without treatment, the proposed bill will apply to people with chronic conditions such as insulin dependent diabetes (Spacing changed). [23]

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.[24]

Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18.[25]  He was told that he would get progressively worse (be paralyzed) and die in three to five years.[26]  Instead, the disease progression stopped on its own.[27]  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.[28]

C. Treatment Can Lead to Recovery

Consider also Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use Oregon’s law.[29]  Her doctor convinced her to be treated instead.[30]  In a 2017 declaration, she states:

It has now been 17 years since my diagnosis.  If [my doctor] had believed in assisted suicide, I would be dead.[31]

VII. THE BILL WILL APPLY TO OLDER PEOPLE

According to statistics from Oregon, most people who die under its law are elders, aged 65 and older.[32]  This demographic is already an especially at risk group for abuse and exploitation.  See below.

VIII. ELDER ABUSE

A. Elder Abuse Is Already a Problem in Rhode Island; Perpetrators Are Often Family Members

Elder abuse is a problem throughout the United States, including Rhode Island.  Nationwide, prominent cases include actor Mickey Rooney and New York philanthropist, Brooke Astor.[33]  Rhode Island has also been reported as having a significant problem with elder abuse.[34] Perpetrators are often family members.[35]  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 change their wills or to liquidate their assets.[36]  Amy Mix, of the AARP Legal Counsel of the Elderly, states:

[Perpetrators] 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.[37]

B. Elder Abuse Is Rarely Reported, Victims Don’t Want to Report Family Members to the Authorities

The vast majority of elder abuse cases are not reported to the authorities. Reasons include:

The elder does not want her abusing family member to go to jail or to face public embarrassment.[38]

C. Elder Abuse Is Sometimes Fatal

In some cases, elder abuse is fatal.  More notorious cases include California’s “black widow” murders, in which two women took out life insurance policies on homeless men.[39]  Their first victim was 73 year old Paul Vados, whose death was staged to look like a hit and run accident.[40]  The women collected $589,124.93.[41]

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.[42]

IX. THE BILL IS STACKED AGAINST THE INDIVIDUAL

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

The bill has no oversight over administration of the lethal dose.  In addition, the drugs used are water and alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[43]  Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:

With assisted suicide laws in Washington and  Oregon [and with the proposed 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).[44]

B. Someone Else Is Allowed to Communicate on the Patient’s Behalf

A patient obtaining the lethal dose is required to be “capable.”  This is a relaxed standard in which someone else is allowed to communicate for the patient, as long as the  communicating person is “familiar with the patient’s manner of communicating.”  The bill states:

"Capable" means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communicating if those persons are available. (Emphasis added).[45]

Being familiar with a patient’s manner of communicating is a  minimal standard.  Consider, for example, a doctor’s assistant who is familiar with the patient’s “manner of communicating” in Spanish, but she herself does not understand Spanish.  That, however, would be good enough for her to communicate on the patient’s behalf during the lethal dose request process.  The patient would not necessarily be in control of his fate.

 C. If Rhode Island Follows Washington State, Someone Else Will Be Allowed to Administer the Lethal Dose to the Patient

The bill describes the lethal dose as being “self-administered,” a term which is not defined.[46] The term, however, is defined in Washington State’s similar law, as “the act of ingesting.” Washington’s law states:

“Self-administer,” means a qualified patient’s act of ingesting medication to end the patient’s life . . . . (Emphasis added).[47]

Washington’s law does not define “ingesting.”[48]  Dictionary definitions include:

[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing. (Emphasis added).[49]

With these definitions, someone else putting the lethal dose in a 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 qualifies 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 self-administer defined as the act of ingesting, someone else is allowed to administer the lethal dose to the patient.

If Rhode Island follows Washington State to adopt this  definition, someone else, such as a family member, will be allowed to administer the lethal dose to the patient.  The patient will not necessarily be in control of his or her fate.

D. The Death Will Not Be Construed as Suicide, Assisted Suicide, Mercy Killing (Euthanasia) or Homicide “Under the Law”

  The bill states:

Action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing [euthanasia] or homicide under the law. (Emphasis added).[50]

The bill does not define “accordance.”[51]  Dictionary definitions include “in the spirit of,” meaning “in thought or intention.”[52]

With these definitions, the action of a family member or other perpetrator to effect a death under the bill will not be construed as suicide, assisted suicide, mercy killing or homicide under the law, as long as the person effecting the death had a thought or intention to comply with the bill.  More to the point, a family member or other perpetrator with a mere thought or intent to comply with the bill will be immune from prosecution.  The cause of death, as a matter of law, will not be construed as causing a suicide, assisted suicide, mercy killing or homicide.

