From: THE VERMONT BAR JOURNAL • WINTER 2011
“Elders and people with disabilities are, as a group,
at high risk for violence, abuse and exploitation.”
Vermont Center for Crime Victim Services (1)
In 2009, a legislative proposal to legalize physician-assisted suicide in Vermont was introduced, but not brought to a vote. (2) The proposal was modeled on Oregon’s assisted suicide act. (3) Oregon is one of just two states where assisted suicide is legal. In Vermont, proponents have indicated that they will be backing a similar proposal in the 2011 legislative session. (4)
The American Medical Association (AMA) defines physician-assisted suicide as follows: “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 (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide).” (5)
The AMA rejects assisted suicide. (6) Assisted suicide is also opposed by disability rights groups such as the Disability Rights Education and Defense Fund, and Not Dead Yet. (7)
Most States and Canada Do Not Allow Assisted Suicide
The vast majority of states to consider assisted suicide, have rejected it. (8) In 2010,
New Hampshire and Canada rejected it by wide margins.(9) In Vermont, legislative proposals to enact assisted suicide have failed multiple times.(10)
There are just two states where assisted suicide is legal: Oregon and Washington. These states have acts that give doctors and others immunity from criminal and civil liability. (11) In Montana, there is a court decision that gives doctors a potential defense to criminal prosecution, but does not legalize assisted suicide by giving doctors and others criminal and civil immunity. (12)
The Oregon and Washington Acts
Oregon’s act was passed via a ballot initiative and went into effect in 1997. (13) Washington’s act was passed via another initiative and went into effect in 2009. (14)Washington’s act is modeled on Oregon’s act. (15)
In both states, voters were promised that assisted suicide would assure their choice over the manner and timing of their deaths. (16) Both the Oregon and Washington acts, however, have significant gaps so that such choice is not assured. For example, neither act requires witnesses at the death. (17) Without disinterested witnesses, the opportunity is created for someone else to administer the lethal dose to the person without his consent. Even if he struggled, who would know?
Oregon and Washington are also “Don’t Ask, Don’t Tell” states. Required official
forms and reports do not ask about or report on whether the person who died consented to administration of the lethal dose. (18) Consent at the time of death is also not required by the language of the acts themselves. (19) Without the right to consent at the time of administration, the claimed control over the manner and timing of death is an illusion. Once again and contrary to marketing rhetoric, choice is not assured.
The Vermont Proposal
In 2009, the proposal to legalize assisted suicide in Vermont consisted of two identical bills: Senate Bill S.144 and House Bill H.455. (20) As in Oregon and Washington, proponents claimed that choice would be assured. (21) This choice was, however, not assured. Like Oregon and Washington, the proposal lacked witnesses at the death. (22) The proposal also failed to require consent when the lethal dose was administered. (23) Two of the proposal’s other gaps are discussed below.
The Vermont proposal stated that a person “may request medication to be self administered for the purpose of hastening his or her death.” (24) There was, however, no language stating that administration “must” be by self-administration. (25) This left the door open to someone else administering it. Without a clear right to self-administration, the person’s ability to choose the manner and timing of death was not assured. (26)
The Vermont proposal had an application process to obtain the lethal dose, which included a written request form with two required witnesses. (27) The witnesses were not allowed to be interested parties, such as a beneficiary of the patient’s will, who would benefit financially from the death. (28) The proposal did not, however, prohibit interested persons from procuring the patient’s signature. (29) An example of procurement would be: providing the lethal dose request form; recruiting the witnesses; and supervising the signing.
In the context of signing a will, a beneficiary’s procurement of the will is a “suspicious circumstance,” capable of supporting a presumption of undue influence. The Vermont Supreme Court in Estate of Raedel states: “[I]n cases of suspicious circumstances, usually ‘the beneficiary has procured the will to be made or has advised as to its provisions.’” (30)
Other 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) The Vermont proposal’s lethal dose request process, which allowed interested parties to procure the person’s signature on the lethal dose request form, did not promote choice. It invited coercion.
