The Massachusetts Assisted Suicide Initiative:
A Recipe for Elder Abuse and More
By Margaret Dore, Esq.
December 4, 2011
Those who believe that
assisted suicide will assure
their "choice" are naive.
William Reichel, MD
William Reichel, MD
Boston Globe,
September 2, 2010[1]
I. INTRODUCTION
An initiative petition to enact a physician-assisted suicide law is pending in Massachusetts.[2] The act’s preamble declares that assisted suicide will be "voluntary."[3] The act does not, however, deliver on this promise. The act is instead a recipe for elder abuse. Legalization will bring other problems, some of which are described below.
II. DISCUSSION
A. 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."[4] For example, a "physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide."[5]
The AMA rejects physician-assisted suicide.[6] Assisted suicide is also opposed by disability rights groups such as the Disability Rights and Education Defense Fund, and Not Dead Yet.[7]
B. Most States Do Not Allow Assisted Suicide
There are two states where physician-assisted suicide is legal: Oregon and Washington. These states have statutes, which are similar to the proposed act, that provide criminal and civil immunity to doctors and other persons who participate in a qualified patient's suicide.[8] In a third state, Montana, there is a court decision that gives doctors who cause or assist a suicide a potential defense to prosecution for homicide.[9] The decision does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.[10]
The AMA rejects physician-assisted suicide.[6] Assisted suicide is also opposed by disability rights groups such as the Disability Rights and Education Defense Fund, and Not Dead Yet.[7]
B. Most States Do Not Allow Assisted Suicide
There are two states where physician-assisted suicide is legal: Oregon and Washington. These states have statutes, which are similar to the proposed act, that provide criminal and civil immunity to doctors and other persons who participate in a qualified patient's suicide.[8] In a third state, Montana, there is a court decision that gives doctors who cause or assist a suicide a potential defense to prosecution for homicide.[9] The decision does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.[10]
C. The People at Issue are Not Necessarily Dying
The proposed act applies to patients with a "terminal disease," which is defined as having less than six months to live.[15] Such persons are not necessarily dying. Doctors can be wrong.[16] Moreover, treatment can lead to recovery. Oregon resident, Jeanette Hall, who was diagnosed with cancer and told that she had six months to a year to live, states:
"I wanted to do what our [assisted suicide] law allowed, and I wanted my doctor to help me. Instead, he encouraged me not to give up, and ultimately I decided to fight the disease. I had both chemotherapy and radiation . . .
It is now 11 years later. If my doctor had believed in assisted suicide, I would be dead."[17]
D. How the Proposed Act Works
The proposed act has an application process to obtain a lethal dose for the purpose of causing a patient’s death.[18] The application process includes a written request form with two required witnesses. One of the witnesses is allowed to be an heir who will benefit financially from the patient’s death.[19]
Once the lethal dose is issued by the pharmacy, there is no oversight.[20] The death is not required to be witnessed by disinterested persons.[21] Indeed, no one is required to be present.[22]
E. Voluntariness is not Assured
Proponents claim that patient participation will be "entirely voluntary."[23] The act’s provisions do not assure this result. See below.
E. Voluntariness is not Assured
Proponents claim that patient participation will be "entirely voluntary."[23] The act’s provisions do not assure this result. See below.
1. No witnesses at the death
As set forth above, the act does not require witnesses at the death.[24] Without disinterested witnesses, the opportunity is created for an heir, or someone else who will benefit from the patient’s death, to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?
Without disinterested witnesses, the patient’s control over his death is not guaranteed.
2. Someone else is allowed to speak for the patient
Under the act, patients signing the lethal dose request form are required to be "capable."[25] This is a relaxed standard in which someone else is allowed to speak for the patient. The proposed act states:
"'Capable' means having the capacity to make health care decisions and to communicate them to health care providers, including communication through persons familiar with the patient’s manner of communicating . . ." (Emphasis added).[26]
There is no requirement that the person speaking for the patient be a designated agent such as an attorney in fact.[27] The person could be an heir or a new "best friend" poised to benefit from the patient’s death.[28] The patient would not necessarily be in control of his fate.