X. 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.[53]  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.[54]

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.”[55]

By 2000, Oregon's conventional suicide rate was "increasing significantly."[56]

By 2007, Oregon's conventional suicide rate was 35% above the national average.[57]

By 2010, Oregon's conventional suicide rate was 41% above the national average.[58]

By 2012, Oregon's conventional suicide rate was 42% above the national average.[59]

For a more detailed discussion of suicide contagion in Oregon, see Margaret Dore, “In Oregon, Other Suicides Have Increased with Legalization of Assisted Suicide.”[60]

XI. CONCLUSION

H 7297 seeks to legalize assisted suicide and euthanasia as those terms are traditionally defined.  The bill is stacked against the individual with the most obvious reason being a complete lack of oversight at the death.  Even if the patient struggled, who would know?

As a matter of law, the death will not be treated as suicide, assisted suicide, mercy killing (euthanasia) or homicide.  This will prevent prosecution for murder no matter what the facts.  The bill will encourage people with years or decades to live to throw away their lives, or to have their lives thrown away for them.  Patients and their families will be traumatized.

The bill, if enacted, will create the perfect crime.  I urge you to vote “No.”

Respectfully submitted this 1st day of April 2018,

Margaret Dore, Esq., MBA

Law Offices of Margaret K. Dore, P.S.

Choice is an Illusion, a nonprofit corporation
opposed to assisted suicide and euthanasia, worldwide.

www.choiceillusion.org 

www.margaretdore.org 

1001 4th Avenue, Suite 4400

Seattle, WA 98154

206 697 1217

ENDNOTES:

[1]  I am an elder law/appellate lawyer, who has been licensed to practice law in Washington State since 1986. I am also a former Law Clerk to the Washington State Supreme Court. I am President of Choice is an Illusion, a non-profit organization opposed to assisted suicide and euthanasia, worldwide. For more information, see the CV attached hereto at A-1 through A-4. See also www.margaretdore.org and www.choiceillusion.org
[2] ORS 127.800 to 127.897.
[3] The bill is attached hereto in the appendix, at A-101 to A-107.
[4] American Medical Association Code of Medical Ethics, Opinion 5.8, “Euthanasia,” (lower half of the page), attached hereto at A-5.
[5] “Mercy killing” - The Free Legal Dictionary, attached hereto at A-6.
[6] Ben Winslow, “Teen accused of helping friend commit suicide could face trial for murder,” The Salt Lake Tribune, 10/12/17 (The defendant “bought the rope, tied the noose and picked the tree”), attached hereto at A-7 & A-8,   https://www.aol.com/article/news/2017/10/12/teen-accused-of-helping-friend-commit-suicide-could-face-trial-for-murder/23241619.
[7] The American Medical Association Code of Medical Ethics, Opinion 5.7 (defining physician-assisted suicide).  Attached hereto at A-5.
[8] KTVZ.com, “Sawyer Arraigned on State Fraud Charges,” 07/14/11, at A-9.
[9] 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’”), attached hereto at A-10 & A-11, also available at https://www.theguardian.com/us-news/2015/dec/28/minnesota-suicide-conviction-william-melchert-dinkel-mark-drybrough,; and Ben Winslow, supra.
[10]  An example would be Dr. Harold Shipman, MD, who put himself in the will of a patient he killed via lethal injection.  He also stole from his patients.  See Steven Rourke & Tricia Ward, “Healthcare Serial Killers: Patterns and Policies,” Medscape, 12/31/17, at www.medscape.com/viewarticle/884136  Excerpts from the article are attached hereto at A-12 to A-14.
[11]  To view enrolled copy, click here: https://le.utah.gov/~2018/bills/hbillenr/HB0086.pdf
[12]  See Utah legislative website.
[13]  Alabama: Assisted Suicide Ban Act to Go Into Effect,” http://www.choiceillusion.org/2017/07/alabama-assisted-suicide-ban-act-to-go.html 
[14]  See Alabama legislative website.
[15]  Morris v. Brandenburg, 376 P.3d 836 (2016).  (Excerpt attached at A-15)
[16]  See the bill, attached hereto at A-101 to A-107.
[17]  Id.
[18]  Id.
[19]  Id., § 23-4.13-2.(10), attached hereto at A-102.
[20]  Or. Rev. Stat. 127.800 s.1.01(12), attached hereto at A-19.
[21]  Declaration of William Toffler, MD, 03/31/18, attached at A-16 to A-21.
[22]  Id., attached hereto at A-17, ¶ 5.
[23]  Id., at A-17 & A-18, ¶¶ 8 & 9.
[24]  Cf. Jessica Firger, “12 Million Americans Misdiagnosed Each Year,” CBS NEWS, April 17, 2014, attached hereto at A-22; 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, attached hereto at A-23 to A
[25]  Affidavit of John Norton, attached hereto at A-26 to A-28.
[26]  Id., ¶ 1.
[27]  Id., ¶ 4.
[28]  Id., ¶ 5.
[29]  Affidavit of Kenneth Stevens, MD, attached at A-29 to A-31; Jeanette Hall discussed at A-29 to A-30; Hall declaration attached at A-32.
[30]  Id.
[31]  Declaration of Jeanette Hall, ¶4, at A-32.
[32]  See: excerpt from Oregon’s annual report for 2017, at A-33.
[33]  Tom Cohen, “Mickey Rooney tells [U.S.] Senate panel he was a victim of elder abuse,” CNN, March 2, 2011, at http://www.cnn.com/2011/SHOWBIZ/03/02/rooney.elderly.abuse/index.html; Carole Fleck, “Brooke Astor’s Grandson Tells  Senate Panel of Financial Abuse,” AARP Bulletin Today, 02/05/2015 (“The grandson of socialite Brooke Astor, who blew the whistle on his father for plundering millions from his grandmother’s estate, told the Senate panel Wednesday that his grandmother’s greatest legacy may be the national attention focused on elder financial abuse.”), at https://blog.aarp.org/2015/02/05/brooke-astors-grandson-tells-senate-panel-of-financial-abuse.
[34]  See Margo Sullivan, Patch Staff, Politics & Government, “Rhode Island Among Worst States for Elder Abuse, Report Says ‘Rhode Island ranked 48th on a list of 50 states and the District of Columbia,’” 12/17/16, at https://patch.com/rhode-island/cranston/rhode-island-among-worst-states-elder-abuse-report-says; and http://eldercareofri.com/elder-abuse-and-exploitation
[35]  MetLife Mature Market Institute, “Broken Trust: Elders, Family and Finances, A Study on Elder Abuse Prevention,” March 2009, at http://www.metlife.com/assets/cao/mmi/publications/studies/mmi-broken-trust.pdf See also  James I. Goldman, CPA, Elderly Financial Abuse, March 1, 2017, at http://eldercareofri.com/elderly-financial-abuse
[36]  MetLife, supra
[37]  Kathryn Alfisi, “Breaking the Silence on Elder Abuse,” Washington Lawyer, February 2015, available at https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/february-2015-elder-abuse.cfm
[38]  Kristen M. Lewis, Esq., “Financial Abuse of Elders and Other At-Risk Adults,” Smith, Gambrell & Russell, LLP, excerpts attached hereto at A-34 to A-36.
[39]  See People v. Rutterschmidt, 55 Cal.4th 650 (2012).  See also   https://en.wikipedia.org/wiki/Black_Widow_Murders
[40]  Rutterschmidt, at 652-3.
[41]  Id. at 652.
[42]  67 Cal.Rptr.3d 129, 143 (2007), available at https://www.leagle.com/decision/200719667calrptr3d1291182
[43]  The drugs used include Secobarbital, Pentobarbital and Phenobarbital, which are water and/or alcohol soluble.  See excerpt from Oregon’s and Washington’s most recent annual reports, attached hereto at A-37 & A-38 (listing these drugs).  See also https://www.drugs.com/pro/seconal-sodium.html, http://www.drugs.com/pro/nembutal.html, and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[44]  Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010.
[45]  The bill, § 23-4.13-2(2), attached hereto at A-101.
[46]  See the bill in its entirety, attached hereto at A-101 to A-107.
[47]  Revised Code of Washington, § 70.245.010(12), attached hereto at A-39.
[48]  See Washington State’s law in its entirety at https://app.leg.wa.gov/rcw/default.aspx?cite=70.245
[49]  Ingest definition, www.yourdictionary.com attached hereto at A-40.
[50]  The bill, § 24-4.13-12, attached hereto at A-106, lines 32-34.
[51]  See the bill in its entirety, attached hereto at A-101 to A-107.
[52]  See definitions attached hereto at A-41 & A-42.
[53]  “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 attached hereto at A-43)
[54]  Id.
[55]  Oregon’s assisted suicide report for 2014, first line, at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf
[56]  See Oregon Health Authority News Release, 09/09/10. ("After decreasing in the 1990s, suicide rates have been increasing significantly since 2000").  (Attached at A-61)
[57]  Report excerpts at A-62 & A-63 (page with quote).
[58]  OHA Report, attached at A-64 & A-65 (page with quote).
[59]  Oregon State Report attached at A-66.
[60]  http://www.choiceillusionsouthdakota.org/2017/06/in-oregon-other-suicides-have-increased_18.html