Not Necessarily Dying
The Vermont proposal applied to “terminal” patients, defined as having no more than six months to live. (32) Such persons are not necessarily dying. Doctor prognoses can be wrong. (33) 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 our law and I wanted my doctor to help me. Instead, he encouraged me to not give up and ultimately I decided to fight. I had both chemotherapy and radiation … It is now nearly 10 years later. If my doctor had believed in assisted suicide, I would be dead.(34)
Expanded Definitions of “Terminal”
In other states, proponents of assisted suicide have proposed expanded definitions of terminal for the purpose of assisted suicide. If these definitions would be enacted in Vermont in 2011, assisted suicide would apply to people who are clearly not dying. Consider, for example, an Oregon style bill introduced in New Hampshire in 2009 and defeated in 2010. (35) When originally introduced, it contained the following definition of “terminal condition”:
XIII. “Terminal condition” means an incurable and irreversible condition, for the end stage of which there is no known treatment which will alter its course to death, and which, in the opinion of the attending physician and consulting physician competent in that disease category, will result in premature death. (36)
Stephen Drake, of the disability rights group Not Dead Yet, explains the definition’s significance, as follows: “[T]erminality is defined as having a condition that is irreversible and will result in a premature death. My partner [a wheelchair user] would fit that definition. Many people I work with also fit the definition. None of them are dying.” (37)
In Montana, Compassion & Choices, a suicide proponent, proposed this definition
of “terminally ill adult patient”: “[An adult] who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of his or her attending physician, result in death within a relatively short time.” (38) Attorney Theresa Schrempp and doctor Richard Wonderly provide this analysis:
[The] definition is broad enough to include an 18 year old who is insulin dependent or dependent on kidney dialysis, or a young adult with stable HIV/AIDS. Each of these patients could live for decades with appropriate medical treatment. Yet, they are “terminally ill” according to the definition promoted by [Compassion & Choices].(39)
Not Personal Choice
Once a person is labeled “terminal,” the argument can be made that his or her treatment should be denied in favor of someone more deserving. (40) This has happened in Oregon, where persons labeled “terminal” have not only been denied coverage for treatment, they have been offered coverage for suicide instead. (41) The most well-known case involves Barbara Wagner,
who had lung cancer. (42) The Oregon Health Plan refused to pay for a drug to possibly prolong her life and offered to pay for her suicide instead. (43)
After Wagner’s death, Compassion & Choices’s president, Barbara Coombs Lee,
published an editorial arguing against Wagner’s choice to try and beat her cancer. (44) Coombs Lee also defended the Oregon Health Plan and argued for a public policy change to discourage people from seeking cures. (45)
The editorial, combined with Compassion & Choices’ expanded definition of terminal, provides a glimpse into that organization’s true agenda: it is not the promotion of personal choice. Indeed, the opposite would appear to be true.