3. A comparison to probate law
In Massachusetts, an heir’s acting as one of two witnesses on a will creates a presumption of fraud or undue influence. The Massachusetts’ probate code states that when one of two witnesses receives a bequest under a will, the witness receiving the bequest (an "interested witness") must establish that "the bequest was not inserted, and the will was not signed, as a result of fraud or undue influence by the witness."[29]
Massachusetts case law is similar: An heir’s active participation in making a will can create a presumption of undue influence.[30] Others states have similar laws. Burns v. Kabboul, a Pennsylvania case, states: "It will weigh heavily against the proponent [of the will] on the issue of undue influence when the proponent was . . . present at [its] dictation . . . ."[31]
In Massachusetts, the proposed act’s lethal dose request process, which allows an heir to talk for the patient and act as a witness on the lethal dose request form, does not promote voluntary action by the patient. The process instead invites fraud and undue influence.
F. Legalization will Create New Paths of Abuse
In Massachusetts, elder abuse is on the rise.[32] Nationwide, elder financial abuse is a crime growing in intensity, with perpetrators often family members, but also strangers and new "best friends."[33] "Victims may even be murdered by perpetrators who just want their funds and see them as an easy mark."[34]
Elder abuse is often unreported and therefore difficult to detect. This is due to many factors including "the victim’s fear of retaliation, apprehension to prosecute family members, or lack of capacity to describe the crime or the perpetrator."[35] "Seniors [also] do not report abusers for fear of being taken out of their home."[36]
In Massachusetts, preventing elder abuse is official state policy.[37] If assisted suicide would be legalized via the proposed act, new paths of abuse would be created against the elderly, which is contrary to that policy. The most obvious new path would be due to the proposed act’s lack of oversight over administration of the lethal dose. This is also a feature of the Washington and Oregon acts. Alex Schadenberg, Executive Director of the Euthanasia Prevention Coalition, 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 . . . administration. . . . [E]ven if a patient struggled, "who would know?"[38]
G. Legal 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.[39] The Oregon Health Plan refused to pay for their desired treatments and offered to pay for their suicides instead.[40] Neither Wagner nor Stroup saw this as a celebration of their choice. Stroup said: "This is my life they’re playing with."[41] Wagner said: "I’m not ready to die."[42]
Stroup and Wagner were steered to suicide. Moreover, it was the Oregon Health Plan, a government entity, doing the steering. Oregon’s law empowered the Oregon Health Plan, not individual patients. If assisted suicide would be legalized in Massachusetts, there would be a similar empowerment of the state healthcare system, not individual patients.
H. Legal Assisted Suicide Encourages People to Throw Away Their Lives
This year, the New Hampshire House of Representatives defeated a proposed assisted suicide bill, 234 to 99.[43] Reasons for the defeat included the Judiciary Committee’s concern about government intrusion into peoples’ lives, steerage by the government and the uncertainty of terminal diagnoses. The majority report for the Judiciary Committee states:
"[T]his bill would legalize state-sanctioned suicide for people with terminal illnesses and that this is an area where government does not belong. People with terminal illnesses who may consider suicide do not need encouragement from the government. . . . The committee . . . recognizes that doctors’ diagnoses and predictions may be incorrect; numerous cases exist where people have lived far beyond their doctor’s predictions, some of them having been cured from their terminal disease. For these reasons, the committee strongly believes that this bill represents bad policy and practice and [recommends that the bill be defeated]."[44]
I. "Self-administer"
The proposed act states that patients may "self-administer" the lethal dose.[45] There is no language stating that administration "must" be by self-administration.[46] Also, in an Orwellian twist, the term, "self-administer," does not mean that administration will necessarily be by the patient. "Self-administer" is instead defined as the "the act of ingesting." The proposed act states:
"'Self-administer' means a qualified patient’s act of ingesting medication to end his or her life . . . . " (Emphasis added)[47]
In other words, someone else putting the lethal dose in the patient’s mouth or feeding tube qualifies as proper administration because the patient will thereby "ingest" the dose.[48] With administration defined as mere ingestion, someone else is allowed to administer the lethal dose to the patient. Once again, the patient himself may not be in control.
