Memo to Joint Judiciary Committee

 Vote "NO" on H.3884, Assisted Suicide
Hearing, Tuesday, March 6, 2012

For a print version of this memo with an index and attached documentation, please click here


I am President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide.[1]  I am also an attorney in Washington State where assisted suicide is legal.[2]

This memo discusses why the claim that H.3884 will assure patient control is untrue.  H.3884 is instead a recipe for elder abuse.  There are multiple other problems.


A.      No Legislature has Approved Assisted Suicide   

H.3884 is similar to assisted suicide acts in Oregon and Washington State.[3]  These acts were enacted via ballot initiatives in 1997 and 2009, respectively.  No such law has made it through the scrutiny of a legislature despite more than 100 attempts.[4]

In 2010, the New Hampshire House of Representatives defeated a bill similar to H.8334.  The vote was 242 to 113.[5]  Democrats were the majority party.[6]  

B.      The People at Issue are Not Necessarily Dying

H.3884 applies to people with a “terminal disease,” which is defined as having less than six months to live.[7]  Such persons are not necessarily dying.  Doctors can be wrong.[8]  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. . . . I had both chemotherapy and radiation . . .

It is now 11 years later.  If my doctor had believed in assisted suicide, I would be dead.”[9]

C.      How the Proposed Act Works

 H.3884 has an application process to obtain a lethal dose for the purpose of causing a patient’s death.[10]  The application process includes a written request form with two required witnesses.[11]  One of the witnesses is allowed to be an heir who will benefit financially from the patient’s death.[12]    

Once the lethal dose is issued by the pharmacy, there is no oversight.[13]  The death is not required to be witnessed by disinterested persons.[14]  Indeed, no one is required to be present.[15]


A.      Voluntariness is not Assured

H.3884 implies that patient participation will be “entirely voluntary.”[16]  The act’s provisions do not assure this result.

1.  No witnesses at the death

As set forth above, H.3884 does not require witnesses at the death.[17]  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 H.3884, patients signing the lethal dose request form are required to be “capable.”[18]  This is a relaxed standard in which someone else is allowed to speak for the patient.  H.3884 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).[19]

There is no requirement that the person speaking for the patient be a designated agent such as an attorney in fact.[20]  The person could be an heir or a new “best friend” poised to benefit from the patient’s death.[21]  The patient would not necessarily be in control of his fate.

3.  “Self-administer”

H.3884 states that patients may “self-administer” the lethal dose.[22]  There is no language stating that administration “must” be by self-administration.[23]  Also, 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.”  H.3884 states:

“Self-administer” means a qualified patient’s act of ingesting medication to end his or her life . . . . (Emphasis added)[24] 
In other words, someone else putting the lethal dose in the patient’s mouth qualifies as proper administration because the patient will thereby “ingest” the dose.[25]  Someone else putting the lethal dose in a feeding tube or IV nutrition bag will also qualify because the patient will thereby “absorb” the dose, i.e., “ingest” it.[26]  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.

B.      A Comparison to Probate Law

As noted above, H.3884 allows one of two witnesses on the lethal dose request form to be an heir.  In the context of a will, 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 devise (“bequest”) under a will, such “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.”[27]  

H.3884’s lethal dose request process, which allows an heir to talk for the patient and also to act as a witness on the lethal dose request form, does not promote voluntary action by the patient.  The process instead invites pressure, fraud and/or undue influence.

C.  Legalization Will Create New Paths of Abuse

In Massachusetts, elder abuse is on the rise.[28]  Nationwide, elder financial abuse is a crime growing in intensity, with perpetrators often family members, but also strangers and new “best friends.”[29]  “Victims may even be murdered by perpetrators who just want their funds and see them as an easy mark.”[30] 

Elder abuse is often unreported and therefore difficult to detect.  The lack of reporting is due to factors including “the victim’s fear of retaliation, apprehension to prosecute family members, or lack of capacity to describe the crime or the perpetrator.”[31]  “[S]eniors [also] do not report abusers for fear of being taken out of their home.”[32]   

In Massachusetts, preventing elder abuse is official state policy.[33]  If assisted suicide would be legalized via H.3884, 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 lack of witnesses at the death.  Even if the elder struggled, who would know? 