A Bipartisan Vote Defeats Assisted Suicide
In January 2010, the Oregon-style New Hampshire bill discussed above was defeated in the New Hampshire House of Representatives, 242 to 113. (46) New Hampshire Representative Nancy Elliott states: “[M]any legislators who initially thought that they were for the act became uncomfortable when they studied it further. (47) At that time, the New Hampshire House of Representatives was controlled by the Democratic Party.(48) The vote to defeat assisted suicide was bipartisan. (49)
Legalization Will Create New Paths of Abuse
In Vermont, there are an estimated 3,750 cases of violence and abuse against elders each year. (50) Nationwide, elder financial abuse is a crime growing in intensity, with perpetrators often family members, but also strangers and new “best friends.” (51) Victims are even murdered for their funds. (52)
Elder abuse is often difficult to detect. This is largely due to the unwillingness of
victims to report. “Shame, dependence on the abuser, fear of retribution, and isolation from the community are significant obstacles that discourage elders from reporting … ” (53)
In Vermont, preventing abuse of vulnerable adults, including the elderly, is official
state policy. (54) If assisted suicide would be legalized via an Oregon-style act, the gaps would create new paths of abuse against the elderly, which is contrary to that policy. Moreover, some gaps cannot be filled. Representative Elliott states: “[Assisted suicide] acts 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.” (55)
People With Disabilities
In Oregon and Washington, the prescribing doctor is required to complete a reporting form after the person’s death. (56) In both states, this form includes a check the-box question listing seven “concerns” to justify the lethal dose request. (57) These concerns include: “loss of dignity,” “loss
of autonomy,” and “decreasing ability to participate in activities that made life enjoyable.” (58)
Each year, Oregon and Washington each issue a report based on the information
provided. (59) In 2010, William J. Peace wrote this response to Washington’s first report,
regarding its devaluation of people with disabilities. He stated:
I am a professional writer who has been paralyzed since I was 18 years old … I cannot walk and hence have lost some individual autonomy. In the estimation of many that can walk, my existence is not dignified. There are activities I once enjoyed that I can no longer do … But my life does have value and I am chilled to the bone by … [the report that] has the not-so-subtle implication that my life, and the lives of others like me, do not. (60)
In Vermont, adults with physical disabilities are “vulnerable adults” entitled to protection under Vermont’s Adult Protective Services Statute. (61) To enact an Oregon style law would devalue such persons and would be counter to the intent of that statute to protect people with disabilities.
The Oregon Suicide Statistics
Oregon’s suicide rate, which excludes suicide under Oregon’s assisted suicide act, is 35% higher than the national average. (63) This rate has been “increasing significantly since 2000.” (64) Just three years prior, in 1997, Oregon legalized assisted suicide. (65) There is at least a statistical correlation between these two events.
Regardless, how can Oregon or Vermont credibly tell its citizens that “suicide is not the answer” when it also tells them that suicide is “death with dignity?” In Vermont, preventing suicide is official state policy. (66) Vermont should not enact a proposal that contradicts this policy.
Legalization of assisted suicide is a recipe for elder abuse. It devalues people with disabilities. Its promise of individual choice is an illusion. Vermont has repeatedly rejected assisted suicide. Don’t make Oregon and Washington’s mistake.
Margaret K. Dore, Esq., is an elder law/appellate attorney in Washington state, where assisted suicide is legal. She has been licensed to practice law since 1986. She is a former Law Clerk to the Washington State Supreme Court for then Chief Justice Vernon Pearson. She is a former Law Clerk to the Washington State Court of Appeals to Judge John A. Petrich. She is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is admitted to practice in the United States Supreme Court, the Ninth Circuit Court of Appeals, the United States District Court of Western Washington and the State of Washington. For more information, see www.margaretdore.com .
Elder Abuse Public Education Campaign, Vermont Center for Crime Victim Services, at http://www.ccvs.state.vt.us/pub_ed/index.html (last visited Dec. 24, 2010).
The Vermont proposal consisted of two identical bills: Senate Bill S.144 and House Bill H.455, http://www.leg.state.vt.us/docs/2010/bills/Intro/S-144.pdf (last visited Dec. 24, 2010)
and http://www.leg.state.vt.us/docs/2010/bills/Intro/H-455.pdf (last visited Dec. 24, 2010).
S.144 and H.455 had the same basic structure as Oregon’s act. See Or. rev. Stat. § 127.800-
/995, http://www.oregon.gov/DHS/ph/pas.ors.shtml (last visited Dec. 24, 2010). The two Vermont bills also contained findings regarding Oregon’s assisted suicide act. See S.144 & H.455, Sec.1.
See, e.g., www.patientchoices.org (last visited Dec. 24, 2010).
A.M.A. Code of Medical Ethics, Opinion 2.211, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion2211.shtml (last visited Dec. 24, 2010).