J. The Oregon and Washington Reports Do Not Address Patient Consent
In Holland, where assisted suicide and euthanasia are legal, government reports concede that some people are killed without their consent.[49] In Oregon and Washington, official forms and reports avoid this problem by NOT DISCUSSING whether the patient consented. Required forms and reports do not ask about or report on whether the patient consented when the lethal dose was administered. The reports instead focus on the patient’s "ingestion" or "taking" of the lethal dose, which does not require consent, capacity or even awareness. In Oregon, similar to the proposed Massachusetts act, reports state that the law "allows" a lethal dose to be "self-administered," but does not state that administration "must" be by self-administration. See, for example, Oregon’s most recent annual report .[50]
The bottom line: The Oregon and Washington reports do not address patient consent.
K. No Liability for Administration Without Consent
Proponents may counter that the proposed act protects patients from wrongdoing due to the act’s provisions imposing civil and criminal liability.[51] None of these provisions state that they penalize administration of the lethal dose without the patient’s consent.[52]
L. The Oregon Reports Are Consistent with Elder Abuse
Oregon’s official reports show that the majority of people who have died under Oregon’s act have been well-educated with private insurance.[53] Typically, people with these attributes would be those with money, i.e., the middle class and above. The statistics also show that the majority of people dying have been age 65 or older.[54]
These statistics can be explained by older persons with money feeling a "duty to die" so as to pass on funds to their heirs.[55] The statistics are also consistent with elder abuse. Former New Hampshire State Representative Nancy Elliott states:
"Assisted suicide laws empower heirs and others to pressure and abuse older people to cut short their lives. This is especially an issue when the older person has money. There is NO assisted suicide bill that you can write to correct this huge problem."[56]
M. Suicide Contagion
Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[57] Just three years prior, in 1997, Oregon legalized physician-assisted suicide.[58] This increased rate for other suicides is consistent with a suicide contagion. In other words, encouraging one type of suicide encouraged other suicides.
In Massachusetts, preventing suicide is official state policy.[59] Enacting the proposed act, which is similar to Oregon’s act, which is statistically correlated to increased suicide in Oregon, is contrary to that policy.
III. CONCLUSION
The proposed act is a recipe for abuse in which an heir is allowed to help sign a patient up for the lethal dose and there is no oversight over administration. In Oregon, legalization of physician-assisted suicide has empowered the Oregon Health Plan to steer patients to suicide. In Oregon, legalizing physician-assisted suicide is statistically correlated to an increase in other suicides. There is also the issue that with legalization, some people with many quality years left will be encouraged to throw their lives away.
Don’t make Oregon and Washington’s mistake. Keep assisted suicide out of Massachusetts.
* * *
Margaret Dore is an elder law attorney in Washington State where assisted suicide is legal. She is also President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide. (www.choiceillusion.org). For more information, see www.margaretdore.com
[1] William Reichel, Letter to the Editor, "Death with dignity' means euthanasia," Boston Globe, September 2, 2010, stating: "Those who believe that these practices [assisted suicide and euthanasia] will assure their 'choice' are naive."
[2] Petition 11-12, copy available at http://choiceisanillusion.files.wordpress.com/2011/10/ma-initiative.pdf
[3] Id., Preamble, Section 1.
[4] AMA Code of Medical Ethics, Opinion 2.211.
[5] Id.
[6] Id.
[7] See Disability Rights Education & Defense Fund, "Assisted Suicide," at http://www.dredf.org/assisted_suicide/index.shtml (Last visited November 29, 2011) and Stephen Drake & Not Dead Yet, "New Hampshire Poised to Redefine "Terminally Ill" - to PWDs and Others for Assisted Suicide Eligibility," January 30, 2009. (Last visited December 3, 2011)
[8] In Oregon, immunity is granted via ORS 127.885 s.401(1). In Washington, immunity is granted via RCW 70.245.190(1). To view the Oregon and Washington acts in their entirety, see ORS 127.800-995 and RCW 70.245, available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx and http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245. (Last visited November 28, 2011).[9] Baxter v. State, 354 Mont. 234, ¶50, 224 P.3d 1211 (2009).
[10] The issue of assisted suicide’s legality under Baxter is, however, still being argued two years after the decision. See "The aid-in-dying debate: Can a physician legally help a patient to die in Montana? Court ruling still leaves the issue open to argument," The Montana Lawyer, November 2011 (with opposing pro-con articles: by State Senator Anders Blewett, "Montana Supreme Court affirms legality of aid in dying," and by State Senator Jim Shockley and Margaret Dore, "No, physician-assisted suicide is not legal in Montana: It’s a recipe for elder abuse and more"). Articles can be viewed here: http://maasdocuments.files.wordpress.com/2011/11/mt-lawyer-cover-story_001.pdf
[11] Oregon’s act was enacted via Ballot Measure 16 in 1994 and went into effect in 1997.