D.  In Oregon, Legal Assisted Suicide Empowered the State Health Plan

Once a patient is labeled “terminal,” an easy argument can be made that his or her treatment should be denied.  In Oregon,  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.[34] The Oregon Health Plan declined coverage for their treatments and offered to pay instead for their suicides instead.[35]  Neither Wagner nor Stroup saw this as a celebration of their choice.  Stroup said: “This is my life they’re playing with.”[36]  Wagner said: “I’m not ready to die.”[37]

Stroup and Wagner were steered to suicide.  Moreover, it was the Oregon Health Plan, a government entity, doing the steering.  If assisted suicide would be legalized in Massachusetts, there would be a similar empowerment of the state healthcare system, not individual patients.

E.  Suicide Contagion

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[38]  Just three years prior, in 1997, Oregon legalized physician-assisted suicide.[39]  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.[40]  Enacting H.3884, which is similar to Oregon’s act, which is statistically correlated to increased suicide in Oregon, is contrary to that policy.

F.  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.[41]  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.[42]

These statistics can be explained by older persons with money feeling a "duty to die" so as to pass on funds to their heirs.[43]  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."[44]

G. A Doctor and Heir Protection Bill

H.3884 protects doctors and other persons who assist a patient’s death under the act. These protections include:

1. A redefinition of the criminal law

Under H.3884, deaths under the act are defined out of the criminal law. § 18(1)(b) states:

"Actions taken in accordance with this chapter shall not constitute suicide, assisted suicide, mercy killing or homicide under any criminal law of the commonwealth."[45]

In Washington State, similar language has been interpreted to require medical examiners, coroners and prosecuting attorneys to treat a death under the Washington act as "Natural."[46] Doctors and other assisters are thereby protected.

2. Protection from inquiry

Under H.3884, the department of public health is charged with collecting data regarding compliance with the act.[47] In the event a report is incomplete, the department is charged with contacting the reporting person "to request" a complete report.[48] No investigation is authorized.[49] Per H.3884, §15(2), the data collected is also not a "public record."[50]

In Oregon, the Oregon Health Authority has interpreted a similar provision to prevent law enforcement from obtaining access to identifying information such as the names of the doctors involved.  Alicia Parkman, a Mortality Research Analyst with the Oregon Health Authority, gave me this information:

"We have been contacted by law enforcement and legal representatives in the past, but have not provided identifying information of any type."[51]

Doctors and other participants are thereby protected from inquiry by law enforcement and others.

3. Immunity

Doctors and others are given immunity for participating in a death under the act. H. 3884, § 18(1)(a) states:

"No person shall be subject to civil or criminal liability or professional disciplinary action by any regulatory agency for any actions undertaken in compliance with this chapter."

Once again, doctors and other participants in the death are protected.  H.3884 is a doctor and heir protection bill; its focus is not the protection of patients.

H.  Proposals for Expansion

Washington State’s assisted suicide law has been in effect since 2009. There has already been a proposal to expand that law to direct euthanasia for non-terminal people.[52] There has already been the suggestion that euthanasia could be a "solution" for those unable to afford long term care.[53]  If Massachusetts enacts the proposed act, will Massachusetts be facing similar proposals in the not-so-distant future?


H.3884 is a recipe for elder abuse in which there is less protection for signing away your life than executing a will. There is no oversight at the time of administration of the lethal dose, not even a required witness.  Even if the person struggled, who would know?

Don’t make Oregon and Washington’s mistake. Keep assisted suicide out of Massachusetts. 