See http://www.dredf.org/assisted_suicide/index.shtml (last visited Dec. 24, 2010) and www.notdeadyet.org (last visited Dec. 24, 2010).
Int’l Task Force on Euthanasia & Assisted Suicide, Attempts to Legalize Euthanasia/Assisted Suicide in the United States (2009), http://www.internationaltaskforce.org/pdf/200906_attempts_to_legalize_assisted_suicide.pdf
(“Between January 1994 and June 2009, there were 113 legislative proposals in 24 states. All
were either defeated, tabled for the session, or languished with no action taken.”) (last visited
Dec. 24, 2010).
On January 13, 2010, the New Hampshire House of Representatives defeated an Oregon style assisted suicide act, 242 to 113. See New Hampshire House Record, No. 9, January 13, 2010 regarding HB 304, at http://www.gencourt.state.nh.us/house/caljourns/journals/2010/houjou2010_09.html (last visited Nov. 4 2010).
On April 21, 2010, the Canadian Parliament defeated a bill that would have legalized assisted
suicide, 228 to 59. See Canadian government website at http://bit.ly/Official_Report_C-384
(last visited October 22, 2010) and How’d They
Vote: Bill C-384, at http://howdtheyvote.ca/bill.php?id=2053 (last visited Nov. 4, 2010).
Int’l Task Force, supra at note 8, Vermont’s Assisted Suicide Proposal, http://www.internationaltaskforce.org/vermont.htm (listing failed bills) (last visited Dec. 24, 2010).
See Or. Rev. Stat. § 127.800-.995; Wash. Rev. Code Ann. § 70.245.010-904 (2009).
See, e.g., Greg Jackson & Matt Bowman, Analysis of Implications of the Baxter Case on Potential Criminal Liability, for the Montana Family Foundation (April 2010), at http://www.montanafamily.org/portfolio/pdfs/Baxter_Decision_Analysis_v2.pdf (last visited Dec. 24, 2010).
Oregon’s act was passed as Ballot Measure 16 in 1994 and went into effect in 1997. See Death With Dignity Act, at http://www.oregon.gov/DHS/ph/pas/ors.shtml (last visited Dec. 24, 2010).
See Wash. Rev. Code Ann. § 70.245.903. Washington’s assisted suicide act was passed as Initiative 1000 on November 4, 2008, and went into effect on March 5, 2009. See Center for Health Statistics, Death with Dignity Act, http://www.doh.wa.gov/dwda/default.htm (last visited Dec. 24, 2010). The full text of the Act is available at http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245 (last visited Dec. 24, 2010).
Cf. Or. rev. Stat. § 127.800-.995 and Wash. Rev. Code Ann. § 70.245.010-904.
See, e.g., Margaret Dore, ‘Death with Dignity’: A Recipe for Elder Abuse and Homicide (Albeit not by Name), 11 Marq. Elder’s Advisor 387, 387 (2010), at http://www.margaretdore.com/pdf/Dore-Elder-Abuse_001.pdf (last visited Dec. 24, 2010).
Or. rev. Stat. § 127.800-.995; Wash. Rev. Code Ann. § 70.245.010-904.
Id. See also all official forms and reports for both acts, which can be viewed at http://www.oregon.gov/DHS/ph/pas/index.shtml/shtml and http://www.doh.wa.gov/dwda/ .
Both the Oregon and Washington acts require that a determination of whether a patient is acting “voluntarily” be made in conjunction with the lethal dose request, not later at the time of administration. See Wash. Rev. Code Ann. §§ 70.245.020(1), 70.245.030(1), 70.245.040(1)(a)(d), 70.245.050, 70.245.120(3)(4), 70.245.220; Or. rev. Stat. §§ 127.805 § 2.01(1), 127.810 § 2.02(1), 127.815 § 3.01(1)(a)(d), 127.820 § 3.02, 127.855 § 3.09(3), 127.855 § 3.09(4), 127.897 § 6.01.
See supra at note 2.