[12] Washington’s act was enacted via Initiative 1000 (I-1000) in 2008 and went into effect in 2009. To view I-1000, go here: http://wei.secstate.wa.gov/osos/en/Documents/I1000-Text%20for%20web.pdf [13] Compare Oregon’s act (ORS 127.800-995) and Washington’s act (RCW 70.245).
[14] Patients Rights Council, "Attempts to Legalize Euthanasia/Assisted Suicide in the United States," as of November 26, 2011, available at http://epcdocuments.files.wordpress.com/2011/10/attempts_to_legalize_001.pdf ("Between January 1994 and March 2011, there were 122 legislative proposals in 25 states. All bills that are not currently pending were either defeated, tabled for the session, withdrawn by sponsors, or languished with no action taken").
[15] The proposed act, §1(13), states: "‘Terminal disease’ means an incurable and irreversible disease that has been medically confirmed and will within medical judgment, produce death within six months."
[16] Nina Shapiro, Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?, Seattle Weekly, January 14, 2009, available at www.seattleweekly.com/2009-01-14/news/terminal-uncertainty.
[17] Jeanette Hall, Letter to the Editor, "She pushed for legal right to die, and - thankfully - was rebuffed," Boston Globe, October 4, 2011, available at http://articles.boston.com/2011-10-04/bostonglobe/30243525_1_suicide-doctor-ballot-initiative. Author confirmed accuracy with both Ms. Hall and her doctor, Kenneth Stevens, MD. See also Kenneth Stevens, Letter to the editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho Bar Association, September 2010, to view, scroll down to the last letter at http://www.margaretdore.com/info/September_Letters.pdf
[18] Massachusetts Initiative, supra at note 2, §§ 2-13, and 21.
[19] Massachusetts Initiative supra at note 2, See §§ 3 & 21 (providing that one of two required witnesses on the lethal dose request form cannot be a patient’s heir or other person who will benefit financially from the death; the other witness may be an heir or other person who will benefit financially from the death).
[20] See proposed act in its entirety, supra at note 2.
[21] Id.[22] Id.
[23] See proposed act, supra at note 2, Preamble, § 1
[24] The proposed act in its entirety supra at note 2 (no witnesses required at the time of administration or the death).
[25] Proposed act, §3.
[26] The proposed act, § 1(3) states: "Capable" means having the capacity to make health care decisions and to communicate them to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available."
[27] See the proposed act in its entirety, supra at note 2 (no requirement that a person speaking for the patient be a designated agent such as an attorney in fact).
[28] Id.
[29] M.G.L.A. 190B § 2-505(b) states: "The signing of a will by an interested witness shall not invalidate the will or any provision of it except that a devise to a witness or a spouse of such witness shall be void unless there are 2 other subscribing witnesses to the will who are not similarly benefited thereunder or the interested witness establishes that the bequest was not inserted, and the will was not signed, as a result of fraud or undue influence by the witness."
[30] Estate of Moretti 69 Mass.App.Ct. 642, 653, 871 N.E.2d 493 (2007) states: "[The appellant’s] direct involvement in the drafting of the will provided ample justification for shifting the burden of proof to [the appellant on the issue of undue influence].
[31] Burns v. Kabboul, 595 A.2d 1153, 1163 (Pa. Super. Ct. 1991).
[32] Madeline McNeilly, "Elder Abuse is a growing problem that’s underreported," The Sun Chronicle, August 14, 2011, http://www.thesunchronicle.com/articles/2011/06/15/columns/9727616.txt. See also: Jaclyn Reiss, "Elder-abuse cases on the rise in Massachusetts," Metro West Daily News, February 19, 2011, at http://www.metrowestdailynews.com/lifestyle/health/x268608620/Elder-abuse-cases-on-the-rise-in-Massachusetts; and Steve Adams, "Elder abuse and neglect complaints on rise in Massachusetts," Gate House News Service, September 6, 2010, at http://www.wickedlocal.com/swansea/archive/x128163064/Elder-abuse-and-neglect-complaints-are-on-the-rise-in-Massachusetts#axzz1V1xksjt4
[33] See 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-study-broken-trust-elders-family-finances.pdf (last visited November 29, 2011); Miriam Hernandez, "‘Black Widows’ in court for homeless murders," March 18, 2008, ABC Local, http://abclocal.go.com/kabc/story?section=news/local&id=6027370 (last visited November 29, 2011) (elderly homeless men killed as part of an insurance scam); and People v. Rutterschmidt, 98 Cal.Rptr.3rd 390 (2009)(regarding this same case).