* * *
[1] See  and  
[2] I am an elder law/appellate attorney licensed to practice since 1986. I am a former Law Clerk to the Washington State Supreme Court. I am a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. I have testified against assisted suicide and/or euthanasia before legislative committees in Montana, New Hampshire and the Canadian Province of Quebec. I have published multiple articles on assisted suicide. For more information, see  and 
[3] H.3884 is can be viewed at  Oregon’s act, Or. Rev. Stat. §§ 127.800-995, can be viewed at  Washington’s act, Wash. Rev. Code Ann. § 70.245.010-904, can be viewed at
[4] Patients Rights Council, "Attempts to Legalize Euthanasia/Assisted Suicide in the United States," as of November 26, 2011, available here  ("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").
[5]  The defeated New Hampshire Bill, HB 304, can be viewed here:
[6] See E-mail from New Hampshire General Court Information Services to me, listing Democrats as the majority party, at
[7] H.3884, §1(13), lines 60-61, states: "‘Terminal disease’ means an incurable and irreversible disease that has been medically confirmed and will within medical judgment, produce death within six months." 
[8] 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
[9] Jeanette Hall, Letter to the Editor, "She pushed for legal right to die, and - thankfully - was rebuffed," Boston Globe, October 4, 2011, available at .  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 ttached at A-32 & A-33).
[10] H.3884, §§ 2-13, and 21. (Attached at A-5 to A-13, and at A-18 to A-20).
[11] Id., §§ 3 and 21.
[12] Id. (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).
[13] See H.3884 in its entirety. (Attached at A-1 through A-24).
[14] Id.
[15] Id.
[16] See H.3884, § 1, lines 6 to 10.
[17] Supra at Section II.C.
[18] Proposed act, §3, lines 72 to 76.
[19] H.3884, § 1(3), lines 22-25 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."
[21] See H.3884 in its entirety. 
[20] Id.
[22] H.3884, §§ 1(7), 1(11), 2(1). 
[23] H.3884 in its entirety.
[24] Proposed act, § 1(12), lines 58 to 59.
[25] H.3884 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,
[26] Id.
[27] 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."
[28] Madeline McNeilly, "Elder Abuse is a growing problem that’s underreported," The Sun Chronicle, August 14, 2011, . See also: Jaclyn Reiss, "Elder-abuse cases on the rise in Massachusetts," Metro West Daily News, February 19, 2011, at  ; and Steve Adams, "Elder abuse and neglect complaints on rise in Massachusetts," Gate House News Service, September 6, 2010, at  
[29] See MetLife Mature Market Institute, "Broken Trust: Elders, Family and Finances, A Study on Elder Abuse Prevention," March 2009, at (last visited February 27, 2012); Miriam Hernandez, "‘Black Widows’ in court for homeless murders," March 18, 2008, ABC Local, (last visited February 27, 2012) (elderly homeless men killed as part of an insurance scam); and William Dotinga, "Grim Complaint Against Kaiser Hospital," Courthouse News Service, February 6, 2012, at (last visited February 27, 2012)(daughters allegedly manipulated doctors to withdraw treatment and/or terminally sedate their father in order to get an inheritance).
[30] MetLife Mature Market Institute, "Broken Trust," supra, note 29, p. 24.

[31] Madeline McNeilly, supra at note 28. 
[32] Jaclyn Reiss, supra at note 28. 
[33] See e.g. M.G.L.A. Chapter 19A, Department of Elder Affairs, § 16, Protective services system (directing department to develop "protective services for elderly persons who are determined to be abused"). 
[34] See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008, available at ; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008, available at 
[35] Id.
[36] Susan Donaldson James, supra at note 34.
[37] KATU News, supra at note 34.
[38] See "Suicides in Oregon: Trends and Risk Factors," Oregon Department of Human Services, Public Health Division, September 2010, page 6, ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report"), available at  (quote on last page). 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 .
[39] 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").

[40] 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.")
[41] See e.g., Oregon’s report for 2010, page 2, which states that most people who died under the Oregon act were "well educated."  Page 2 also states that 60% had private health insurance as opposed to 69.1% in previous years.
[42] 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." 
[43] See, e.g., Licia Corbella, If doctors who won’t kill are ‘wicked,’ the world is sick, The Calgary Herald, January 10, 2009, at  (last visited February 27, 2012).
[44] Nancy Elliott, Letter to the Editor, Heirs will abuse older people, The Advocate, September 2010 at page 15, at  
[45] H.3884 § 18(1)(b), lines 255 to 257.
[46] See: Washington State Department of Health, "Instructions for Medical Examiners, Coroners, and Prosecuting Attorneys: Compliance with the Death with Dignity Act," Revised April 8, 2009, available at  
[47] H.3884, §15.
[48] §15(1).
[49] §15.
[50] H.3884, §15(2) states: "[T]he information collected . . . shall not be a public record to the extent it contains material or data that could be used to identify individual patients, physicians, or other health care providers."
[51] E-mail from Alicia Parkman, Mortality Analyst with the Oregon Health Authority, to Margaret Dore, available at
[52] Brian Faller, "Perhaps it's time to expand Washington's Death with Dignity Act, The Olympian, November 16, 2011, available at

[53]  Jerry Large, "Planning for old age at a premium," The Seattle Times, March 8, 2012 at  (“[a]t least a couple mentioned euthanasia as a solution”).