See, e.g., www.patientchoices.org (stating that the 2009 bills will “[a]ssure that mentally competent persons who are terminally ill have the right to choose the manner and timing of death”) (last visited Dec. 24, 2010).
See S.144 and H.455 in their entirety, supra at note 2.
S.144 and H.455’s provisions requiring that a determination be made of whether a patient is acting “voluntarily” or “free from duress or undue influence” are in conjunction with the lethal
dose request, not later at the time of administration. See S.144 and H.455 at §§ 5281(a)(1), (c);
5282(1)(C), (4); 5283; 5289(a)(4); and 5296.
S.144 and H.455 at § 5281(a)(1).
See S.144 and H.455 in their entirety.
In Washington’s act, “self-administer” is a specially defined term that allows someone else to administer the lethal dose. See Margaret K. Dore, Death with Dignity: What Do We Tell Our Clients?, Wash. St. B. Ass’n B. News, July 2009, at http://wsba.org/media/publications/barnews/jul-09+deathwithdignity.htm (last visited Dec.
See S.144 and H.455 at §§ 5281(c) & 5296.
See S.144 and H.455 in their entirety.
152 Vt. 478, 483-4, 568 A.2d 331 (1989).
595 A.2d 1153, 1163 (Pa. Super. Ct. 1991).
S.144 and H.455 at § 5280(11).
Nina Shapiro, Terminal Uncertainty, Seattle Weekly, Jan. 14, 2009, at www.seattleweekly.com/2009-01-14/news/terminal-uncertainty (Last visited August 8, 2010).
Jeanette Hall, Letter to the Editor, Second life, Missoula independent, June 17, 2010. Author confirmed accuracy with both Ms. Hall and her doctor.
New Hampshire House Record, regarding HB 304, supra at note 9 (“This bill is modeled on the Oregon death with dignity law”).
New Hampshire Bill, H.B. 304-L:2, XIII.
Stephen Drake, New Hampshire Poised to Redefine “Terminally Ill” to PWDs and Others for Assisted Suicide Eligibility, Jan. 30, 2009, http://notdeadyetnewscommentary.blogspot.com/2009/01/new-hampshire-poised-to-redefine.html . Drake’s partner is Diane Coleman, founder of the disability rights organization, Not Dead Yet, who uses a wheelchair.
Plaintiffs’ Responses to State of Montana’s First Discovery Requests, Answer No. 4, Baxter v. Montana, No 2007-787 (Mont. 1st Dist., May 16, 2008) at http://www.margaretdore.com/pdf/C&C_Defines_Terminality.pdf .
Letter from Richard Wonderly, MD, and Theresa Schrempp, Esq., to Alex Schadenberg, Executive Director of the Euthanasia Prevention Coalition, Oct. 22, 2009, http://www.euthanasiaprevention.on.ca/ConnMemo02.pdf .
Id.; Susan Donaldson James, Death Drugs Cause Uproar in Oregon 1, ABC News, Aug. 6, 2008, http://www.abcnews.go.com/Health/Story?id=5517492&page= (last visited Aug. 9, 2010); video transcript of Barbara Wagner, http://www.katu.com/news/26119539.html?video=YHI&t=a (last visited Aug. 8, 2010).
Barbara Coombs Lee, Sensationalizing a sad case cheats the public of sound debate, The Oregonian, Nov. 29, 2008, http://www.margaretdore.com/pdf/Coombs_Lee_against_Wagner.pdf
Id. She stated: “The burning health policy question is whether we inadvertently encourage patients to act against their own self interest, chase an unattainable dream of cure, and foreclose the path of acceptance that curative care has been exhausted … Such encouragement serves neither patients, families, nor the public.”
See New Hampshire House Record, regarding HB 304, supra notes 9 & 35.
Nancy Elliott, Letter to the Editor, Right to Die is Prescription for Abuse, hartfOrdCOurant, May 28, 2010, http://articles.courant.com/2010-05-28/news/hc-elliott-lettersuicide-0528-20100528_1_new-hampshire-abuseprescription (last visited Nov. 4, 2010).