[34] Miriam Hernadez supra at note 33. and MetLife Mature Market Institute, "Broken Trust," supra at note 33, page 24.
[35] Madeline McNeilly, supra at note 32.
[36] Jaclyn Reiss, supra at note 32.
[37] See e.g. M.G.L.A. Chapter 19A, Department of Elder Affairs, § 16, Protective services system ("protective services for elderly persons who are determined to be abused").
[38] Alex Schadenberg, Letter to the Editor, "Elder abuse a growing problem," The Advocate, October 2010, p. 14, available at http://www.isb.idaho.gov/pdf/advocate/issues/adv10oct.pdf .
[39] See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008, available at http://abcnews.go.com/Health/story?id=5517492&page=1 ; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008, available at http://www.katu.com/news/26119539.html
[40] Id.
[41] Susan Donaldson James, supra at note 39.
[42] KATU News, supra at note 39
[43] Docket for HB 513, available at http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=297&sy=2011&sortoption=&txtsessionyear=2011&txtbillnumber=hb513&q=1 For more information, go here: http://www.choiceillusionnewhampshire.org/2011/05/new-hampshire-defeats-assisted-suicide.html
[44] House Journal, Vol. 33, No. 28 (scroll down to HB 513), available at http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=297&sy=2011&sortoption=&txtsessionyear=2011&txtbillnumber=hb513&q=1
[45] See proposed act, §§ 1(7), 1(11), 2(1).
[46] See proposed act in its entirety, at http://choiceisanillusion.files.wordpress.com/2011/10/ma-initiative.pdf
[47] Proposed act, § 1(12).
[48] The proposed act does not define "ingest." Dictionary definitions include: "[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing" (Emphasis added). Webster’s New World College Dictionary, www.yourdictionary.com/ingest.
[49] In 2005, the last year for which there is a comprehensive Dutch government report, there are an admitted 550 patients whose lives were ended "without an explicit request of the patient." To view an exceprt of this report, click here.
[50] To view all official reports, forms and directives for the Oregon and Washington assisted suicide acts, go to these links: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx and http://www.doh.wa.gov/dwda/default.htm
[51] Proposed act, § 19.
[52] Id.
[53] See e.g., Oregon’s report for 2010, which states that most people who died under the Oregon act were "well educated." The report also states that 60% had private health insurance as opposed to 69.1% in previous years.
[54] Oregon’s report for 2010 states: "Of the 65 patients who died under DWDA in 2010, most (70.8%) were over age 65 years, the median age was 72 years."
[55] See, e.g., Licia Corbella, If doctors who won’t kill are ‘wicked,’ the world is sick, The Calgary Herald, January 10, 2009, at http://www.canada.com/calgaryherald/news/story.html?id=83835868-7f89-40bd-b16e-8bc961d41b39 (last visited November 29, 2011).
[56] Nancy Elliott, Letter to the Editor, Heirs will abuse older people, The Advocate, September 2010 at page 15, at http://www.isb.idaho.gov/pdf/advocate/issues/adv10sep.pdf
[57] See "Suicides in Oregon: Trends and Risk Factors," Oregon Department of Human Services, Public Health Division, September 2010, page 6, ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report"). See also Oregon Health Authority, News Release, "Rising suicide rate in Oregon reaches higher than national average," September 9, 2010, ("suicide rates have been increasing significantly since 2000") available at http://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf
[58] See e.g. 2010 Annual Report, Oregon's Death with Dignity Act, available at (stating that Oregon's assisted suicide law was "enacted in late 1997").
[59] See e.g. M.G.L.A. 40, § 36C ("All members of municipal police departments, and all uniformed members of the state police shall be trained in the detection, intervention and prevention of suicide.")