See New Hampshire website, http://www.gencourt.state.nh.us/house/abouthouse/leadership.htm (“Democrat Mary Jane Wallner … serves as Majority Leader”) (last visited Nov. 4, 2010).
See e-mail message from New Hampshire General Court Staff with vote breakdown by party; a “yea” vote is a vote to defeat the bill: 242 yeas (100 Democrats; 142 Republicans); 113 nays (93 Democrats; 20 Republicans). (On file with author).
Elder Abuse Public Education Campaign, supra note 1.
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-familyfinances.pdf (last visited October 22, 2010);
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 October 2, 2010) (elderly homeless men killed as part of an insurance scam); and People v. Rutterschmidt, 98 Cal.Rptr.3rd 390 (2009), rev. granted, issues limited, 102 Cal.Rptr.3d (2009) (regarding this same case).
See MetLife, supra note 51, at 24; and People v. Stuart, 67 Cal. Rptr. 3d 129, 143 (where daughter killed her mother with a pillow, “financial considerations [are] an all too common motivation for killing someone … ”).
Elder Abuse Public Education Campaign, supra note 1.
See, e.g., Vermont Adult Protective Services Statute, “Reports of Abuse, Neglect and Exploitation of Vulnerable Adults,” 33 V.S.A. § 6902(14)(D)(defining a “[v]ulnerable adult” as a person 18 years of age or older who “is impaired due to … infirmities of aging.”
Elliott, supra note 47.
See “Oregon Death with Dignity Act Attending Physician Follow-up Form” at http://www.oregon.gov/DHS/ph/pas/docs/mdintdat.pdf (last visited Dec. 24, 2010) and Washington “Attending Physician’s After Death Reporting Form,” at http://www.doh.wa.gov/dwda/forms/AfterDeathReportingForm.pdf (last visited Dec. 24, 2010).
Oregon form, supra note 56, Question # 15; Washington form, supra note 56, Question # 7.
Washington’s Report for 2009 can be viewed at http://www.doh.wa.gov/dwda/forms/DWDA_2009.pdf (page 7 summarizes the “concerns”).
William J. Peace, Letter to the editor, sent to the Seattle Times, March 7, 2010 (copy on file with author). The letter was originally written as a blog post. See William J. Peace, Assisted Suicide in Washington: The Death Toll 36, Bad Cripple, March 6, 2010, http://badcripple.blogspot.com/2010/03/assisted-suicide-in-washingtondeath.html
Tit. 33, ch. 69. See also 33 V.S.A. § 6902(14)
(D) (defining a “[v]ulnerable adult” as a person 18 years of age or older who is “impaired due to … a physical … disability”).
See 33 V.S.A. § 6901 (“The purpose of this chapter us to: protect vulnerable adults … ”).
Oregon Health Authority, News Release, Rising suicide rate in Oregon reaches higher than national average, Sept. 9, 2010, at http://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf (Last visited October 13, 2010). An assisted suicide under Oregon’s assisted suicide law is not tallied as a “suicide.” See Or. rev. Stat. 127.880 § 3.14 (“Actions taken in accordance with ORS 127.800 to 127.897 [the Oregon Death With Dignity Act] shall not, for any purpose, constitute suicide … under the law”).
Oregon Health Authority, Rising suicide rate, supra note 63.
See 2009 Annual Report, Oregon’s Death with Dignity Act, http://www.oregon.gov/DHS/ph/pas/docs/year12.pdf, page 2 (since the law was passed in 1997) (Last visited October 14, 2010).
See, e.g., 18 V.S.A. § 7101(17)(defining a “person in need of treatment” in terms of “a person who has threatened or attempted suicide”) and 28 V.S.A. § 907(6)(G) (regarding training of edical and correctional staff in “[s]uicide potential and prevention”).